UK: A sledgehammer to crack a nut? Should there be a bar of triviality in European Arrest Warrant cases?

Introduction

There are few greater instances of the exercise of state power over the individual than that involved in extradition. The advent of the European Arrest Warrant ("EAW"), and the expedited extradition regime which it introduced, has resulted in an increase in extradition requests for relatively minor offences. This raises the question of whether extradition is an appropriate procedure in cases involving low-level offending.

In the recent case of Tomasz Zak v. Regional Court of Bydgoszcz (Poland), Maurice Kay LJ and Walker J questioned whether the issue of an EAW for an offence of receiving a stolen mobile telephone was to use a sledgehammer to crack a nut. Maurice Kay LJ remarked that:

"one is becoming used to European extradition cases for less serious offences than used to come before the courts for extradition, but in my reasonable experience of cases under the 2003 Act I have never seen one quite as low down the calendar as this".¹

On the 1^st January 2004 Part 1 of the Extradition Act 2003 ("the 2003 Act") came into force, implementing a new system of extradition between signatories to the European Council Framework Decision on the European Arrest Warrant ("the Framework Decision").² The system is designed to expedite the transfer, between judicial authorities within the European Union, of suspected and convicted persons whose extradition is requested by means of an EAW.

Between the 1^st January 2004 and the 22^nd February 2006 the United Kingdom received 5,732 European Arrest Warrants, resulting in the arrest of 175 persons and the surrender of a further 88 persons.³ The use of the EAW is ever increasing and the warrants are issued for a wide variety of offences, from terrorism and murder to far less serious offences, such as the offence in the case of Zak.

In considering whether the EAW is an appropriate vehicle for less serious offences, this article will consider the provisions of Part 1 of the 2003 Act; the aims of the European Framework Decision upon which it is based; the triviality provisions under previous legislation; and the context of wider European co-operation.

I will conclude that the use of the EAW for less serious offences does amount to using a sledgehammer to crack a nut, but that its use is necessary. There are real and compelling reasons for enforcing criminal justice across Europe. Membership of the European Union confers considerable rights, but also brings responsibilities. It is in the interests of all that those responsibilities are enforced, even in respect of less serious offences. At present the only alternative to extradition in respect of those offences would be to allow offenders to evade prosecution or sentence. Under those circumstances it will be submitted the re-introduction of the bar of triviality is not an appropriate solution to the problem, but instead that the answer lies in the mutual enforcement of financial and non-custodial penalties.

Part 1 of the Extradition Act 2003 and the European Arrest Warrant

Under Part 1 of the 2003 Act extradition is effected between designated judicial authorities within states which have signed the Framework Decision.

Recital 5 of the Framework Decision sets out the objectives to be achieved by the European Arrest Warrant as follows:

"The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice."

An EAW is a pro-forma document which must contain certain specified information including particulars of the requested person's identity, any warrants issued for their arrest in respect of the offence(s) in the EAW, a description of the circumstances in which the offence was committed and particulars of any sentence which may be imposed, or has been imposed. The EAW must state whether the requested person is accused of the offence or has been convicted of it, and that the EAW has been issued with a view to his arrest and extradition for the purpose of conducting a criminal prosecution or executing a sentence of imprisonment.⁴

Once the requesting judicial authority satisfies the court that the offences contained within the EAW are extradition offences, as defined by the 2003 Act, extradition must be ordered unless the requested person can satisfy the court that any of the statutory bars to extradition have been made out, or that his extradition would not be compatible with the rights scheduled to the Human Rights Act 1998. The statutory bars include passage of time. This bar precludes extradition where a court is satisfied that it would be unfair or oppressive to extradite the requested person because of the time which has elapsed since the commission of the offence, or since he became unlawfully at large.⁵

The bar of triviality

Extradition always involves the infringement of individual rights, albeit prescribed by law and proportionate to its legitimate aim. It goes without saying therefore that not all offences are extraditable. A requested person may be returned only for offences defined by statute as extradition offences.

Extradition for truly trivial offences is prevented by the definition of extradition offence itself which excludes non-imprisonable offences and offences which do not carry the minimum custodial penalty required. Under Part 1 of the 2003 Act one of the requirements of an extradition offence is that it is punishable with at least 12 months' imprisonment in cases in which the requested person is accused of the offence ("accusation cases"). In cases in which the requested person has been convicted of the offence ("conviction cases") a sentence of at least four months' imprisonment must have been imposed.⁶

In previous statutes on extradition the court had a discretion to discharge the requested person where it was satisfied that due to the trivial nature of the offence it would be unjust or oppressive to return him.⁷ This discretion in respect of triviality has not been reproduced in the 2003 Act.

A sledgehammer to crack a nut?

As the minimum criteria to establish an extradition offence are relatively low the EAW can be, and is, used to request extradition for offences ranging from the very serious, to less serious offences including theft of groceries worth less than £50 and theft of a pigeon.⁸ Although there are few reported cases of EAWs requesting extradition for relatively minor offences, at first instance such cases are increasingly common.⁹ The question raised in Zak is whether the use of an EAW is appropriate in a case in which the offence is an extradition offence, but is nonetheless deemed by the court to be minor or trivial.

It is submitted that the use of an EAW in a case which is ultimately disposed of by means of a fine or other non-custodial penalty is an expensive and time-consuming process by which to achieve the end-result. In that sense the EAW can be described as a sledgehammer.

Nonetheless, it is submitted that the use of the EAW is appropriate even for minor offences. To re-introduce a bar of triviality would be to allow the offender to evade the consequences of his criminal action and it is submitted that there are clear public interest reasons why this alternative is unacceptable. Effective enforcement of criminal justice is a necessary corollary of the aims of the European Union to create a single area of freedom, security and justice.¹⁰ While this system provides the citizens of member states with the right of free movement within the single area, with those rights come responsibilities. Enforcement of those responsibilities is necessary to prevent the creation of safe havens for fugitives who abuse their rights of free movement within Europe in order to evade justice. At present the only means of enforcing those responsibilities is the EAW, and therefore its use is appropriate, even in respect of less serious offences.

The issue of EAWs for minor offences is not necessarily caused by inappropriate use of the system. One reason for the issue of EAWs for less serious offences is the application in states such as Poland and the Czech Republic of the principle of compulsory prosecution.¹¹ In those states where there is evidence of a crime it must be investigated and prosecuted, if necessary by the issue of an EAW.

Furthermore, in a system based on mutual trust and the presumption of good faith, it is not for the receiving state to question the motives behind the EAW.¹² What may appear to be a trivial offence in the United Kingdom, may in fact not be trivial in the requesting state. A single offence of shoplifting, or indeed handling a mobile telephone, cannot be described as especially serious. Yet it may be aggravated by factors specific to the offender, such as his previous record and whether the offence was committed on licence or on bail, or by factors specific to the requesting state, such as whether such offences are endemic within that jurisdiction. Such information is not required to be included in the EAW and nor should it be. An investigation into the reasons for the inclusion of a particular offence in the EAW would undermine the purposes of speed and efficiency set out in the Framework Decision, and fly in the face of the mutual trust upon which the system is based.

It is also important to draw a distinction between extradition within the European Union, and extradition to the wider world. Membership of the European Union fundamentally alters traditional limits of sovereignty between member states. Underpinning this is both the acceptance of certain core principles and a common approach to areas of policy, including and indeed increasingly criminal justice.¹³ The aim of the Framework Decision to replace formal extradition procedures with a system of free movement of judicial decisions in criminal matters is consistent with this. That is not to say that the rights of the requested person are not protected. While the question of his guilt or innocence of the commission of the offence is reserved for the court in the requesting state, he may not be extradited unless the court in the requested state is satisfied that his procedural and human rights have been, and will continue to be, complied with. However, the point is that the level of mutual trust and co-operation upon which extradition within the European Union is based, distinguishes it from traditional extradition procedures and extradition to states outside of Europe.

This does not mean that the gravity of the offence is never relevant when considering whether to extradite a person. Clearly when considering whether a person's extradition would be unfair or oppressive due to the passage of time, or whether extradition would amount to a disproportionate interference with their Article 8 rights, it will be relevant for the court to consider the nature of the offence in the request. There may very well be cases in which a person's extradition for murder would not be unfair or oppressive on the facts of the case, whereas their extradition for shoplifting would be. Much will depend on the facts of the particular case.

A solution for the future

The number of EAWs received by the Serious Organised Crime Agency ("SOCA") in the fiscal year 2008/2009 is already set to eclipse the previous year.¹⁴ Many of the EAWs received for minor offences are issued in Poland pursuant to the principle of compulsory prosecution. EAWs from Poland make up a large proportion of the total EAWs processed by SOCA: approximately 37 percent of EAWs received by SOCA in the fiscal year 2007/2008 were issued in Poland.¹⁵ It is therefore likely that the use of the EAW for minor offences will increase in future putting a strain on limited resources.

It is submitted that one solution lies in the mutual enforcement by member states of one another's financial and other non-custodial penalties. A Framework Decision on the mutual recognition of financial penalties has been agreed and will be given effect in the United Kingdom when Part 6 of the Criminal Justice and Immigration Act 2008 is brought into force.¹⁶ Tentative discussions on the reciprocal enforcement of other non-custodial penalties are at an embryonic stage.

If agreement on the latter can be reached, it would allow a system to be put into place whereby a suspect, once located abroad, can be informed of the time and date of his trial. If he voluntarily absents himself, and he is convicted in his absence, any resulting non-custodial penalty could be enforced in the state in which the suspect resides.

Given the huge increase in the movement of people within the European Union there is a real need for a robust criminal justice policy which can be enforced in all member states. Nonetheless, the limited resources of the criminal justice system require that minor offences are dealt with by a more efficient mechanism than the sledgehammer of the EAW. It is submitted that the solution lies not in refusing extradition for minor offences by means of a bar of triviality, but by the mutual enforcement of non-custodial sentences.

This material was first published by Thomson Reuters Limited as: Rosie Davidson, "A sledgehammer to crack a nut? Should there be a bar of triviality in European Arrest Warrant cases?" [2009] Crim. L.R 31-36 and is reproduced by agreement with the Publishers.

Footnotes

1. These comments were made at an adjourned appeal hearing on the 31^st January 2008. The appeal was ultimately dismissed by Richards LJ and Swift J who upheld the order for extradition [2008] EWHC 470 (Admin).

2. Council Framework Decision of the 13^th June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA). The Framework Decision does not use the term "extradition" as it establishes a system of "surrender" between judicial authorities within the European Union. The United Kingdom chose not to adopt this phraseology in the Extradition Act 2003 which refers throughout to "extradition".

3. House of Lords, European Union Committee, 30^th Report of Session 2005-06, HL Paper 156, p.8.

4. Section 2 of the Extradition Act 2003.

5. Section 14 of the Extradition Act 2003.

6. Sections 64(3) and 65(3) of the Extradition Act 2003. Cases which fall within section 64(2) and 65(2) (Framework list offences) must carry a minimum punishment of three years' imprisonment, or a sentence of 12 months' imprisonment must have been imposed.

7. Section 10 of the Fugitive Offenders Act 1880; section 8(3) of the Fugitive Offenders Act 1967; sections 11(3) and 12(3) of the Extradition Act 1989.

8. Information provided by the Serious Organised Crime Agency.

9. The author spent seven months on secondment with the Crown Prosecution Service, Special Crime Division, working exclusively in extradition. The majority of her work concerned first instance EAW cases.

10. Articles 2 and 29 of the Treaty of the European Union.

11. Article 10§1 of the Polish Code of Criminal Procedure; Article 2§3 of the Czech Code of Criminal Procedure.

12. Office of the King's Prosecutor, Brussels v Cando Armas [2006] 2 AC 1; Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31.

13. Article 2.2 of the now defunct Treaty of Lisbon stated: "The [European] Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime." See also Advocaten voor de Wereld VZW v Leden van de Ministerraad (Case C-303/05) in which Advocate General Colomer made the following comments in his judgment dated 12^th September 2006:"The European arrest warrant, a measure which is vital to the creation of an area of freedom, security and justice (articles 2 EU and 29 EU), is an embodiment of judicial cooperation...It is, therefore, a decision governed by the procedural law of the issuing Member State which, in accordance with the principle of mutual recognition, is treated in the other Member States in the same way as a decision of a national court, from which it follows that legislative harmonisation is essential..."

14. In the fiscal year 2007/2008 (1^st April 2007 to the 31^st March 2008) 1274 EAWs were received by SOCA. As of the 27^th August 2008 SOCA has received 1255 EAWs in the fiscal year 2008/2009.

15. Of the 1274 EAWs received by SOCA between the 1^st April 2007 and the 31^st March 2008, 470 were issued in Poland. As of the 27^th August 2008 SOCA has received 421 EAWs issued in Poland (statistics provided by the Serious Organised Crime Agency).

16. Council Framework Decision 2005/214/JHA of 24^th February 2005 on the application of the principle of mutual recognition to financial penalties; Criminal Justice and Immigration Act 2008 sections 80 to 92.

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