The Rt Hon. Lord Lamont of Lerwick

Given the agitation in Britain (with which I sympathize) over the plight of British terrorist suspects in Guantanamo Bay, it is surprising that the same people are not at all perturbed by legislation currently before the British parliament that would allow European magistrates to arrest British citizens and whisk them off to jail in Europe. At least the Guantanamo suspects were combatants captured during a war that is ongoing. Ordinary civilians, however, would be subject of the so-called European Arrest Warrant. They may not face the death penalty, but they could be held for months without being charged, and in some cases without being given proper legal representation.

The European arrest warrant will, in effect, abolish extradition proceedings in British courts where extradition is requested by another EU country. As long as the identity of the accused is established no substantive defense is likely to get very far.

British government ministers deny this and refer to Clause 21 of the Extradition Bill, which gives judges the power to refuse an extradition if they believe it to be incompatible with the European Convention of Human Rights. But in the same breath ministers assure us that since all EU countries have signed this Convention there is no reason to worry about standards of justice in other countries.

In truth, ministers do not expect the courts to delay any extraditions, as they confidently forecast that the new procedures will cut the average time in extradition cases to three months from 18 months. Clearly such a reduction is only possible by a drastic closing off of the avenues of appeal. As a result, my guess is that we can expect the number of requests for extradition from Britain to rise.

The objection to a European arrest warrant is a fundamental one. People on trial in a foreign country are often treated unfairly. Many southern European countries such as Spain and Greece provide little or no legal aid, and if they do, they only offer inexperienced lawyers. In some countries bail is frequently refused to foreigners for fear they will abscond. In fact, there are several hundred British citizens on remand in Europe’s prisons many of whom would have been released on bail if they were nationals of the country holding them. This type of discriminatory imprisonment before trial results in punishment before guilt is proven, and handicaps the victim in the collection of evidence for his defence. In addition, translation facilities for foreigners are not always available, making judicial proceedings incomprehensible.

The deficiencies of the Greek justice system were all too clearly exposed last year in the high profile and farcical proceedings involving a group of English plane-spotters who were accused of espionage, threatened with imprisonment, and given inadequate legal representation. They were only freed after the British foreign secretary intervened. But will other Britons in the future be able to rely on the foreign secretary?

One of the most contentious proposals in the European Arrest Warrant is that British subjects will now be liable for extradition for offences that do not exist in U.K. law. The long-standing principle of dual criminality will be abolished, and the effect will be that British citizens will become subject to the laws of other countries without necessarily knowing what they are. “Xenophobia,” unknown in British law, will become an extraditable offence.

Attention has also focused on whether the editors of Britain’s tabloids might find themselves arrested for eurosceptic articles. It is strange that Europe may be going further in some respects in facilitating extradition between individual states of the Union than the United States - where some states have been known to refuse extradition to others.

A 1998 Council of Europe inquiry into justice systems throughout Europe found evidence of political interference (particularly involving judges); frequent cases of corruption and alarmingly, a very close relationship between the prosecution and the judiciary in some countries. The problems of justice systems in the new EU accession states are also well known. While they do deserve understanding, they cannot simply be ignored.

Perhaps the most powerful argument - from a British point of view - against the European Arrest Warrant is the practice of investigating magistrates in France, Italy, Germany Spain and Belgium of holding people in custody for questioning for long periods of time. This serves to deliberately build up pressure on the detained person to strike a bargain with the prosecutor and concede guilt. Dominique Strauss-Kahn, the former French finance minister, recently said, “In our system you are presumed innocent until declared guilty. The reality is you are seen as guilty from the moment the judicial system is interested in you.”

British ministers say that British citizens will only be extradited when they are specifically “accused” and when extradition is for the purpose of standing trial. But how can this be enforced? In some countries the legal system may regard arrest as the beginning of the process of prosecution, while in Britain it is viewed as the beginning of an investigation. Although the person may be accused, the decision whether to formally charge the arrested person or release them will occur while the arrested person is in custody, perhaps for many months.

Clearly the presumption of innocence means different things in different countries. To the British mind, the idea of an investigating magistrate detaining someone for an indefinite period, without charges, is at odds with the presumption of innocence. The truth is that the European Arrest Warrant, opportunistically accelerated after 9/11, is a political project to accelerate Europe’s integration by creating “a common judicial space”. It is a pity that justice doesn’t have much of a role.

This is from an article by Norman Lamont which first appeared in The Wall Street Journal Europe