As anyone knows who reads my posts, I have been urging caution in the matter of discussing what will happen next with the McCanns. Although I have a great deal of faith in the investigative abilities of the PJ, as the old saying goes, there is many a slip between the cup and the lip, and in fairness to the McCanns, as well as avoiding building expectations which might lead to disappointment, I have advocated postponing discussions of the European Arrest Warrant (EAW) until and unless someone is actually charged in this case.

I have noticed just in the last day or two, however, proliferation of threads on the forum dealing with the subject of extradition and the EAW, some of them containing incorrect information. For some little while now, I have been researching how an EAW would be executed within the UK. Since this seems an opportune time to discuss the subject, I shall lay out what I've learned. Let us assume, for the sake of this discussion, that a couple named John and Mary Smith have been formally charged in Portugal with a crime that, if they should be convicted, would carry a maximum penalty of a year or more in gaol according to Portuguese law. The Smiths are citizens of the UK and are currently residing in England (there are variations of the procedure if the person whose extradition is requested is in Scotland or Northern Ireland).

I should also like to add a disclaimer here. I am not a lawyer, nor have I ever claimed to be. Moreover, I retired from law enforcement before the EAW was ever created, so I never was professionally involved with one. What I am writing is my opinion, based on what I have read, most of it from official government publications on the web. I shall provide links, in case anyone wishes to check out what I have said or do further reading on the subject.

THE EAW - WHERE WOULD IT GO UPON REACHING THE UK?

Each state in the European Union has been asked to designate one organisation to be the recipient of an EAW when one is issued by another member state. Initially in the UK, this was the National Criminal Intelligence Service. However, with the creation in of the Serious Organised Crime Agency (SOCA), the initial instruction was superceded to make SOCA the recipient of the EAW.

In government terminology, SOCA is "sponsored by" the Home Office; the Home Office has some responsibilities to and authority over SOCA, including auditing SOCA's finances and appointing some members of SOCA's governing board. HOWEVER, SOCA IS OPERATIONALLY INDEPENDENT OF THE HOME OFFICE.

WHAT KIND OF PROCESSING OR DECISION-MAKING DOES SOCA DO ONCE RECEIVING THE EAW?

Upon receipt of an EAW, SOCA has the responsibility to verify that it came from a "recognised source," i.e., an authority within the requesting country which has the authority to issue an EAW. If there are doubts about this, or if SOCA has questions about the content of the EAW, it can contact the authority that issued the EAW. That is the extent of what SOCA is authorised to do before it notifies the local police department serving the jurisdiction where the wanted person(s) live to arrest them.

An EAW, according to rules promulgated by the UK itself, does not have to be sent through diplomatic channels. It can be sent by post, fax, or other electronic means. It is supposed to be accompanied by a copy of the original arrest warrant issued in the jurisdiction where the charges were laid, and an English translation.

HOW LONG DOES IT TAKE TO EXECUTE AN EAW?

According to the Eurojust web site: "The State in which the person is arrested has to return him/her to the State where the EAW was issued within a maximum period of 90 days of the arrest. If the person gives his consent to the surrender, the decision shall be taken within 10 days." This is from the time in which the EAW is sent to SOCA until the individual arrives in the requesting country.

Source: http://ec.europa.eu/justice_home/fsj/cr ... ion_en.htm

WHO MAKES THE DECISION ABOUT WHETHER OR NOT THE INDIVIDUAL(S) WILL BE EXTRADITED?

Also from the Eurojust web site, this decision is made by the JUDICIARY in the country which receives the EAW: "This means that the execution of these warrants is simply a judicial process under the supervision of the national judicial authority which is, inter alia, responsible for ensuring the respect of fundamental rights." No other branch of government should be involved.

ONCE THEY ARE ARRESTED, WHAT RIGHTS DO JOHN AND MARY SMITH HAVE?

(1) They are entitled to a hearing before a judge as soon as possible after arrest. This is a preliminary hearing. At the hearing the Crown Prosecution Service will represent THE REQUESTING NATION, in our theoretical case, Portugal.

(2) At the initial hearing the judge is charged with verifying that the person before him is the person who is named in the EAW. He also will decide whether or not the person is allowed bail, and must advise him/her of the possibility of giving consent to surrender and return voluntarily to the country where they have been charged. That is all that is done at the initial hearing.

(3) Within 21 days of the person's arrest, a formal hearing must be held. The judge can extend the period if required to do so by the ends of justice, but he has to keep in mind the 90-day period during which the entire process is supposed to be completed.

(4) At the formal hearing, the judge must determine whether there are any legal bars to surrendering the person. The evidence in the case is NOT considered. Bars to surrender are as follows:

(a) If the alleged offence does not constitute an offence for which surrender is possible�?[i.e. does not meet requirements of dual criminality or is not among the 32 offences covered by the Framework Decision

(b) If the rule of double jeopardy applies;

(c) If the request has been made for the purpose of prosecuting or persecuting the person on the grounds of his or her race, religion, nationality, political opinions, gender or sexual orientation or if the person will be prejudiced at his or her trial for any of these reasons;

(d) If the length of time that has elapsed since the offence was committed or the person became unlawfully at large would make surrender unjust or oppressive;

(e) If the person would have been below the age of criminal responsibility (normally 10) if the person had committed the alleged offence in the United Kingdom ;

(f) If the person would be prejudiced at his or her trial because of the lack of consular assistance under the terms of the International Convention against the Taking of Hostages opened for signature at New York on 18 December 1979;

(g) If there are no speciality arrangements in place with the requesting country - though this should never arise in respect of another EU Member State;

(h) If the person had come to the United Kingdom via extradition or surrender from a country whose consent is required for further surrender and that consent is not forthcoming;

(i) In the case of a person who has been convicted in his or her absence and who did not deliberately absent him or herself, if there is no guarantee of a retrial or a review amount to a retrial;

(j) If surrender would not be compatible with the person's rights under the European Convention on Human Rights;

(k) if the person's medical or physical condition would make it unjust or oppressive to extradite him or her.

IF NONE OF THESE BARS TO EXTRADITION EXIST, THE JUDGE IS DUTY BOUND TO ORDER THE PERSON RETURNED TO THE REQUESTING COUNTRY.

CAN THE INDIVIDUAL APPEAL?

Yes. If no appeal is filed, the suspect should be sent back to the requesting country within 10 days. There are two possibilities of appeal: One to the High Court and another to the House of Lords. The appeal to the House of Lords can take place "only if a point of law of general public interest has been raised".

Appeals by the High Court must be heard within 40 days. The High Court can either affirm or overturn the decision made by the judge at the main hearing. However, the High Court cannot get into the evidence in the case, either. The High Court is to review the decision of the judge at the main hearing and can reverse his decision if it determines:

(a) that the judge ought to have decided a question before him at the extradition hearing differently and, if he had done so, he would have been required to order the person's discharge.
OR
(b) an issue is raised or evidence is available that was not raised or available at the extradition hearing;

(c) the issue or evidence would have resulted in the judge making a different decision at the hearing; and

(d) this would have resulted in the judge ordering the person's discharge.

Links for further reading, if interested:

http://www.statewatch.org/news/2003/dec ... arrant.pdf

http://www.statewatch.org/news/2004/jan ... arrant.htm

http://www.opsi.gov.uk/acts/acts2003/en/03en41-a.htm

http://conventions.coe.int/treaty/en/Tr ... ml/005.htm

http://en.wikipedia.org/wiki/European_C ... man_Rights

Note: There was an instance earlier this month in which the UK issued an EAW for a Notts man, Jamie Neil, who had fled to Portugal. The Portuguese promptly located him, arrested him, and turned him over to the UK.