The Long Arm of the Law No More

By Susil Gupta

The recent appeal case of Mr Thomas O’Connor highlights some of the pitfalls of the British strategy – one has to call it something – of having its cake and eating it in its future relations with the European Union. The case concerns the European Arrest Warrant (EAW) regime and nicely illustrates how law binds European nations together and why British cherry-picking isn’t possible.

Since its introduction in 2002, EAWs have has made a major contribution to law enforcement. Under the scheme, about 5000 people are extradited every year in relation to often serious charges.

Much confusion about the European Arrest Warrant regime arises from the fact that it is often considered an extradition procedure when it is actually designed not to be an extradition procedure.

In international law an extradition procedure is a request from one sovereign State to another sovereign State, both having different jurisdictions. Such a request normally has two stages. A judicial stage where a court considers the legal merit of the received request. If all is in order, and the court approves the request, it is passed on to the executive for final approval. This is always a cumbersome and expensive procedure and may result in frustrating the aims of justice in a requesting country as trials can be held up for years and witnesses and evidence go astray.

The EAW scheme is designed to do away with all this. Courts have only limited powers to review a request, and there is no executive phase. The key element of the scheme is the concept of a ‘common jurisdiction’, that is, all courts within the scheme have sufficiently similar legal regimes to allow the EU to create, by law, a common jurisdiction. The request to ‘extradite’ is simply a request from one court to another.

As is obvious, an assumed ‘common jurisdiction’ can only operate within European Law and has the European Court of Justice (Luxembourg) as its appellate court. A state that leaves the jurisdiction of the European Court, leaves the ‘common jurisdiction’ that is the basis of the EAW scheme.

The facts of the case

Thomas O’Connor, 51, a building company director, was convicted of tax fraud in 2007 in the UK. While on bail, he absconded to Ireland. The UK courts issued an EAW and O’Connor was duly arrested by the Irish police. At first instance, a Dublin court granted the EAW request. O’Connor appealed against the court order and eventually his case came before Ireland’s Supreme Court. The Supreme Court allowed the appeal, arguing that, were the extradition granted, O’Connor would still be serving his sentence while the UK would have withdrawn from the jurisdiction of the European Court of Justice, in effect delivering O’Connor to a country outside the EAW jurisdiction and possibly robbing him of recourse to the European Court.

The Irish Court also referred the case to Luxemburg since the issues raised have wider implications and it will have the final say on the mater. However, given the clear-cut nature of the main issue, it is likely that other EU nations will follow the reasoning of the Irish court.

Whitehall cock-up

Britain is very keen to retain the EAW regime and declared its intention to stay with the scheme within weeks of the Brexit referendum in 2016.

Many of its criminals have a tendency to flee its jurisdiction, often for sunnier climes on the south coast of Spain. It is also a cheap and efficient way to get rid of criminal foreign nationals. Brexiters tend also to be hard on crime so no political price to be paid for “remaining in Europe” on this issue.

Didn’t anyone in government realise that withdrawing from European law and its judicial structures might pose a serious problem and strike at the legal foundations of European cross-border law enforcement? Apparently not, amazing as it may seem for a country that prides itself on the rule of law and judicial oversight!

In March last year, Home Secretary Amber Rudd told Parliament that she ruled out any possibility of Britain leaving the EAW mechanism describing it as “an effective tool and that is absolutely essential to delivering effective judgment to the murderers, rapists and paedophiles.” But Lord Paddick, once a high-ranking officer in the Metropolitan Police, was quick to point out the obvious “The Government has to explain how this can be done without European Court of Justice oversight and common data standards.”

As late as September 2017 the UK issued a policy paper – Security, law enforcement and criminal justice: a future partnership paper – that made a strong commitment to remaining within the structures of European law enforcement including, Europol’s 2017 Serious and Organised Crime Threat Assessment, Passenger Name Records (PNR) data collection, the Schengen Information System Alert system, Europol´s Internet Referral Unit (IRU), Serious and Organised Crime Threat Assessment, the Joint Cybercrime Action Taskforce, Prüm (a system for rapid law enforcement information exchange on fingerprints, DNA and Vehicle Registration Data), Eurodac (a mechanism for sharing fingerprint data for asylum and law enforcement purposes), etc. The 20-page paper firmly asserts that law enforcement after Brexit it will be “business as usual” – but fails to consider any legal issue. Within two months of the paper’s publication, the Irish Times was reporting that EAW cases at the Irish Courts might face problems.

As a consequence, the Irish Court’s ruling has serious implications for crime in the UK. The internet and cross-border economic activities allow criminals to commit offences in the UK from the safety of a number of European countries beyond the reach of the British police. Likewise, any British criminal who does not fancy facing serving a hefty sentence is now only a plane or train ticket away from freedom. Why should any European police force spend valuable resources monitoring and tracking British criminals abroad if they cannot be extradited? Many other law enforcement facilities and activities are likely to be affected because all of them are subject to the legal oversight of European law and its judicial institutions.

So, soon it will no longer be true that Scotland Yard always gets its man.

4 February 2018