Has our Government handed over the keys to our personal security?

Has our Government handed over the keys to our personal security?

by Torquil Dick-Erikson
article from Friday 4, December, 2020

IN THE UK and in other English-speaking jurisdictions, nobody can be arrested and imprisoned for any length of time unless the authorities have already conducted an investigation and collected enough evidence to show that there is a prima facie case to answer.  This is guaranteed by our laws on Habeas Corpus, under which a prisoner has a right to a swift public hearing (hours or days after arrest) where s/he can demand that evidence of a prima facie case shall be exhibited. If insufficient evidence is produced, the prisoner must be released and the charge dropped. 

This is common sense – without evidence how do we know that the right person has been arrested? And section 38 of Magna Carta provided so, in just 15 words, which have rolled down eight centuries, to protect our freedom from arbitrary state coercion. 

Not so in continental Europe, where Habeas Corpus is unknown. And in particular it is not so under the European Convention on Human Rights. The European Court of Human Rights is on record as having ruled, in a case brought by an Italian prisoner (a Law Professor, no less!) against Italy, that to wait up to five years in detention, with no public hearing, is perfectly “reasonable” within the meaning of article 6 of the convention, which specifies a right to a public hearing within a “reasonable” time after arrest. Why? Because “detention is intended to facilitate the preliminary investigation”, as the Court put it.

This precedent set by the ECHR is almost unknown in the UK, yet by itself it should be a sufficient reason for the UK to leave the ECHR. There are other cases too that show that the ECHR is entirely unfit for purpose. Yet HMG has confirmed we stay under it.

In fact, under the Napoleonic-inquisitorial systems used in continental Europe, a suspect can be arrested and imprisoned, not at the end of an investigation, but at the outset, on the basis of some clues or even just a hunch by the investigators – there is no swift public hearing where the decision has to be justified. This procedure is also unknown to UK legal academics and practitioners. 

Clearly this gives enormous scope for judicial authorities to use their power of violent coercion quite arbitrarily, on spurious accusations, as a political battering-ram against political opponents.

This threatens not only the personal freedom of random innocent individual citizens, but our democracy itself.

Yet, when Lord Pearson of Rannoch asked the following question: 

further to the Written Answer by Baroness Williams of Trafford on 7 October (HL8424), whether they intend any extradition from the UK to any EU jurisdiction after the end of transition period to be possible only with a court ruling that there is a prima facie case to answer; and if not, why not.

The answer received this week on Tuesday, 1st December, was:  

There is no intention for extradition to any EU jurisdiction after the end of transition period to be made subject to a court ruling that there is a prima facie case. 

In the absence of an agreement on Law Enforcement and Criminal Justice with the European Union, the UK’s extradition relations with EU Member States would be governed by the European Convention on Extradition 1957 and its Additional Protocols. The prima facie evidence requirement for extradition requests from States which are parties to the European Convention on Extradition was removed when the Convention came into force in the UK in May 1991. To introduce a prima facie case requirement would be incompatible with the Convention. 

The Government’s approach to negotiations with the EU provides for extradition arrangements which are more streamlined than the European Convention on Extradition. The Government has not sought to introduce a prima facie case requirement, as to do so would render future arrangements with the EU less effective at bringing fugitives to justice than the Convention.

This means that Her Majesty’s Government intends the current European Arrest Warrant conditions to be continued, after Brexit, into next year and indefinitely into the future

How disgraceful that our Government has hidden its intention until now. Shame on the senior politicos and journalists who knew but didn’t tell!

© by Torquil Dick-Erikson 2020      

For the last 40 years Torquil has specialised as a legal journalist in comparative criminal procedure. He has been published in, amongst others, The Independent, The Financial Times, The Wall Street Journal, and The New Law Journal. He is the author of “The European Constitution against the British Constitution” and “The Coming Tsunami” about the very different systems of criminal justice and of policing that the UK might have imposed upon it from Brussels.  

Photo by moodboard from Adobe Stock. 

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