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King case shows danger of European Arrest Warrant


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124939.jpgDiane James, UKIP's Home Affairs and Justice spokesman writes:

It could be an episode of US medical drama Grey’s Anatomy. The tragic tale of a young child, terminally ill with a brain tumour, taken from hospital by parents who flee overseas to try to find treatment for their little boy. But behind the twists and turns of this extremely sad story lies an insidious threat to the UK Criminal Justice System. For now we see two dedicated parents, who simply due to acting against perceived medical advice, have been arrested and face an extradition hearing while their sick son lies alone during these crucial days in a foreign hospital.

When asked, many parents would say they would do anything for their children. This particular case poses many questions, from the sort of treatments available in British hospitals, to the reach of the law over the guardianship of parents, the reluctance of hospitals to seek Care Orders, and finally to the judgement of the police who have chased these parents across Europe like criminals of the highest order. It’s on the latter that I wish to focus. The implications of such police judgement, through the lens of a system where the ability to arrest and hold in prison, without significant evidence, now stretches across twenty eight countries.

Assistant Chief Constable Chris Shead of Hampshire Police pretty much admitted that they had little real basis for the issue of a European Arrest Warrant when he said: 'I can confirm we have obtained a European Arrest Warrant. What that will do is, when we find Ashya and his family, it will allow us to talk to his parents about what happened. Clearly we need to find out what their motive is in taking Ashya.' Claiming that they were looking at an offence of neglect (presumably under Section 1 of the Children and Young Persons Act 1933), he admitted that ‘That does not necessarily mean they would be charged with that offence. It purely gives us the power to arrest and then we'll be able to speak to them.’

So there you have it, they want to talk to the parents to discover their motive. The EAW is supposed to be for the purposes of prosecution (on the basis, at least, of a prima facie case), yet here the Police admit that what they really want to do is use it as a sledgehammer to talk to the parents.

The European Arrest Warrant can only be issued in the UK when the aim is a criminal prosecution, not just an investigation. It was designed to increase the speed and simplicity of extraditing criminals throughout the European Union by dispensing with judicial discretion and making it into a tick-box exercise. Since implementation, instances of its use have risen from three thousand in 2004 to more than four times that amount just four years later.

It all sounds relatively common sense until you scratch below the surface. A European Arrest Warrant can be issued for a wide variety of offences, without the ‘crime’ cited being an illegal offence under the law of the state asked to carry out the arrest. There is also no exception for political, military offences or revenue offences, and a state cannot refuse to surrender its own nationals even if it sees no crime under the scope of its own law. A Brit who may have an alibi, but who is accused of committing a crime in another EU state, could still have to be handed over to foreign authorities, potentially to spend months or years imprisoned whilst being questioned before charge, even if the acts complained of are not regarded as an offence under UK law.

Under traditional international extradition procedure, a state can refuse to extradite a national for trial in another state for a matter that would not result in a criminal conviction domestically. This is called Double Criminality. But this vital protection has been abolished under the EAW. And the EAW also dispenses with the important matter of providing evidence to support the charge.

Although the architects would argue the European Arrest Warrant was designed to deliver justice, the current system has resulted in many cases of serious injustice. Perhaps the most common is people facing long periods in detention while waiting for a trial to commence, or even for a charge to be laid. This facet of the EAW flies in the face of habeas corpus, a principle founded in the English law where a prisoner must be released from detention when there is no lawful basis for it. It has grown into an important legal instrument internationally, underpinning fair trial rights and the principle of ‘innocent until proven guilty’ that safeguards individual freedom against arbitrary and oppressive state action.

In the case of Ashya King, the complex legal narrative goes much deeper. His parents have been arrested on the flimsiest of grounds. The very fact that this is an arrest instigated by British authorities, some would argue acting overzealously, now landing a British family behind bars at the decision of a Spanish official, is astonishing. Were this to be played out in alternative circumstances, where a British couple were at the mercy of an EAW issued by a foreign police force alleging an offence not considered a crime at home, the reaction would likely be vitriolic. It might have been more appropriate for the police to have helped the hospital seek a Care Order from the Court, even over the telephone in urgent cases. 

But the sledgehammer of the European Arrest Warrant is what we have now opened ourselves up to. Behind the twists and the turns, the interpretations of the law and the aims of the authorities and objectives of our criminal justice system, lies something really quite sinister. Just like the Kings, you, or I, could be arrested anywhere in Europe for something that is not even a crime – and held merely for questioning, perhaps for months.

In just a couple more months, the UK will opt fully into the European Arrest Warrant, alongside 34 other equally pernicious EU legal schemes, without any recourse to the general public. For a Government talking tough on reforming Europe, and blocking the handover of any further significant powers to Brussels, one of the biggest and most worrying transfers of your freedoms and your protections is about to happen under their watch.

When it was introduced, we were told the EAW was for terrorist offences, rape, murder, drug dealing and the like. Now it is used to pursue those who – perhaps misguidedly – are acting out of conscience. The slippery slope is before us.

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