Two things that are not generally knnow about the European Arrest Warrant, and how it could be struck down...
1. People do not realise how profoundly different the systems of criminal law used in Europe are from ours.
2. So far there have been a smallish number of innocent British victims of the EAW, struck down on a random basis. The average Briton thinks "Well, it is unlikely to happen to me, I need not worry". I will show that, on the contrary, authorities holding this kind of power are a threat to democracy itself.
3. I will show that the EAW is repugnant to the British constitution, and how it may thus be struck down in court. This should not exonerate MPs and the media from their duty to consider it and try to get it removed from the Statute book.
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1. Most people in Britain think that the other European countries have similar criminal law systems to ours.
Actually they don't.
So when someone like Andrew Symeou was kept in prison, after extradition to Greece, for 11 months before his first public appearance in open court (where the case against him was dismissed), the British thought this was just due to sloppiness in keeping up standards by the Greeks. This is not so. The Greeks, like other continental jurisdictions, do not enjoy our safeguard of Habeas Corpus. They work to different standards from ours.
In Britain, when there is a crime, the first step by detectives is to investigate. During their investigation, they will formulate suspicions, and seek evidence against suspects. When, and only when, they have collected enough evidence to be able to charge a suspect formally and put him or her on trial, he or she will be arrested and then within hours or at the very most, a few days, they will be produced in open court and charged. In that hearing the prosecution must be able to produce the evidence that there is a prima facie case to answer, evidence already collected beforehand. This is thanks to section 38 of our Magna Carta (1215). See details in my essay on the official Magna Carta 800th celebratory website https://magnacarta800th.com/articles/magna-carta-europe-yesterday-today/
In the Napoleonic-inquisitorial systems used on the continent, they do things the other way round. The first step in a criminal investigation can be, and often is, to arrest and imprison the suspects, on the basis of clues. If they had Habeas Corpus, then the investigators would be asked to exhibit these "clues" in open court, in a hearing taking place within hours or at most days after arrest, to see if they constituted solid evidence of a case to answer, or just a flimsy basis for suspicion. But they don't have Habeas Corpus. The authorities will then seek evidence against the suspect, while he is under lock and key. Of course this can take months; occasionally, even years. During this time, the suspect stays in prison. He may ask for bail, but the burden of arguing against granting him bail is not on the prosecution, unlike in the UK. He will be interrogated, but in private hearings. He will have no right to a public hearing during this time.
NB The investigations are not conducted under the authority of the police, but by the prosecutor who is a "judicial authority". This way people do not think "police state", and indeed they may be led to think, "Well if a judge says so…"
At the end of all this time, the case may be dismissed, and if so, the prisoner will be released. Hence cases like Andrew Symeou's in Greece. In Italy it is calculated that every year 1000 innocent people have their lives and livelihoods traumatised and ruined by this system. There have been long-running national TV broadcasts telling some of their stories.
The main problem with the EAW is that when a person is arrested in Britain on an EAW, the British court is not allowed to ask to see, let alone assess, any evidence against him. The legislators blindly and blithely assumed that the evidence would have already been collected by the authorities in the requesting country, and would be shown shortly after he arrived, as would happen in the UK. When it happens that the person is not produced promptly in court and evidence is not shown, the British foolishly assume that this must have been merely due to "sloppiness" on the part of the continental authorities. They do not understand that this is how the continentals operate normally under their criminal-law procedures, which are completely different from ours.
Before passing the legislation in 2003, no research had been carried out into continental criminal-law procedures by the government or by anyone else. I prepared a six-page briefing paper on aspects of Italian criminal procedure, which was read aloud in the Commons by an opposition MP, but the (Blair) government ignored it and passed the legislation regardless. My paper can be found on the Hansard record, https://publications.parliament.uk/pa/cm200203/cmstand/d/st030121/am/30121s03.htmIt appears in Appendix C in my submission to the House of Lords in 2013http://campaignforanindependentbritain.org.uk/wp-content/uploads/2017/06/SeriousRisks.pdf
This conflict is NOT resolved by the European Convention on Human Rights, as I explained in my speech at the House of Lords in March 2017 http://campaignforanindependentbritain.org.uk/wp-content/uploads/2017/09/150317-Torquil-Dick-Erikson_v2.pdf
2. The State is the sole body in society that has the power to use violence, legally, on people's bodies. It does this with the criminal laws and procedures.
In many States round the world, it uses this power to strike down those who oppose the rulers politically.
In Britain we have had peaceful constitutional and political development for 350 years, so we forget that criminal law is not only about catching criminals. We have forgotten that it can also be used for political purposes. In some EU member states it still is.
The European Arrest Warrant until recently was used to strike at innocent victims in Britain on a largely random basis. However there have been a couple of cases where its arbitrary powers have been used for political purposes.
One is the case of Alexander Adamescu pursued in Britain on an EAW issued by Roumanian authorities, on criminal charges which critics claim are trumped up to mask political motives (details on http://www.tfa.net).
But now there is a case where the motives are openly political. The Catalan professor Clara Ponsati, a lecturer at St Andrews University, has been hit with an EAW in Scotland, issued by the Spanish authorities, who accuse her of "violent rebellion" and "misuse of public money". She faces up to 33 years in prison. She was a Minister in Puigdemont's separatist Catalan cabinet, and he too has been hit by a Spanish EAW, in Germany.
She has a lot of sympathy and support in Scotland, largely because Scottish separatists identify their cause with the cause of Catalonia wanting to secede from Spain. However it should be of concern also to people in England and to those in Scotland who are not in favour of Scottish separatism, for it shows up the deep difference in approach to democracy by the British and Spanish States.
In Britain the response was, "You want to be independent? Ok, have a referendum."
In Spain the response was, "You want to be independent? Ok, have 30 years in prison."
…and they sent the Spanish State police to baton-charge and physically assault peaceful Catalans who were going to cast their votes in the polling stations.
3. The truth of the matter is that the EAW, enabling quite arbitrary arrest and imprisonment on NO EVIDENCE, is a TOOL FOR TYRANNY.
When the European Public Prosecutor is up and running, he will be able to issue EAWs against British people in Britain - as confirmed by Counsel's Opinion http://campaignforanindependentbritain.org.uk/wp-content/uploads/2018/01/OpinionJonathanFisherQC7.10-O14-1.pdf He will clearly be a creature of the Commission, ready to do the bidding of those who have already expressed their desire to punish us for Brexit.
And, incredibly, Mrs May and her government want to keep us in and under the EAW indefinitely, after Brexit, with a new EU-UK Security Treaty. The Mainstream Media have hardly ever reported, let alone commented on, this.
Giving the Commission the effective power to have any of us picked off at their arbitrary behest and transported in chains to a dungeon in Europe, with no questions asked, will ensure our permanent de facto vassal status, and "Brexit" will then most certainly be in name only, if even that.
The EAW is plainly repugnant to the British Constitution, and I show how this fact, if properly presented and argued in court, as I am hoping Professor Ponsati's lawyers will consider doing, could cause the court to strike it down, just as the Appeal court of Lord Laws and Crane effectively annulled the effects of the Weights and Measures Act to confirm the convictions of the Metric Martyrs, at the beginning of the present century. See details of the argument here:
This article, showing a legal argument how a British court could strike down the European Arrest Warrant legislation on grounds of its repugnance to Magna Carta and Habeas Corpus, appeared on the Campaign for an Independent Britain's website on 4th April 2018.
Subsequently, on 19th July, the Spanish authorities announced the withdrawal of the EAW they had issued against Professor Ponsati, before the main hearing which had been fixed to last through the first two weeks in August.
We do not know if they (or Eurocrats in Brussels) had read this article, and preferred to retreat tactically rather than face the humiliating prospect of a British court striking down that part of the EAW legislation which precludes any British court from asking the requesting State to provide evidence which it could assess, in a ruling which would have been valid not just for the Ponsati case, but for all future EAW cases in Britain. We do know that Prof. Ponsati's lawyer was planning to call Spanish Ministers as witnesses during the hearing.
Doubtless Mrs May's government would also have been perturbed at the prospect of a Court invalidating the EAW, for they are attempting to stipulate a Security Treaty with the EU which would maintain Britain's subordination to the EAW permanently, for the indefinite future.
Postscript:The mainstream media so far are not interested in publishing (even less in paying for!) this kind of work. And there is NO university chair of comparative criminal procedure anywhere. So neither politicians nor the legal professionals have really any idea of the systems they are exposing British people to with the European Arrest Warrant, the European Investigation Order and other measures in the pipeline. Over the years I have had some support from some generous friends for my work, but that was some years ago and I really do need to be able to carry on.
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