Changes to Britain’s criminal justice obligations under EU rules

The British Government is readopting certain EU crime-and-justice measures, from which it had previously withdrawn, as they have been deemed essential for national security. These measures adopted by Government include the Prisoner Transfer Framework Decision, and the European Arrest Warrant.

The EU Prisoner Transfer Framework Decision 2008/909/JHA enables authorities to return foreign-national offenders, without their consent, to their home countries to serve their sentences. Potentially hundreds of Irish prisoners serving prison time in England and Wales could be repatriated to serve their sentence in the Republic of Ireland. Irish prisoners constitute the second largest demographic of foreign nationals serving sentences in prisons in England and Wales.

However, returns under the decision may be open to challenges on human rights grounds under the European Convention on Human Rights, using Articles 3 (prohibition on cruel, inhuman and degrading treatment) and 8 (right to private and family life).  If the prisoners were to be transferred to worse conditions, or if a transfer would mean separating them from their family in the UK, it may be possible for prisoners to block their transfers.

The European Arrest Warrant is a Europe-wide warrant which requires another member state to arrest and transfer a criminal suspect to the issuing state for trial. While most of the measures were passed through the House of Commons for approval, the European Arrest Warrant was seen as more urgent and important and was readopted by David Cameron PM, and Theresa May, Home Secretary, without reference to the House. Although heavily criticised, this executive action was challenged and upheld in judicial review.

The crime and justice measures are due to come into effect on 1 December 2014.

Meanwhile, in Ireland...

The Supreme Court has unanimously granted Ali Charaf Damache, an Algerian-born Irish citizen, his appeal for a judicial review of the DPP’s decision not to prosecute him in Ireland in relation to his alleged involvement in terrorist activities. Damache’s extradition is sought by the United States officials, and if sent to the US, Damache could face up to 45 years in jail for his alleged involvement. He has been in custody ever since the DPP’s 2011 decision, awaiting determination of the extradition matter which was initiated in 2012. He has been granted judicial review of two issues; whether the DPP’s 2011 decision is reviewable in the circumstances of his case, and whether the DPP was entitled to decline to give reasons for her refusal. 

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