UK: Challenging the European Arrest Warrant

Introduction

1. The Framework Decision on the European Arrest Warrant initiated a radical change to extradition proceedings within the EU, accelerating the process considerably and removing a number of bars to extradition, most notably the bar of dual criminality for 32 specified categories of offences.¹ As a result, the number of extradition requests made to the UK has expanded enormously: according to the Serious Organised Crime Agency and the Crown Office and Procurator Fiscal Service, surrenders under the European Arrest Warrant rose from 24 in 2004 to 332 in 2007 and 515 in 2008.² Earlier this year, it was reported that the Polish authorities request so many individuals from the UK that they charter a flight every fortnight from Biggin Hill airport to return them.³
2. For this reason, the remaining grounds for challenging the warrant are of considerable significance. Although many attempts have been made to challenge the warrant on procedural grounds, these are beyond the scope of this paper, which instead focuses solely on substantive means of challenging the warrant. After a brief overview of the extradition procedure for the European Arrest Warrant in the UK, it focuses on three grounds for challenging the warrant, namely the passage of time, Article 8 of the European Convention on Human Rights ('ECHR'), and triviality.

I   The European Arrest Warrant in the UK

3. The Framework Decision was implemented in the UK by the Extradition Act 2003 ('EA 2003'). This draws a distinction between category 1 territories, which are the Member States of the EU, and category 2 territories, which are any other territories in the world with which the UK has extradition arrangements. Category 1 territories are dealt with by Part I EA 2003.
4. The fundamental principle of the European Arrest Warrant is that Member States should trust one another's criminal justice systems to the extent that judicial decisions made in one Member State should be recognised by the judicial authorities of other Member States. Broadly speaking, an arrest warrant issued in one Member State should, therefore, be equally valid as a domestic arrest warrant in another Member State. For this reason, Part I EA 2003 limits the discretion of the court and central authority.

Procedure

5. There are three main stages to the process of extradition from the UK to other territories: arrest, extradition hearing and appeal.
6. An initial hearing is held before the District Judge. This will be used to ascertain the identity of the arrested person and whether he/she consents to extradition, together with certain procedural matters such as bail and the setting of the date for the substantive hearing. At the substantive hearing, the court will examine compliance with EA 2003 and consider objections before making a decision as to whether to order their extradition or to discharge him/her.
7. Where the person has been convicted in the requesting state, several additional issues will require judicial determination.
8. It is possible for the decision to be appealed to the High Court and, with permission and provided that there is deemed to be a point of law of general public importance at stake, the Supreme Court. An appeal can be made both by the person subject to an extradition order and by the requesting state.

Bars to extradition

9. At the hearing, the court must decide certain questions and consider certain factors which can act as a bar to extradition. These include:
10. 1. Whether the alleged offence is an 'extradition offence' (section 10(2)). Under Part I, an extradition offence is one where the alleged conduct has occurred in a category 1 territory; and the alleged conduct constitutes one of the 32 offences specified by the EU Framework Decision; and the alleged conduct is punishable by at least three years' imprisonment in the requesting state.⁴ An extradition offence also includes offences which, although not on the list of offences, passes the test of 'dual criminality', that is, conduct which is a criminal offence in both countries, and which is punishably by up to 12 months' imprisonment in the category 1 territory.⁵
    2. The rule against double jeopardy which prevents the extradition of someone who has already been convicted or acquitted of the same offence or an offence substantially relating to the same facts (section 12).
    3. Whether the arrested person might be prosecuted or prejudiced at trial by virtue of their race, religion, nationality, gender, sexual orientation or political opinions (section 13).
    4. Whether extradition would be unjust or oppressive because of the passage of time (section 14).
    5. Whether the person is below the age of criminal responsibility in the UK (section 15).⁶
    6. Hostage-taking considerations (section 16).
    7. The consideration of speciality (section 17). Although there are a number of exceptions, the principle states that a person who has been extradited cannot then be prosecuted in the requesting state for offences other than those stated in the warrant or other extradition offences disclosed by the same facts. This is a protection lost by anyone who consents to extradition.
    8. Earlier extradition to the UK from another category 1 territory (section 18);
    9. Earlier extradition to the UK from a non-category 1 territory (section 19).
    10. Whether the physical or mental condition of the arrested person is such that it would be unjust or oppressive to order extradition (section 25).

10. Finally, however, section 21 requires the District Judge at the extradition hearing to decide whether the person's extradition would be compatible with their rights under ECHR, within the meaning of the Human Rights Act 1998, and, if it would not be, to order the person's discharge.

II   Passage of time

11. As stated above, section 14 EA 2003 allows an extradition request to be refused if it would be unjust or oppressive not to do so because of the passage of time. The leading authority is the joined cases of Gomes v Trinidad and Tobago and Goodyer v Trinidad and Tobago.⁷ This judgment approved Lord Diplock's approach in Kakis v Cyprus, which made clear that there are two limbs to the bar: the passage of time may render extradition unjust or oppressive. This distinction between the two limbs has not always been made so clear in the subsequent case law.⁸ 'Unjust', for Lord Diplock, means 'directed primarily to the risk of prejudice to the accused in the conduct of the trial itself'⁹ The evidence used to raise this limb may also support an argument that there would be a violation of Article 6 ECHR if extradition took place, although a different test will apply.¹⁰ 'Oppressive', conversely, refers to 'hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration'. The evidence used to raise this bar may also support an argument that there would be a violation of Article 8 ECHR if extradition took place, but a different test applies which is discussed later.
12. Lord Diplock further stated in Kakis that a delay caused by the accused fleeing the country could not be unjust, and that for delays not brought about by his actions, the issue was 'the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude'.¹¹ After some uncertainty, Gomes clarified that any delay in the commencement of extradition proceedings which was brought about by the accused fleeing the country or evading arrest could not be relied upon as a ground for holding it to be either unjust or oppressive to return him. Only a deliberate decision communicated to the accused by the requesting state not to pursue him, or some other circumstance instilling a similar sense of security, could properly allow an accused to assert that the effects of further delay were not 'of his own choice and making' within the meaning of Lord Diplock's speech in Kakis. The concept of injustice requires one to ascertain whether a fair trial is possible. Showing that a fair trial is not possible cannot be easily satisfied even in relation to countries where extradition arrangements were more 'ad hoc'. The presumption should be that justice would be done despite the passage of time and that the burden should be on the accused to establish the contrary. The court will also consider what protections are available in the requesting state to prevent injustice.
13. The threshold for 'oppressive' under section 14 would appear to be higher than that for Article 8. In Szubryt v Poland, the appellant's counsel conceded that the threshold for an appeal on the grounds of oppression under section 14 is higher than that for Article 8, and that therefore if the appeal did not meet the Article 8 threshold, it would also fail the section 14 threshold, which it duly did.¹² In Kakis, Lord Diplock cited as circumstances which would make the extradition oppressive the fact that Mr Kakis had uprooted his family and moved to England with the help of the Cyprus Government, who had given him reason to believe that they had no intention to prosecute the alleged offence, and that his family had now been settled in England for three and a quarter years before he learned of the request made for his extradition.
14. In Wiejak v Poland, the appellant had entered the United Kingdom in 1999, shortly after having been accused of burglary and theft of a car in Poland.¹³ At his appeal, he submitted that nine years had elapsed since the burglary and eight since the theft, and that allowing the extradition would therefore be oppressive. An arrest warrant had been issued in December 2006. The appeal was dismissed, Nelson J stating that although these were 'old offences', the appellant 'did leave the jurisdiction knowing fully of the events which resulted in the proceedings' and that his knowledge that proceedings might be brought against him was rightfully considered by the District Judge. It was noted that no unusual circumstances which would meet the threshold for oppression.¹⁴
15. In Crean v Ireland, a delay of some 25 years was not sufficient to have resulted in circumstances providing a bar against extradition.¹⁵ Here, a warrant had been issued in relation to charges of indecent assault against a child when she was aged between 11 and 15. By the time of the extradition hearing, between 18 and 22 years had elapsed before the victim had made her complaint, and a further three years five months before the Irish authorities had made the decision to prosecute.
16. A number of issues were raised in this case, including a procedural matter concerning whether the offences were sufficiently particularised in the warrant. Passage of time under section 14 was, however, also pleaded. Applying Kakis, it was held that the appropriate approach was to decide whether it was unjust or oppressive for the appellant to return to face trial, rather than whether the trial itself was unfair. The focus should be on hardship to the appellant arising from their change of circumstances. The court noted that Irish law had certain safeguards in place for elderly people accused of offences, and furthermore that the delay in investigation and deciding whether to prosecute was not inexcusable.
17. In Symeou v Greece, an attempt to appeal under section 14 similarly failed.¹⁶ Here, the requested person was accused of committing manslaughter in July 2007, and the date of arrest was June 2008. This case once again cited Kakis in noting that the focus should be on the effect of event which would not have occurred if the trial had taken place 'with ordinary promptitude'.¹⁷ Furthermore, it cited Croatia v Spanovic in noting that the focus should be on the effect of the passage of time rather than whether the requesting state was culpably responsible.¹⁸
18. A delay of six years between commission of the offence and the issue of the warrant was not considered to have resulted in circumstances considered to make extradition oppressive in Finch v France.¹⁹ In this case, Finch was involved in the murder of a woman in Calais, for which he was serving a prison sentence in the UK. It was held that it although France was culpable for a delay of six years, this delay was not unjust or oppressive as Finch had been in custody in the UK and therefore could not have been extradited for a large part of that time. Finch had been in custody for approximately four years and nine months out of the total delay of six years, and although 'a sense of security built up in his mind', the case for oppression was 'nevertheless [...] not made out'. Finch's cooperation with the authorities was also not sufficient to make the extradition oppressive.
19. Section 14 did not provide a bar in Borovkov v Estonia, either, where a series of sexual offences were committed in 1999 but the warrant was not issued until 2008.²⁰ Critically, Borovkov could not rely on the fact that he had built up a relationship between his partner and son, because this arose when he 'would (or at least should) have realised that his presence in the UK was precarious and when the delay was attributable to him'. It was noted that he had originally left Estonia two days before the date fixed for his trial and that he and his mother, who left with him, departed at short notice and without any clear plans, and had therefore left Estonia to avoid trial. Borovkov and his partner only became partners after he arrived in Estonia, although they had known one another, and therefore the delay was not considered unjust or oppressive.
20. A delay of nine years in a matter of armed robbery in Sciezka v Poland also failed to raise sufficient factors to constitute oppression.²¹ Openshaw J noted here that it is 'not sufficient to fall back on a general assertion that prejudice can be presumed after a delay of nine years' and that, here, 'no prejudice, certainly no prejudice amounting to injustice or oppression, is apparent, nor can it be presumed'.²² The court therefore upheld the extradition request, and the trial judge's view that although the defendant had a girlfriend and two brothers in the UK, the disruption and inconvenience of returning to Poland would not be oppressive.
21. A delay of four years in Balog v Judicial Authority of the Slovak Republic did not constitute unjust or oppressive delay.²³ There were no 'substantial periods of inactivity' on the part of the requesting state and there was also no reason to believe that the appellant was given a 'false sense of security'. Although there was some 'muddle' in the process, this did not amount to anything which should have been a cause for concern.
22. One rare recent instance of an appeal under section 14 succeeding was in Wenting v High Court of Valenciennes.²⁴ Here, a delay of twenty years was compounded by an array of failings on the part of the French authorities, as well as a number of other unusual circumstances. The appellant was arrested in March 1989 in France on charges of drug trafficking. Having admitted the offences, he remained in custody for over two years while awaiting trial before being released on bail in 1991. He then moved back to live with his mother in Holland, complying with his conditions of bail and remaining in contact with the French authorities. Nevertheless, the French authorities issued an international arrest warrant in 1991. Although he apparently was not told about this, a trial took place in 1992 at which he was convicted in his absence to five years' imprisonment. In 2006, the French authorities issued a European Arrest Warrant.
23. Lloyd Jones J considered that allowing the extradition would be oppressive, under the second limb of Lord Diplock's test, thereby focusing on the personal circumstances of the individual. In particular, he cited the following as factors:
    1. The appellant had been in custody for two years despite admitting the offences.
    2. He did not deliberately flee the jurisdiction.
    3. He was not notified of his trial which occurred in his absence.
    4. He was not informed that he must return to serve his sentence.
    5. The Dutch probation service and his Dutch lawyer advised him that he should wait to be summoned by the French authorities.
    6. He was never made aware of the warrant for his arrest.
    7. Over twenty years had elapsed since the commission of the offences.
    8. He had subsequently lived a 'blameless, law-abiding and useful life'.
    9. His partner was diagnosed with lung cancer in 2008 and had no close family or support in Holland.
    10. He had built up two successful businesses which his partner could not maintain because of her condition.
24. Some similar facts arose in Dare v Principal Court of Santa Cruz de Tenerife,²⁵ although Wenting was ultimately distinguished. The appellant was arrested in Spain in 1993 for offences committed between 1991 and 1993. On bail, he travelled to the UK where he was charged and sentenced to 18 months' imprisonment, during which time he informed the Spanish authorities that he was imprisoned and therefore unable to comply with the terms of his bail. However, on release from prison in the UK in 1996, he did not inform Spain, who in turn attempted to secure his return.
25. The court did not consider the comparison with Wenting persuasive. Although neither person deliberately fled the jurisdiction, the court considered the fact that the appellant in this case was on bail to be of a different order from Wenting. Here, arguments turned more on the question of injustice rather than oppression, citing a number of procedural concerns about trial in Spain. Although the court did not decide on the question of how the Spanish authorities would treat the sentence imposed in the UK, it rejected the appeal on the grounds that there was no possibility of Spain giving him a fair trial, since Spain is a signatory to the ECHR.
26. In Lynch v High Court in Dublin, the appellant had been arrested in 2003 for sexual offences against a child between 1989 and 1998, but this was insufficient to allow an appeal under section 14.²⁶ Several warrants had been issued in 2008 and 2009, by which time the appellant's mental health had deteriorated seriously in comparison with 2002, when the victim made her complaint. The appellant suffered from severe depression and alcohol dependency. However, although his mental and physical state was 'poor', Aikens LJ held that it was not 'so poor that it is inevitable that he will be unfit to plead or unfit to conduct a trial properly' and that the Irish court would not inevitably come to the same conclusion. It was also noted that Ireland has appropriate procedural safeguards to protect someone in such a position.
27. Nor was it considered oppressive in Secchi v Ireland to extradite a person who knew that he had been sentenced for serious fraud and extortion offences, despite the passage of eight years since his conviction and despite the fact that he had neither fled nor concealed his whereabouts from the authorities.²⁷ Although the delay was 'inexcusable', there was no evidence of hardship in extraditing the appellant, who was described by the court as a 'career criminal', despite his children finishing university and his elderly mother living in the UK.
28. Most recently of all, a Roma individual was unable to resist a European Arrest Warrant despite the alleged offence being committed in 1998. Again, it was noted that anyone who is extradited for an offence committed in the past will face hardship, but no evidence that it would be oppressive was offered here.²⁸

III   Challenges based on Article 8

29. Since EA 2003 came into force at the beginning of 2004, numerous attempts have been made to resist extradition proceedings with reference to the Human Rights Act 1998 ('HRA 1998'). This section focuses on one approach in particular, namely the use of Article 8 ECHR to resist extradition on the grounds of proportionality. Although this approach has attempted to resuscitate the bar of triviality, it has so far has been unsuccessful. It is therefore worth questioning whether HRA 1998 provides the level of protection which the Government claimed it would.
30. Article 8 ECHR allows for interference where it is proportionate to the legitimate aim of an extradition. It was held in Launder that extradition will only be disproportionate under Article 8 in 'exceptional circumstances'.²⁹ In Ruiz Jaso v Spain,³⁰ Dyson LJ stated that:

31. What is required is that the court should decide whether the interference with a person's right to respect for his private or (as the case may be) family life which would result from his or her extradition is proportionate to the legitimate aim of honouring extradition treaties with other states. It is clear that great weight should be accorded to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extradite's article 8 rights.³¹

32. Most recently, the Supreme Court addressed this issue further in Norris, where Lord Philips pointed out that:

    Instead of saying that interference with Article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of interference with Article 8 rights must be exceptionally serious before this can outweigh the importance of extradition.³²

33. It was further accepted in Norris that the court should not just consider the defendant's rights under Article 8. Citing Strasbourg jurisprudence which suggested that the family unit must be considered as a whole and that each member of the family might be considered a victim, Lord Phillips noted that:

    When considering the impact of extradition on family life, this question does not fall to be considered simply from the viewpoint of the extraditee. [...] Indeed, in trying to envisage a situation in which interference with article 8 might prevent extradition, I have concluded that the effect of extradition on innocent members of the extraditee's family might well be a particularly cogent consideration. If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee under section 87 of the 2003 Act.³³

34. In Jansons v Latvia, an appeal was allowed on Article 8 grounds.³⁴ The appellant appealed against a decision of a district judge ordering his extradition for the theft of two mobile phones. The day after the order, the appellant had attempted to commit suicide and very nearly succeeded. Two psychiatric reports stated that the appellant suffered from a depressive illness and post-traumatic stress disorder and that sending him back to Latvia would aggravate those conditions, making it very likely that he would attempt to kill himself again. Written material from the requesting state district court outlined medical and other arrangements which the Latvian prison authorities had in place which would continue the kind of treatment and care the appellant had been receiving in the UK to restrain him from suicide or self-harm. Nevertheless, the Court held that it would be oppressive, under section 25, to order the appellant's return where the evidence established a substantial risk that the appellant would commit suicide if extradited.
35. With specific reference to Article 8, the Court was satisfied that the test requiring 'striking and unusual facts' was met, and that the risk of suicide, which the doctor described as certainty, outweighed the seriousness of the offences, the need to honour international treaties and the finding that the Latvian authorities would take all reasonable steps to protect the appellant.
36. More recently still, though, an appeal under Article 8 in Okruch v Poland failed.³⁵ Here, the appellant was also at risk of committing suicide. Okruch had already served a sentence in Poland, during which he had been beaten by other inmates and had deliberately cut his hand and poured caustic substances on his chest, although these were not suicide attempts. He had received no psychiatric diagnosis or treatment in the UK and the above actions were considered by the court as a 'minor episode'. It was not sufficiently established that the appellant would seriously harm himself or attempt suicide, and so the appeal failed. The court noted in particular that there are procedures in place in Polish prisons whereby, in appropriate circumstances, treatment for mental health issues would be provided.
37. Jansons was also recently distinguished by Sbar v Italy.³⁶ Again, the case concerned an appellant with mental health problems. The psychiatrist who examined him was unable to make a clear diagnosis, but believed that he was not suffering from a mental illness. However, he did conclude that his 'extreme and illogical behaviour' and 'preoccupation with the spirit-world' did put him at significant risk of self-harm and potentially suicide too. At trial, the judge considered that this behaviour might be 'manipulative' and that the Italian authorities would take appropriate steps. The appeal was dismissed. The court stressed that Jansons should be distinguished because there was no finding here that his condition would deteriorate, or that he would successfully commit suicide. Indeed, he was likely to receive better treatment in Italy, where the appellant spoke the language.
38. In this case, the court noted in passing that there appeared to be a growing number of cases in which the possibility of suicide was being raised in order to avoid extradition. Foskett J stressed that circumspection was needed in evaluating evidence in such cases, and that any perception that the possibility of suicide was an 'easy way of avoiding extradition' was erroneous.
39. A number of other circumstances have been unsuccessfully raised to defeat an extradition ground on grounds of Article 8. In the Scottish case of Reid v HM Advocate, the fact that the appellant had a baby daughter whom she was nursing at the time was considered not to be 'exceptional circumstances', while also noting that none of the authorities suggest family circumstances of any kind would constitute 'exceptional circumstances' for these purposes.³⁷
40. In Valts v Latvia, the appellant's concerns that there was insufficient provision of healthcare for individuals suffering from HIV in Latvian prisons was insufficient to undermine a judge's determination that his extradition would interfere with his Article 8 rights, as he had established no family life the UK and had been convicted of a number of minor offences here.³⁸
41. As might be imagined, a number of cases considered in relation to section 14 also raised Article 8. In Symeou above, Article 8 was as unsuccessful as section 14, the court finding that there was no evidence that the appellant's rights under Article 8 would be breached. Ouseley J noted that 'it would take a very strong case for the interests which are mutually engaged in the extradition process under the Framework Decision to be set aside', and that the only one in these circumstances being that the local court would have jurisdiction for an assault committed abroad under section 9 Offences Against the Person Act 1861. However, the local police had 'expressed no interest' in prosecuting and the state where the assault took place had an 'obvious, prime and legitimate' interest in doing so.
42. Although Article 8 was considered in Szubryt above, Richards LJ was 'wholly unpersuaded' by the argument that the appellant's wife had a fragile mental state and that his two children would face hardship as a result of his incarceration. He stressed that 18 months was a relatively short sentence and that the risk of his wife's mental health declining did not even bring the case near the threshold required.
43. In Balog above, too, Article 8 fell considerably short of providing a bar to extradition. Nevertheless, Blake J did note that

    the requirement of ensuring that decisions are not taken that result in a disproportionate violation of Article 8 is a potentially important consideration where the criminality is at very much the lower end of the scale and where there has been a degree of staleness between the offence committed and the final decision on return, where the facts of the case cannot be said that there has been an absconding from justice, which is a strong factor against the appellant, and where the family have relocated to the new jurisdiction to make a fresh start and have appeared to make a good fresh start. In my judgment, all those are considerations of weight and the circumstance that it is the victim of the crime who may suffer from return is a consideration likely to be of very great weight in other cases.

44. In Bendik above, the Roma individual in question, who had settled here with his wife and five children, was unable to resist a European Arrest Warrant for a violent public order offence by pleading Article 8. At the appeal, it was held that the judge did apply his mind to the question of the effect of extradition on B's family life but that he was entitled to come to this conclusion nonetheless.

IV   Triviality of offence

44. A subset of the cases which make reference to Article 8 have attempted to avoid extradition by claiming that the offence is too trivial to warrant extradition. EA 2003 of course provides no such bar, unlike the Extradition Act 1989, under which it was possible to resist extradition on the grounds that the offence was trivial in nature.³⁹
45. So far, such attempts have been met without success. In Dirsyte v Lithuania, for instance, the appellant's claim that the offence of giving false information to the authorities on four occasions explaining that a fracture to her leg was caused by a fall and not as a result of someone, whom she was attempting to protect, firing a gun.⁴⁰ Here, Maddison J accepted the respondent's submission that there is no bar of triviality, but that in any case the offence was 'not properly regarded as trivial' since it aimed to prevent someone from being prosecuted for a serious offence.
46. A particularly striking example of Article 8 being used to resist an apparently trivial matter arose in Sandru v Romania.⁴¹ Sandru had stolen and killed ten chickens from a neighbour in Romania; in his absence, he was sentenced to three years' imprisonment. Although Sandru attempted to resist the European Arrest Warrant on the grounds of proportionality, Elias LJ was not convinced:

    I do not accept that triviality of the offence or length of sentence can, certainly in circumstances of this case, begin to bring this case within Article 8. No doubt the length of sentence is relevant to the degree of interference in private and family life, but it does not of course affect the principle that extradition treaties should be honoured.⁴²

47. He further stated that refusing extradition on the grounds of proportionality would be to

    risk undermining the principle of mutual respect which underpins Part 1 of the Extradition Act. Insofar as it is requiring our courts to question or review the appropriateness of the sentence passed by a foreign court, it is asking these courts to exercise a function they are ill-equipped to carry out. The appropriate sentence is, in part, a function of culture, and in any event the courts here have limited information about the factors leading a foreign court to impose the sentence it did.

    It may be, for example, that in this case the Romanian courts treat theft of livestock and its subsequent destruction far more seriously than English courts would typically do. If the sentence is thought to be too high, the answer is to challenge it in Romania, which indeed is precisely what the appellant apparently is doing in this case.⁴³

48. Elias LJ noted, too, that 'it is not open to the courts of this country to say that, in the circumstances, the offence is so trivial or that the sentence so disproportionate to the offence that extradition would be inappropriate', stressing that this is in explicit contrast to the previous regime.
49. However, there has been some suggestion from the judiciary that Article 8 could provide a bar of triviality. In Zak v Poland, a case concerning an extradition of someone accused of stealing a mobile phone, Maurice Kay LJ noted 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.⁴⁴

50. Richards LJ, too, stated that he could 'see no reason why, in striking a balance under Article 8, the relative seriousness of the offence for which extradition is sought should not be taken into account'.⁴⁵ In Norris, too, Lord Phillips noted that '[t]he nature and seriousness of the alleged offence will be relevant to the strength of the case in favour of extradition' when considering a claim under Article 8.⁴⁶

Could Luxembourg provide a new bar of triviality?

51. Remarkably, a German court has recently attempted to imply an overall limit of proportionality into the European Arrest Warrant.⁴⁷ Although the Higher Regional Court in Stuttgart did ultimately order the surrender of the individual in its judgment this February, it considered several sources of law which would imply a limit of proportionality into the European Arrest Warrant. Such a judgment raised the possibility that European Union law may imply a bar of triviality in the European Arrest Warrant not only in Germany, but in the UK too. Writing extra-judicially, one of the authors of the opinion, Judge Professor Vogel, has stated that 'we mean our decision to be a precedent certainly in Germany but perhaps also in Europe', acknowledging that although the ECJ will have the final say, he hopes that this judgment will 'trigger a discussion' and 'set the tone towards a more cautious and more human rights-orientated approach towards mutual recognition and European arrest warrants'.⁴⁸
52. First, the German judgment considered whether the extradition would be proportionate under German constitutional law, noting that extradition is a sovereign act and that the European Arrest Warrant must therefore confirm with 'the principle of proportionality which forms part of the rule of law as recognised by the German Federal Constitutional Court'.⁴⁹ Second, the court considered whether allowing the extradition would breach Article 49(3) of the Charter of Fundamental Rights of the European Union, which requires the that '[t]he severity of penalties must not be disproportionate to the criminal offence'. This raises the question, for the UK practitioner, of the Charter's status in UK law at present.
53. Fearing a political backlash, the Labour Government negotiated a Protocol which was designed to limit the application of the Charter,⁵⁰ and gave numerous reassurances that this constituted an opt-out: Tony Blair stated, for instance, that '[i]t is absolutely clear that we have an opt-out from both the charter and judicial and home affairs.'⁵¹ The two substantive articles are as follows:

    Article 1

    1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

    2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.

    Article 2

    To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.

54. The exact effect of the Protocol, however, remains unclear, and a number of significant commentators have cast considerable doubt on its status as an opt-out. Paul Craig has recently stated that the opt-out interpretation is 'not borne out by close reading of its provisions', since a simple opt-out would have only required a single article, making Articles 1(1) and 2 redundant.⁵² Craig also notes that Article 2 implies that the Charter applies to the UK and Poland, and furthermore that the 'opt-out' interpretation is inconsistent with the preamble, which refers to the two Member States wishing to 'reaffirm' that references to specific provisions of the Charter are 'strictly without prejudice to the operations of other provisions of the Charter'. An equally circumspect interpretation of the Protocol has also been put forward by Marie Demetriou and Hugh Mercer, who consider that it is now possible to rely upon the Charter in the UK courts.⁵³
55. Nevertheless, even if the Protocol were as effective as the Government originally claimed, there is a third method of implying proportionality via Luxembourg which the German judgment considered, namely, whether there might be a fundamental principle of proportionality between offences and penalties in European law. The court stressed that the right under Article 49(3) simply expressed a more deep-rooted principle of proportionality which 'forms part of the constitutional traditions common to the Member States and is a general principle of the Union's law' and that Article 49(3) is therefore 'substantially applicable throughout the Union' even where the Charter is not strictly speaking in force. This is consistent with the preamble to the Charter, which states that the Charter 'reaffirms [...] rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States'. The preamble explains that the Charter should therefore be interpreted with 'due regard to the explanations' prepared by the Praesidium. These clarify that Article 49(3) does not create new rights, but merely

    states the general principle of proportionality between penalties and criminal offences which is enshrined in the common constitutional traditions of the Member States and in the case law of the Court of Justice of the Communities.⁵⁴

56. The identification of fundamental principles of EU law is not, in itself, unusual. Article 6(1) of the Treaty on European Union, even in its pre-Lisbon form, referred to fundamental rights as guaranteed by ECHR and 'as they result from the constitutional traditions common to the Member States'. Prior to the Lisbon treaty coming into force, there was already a substantial body of cases in which Advocates General and the Court of First Instance (now the General Court) made reference to the principle of fundamental rights. In Viking, for instance, it was stressed that the right to strike must be 'recognised as a fundamental right which formed an integral part of the general principles of Community law', and that this right was 'reaffirmed' by Article 28 of the Charter.⁵⁵ Now the Lisbon treaty has come into force, the Charter has been far more frequently drawn upon as a source of fundamental rights, as was the case, for instance, in Alassini this March, where the right to effective judicial protection was characterised as a 'general principle of EU law stemming from the constitutional traditions common to the Member States' and which has been 'enshrined' in Articles 6 and 13 ECHR and 'reaffirmed' by Article 47 of the Charter.⁵⁶
57. For this reason, even if the Protocol did prevent the Charter from applying to the UK, it is quite possible that the UK might be bound by a fundamental principle of proportionality. It has already been established by the ECJ that EA 2003 must be interpreted so far as possible in light of the wording and purpose of the Framework Decision.⁵⁷ This decision has been confirmed by the House of Lords in Dabas v High Court of Justice, Madrid.⁵⁸ Given that the Framework Decision itself must be interpreted in light of fundamental principles of EU law, it would now appear possible for a requested person to successfully raise the defence of proportionality as a fundamental right at an extradition hearing in the UK, provided that it could be shown how such a right already subsisted in the existing laws of the EU Member States.

Conclusion

58. Challenging the European Arrest Warrant is by no means straightforward. It is becoming increasingly clear that Article 8 does not provide a bar of triviality, although there have been signs that, in extreme circumstances, the triviality of an offence might be considered alongside other matters under the heading of Article 8. In general, however, both Article 8 and the passage of time have demandingly high thresholds which are met only in exceptional cases. One of the most promising avenues that is now open to anyone seeking to challenge a European Arrest Warrant would appear to be the Charter and fundamental principles of European Union law. It would be a striking irony indeed if the most successful protection against the European Arrest Warrant did not come from domestic legislation, but from European law itself.

Footnotes

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