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mcgillianaireThe case comment reproduced below appeared in the Cambridge Law Journal earlier this year. It's written by J. R. Spencer, Professor of Law at Cambridge. Two judges heard the appeal including a certain Mr Justice Ouseley - the chap who let Assange out on conditional bail yesterday.
Abstract: Discusses the Divisional Court judgment in Symeou v Greece on whether the applicant could resist his extradition to Greece on the charge of manslaughter, which he claimed was based on tainted evidence, by relying on the abuse the process principle and the argument that it would breach his rights under the European Convention on Human Rights 1950 art.6 (right to a fair trial). Comments on the media reaction to the case, which has blamed the European arrest warrant system for the breach of a UK citizen's human rights.
In July 2007 a fight broke out among a group of British youths at a night club in a Greek resort when one of them urinated on the floor. The fight had fatal consequences for one of them, who fell and struck his head. Eleven months later, long after the survivors had gone home, the Greek prosecutor issued a European Arrest Warrant to retrieve Andrew Symeou, whom he accused of the Greek equivalent of involuntary manslaughter.
Symeou resisted surrender, claiming that he had been “fitted up”. The evidence against him, he said, consisted of false statements beaten out of his fellow Britons by the Greek police: an allegation which the young men concerned confirmed. When despite this the judge at Westminster Magistrates' Court ordered his surrender, Symeou appealed, inviting the Divisional Court to halt the extradition proceedings as “an abuse of process”, or alternatively, on the ground that extraditing him to Greece to face proceedings based on tainted evidence would breach his right to a “fair trial” under Article 6 of theEuropean Convention on Human Rights. These arguments the Divisional Court rejected. In the context of extradition, it said, the “abuse of process” argument was in principle available, but only if there was bad faith by the Greek prosecutor, rather than antecedent misbehaviour by the Greek police. And, it said, extraditing him to Greece would not infringe Symeou's rights under Article 6 of the Convention unless he could show that his allegations of a “fit up” were something the Greek courts would refuse to investigate or act upon, which he could not. The gist of the judgment, put colloquially, is that the case against a wanted person may smell bad; but if it does, that is a matter for the courts of the requesting State to worry about when he gets there: Symeou v. Public Prosecutor's Office, Patras [2009] EWHC 897, [2009] 1 W.L.R. 2384. Having failed to secure leave to appeal further, off to Greece he went. And there, as this note is written, he is currently in gaol awaiting trial.
The decision has produced a barrage of criticism. From the section of the British press that habitually complains that our own legal system is unduly soft towards defendants, the main theme - paradoxically - is the inherent injustice of handing one of our people over to other criminal justice systems which, unlike ours, fails to respect defendants' human rights. For Europhobes, the villain of the piece is said to be the European Arrest Warrant, which is said to mean that prosecutors from continental Europe no longer have to persuade our courts, by means of legally admissible evidence, that the wanted person is truly guilty before they bundle him off to face a form of justice which, by definition, is inferior to our own.
In saying this, the Eurosceptic press has (as usual) got hold of the wrong end of the legal stick. Even in its most protective past, UK extradition law did not require a foreign prosecutor to demonstrate before a British court the wanted person's guilt. He only had to show a “prima facie case”, which here clearly existed against Symeou, irrespective of how the evidence against him had been obtained. And even the exiguous requirement of a prima facie case had been abolished over 20 years ago as regards most extradition requests emanating from within Europe, by section 9 of the Extradition Act of 1989. So what exactly has the European Arrest Warrant - implemented here by Part I of the Extradition Act 2003 - done to change things?
The key change is that, under the new law, extradition within Europe is now entirely judicial. Previously, after our courts had given the green light to the request, the Home Secretary had to “sign it off ”. So the wanted person who claimed that it was “all a fix” could ask the Home Secretary to refuse permission, and if he would not listen, he could attack the Home Secretary's refusal in the courts by a series of manœvres which, if played with skill, could delay his removal for many years (and, incidentally, cost the taxpayer a vast amount of money). It was this situation that the European Arrest Warrant was designed to end, as regards extradition within Europe. And the change was made on the assumption that the EU Member States are all democratic countries which take their obligations under the European Convention on Human Rights seriously. So if, as is inevitable, mistakes are made, the courts of the requesting State can be expected to correct them; and the courts of the requested state are not the proper place for this to be done.
Regrettably, reality is not always in line with the assumption. In practice there are still, alas, some Member States whose criminal procedure, particularly during the investigative phase, puts possibly innocent suspects at grave risk. Points of particular concern include legal advice and legal representation that is poor or non-existent, incompetent interpreters, and oppressive police practices when dealing with suspects and witnesses. These matters are of legitimate concern to all of us. (Though the British should think twice about preaching loudly on this subject to their neighbours, given our own schreckliche Vergangenheit in matters of this sort - the cases of Mattan, Kisko, Judith Ward, Paris, the Birmingham Six, Barry George and many others come unhappily to mind.)
Mindful of this problem, seven years ago the European Commission instituted moves designed to raise the standards of criminal justice in those Member States where at present they appear to be deficient. But in 2006, progress towards a new Framework Decision on Defence Rights was abruptly halted when, to its shame, the British government, initially in favour, used its political muscle to block it. For this change of mind no coherent reason was ever given. But the reason was probably that the government had just published a White Paper announcing its intention of “Rebalancing the criminal justice system in favour of the law-abiding majority”, which it feared would lose its impact with the electorate if it appeared alongside headlines saying “Brussels Gives UK Criminals Yet More Human Rights.”
Three years later the British government has changed its mind again, and at the time this note is written it is actively backing a Brussels “roadmap” with a series of proposed EU instruments designed to improve the protection of defendants in the pre-trial phase of criminal proceedings. But what the UK's policy will be when, on the other side of a general election, this note appears in print, is at present anybody's guess.
C.L.J. 2010, 69(2), 225-228
Abstract: Discusses the Divisional Court judgment in Symeou v Greece on whether the applicant could resist his extradition to Greece on the charge of manslaughter, which he claimed was based on tainted evidence, by relying on the abuse the process principle and the argument that it would breach his rights under the European Convention on Human Rights 1950 art.6 (right to a fair trial). Comments on the media reaction to the case, which has blamed the European arrest warrant system for the breach of a UK citizen's human rights.
In July 2007 a fight broke out among a group of British youths at a night club in a Greek resort when one of them urinated on the floor. The fight had fatal consequences for one of them, who fell and struck his head. Eleven months later, long after the survivors had gone home, the Greek prosecutor issued a European Arrest Warrant to retrieve Andrew Symeou, whom he accused of the Greek equivalent of involuntary manslaughter.
Symeou resisted surrender, claiming that he had been “fitted up”. The evidence against him, he said, consisted of false statements beaten out of his fellow Britons by the Greek police: an allegation which the young men concerned confirmed. When despite this the judge at Westminster Magistrates' Court ordered his surrender, Symeou appealed, inviting the Divisional Court to halt the extradition proceedings as “an abuse of process”, or alternatively, on the ground that extraditing him to Greece to face proceedings based on tainted evidence would breach his right to a “fair trial” under Article 6 of theEuropean Convention on Human Rights. These arguments the Divisional Court rejected. In the context of extradition, it said, the “abuse of process” argument was in principle available, but only if there was bad faith by the Greek prosecutor, rather than antecedent misbehaviour by the Greek police. And, it said, extraditing him to Greece would not infringe Symeou's rights under Article 6 of the Convention unless he could show that his allegations of a “fit up” were something the Greek courts would refuse to investigate or act upon, which he could not. The gist of the judgment, put colloquially, is that the case against a wanted person may smell bad; but if it does, that is a matter for the courts of the requesting State to worry about when he gets there: Symeou v. Public Prosecutor's Office, Patras [2009] EWHC 897, [2009] 1 W.L.R. 2384. Having failed to secure leave to appeal further, off to Greece he went. And there, as this note is written, he is currently in gaol awaiting trial.
The decision has produced a barrage of criticism. From the section of the British press that habitually complains that our own legal system is unduly soft towards defendants, the main theme - paradoxically - is the inherent injustice of handing one of our people over to other criminal justice systems which, unlike ours, fails to respect defendants' human rights. For Europhobes, the villain of the piece is said to be the European Arrest Warrant, which is said to mean that prosecutors from continental Europe no longer have to persuade our courts, by means of legally admissible evidence, that the wanted person is truly guilty before they bundle him off to face a form of justice which, by definition, is inferior to our own.
In saying this, the Eurosceptic press has (as usual) got hold of the wrong end of the legal stick. Even in its most protective past, UK extradition law did not require a foreign prosecutor to demonstrate before a British court the wanted person's guilt. He only had to show a “prima facie case”, which here clearly existed against Symeou, irrespective of how the evidence against him had been obtained. And even the exiguous requirement of a prima facie case had been abolished over 20 years ago as regards most extradition requests emanating from within Europe, by section 9 of the Extradition Act of 1989. So what exactly has the European Arrest Warrant - implemented here by Part I of the Extradition Act 2003 - done to change things?
The key change is that, under the new law, extradition within Europe is now entirely judicial. Previously, after our courts had given the green light to the request, the Home Secretary had to “sign it off ”. So the wanted person who claimed that it was “all a fix” could ask the Home Secretary to refuse permission, and if he would not listen, he could attack the Home Secretary's refusal in the courts by a series of manœvres which, if played with skill, could delay his removal for many years (and, incidentally, cost the taxpayer a vast amount of money). It was this situation that the European Arrest Warrant was designed to end, as regards extradition within Europe. And the change was made on the assumption that the EU Member States are all democratic countries which take their obligations under the European Convention on Human Rights seriously. So if, as is inevitable, mistakes are made, the courts of the requesting State can be expected to correct them; and the courts of the requested state are not the proper place for this to be done.
Regrettably, reality is not always in line with the assumption. In practice there are still, alas, some Member States whose criminal procedure, particularly during the investigative phase, puts possibly innocent suspects at grave risk. Points of particular concern include legal advice and legal representation that is poor or non-existent, incompetent interpreters, and oppressive police practices when dealing with suspects and witnesses. These matters are of legitimate concern to all of us. (Though the British should think twice about preaching loudly on this subject to their neighbours, given our own schreckliche Vergangenheit in matters of this sort - the cases of Mattan, Kisko, Judith Ward, Paris, the Birmingham Six, Barry George and many others come unhappily to mind.)
Mindful of this problem, seven years ago the European Commission instituted moves designed to raise the standards of criminal justice in those Member States where at present they appear to be deficient. But in 2006, progress towards a new Framework Decision on Defence Rights was abruptly halted when, to its shame, the British government, initially in favour, used its political muscle to block it. For this change of mind no coherent reason was ever given. But the reason was probably that the government had just published a White Paper announcing its intention of “Rebalancing the criminal justice system in favour of the law-abiding majority”, which it feared would lose its impact with the electorate if it appeared alongside headlines saying “Brussels Gives UK Criminals Yet More Human Rights.”
Three years later the British government has changed its mind again, and at the time this note is written it is actively backing a Brussels “roadmap” with a series of proposed EU instruments designed to improve the protection of defendants in the pre-trial phase of criminal proceedings. But what the UK's policy will be when, on the other side of a general election, this note appears in print, is at present anybody's guess.
C.L.J. 2010, 69(2), 225-228
