The EU Justice and Home Affairs Council may be an obscure forum but its deliberations have profound implications for policy, says Julia Bateman


To outside observers, the European Justice and Home Affairs Council, which met last week, means little. In Brussels-speak, however, this gathering of justice and interior ministers from the 27 member states has huge implications for policy direction and legislation, impacting on national security, criminal law and individual rights.



The outcome of this and similar council meetings is closely watched by media observers and policy wonks alike, not least because the Slovenians, currently holding the rotating presidency of the EU, seemingly have a lot to prove as the first 'new' member state in the hot-seat. The UK had sent in the heavyweights: Attorney General Baroness Scotland and Elish Angiolini QC, Lord Advocate for Scotland. The message was clear that, though dubbed the euro-sceptic member state, the UK takes the issues of justice and home affairs seriously.



One of the key agenda items was a proposal to revise the European Arrest Warrant (EAW) and a number of other related instruments. The object was to improve on the current situation, where someone can be tried in their absence and then duly arrested and surrendered under the fast-track extradition system that is the EAW. Since its inception in 2004, the EAW has been touted as a great success in dealing with cross-border crime, putting an end to 'European' fugitives and those who abscond over borders. However, one of the emerging issues in relation to the application of the EAW is the question of fundamental rights and procedural guarantees in cases of trials in absentia - or rather the lack thereof.



To close this gap the Slovenian presidency, supported by a number of other countries, including the UK, France and Germany, brought forward a legislative proposal dealing with in absentia judgments. Launched at the outset of Slovenia's presidency, this initiative looks to develop a Europe-wide definition of an in absentia trial, and sets up a system whereby a judge could refuse to recognise and enforce a judgment received from another member state which was handed down without the person being present. So far so good, because the proposal is designed to bolster individual rights and establish better protections in cross-border cases. Yet it does not quite meet this lofty goal, because a number of issues, such as when a trial becomes an in absentia trial - after day one, day three, even day 33? - are not addressed. These were some of the questions picked up in the Attorney General's inquiry on this issue that was launched last month. The Law Society's EU Working Group responded to the consultation.



The Slovenians are forging ahead in terms of getting agreement on this proposal, and are expecting to get sign-off at the next council in June. This is an impressive feat - to go from presentation to adoption in six months is practically unheard of, save for the EAW itself.



Although dealing with cross-border cases and not touching on domestic law, this proposal does seem timely given the perceived increase of in absentia trials across the board. Anecdotal evidence suggests that in the current UK climate of being 'tough on crime', the pressure is on to proceed without the defendant, thus putting the solicitor in an ethical quandary.



As for the impact of this proposal in the UK, discussions to date have suggested that few significant changes may take place in terms of requests into the UK for arrest and surrender under the Extradition Act. The act already has robust provisions in relation to in absentia trials and questions of retrial or review. However, changes may become apparent where the UK is using the EAW to request that an individual be surrendered to the UK.



The provisions in the new proposal mean that a judge dealing with the arrest warrant must issue a certificate stating whether the judgment was issued in absentia or not. If it was, he will then have to go on to clarify whether the defendant had received notice, did not contest the conviction, and will have the right to a retrial or to request a retrial within a certain time period. On the face of it this seems like an improvement, but there are concerns this will be a 'tick-box' exercise, in that the judge will have limited room for manoeuvre to examine whether the individual's article 6 rights have been adequately met as the certificate states.



One of the other key items on the table - and no doubt the reason that minister of state for security, counter-terrorism, crime and policing Tony McNulty headed to Luxembourg - was a proposal to expand on the EU provisions on combating terrorism. Amendments are being proposed to the Framework Decision, adopted alongside the EAW in 2003, which sets down standard definitions of offences and minimum tariffs for maximum sentences. The council last week discussed expanding the provisions and adding three new crimes - or, more specifically, areas of criminal activity: public provocation to commit terrorist offences, recruitment for terrorism and training for terrorism. However, key principles such as freedom of expression and the question of proportionality have raised their head in the debate, and the Slovenians had a hard time brokering a compromise.



Julia Bateman is head of the Law Societies' Joint Brussels Office