Fair Or Foul? The European Arrest Warrant 'Justice Sans Frontier': An Instrument Of Use Open To Abuse

• Author: Ian Bailey
• Position: BCL, LLB, LLM (candidate) University College Cork. This article is an edited version of a paper which produced as a dissertation, itself a component of an LLB. The author is grateful to Dr Shane Kilcommins for advice and encouragement
• Pages: 107-125

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FAIR OR FOUL? THE EUROPEAN ARREST WARRANT 'JUSTICE SANS

FRONTIER’: AN INSTRUMENT OF USE OPEN TO ABUSE

Ian Bailey*

A INTRODUCTION

The object of this article is to take an overview of the European Arrest Warrant system,1 with

particular reference to its introduction and application in Ireland and the UK. This article will

firstly, consider the gestation of this cross border criminal jurisdiction, which has established an

area of justice sans frontier. Secondly, it will focus on the emerging jurisprudence of the Irish

Supreme and High Courts. Finally, it while consider the potential for abuse of process with

reference to a number of case studies.

B A LEVIATHAN RISES: JUSTICE SANS FRONTIER - THE GENESIS OF THE

EUROPEAN ARREST WARRANT

1 Extradition – An Historical Perspective

Extradition, as a legal mechanism of a State recovering a wanted individual from another State,

has existed in differing forms since the time of ancient Greece2, and as Forde notes, the term was

first officially used as an expression of law in a French decret loi in 1791.3 Blekxtoon suggests

the first ever Convention on Extradition was contained in the Preussische Gesetzsammlung of

1810 between Prussia and Westphalia.4 Historically the subjects of extradition tended to be

political refugees rather than criminals – as was the case of the United Irishman James Napper

Tandy who was rendered to the British authority by the City of Hamburg in 1799.5 The late 18th

and early 19th centuries saw a series of extradition treaties between Britain, the US and France.

Forde suggests the first modern extradition treaty made was between France and the new state of

Belgium in 1834; the Webster Ashburton Treaty of 1842 between Britain and the US, the first

with direct force in Ireland.6

* BCL, LLB, LLM (candidate) University College Cork. This article is an edited version o f a paper which produced

as a dissertation, itself a component of an LLB. The author is grateful to Dr Shane Kilco mmins for advice and

encouragement.

1 As based on the Council of the European Union Framework Decision on the European Arrest Warrant and the

Surrender Procedures between Member States as adopted on June 13th 20 02 pursuant to title VI of the Treaty of the

European Union. Hereinafter the „Framework‟.

2 M Forde Extradition Law in Irela nd (3rd edn Thomson Roundhall Dublin 2005) 2.

3 ibid 1.

4 R Blekxtoon Handbook on the Europea n Arrest Warr ant (TMC Asser Press 2005) 9.

5 R. v Tandy (1800) Howell‟s State Trials 1191.

6 Treaty between the United States of America and Her Britannic Majesty Relative to Boundaries, Suppression of

the Slave-Trade, and Extradition of Criminals.

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At the turn of the 20th century, Sir Edward Clarke recorded 34 extradition treaties between the

UK and other countries, and 27 between the US and other states.7 European States also had a

well-developed series of treaties dating from the Treaty of Amiens.8 More recently, the

European Convention on Extradition 1957 established a general obligation on states to extradite

on request with the exception of their own nationals or for political offences. The Extradition

Act 1963 enacted the convention principles with reservations into Irish Law.

The 1970s witnessed an exponential increase in terrorist activity across Europe that lead to the

European Convention on the Suppression of Terrorism (ECST) removing the political offences

exception in terrorism cases. In December that year the French president Valery Giscard

D‟Estaing announced the plan to create a „European Judicial Space,‟ the object of which was a

simplified extradition convention with improved procedures of mutual assistance and recognition

of judicial decisions.9 The seeds of what was to become the EAW were sown.

In December 1979, member states meeting in Ireland approved the Dublin Agreement, a

commitment to bolster the ECST. In 1982, the French once again pushed matters forward,

proposing a new extradition convention and the creation of a European Criminal Court. For

much of the next ten years, there was little progress in the field of a European criminal

jurisdiction. Priority instead was given to the completion of an internal market, a product of

which was the Schengen Accord, and the abolition of traditional border checks, that culminated

in the Schengen Convention Implementation Agreement (SCIA) 1990. An area of justice sans

frontier had been created, e pluribus unum.

In 1992, the Maastricht Treaty adopted the principle of close co-operation in the field of justice

and home affairs under the so-called Third Pillar. Article K2 provided any legislation comply

with the ECHR, with the ECJ recognised to have interpretive competence in matters arising.

Title VI of the Amsterdam Treaty10 consolidated and confirmed the intention to create a

community jurisdiction and create a „high level of safety within an area of freedom, security, and

justice by developing common action among the Member States in the fields of police and

judicial co-operation in criminal matters.‟11

In 1995, the Convention on Simplified Extradition Procedures was adopted to allow for the

speedy hand over of consenting detainees, and the following year, the Convention Relating to

Extradition addressed issues amongst which included nationality, amnesty, and lapse of time. In

December 1998, the Council adopted the Vienna Action Plan setting a two-year target to agree a

structure based on mutual recognition of judicial systems and judgments.

2 The Rationale of the EAW Project

7 E Clarke A Trea tise Upon the Law of Extradition (4th edn Stevens and Haynes Londo n 1903).

8 Developed in 1802 between the UK, France, Spain and Batavia.

9 European Council meeting of December 1977.

10 The Treaty on European Union.

11 Article 29 (ex K 1).