The European arrest warrant has proved a useful instrument in the fight against suspected terrorists. But Roger Smith fears that defence rights are being overlooked

The recent summit of European prime ministers confirmed that the EU constitution is going nowhere fast.


Home ministers are working on a parallel binning of proposals that the union might uphold the rights of suspects. As a result, the original intention of a balanced expansion of judicial co-operation and mutual recognition in criminal cases has fallen. We now have a one-legged race in which the defence is forgotten. This suits the domestic rhetoric of both major parties in the UK. It is also pretty short-sighted for a country with relatively good legal aid and defence provisions whose citizens will increasingly be sent to countries that fail to meet their fair trial commitments under the European convention.


The original idea of a programme of judicial co-operation in criminal matters was conceived at the Council of Ministers that met in October 1999 at Tampere in Finland. This proclaimed a single goal with a double vision – ‘mutual recognition of judicial decisions and judgments and the necessary approximation of legislation’ were to be sought through ‘co-operation between authorities’ and ‘judicial protection of individual rights’. This two-track approach was repeated in the Hague programme that continued the Tampere process in 2005.


Tampere’s first born, the Framework Decision on the European Arrest Warrant, has proved itself rather a good thing. It has cut the average time for a surrender between countries to about six weeks throughout the EU. There have been some problems – particularly with countries such as Poland and Germany that, unlike the UK, have had constitutional prohibitions on surrendering their own citizens. But, overall, it has worked well. The warrant was responsible for the return in record time to the UK from Italy of Hussain Osman, charged with offences relating to attempted London bombings, in September last year.


The warrant was raced through immediately after the 11 September 2001 terrorist attacks in the US. However, the intention was largely to deal with defence rights at a later date. The UK implemented the warrant through the Extradition Act 2003 and, to its credit, incorporated a specific requirement on judges to consider the Human Rights Act 1998. Possible human rights issues will include the likelihood of a fair trial (as in the case of Rashid Ramda, in which the Court of Appeal was unpersuaded that the French had not tortured a witness) or delay in prosecution.


Enemies of a framework decision for suspects raise three objections. First, there is insufficient legal basis for it under the Treaty of the European Union because it covers all cases, not just those relating to cross-border crime.


Second, there will be confusion over the relationship of cases decided by the European Court of Human Rights and the European Court of Justice.


Third, the EU proposal will detract from the European Convention.


None of these stands up. The appropriate article of the existing treaty was uncontroversially used as the basis of a framework decision on victims of criminal proceedings in 2001 and, indeed, this went unchallenged by court and advocate-general in subsequent litigation. The provision gives the EU competence to adopt measures ‘ensuring compatibility in rules applicable in the member states, as may be necessary to improve such co-operation’. The family of mutual recognition framework decisions and provisions relating to judicial co-operation is intended to expand. Increasingly, it would become unworkable to limit a framework decision to specific cross-border measures.


As a matter of policy, the involvement of the EU as a guarantor of convention rights is surely justified. The Strasbourg court is in danger of being strangled by a caseload that has escalated from 404 a year in 1981 to 4,750 in 1997, and expanded to 44,100 in 2004. The Council of Europe itself has called on signatory states ‘to ensure that domestic remedies are effective in law and in practice’ as one measure to get control over the numbers. There should be no confusion if the two courts pay heed to each other’s jurisprudence.


Furthermore, there is a precedent indicating the value of EU engagement. The 10 countries that acceded to the EU in 2004 were monitored against ‘Copenhagen criteria’, which included access to justice. As a result, most accession states implemented legal aid schemes that are more or less adequate but all of which are an advance on the previous position.


The real issue is not sovereignty but money. Few countries in Europe actually have legal aid schemes that meet the requirements of the European convention. Ironically, the UK is one. We can anticipate that the working of the European arrest warrant will be impugned just as have the equivalent arrangements with the US that repeat its conditions – the inability to get a fair trial in the US. Thus, there will be a backlash against a perfectly sensible measure to speed up the transfer of defendants simply because governments were too spineless to stand up for human rights. No doubt, they will blame the EU.


Roger Smith is is director of the law reform and human rights organisation Justice