Challenging a European Arrest Warrant

A European Arrest Warrant (EAW) is a tool for extraditing a person from one European country to another. If you’ve been subject to an EAW, it is possible to challenge it and we give you a few ways to do that in this blog.

First though, it’s important to understand the background of EAWs, and how they apply to the UK, now that we are no longer part of the European Union.

When is a EAW issued?

An EAW is issued by the judicial authority (usually the courts) in a European country. It means that a person who is suspected of a criminal offence, or a person who has been prosecuted for a criminal offence in one country can be arrested in another European country.

A Member State will issue an EAW when they want to prosecute someone for an offence, or put them in prison.

What about the UK?

Of course, the UK is no longer a Member State of the European Union. So, the UK is no longer part of the EAW framework.

Instead, the UK has a special agreement with the EU so that similar rules apply. To get a person extradited to the UK, the courts will issue a warrant under the Trade and Cooperation Agreement 2020 (TaCA).

Does an EAW apply to any crime?

A Member State will issue a EAW if a person commits a crime for which the sentence is at least 12 months’ imprisonment, then flees to another country.

To give you an idea of the types of offences that this covers, EAWs are most commonly issued for (i) theft offences, (ii) criminal damage, (iii) drug offences, and (iv) fraud and corruption offences.

The other way that EAWs are used is to arrest a person who has already been convicted of an offence. Perhaps a person has been sentenced to 5 months in prison, and flees the country before they have to go to prison. An EAW will be issued to arrest them, so that they are brought back to the country to carry out the sentence. This applies when the sentence is four months long or more.

Process of extradition from the UK

If somebody has committed a criminal offence in a Member State (let’s say Italy for example), and then they flee to the UK, then the Italian authorities will issue an EAW.

Following that, the National Crime Authority will issue a certificate in the UK. Then the arrest is made in the UK and there will be an initial hearing, and an extradition hearing in the UK. The designated Extradition Court is Westminster Magistrates’ Court. 

Extradition to the UK

If somebody has committed a crime in the UK and flees to a European country, then the UK courts will issue a TaCA warrant for their arrest. That means that the person who has fled can be arrested in the European country they are found in, and brought back to the UK for a trial.

Possible challenges to an EAW

Are there any ways to challenge an EAW or a TaCA warrant?

Yes, there are a few defences that a person can raise at an extradition hearing. 

Proportionality

The arrest must be ‘proportionate’ to the crime. So it must be a serious offence, which is punishable by a sentence of at least one year. The EAW must also be proportionate in terms of the cost-benefit of issuing the warrant.

Human rights

You can challenge an EAW if the person’s human rights will be violated if they are returned to the requesting country.

What does that mean? Well, it is quite a broad question. It might be the case that the prison conditions of the requesting state are so poor that they infringe on a person’s human rights. 

Or we can look at the most recent hearing in the Julian Assange case. The English courts have said that the US must assure that Julian Assange has freedom of speech protections, and that he will not receive the death penalty, before they agree to extradite him.

Double criminality

If the alleged criminal offence in one country is not a criminal offence in the other country then it can be a challenge to the EAW. For example, if a person is accused of arson in the UK, and they flee to another country in which arson is not a criminal offence, then that would be double criminality and the EAW would not be valid.  

However, this is quite limited now. There are 32 categories of offences for which this applies.

If you are worried about an European Arrest Warrant, or a Trade and Cooperation Agreement, or you have any questions about extradition generally, please give us a call at Harewood Law. We have experts in this area who are able to advise you.

Harewood Law regularly instruct leading experts in this area and we can assist, guide and advise on the type of expert that is most relevant in your particular circumstance. We are based in Leeds, and whilst we cover the local areas of Bradford, Halifax, Wakefield, Huddersfield, Keighley we also serve clients across West Yorkshire and the UK, so contact Harewood Law today. Please contact our team today on 0333 3448377 or email us on info@harewoodlaw.com and we will be more than happy to assist.