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The Bruges Group spearheaded the intellectual battle to win a vote to leave the European Union and, above all, against the emergence of a centralised EU state.
The Bruges Group spearheaded the intellectual battle to win a vote to leave the European Union and, above all, against the emergence of a centralised EU state.

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Spearheading the intellectual battle against the EU. And for new thinking in international affairs.

Unpicking the European Arrest Warrant's Violation of Habeas Corpus

Habeas Corpus

On the matter of extraditions to EU member States, the new Trade and Cooperation Agreement between the UK and the EU, coming into force on 1/1/21, has added the Universal Declaration of Human Rights to the benchmarks of fundamental human rights. This opens new possibilities for contesting unjust and arbitrary arrest warrants from those States, as I explained in:

However, apparently these possibilities are not available to those targeted by European Arrest Warrants issued before 31/12/21. The previous rules are considered to be still valid. This continues to cause injustices and denials of Habeas Corpus.

In Polakowski and others v Westminster Magistrates' Court and others [2021] EWHC 53 (Admin), 5 men arrested under European Arrest Warrants were refused a writ of Habeas Corpus. The reasons given by the High Court judge Dame Sharp are reported in the New Law Journal on 27-Jan.-2021. As the first reason, she said 'the correct starting point for legal analysis was the Act of Parliament governing extradition'. 

This is what we should now examine. The trouble with the Extradition Act 2003, is that it basically denies Habeas Corpus. Investigation should precede detention. Habeas Corpus prevents persons from being detained, even provisionally, without evidence of a prima facie case. People arrested in the UK on a domestic warrant must be produced in open court within hours, or in certain cases at the very most a few days. They must have already been formally charged, by the police or by the Crown Prosecution Service. The charge must be based on evidence already collected, showing a prima facie case. Mere suspicion, based on clues, is not enough..

The basis of this safeguard lies in Magna Carta's little-noticed article 38, which provides, 'Nullus ballivus ponat de cetero aliquem ad legem, simplici loquela sua, sine testibus fidelibus ad hoc aductis' – 'No judicial officer shall initiate legal proceedings against anyone, on his own mere say-so, without reliable witnesses having been brought for that purpose'. Note the past participle 'aductis' – the reliable witnesses must have already been brought before the initiation of legal proceedings. Therefore, investigation must precede detention. 

This is to prevent people being detained on spurious accusations, which may mask other motives, possibly political. It is rightly considered a bedrock provision of our freedom from arbitrary arrest and detention. Of course for us it is also a matter of plain common sense. We see no point in arresting someone if we do not already have strong evidence against them. Otherwise we may have arrested the wrong person.

As Jonathan Fisher QC wrote in his Counsel's Opinion, commissioned in 2014 by Christopher Gill, former MP for Ludlow,

  • '…the protection afforded by the amendment to section 11 of the Extradition Act 2003 does nothing to meet the requirement enshrined in the historical writ of habeas corpus that where challenged to justify an arrest sufficiency of evidence will be considered by an independent judicial authority – domestic or foreign – within a reasonable period – days rather than weeks – after an EAW has been executed in the UK.'

EU states often arrest first, and then seek evidence. Now the European Arrest Warrant did not provide for any evidence to be available to a UK court before the person arrested is shipped off to the requesting country. Nor did the government intend post-Brexit arrangements to do so. Answering a Parliamentary Question (HL10440) from Lord Pearson of Rannoch, on December 1st last Baroness Williams of Trafford replied, "There is no intention for extradition to any EU jurisdiction after the end of transition period to be made subject to a court ruling that there is a prima facie case."

At that point HMG's intention appeared to be to maintain the EAW as it was, indefinitely. To reconcile this with Habeas Corpus, it is assumed that the foreign court will consider evidence within a 'reasonable' time. In 1999 the Tampere Conference agreed to adopt a principle whereby each EU member state would have mutual confidence in, and recognition of, the fairness and justice of each other's criminal-law systems.

It was to be an alternative to the EU's 'Corpus Juris' proposal for an embryo single uniform criminal code for the whole Union. This would have explicitly done away with our right to Trial by Jury, Habeas Corpus, and our safeguard against double jeopardy. Corpus Juris was examined by a House of Lords Committee chaired by Lord Hope of Craighead, which rejected it. The Tampere decision led to the Laeken Council meeting in 2002, where a Framework Decision was drawn up, to govern extraditions between EU member states, based on this principle.

However, there are few grounds for this 'mutual confidence and recognition'. Our system, and those used on the continent, stem from completely different, indeed opposing, traditions. Ours arises from the concepts underlying Magna Carta, aiming to limit the powers of the King (nowadays the State) over his subjects. Theirs descend from the Inquisition, as adopted and adapted by Napoleon, serving to extend and deepen the power of the authorities over the citizens. As I explained in more detail in my article on the official Magna Carta 800th celebratory website – 'Magna Carta crossed the oceans; but it never crossed the channel.'

In particular the Napoleonic-inquisitorial systems do not make a hard and fast separation between the investigation of a crime and its subsequent judgement in open court. The entire 'process' is run under close judicial supervision from the opening of the investigation to the final decision by the supreme court of cassation. Suspects may be 'considered' innocent, but can be treated as guilty. 

An investigation is usually against a suspect, who is named from the outset. Often the first step in an investigation is to arrest and imprison the suspect. For this step to be taken there must be, in the Italian system for example, 'serious and concordant clues' pointing to possible guilt, but there is no requirement for there to be a collection of hard evidence to show that there is a prima facie case to answer. Moreover there is no public hearing to determine whether the clues collected really are serious and concordant enough to warrant the imprisonment of the suspect. 

The proposal to arrest a suspect is put forward by the investigating judge (pubblico ministero) to his colleague the 'judge of the preliminary investigations'. They are both members of the same career body, the career judiciary, 'magistratura di carriera', which comprises investigators, prosecutors and judges, but excludes defenders, who are private practitioners employed by suspects and defendants, working for a fee. We can take as an example the case of Mr Colin Dines, a retired British judge (indeed, no exemptions!), an innocent victim of a 2012 EAW from Italy. His appeal to the High Court was dismissed and he was shipped to Rebibbia prison in Rome. Here is the full text of the decision:

In paragraph 36, the judge wrote:

'Article 1(1) of the Framework Decision [the EU-level decision which the Extradition Act 2003 transposed into UK law] in Italian uses the words 'ricercata ai fini dell'esercizio di un'azione penale' for the words 'for the purposes of conducting a criminal prosecution'. The Italian EAWs use the words 'ai fini dell'esercizio di un'azione penale' to describe why the arrest and surrender of the appellants is sought.'

Now the UK's Extradition Act 2003 does not allow 'prosecution extraditions' to be used for purposes of investigation; it must be only for prosecution – not 'fishing expeditions'. A 'prosecution' in English begins when the suspect has been charged and committed to trial in open court. It cannot begin before the investigation has concluded. In the Italian version, however, the words 'ricercata ai fini dell'esercizio di un'azione penale' mean that the requested person is 'wanted for the purposes of conducting a criminal prosecution' (the judge omitted considering the word 'ricercata'); now this state of being 'wanted', begins when the investigating judge opens a dossier, in which he names a suspect; investigations are always against a suspect, who is called 'indagato' - meaning 'a person under investigation'. When they have no clue as to a possible suspect, the investigation is 'against persons unknown' ('contro ignoti'). The name of this person is written in a special 'Register of crimes notified'.

We would call this person a suspect. The person has not yet been formally charged, nor has the prosecution stage been reached. Nevertheless, under Italian law, according to the gravity of the office, the 'person who is under investigation' ('indagato') on the basis of mere 'clues' ('indizi', he is also called 'indiziato') will often stay in prison for the duration of the investigation, which can normally last for up to six months (extensible), during which time the prisoner has no right to a public hearing. This violates Habeas Corpus. For the ECHR 5 years in prison with no public hearing can be 'reasonable'.

An application against Italy by an Italian prisoner, who had been thus 'provisionally' imprisoned with no public hearing for 4 years and 11 months, Law Professor (!) Luciano Ferrari Bravo, was dismissed by the ECtHR (AppNr 9627/81) as no violation of the ECHR, since preventive 'detention… aims to facilitate the preliminary investigation'. For the record, at the end of his trials and tribulations he was acquitted on all counts. The ECHR does not protect Habeas Corpus as we would recognise it.

In the case of Colin Dines and others, Lord Justice Hooper said, "In my view, if it was intended that some formal charging step should have been taken to initiate a prosecution before an EAW became effective, then that would have been made clear in the Framework Decision. It has not been. Italy, and probably other countries, delay the formal charge until a stage later than, for example, we do in this country. It would be surprising if the effect of article 1.1 of the Framework Decision was to prevent Italy and countries with a similar procedure to the Italian procedure, from using EAWs without some modification of their normal procedure."

By refusing to accept that Italy and other EU countries ought to modify their procedures, his Lordship forced a British subject to submit to their alien procedures which violate our fundamental constitutional rights.

The EAW as it stands is repugnant to the British Constitution and needs reforming

Ah, but, it is argued, the Extradition Act 2003 was lawfully passed by Parliament and so must be applied. If any of its provisions chance to conflict with earlier provisions, then the later provisions prevail over the earlier, by implied repeal, for: 'No Parliament can bind its successors'.

Well, indeed. Yet we must look to the precedent set by Laws and Crane LJ. They held that a Constitutional Act can be subjected to repeal by a subsequent Act in conflict with its provisions, but only if the later Act expressly repeals the earlier Constitutional provisions. The Constitution cannot be altered by implied repeal. This argument is put in my comment on the case of Clara Ponsati:

The Constitutional Rights of Colin Dines and others which were thus violated were those enshrined in the indubitably constitutional Habeas Corpus, and Magna Carta article 38. The Extradition Act 2003 should have expressly repealed both, if this was the intention It failed to do so. The EAW in this case was repugnant to both and so should have been disapplied. For the record, after extradition and an unspecifiedly lengthy wait in a Roman jail, Mr Dines was acquitted on all counts.

Today there is a case that is live. Alexander Adamescu, a UK resident, is under an EAW order, confirmed by the High Court, to be extradited to Romania. His father owned an opposition newspaper in Romania, was arrested there, imprisoned, fell ill in prison, was refused appropriate medical treatment, and so died. Alexander fears for his life if he is extradited.

To align the EAW with our human, constitutional, rights under Magna Carta and Habeas Corpus, extraditions must be made subject to a UK court ruling that there is a prima facie case to answer. 

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