The European Arrest Warrant

On 1 January 2004 a new legal system came in to force which is designed to simplify and speed up the process of extradition, commonly referred to as the European Arrest Warrant (EAW). It is envisaged that all European Convention countries will be made subject to this new structure, however, at the time of writing there are only 8 that operate the EAW: -

  1. Belgium
  2. Denmark
  3. Finland
  4. Ireland
  5. Portugal
  6. Spain
  7. Sweden
  8. United Kingdom

The EAW is designed to make the process of extradition a wholly judicial act as apposed to a combined judicial and executive one under the old system, and was introduced by The Extradition Act 2003.

Broadly speaking the EAW can be summarised as a four stage process: -

  1. Request: Issuance of either EAW (“full warrant”) or provisional arrest warrant
  2. Initial Hearing: First Hearing within 48 hours of arrest
  3. determinative Hearing
  4. Appeal

Request

A request for a warrant can be made for offences after as well as before 1 January 2004.

Full Arrest Warrant

Where someone is being sought by a requesting state for an offence, but has not been convicted of that offence(s) the full arrest warrant must take the form of the following:

  1. Is issued by a recognised judicial authority in the requesting country;
  2. Contains a statement that the person is accused in the country concerned of an offence or offences specified in the warrant and that the warrant has been issued for the person's arrest and extradition for the purpose of being prosecuted for the offence(s);
  3. Contains the following details:
    1. Particulars of the person's identity;
    2. Particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence(s);
    3. Particulars of the conduct alleged to constitute the offence(s), including the time and place of the offence(s) and the law which the conduct is alleged to have contravened;
    4. Particulars of the sentence which may be imposed.

The form of the full arrest warrant for someone who is said to have been convicted of an offence is slightly different and should take the following format:

  1. Is issued by a recognised judicial authority in the requesting country;
  2. Contains a statement that the person is alleged to be unlawfully at large following conviction by a court in the country concerned and that the warrant has been issued for the person's arrest and extradition for the purpose of being sentenced or serving a sentence of imprisonment or other form of detention;
  3. Contains the following details: -
    1. Particulars of the person's identity;
    2. Particulars of the conviction;
    3. Particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence(s);
    4. Particulars of the sentence which may be imposed if the person has not been sentenced for the offence(s);
    5. Particulars of the sentence which have been imposed if the person has been sentenced for the offence(s).

Provisional Arrest Warrant

It is also possible for an arrest to be made in urgent cases where the necessary information has not yet been transmitted to the UK but the police officer concerned has reasonable grounds to believe that a warrant has been or will be issued. In such circumstances all the information referred to above must be supplied within 48 hours of arrest, otherwise the person will be discharged.

Initial Hearing

The initial hearing takes place before a Judge at Bow Street Magistrates Court in London, as soon as possible after the person's arrest (or in provisional arrest cases, described above, within 48 hours).

The requesting country will be represented by the Crown Prosecution Service. At the initial hearing the Judge is required to decide whether the person before him or her is the person whose surrender has been sought. If the judge concludes that the person is not the right person, the person must be discharged.

The Judge must also decide whether or not to give the person bail and must advise the person about the possibility of consent to surrender.

Determinative Hearing

The main hearing must take place within 21 days of the person's arrest, although the Judge does have the discretion to extend this.

The Judge must refuse to order the person's surrender if any of the legal bars to surrender in the law apply. The main bars to returning a requested person are: -
  1. If the request has been made for the purpose of prosecuting or persecuting the person on the grounds of his or her race, religion, nationality, political opinions, gender or sexual orientation or if the person will be prejudiced at his or her trial for any of these reasons;
  2. If the length of time that has elapsed since the offence was committed or the person became unlawfully at large would make surrender unjust or oppressive;
  3. If the person would have been below the age of criminal responsibility (normally 10) if the person had committed the alleged offence in the United Kingdom;
  4. If the person would be prejudiced at his or her trial because of the lack of consular assistance;
  5. If the person had come to the United Kingdom via extradition or surrender from a country whose consent is required for further surrender and that consent is not forthcoming;
  6. In the case of a person who has been convicted in his or her absence and who did not deliberately absent him or herself, if there is no guarantee of a retrial or a review amount to a retrial;
  7. If surrender would not be compatible with the person's rights under the European Convention on Human Rights;
  8. If the person's medical or physical condition would make it unjust or oppressive to extradite him or her.

If none of the bars to surrender are found to apply, the Judge must order the person's surrender, normally within 10 days.

Appeal

Following the determinative hearing the person requested can appeal to the High Court the decision of the judge to return him or her.

Appeals must normally begin within 40 days of the person's arrest, although this can be extended. The High Court can either uphold or overturn the decision of the Magistrates Court Judge at the main hearing.

If the outcome of the process is that the person's surrender is ordered, the person has the right, with leave, to appeal to the House of Lords (except in cases in Scotland) but only if a point of law of general public interest has been raised.