Wednesday, November 12, 2014

A little confusing

One gets rather confused with some of the replies HMG produces to questions put down by noble Lords in the Upper House. Take this example: Lord Stoddart of Swindon asked the following Written Question:
To ask Her Majesty’s Government, further to the Written Answer by Lord Taylor of Holbeach on 4 August (HL1114) [actually, September 26] about the European Arrest Warrant, whether they consider that habeas corpus can be applied in other European jurisdictions following extradition; and, if so, how.
The last few words seem to be crucial.

HMG, in the shape of Lord Bates replied as follows (and I doubt if Lord Bates fully understood what his officials wrote there):
Article 12 of the relevant Framework Decision (“Keeping the person in detention”) states that “When a person is arrested on the basis of a European Arrest Warrant, the executing judicial authority shall take a decision on whether the requested person should remain in detention”. This obliges the relevant judicial authority to take a decision on whether or not the person should remain in detention, and that must be taken in accordance with the law of the executing State. Therefore, each and every EU Member State must consider carefully whether a person can be legally detained or not. That is in keeping with the intention underpinning the principle of habeas corpus.

The Government has also introduced reforms to the operation of the Arrest Warrant that limit the unjustified detention abroad of individuals surrendered by the United Kingdom. For example, section 12A of the Extradition Act 2003 provides a bar to extradition on the grounds of “absence of prosecution decision”. This means that, in cases where the person is wanted to stand trial, extradition can only go ahead where the issuing State has made a decision to charge the person and a decision to try the person, or that the person’s absence from that State is the only reason for the failure to take the decision(s). This provision ensures that, where a State is simply not ready to try a person, extradition is refused and the person is not surrendered only to spend a potentially lengthy period in pre-trial detention.

Following our reforms, Section 21B of the same Act allows, with both the requested person’s and the issuing State’s consent, for the person’s temporary transfer to the issuing State or for the person to speak with the authorities in that State whilst he or she remains in the UK (for example, by video link). This provision ensures those who are subject to an Arrest Warrant have an opportunity to communicate with the issuing State without being surrendered. In a number of cases this may result in the issuing State withdrawing the Arrest Warrant (e.g. if it decides the person is not the person they are looking for), ensuring the minimum time possible will be spent in detention.
I think he is saying that Habeas Corpus remains important despite the European Arrest Warrant but I am not really sure.

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