My Lords, in moving Amendment 77, I shall also speak to Amendments 79, 80, 81 and 87. This set of amendments keeps us in the area we have just been talking about: one of the three specified matters. The amendments emphasise the importance of less coercive, less disruptive measures than a full European arrest warrant. Where a state issuing an EAW refuses to use them, the judge could take that refusal into account before granting an EAW.
New subsection (3)(c), which sets out the third of the three matters we have just been discussing, currently reads,
“the possibility of the relevant foreign authorities taking measures that would be less coercive”.
Amendment 77 replaces “possibility of”—a pretty low test, in my view—with “availability of”. Amendments 80 and 81 are essentially consequential.
The assumption underlying the provision relating to less coercive measures is that the severely restrictive measure of extradition, involving deprivation of liberty and the physical transport of a person away from home and family, should be used only as a last resort. The issuing state should therefore use that mechanism only when other, less restrictive measures are unavailable. If other such measures are available—for instance, because of the existence of mutual legal assistance mechanisms or, once it is negotiated, the European investigation order—extradition should be refused if they have not been used. The reference to the possibility of using such alternative measures may result in an issuing state avoiding their use due to a lack of resources and/or bureaucratic difficulties in liaison between the competent authorities of the issuing state and the judicial authority that issued the EAW.
I argue that, although the EAW system provides for extradition between judicial authorities, the physical transfer of a person under an EAW is still a process between two EU member states which are, as a whole, bound to observe the principle of proportionality. All their authorities, such as ministries of justice or the interior—where these are responsible for mutual legal assistance requests—should, therefore, be jointly expected to search for alternative solutions before choosing the heavy-handed option of extradition. Accordingly, if an alternative is available, under bilateral or multilateral arrangements between member states, this should be used before the EAW.
Amendment 79 would ensure that, if there are alternative mechanisms available to the issuing state, its failure to use them will always result in the refusal
of the EAW, irrespective of the gravity of the offence or any other matter. The inclusion of the less coercive measures test appears to rest on the assumption that the step of issuing an EAW—which involves deprivation of liberty and serious human impact—should be taken as a last resort. The responsibility is on the issuing state to use less coercive measures if these are available. In the handbook on how to issue an EAW, to which I referred, the section on proportionality encourages the authority considering an EAW to use alternatives, including mutual legal assistance, videoconferencing or a summons. The logic that less restrictive alternatives should be used before issuing an EAW applies regardless of the seriousness of the allegation in question. The amendment therefore ensures that extradition is always considered disproportionate if other measures are available.
The case of Andrew Symeou demonstrates the need for it to be made clear that alternatives should be used in preference to the EAW, irrespective of the offence at issue. The Greek police and prosecution authorities could have made use of mutual legal assistance; for instance by asking UK authorities to obtain evidence from the witnesses who had allegedly incriminated Andrew. These witnesses would have been able to explain that they had been subject to police brutality and did not stand by their earlier evidence, which had been taken under pressure and without the assistance of an interpreter. Instead, the Greek authorities opted to have an EAW issued, requiring Andrew’s extradition to Greece to face trial for allegations which might have been found to be without basis much earlier if MLA had been used. The English court should have been able to refuse Andrew’s extradition on the ground that alternative measures were available. I beg to move.