The draft Withdrawal Agreement threatens our civil liberties

Torquil Dick-Erikson explains the threats to civil liberties in the draft Withdrawal Agreement. This article draws on a report that Mr Dick-Erikson has recently authored for our affiliate member The Bruges Group, which can be viewed on their website here.

On 29th March next year, the good ship HMS United Kingdom should be set to sail the seven seas with the British people at the helm, a free, self-governing country once again.

But under the terms of May’s deal, our ship will be under the exclusive command of Brussels bureaucrats whom we did not elect and cannot dismiss. Just consider Article 95.1 of the Agreement:

ARTICLE 95 Binding force and enforceability of decisions
Paragraph 1. Decisions adopted by institutions, bodies, offices and agencies of the Union before the end of the transition period, or adopted in the procedures referred to in Articles 92 and 93 after the end of the transition period, and addressed to the United Kingdom or to natural and legal persons residing or established in the United Kingdom, shall be binding on and in the United Kingdom.

Paragraph 3: The legality of a decision referred to in paragraph 1 of this Article shall be reviewed exclusively by the Court of Justice of the European Union in accordance with Article 263 TFEU.

It has been said that without this Agreement, we will “fall off a cliff edge” and face great uncertainty. But what can be more uncertain than leaving one’s destiny in the hands of others, of forces who do not have our best interests at heart? Indeed, in the hands of those who have said they wish to punish us?

It is not only our national independence and security that will be at risk with this Agreement. So too will our civil liberties and our safeguards against arbitrary arrest and wrongful imprisonment.

The Outline Political Declaration prefacing this “deal” says that we share basic values with other EU nations, and reaffirms our commitment to the ECHR. True, but there are certain essential values that we do not share.

Our personal freedom from arbitrary arrest and wrongful imprisonment is safeguarded by our Habeas Corpus laws. These are not shared by our EU partners and are not protected by the ECHR. My research gives a detailed explanation with reference to the articles of the ECHR and citing cases.

Our system of criminal justice derives from Magna Carta. Theirs derives from the Inquisition as adopted and adapted by Napoleon, whose codes still hold sway on the continent. The two are totally different – chalk and cheese.

The extension of the “transition” period from 2020 until 2022 is up to a Joint Committee (art. 132) which must decide by “mutual consent”. If no such consent is reached, it must defer to arbitration. The Arbitration Panel is subject to the ECJ, where the UK has no representation. During this time – 4 years from now – the EU can pass regulations to cripple us, especially our businesses that compete with theirs.

Mrs May has said she wants to keep indefinitely our membership of Europol, and the European Arrest Warrant, which enables arrest and transportation to lengthy imprisonment in Europe on no evidence. And in a reckless statement to Parliament in 2012, in Hansard, but which passed completely under the radar of the media, she said, “Of course” she would welcome lethally-armed, paramilitary Eurogendarmerie units “onto British soil”.

The EU army, now being set up, can also be used as an enforcement agent. This agreement obliges us to source our military materiel in the EU, so we shall have no control over our military supplies or suppliers.

Mrs May’s Agreement contravenes the Trades Description Act. This is not a Withdrawal Agreement. It is an abject Act of Surrender.

The EAW is unconstitutional. Here is how it can be struck down

© by Torquil Dick-Erikson, 04/04/2018

Not just EAW arrests are unconstitutional, but so are all arrests made on no evidence.

This is the chief difference between an arrest made on a domestic arrest warrant and an arrest made on a European Arrest Warrant.

A domestic arrest warrant must be backed by evidence already collected, under our UK laws on Habeas Corpus, based on Magna Carta sec.38 (see below).

In contrast, under the Napoleonic-inquisitorial systems used in continental Europe, a suspicion based on clues held by the investigator (who usually wears a judge’s robe), is enough to order an arrest and an imprisonment. Then they seek evidence, while the suspect may languish in prison for months, with no right to a public hearing during this time. See details in my speech at the House of Lords, given on 15th March 2017. In this speech I also dealt with the inadequacy of the European Convention on Human Rights in this regard.

The injustice of the EAW when issued against a person in Britain is that the British court is not allowed to ask to see any evidence.  Often there is none, or so flimsy it would not stand up for 5 minutes in a UK court. When our MPs passed the Extradition Act of 2003 they surely assumed that all our EU “partners” must have a requirement for evidence similar to ours. The assumption was unfounded, as various cases since then have demonstrated, e.g. Andrew Symeou, or Colin Dines, a British judge forcibly transported to a prison in Rome.

This is the nub of the case of the Catalan Professor Clara Ponsati, and which, it is to be hoped, will be at the heart of the debate to be held in the Sheriff’s court in Edinburgh on April 12th next, or perhaps subsequently.

Here, in summary, is my suggestion as to how the EAW against her can be dismantled:

  1. She is accused by the Spaniards of “violent rebellion” and “misuse of public funds”. (It is clear that Prof. Ponsati has never used nor advocated violence, the use of the term shows bad faith on the part of Spain’s judiciary, an intention to smear her character before public opinion.)
  2. She should ask the prosecution to produce evidence of this.
  3. The court will respond that under the terms of the Extradition Act 2003 this is not necessary, these are matters that will be dealt with by the Spanish courts, and her request will be refused.
  4. At this point she can quote Habeas Corpus and Magna Carta sec. 38, which stipulate that no legal proceedings can be started against anyone without evidence (see details below).
  5. The court will reply that the Extradition Act 2003 dispenses with the need for the foreign judicial authority to produce evidence to a British court, and its provisions supersede the earlier ones in Habeas Corpus and Magna Carta, by implied repeal.
  6. At that point she can say that Habeas Corpus and Magna Carta are CONSTITUTIONAL LAWS, which are not subject to implied repeal, quoting the precedent of the Metric Martyrs judgement by Lords Laws and Crane (see details below).
  7. It then becomes apparent that the EAW is unconstitutional, repugnant to our Constitution, and invalid in the UK.

I cannot see how the Court can answer this. They might wish to refer it to the European Court of Justice, which of course will have no regard for our Habeas Corpus or Magna Carta safeguards (unknown in continental Europe), but at that point the matter takes on enormous public interest, not just in Scotland and Catalonia, but world-wide.

Two contrasting legal systems will be seen to be in conflict. Our Magna Carta based heritage, versus the Napoleonic-inquisitorial heritage of continental Europe (adopted in toto in the EU’s “Corpus Juris” proposal for a single EU-wide criminal code, which was rejected by the UK in 1999. The EAW is the first step towards Corpus Juris).

Domestic arrests, whether made in England, Scotland or Northern Ireland, have to be supported by evidence of wrong-doing already collected by the investigators beforehand. To make sure that this happens, Habeas Corpus stipulates that an arrested person must appear in open court within hours, or at the most a few days (or in very extreme terrorist cases, 28 days), and there charged formally with a precise accusation. And if so required, the prosecution must be able to produce their evidence of a prima facie case to answer, at that hearing.

This fundamental right, which protects innocent people who are wrongly suspected of crime, descends from Magna Carta, section 38. This (usually unnoticed) section is the basis of Habeas Corpus, which prevents people from being arrested and imprisoned arbitrarily, on no evidence.

In their incredible and foresightful wisdom, 800 years ago, our forefathers laid down, in Latin – and the Latin is important – in just fifteen words, the basis of our freedom from arbitrary arrest and prosecution or persecution and harassment by officers of the State. It says:

“Nullus balivus ponat aliquem ad legem, simplici sua loquela, sine testibus fidelibus ad hoc aductis.”

In English:

“No legal officer (balivus, originally “bailiff”) shall put anyone to the law ie shall start legal proceedings against anyone (NB “anyone” “aliquem” – this is a universal human right, not limited to “free men”), on his own mere say-so, without reliable witnesses who have been brought for the purpose.”

N.B. Note the use of the past participle “aductis”: the witnesses, the evidence, must have already been collected BEFORE any legal proceedings, such as an arrest, are started. In continental jurisdictions they can, and often do, order suspects to be arrested first, and then, AFTERWARDS, they seek evidence. They are allowed to do this under the provisions of their own Napoleonic-inquisitorial systems, which are alien to our own Magna Carta heritage. This procedure, also called “fishing expeditions”, is NOT ALLOWED under Magna Carta and Habeas Corpus laws.

This means that nobody can be subjected to any legal act, like arrest or detention, without previously collected EVIDENCE.

Most people think the EAW is just about catching criminals. It is not. It is potentially a tool for tyranny. It is a threat to the freedom of the innocent. It can be wielded by the British authorities against suspects in Europe, but also by any European judiciary – however reputable or however dodgy – against any of us.

Here are some details of the case judged on Appeal which gives us the useful precedent, whereby Habeas Corpus and Magna Carta can trump the Extradition Act 2003 even though they were passed earlier.

It was a famous case some years ago, when some market traders in Sunderland were convicted and given a criminal record for having sold bananas by the pound weight instead of by the kilogram as had become compulsory under an order complying with an EU directive, issued under the legal force of the European Communities Act 1972 (ECA72). The defendants of this absurdly unfair conviction became known as “The Metric Martyrs”. They appealed against their conviction, but their appeal failed.

We must look at the reasons given, why their appeal was turned down.

When the Appeal Court Lords Laws and Crane confirmed the conviction of the Metric Martyrs, they gave a novel answer to the defence’s arguments: the defence had argued that the 1985 Weights and Measures Act (WMA85), which allowed market produce to be sold in lb and/or kg, was subsequent to the ECA72 (under whose provisions the order criminalising the sale of fruit by the pound weight instead of by the kilogram had been issued). Therefore, argued the defence, the WMA85 over-rode that part or that effect of the ECA72 under the doctrine of implied repeal, whereby if there be a conflict between laws then the subsequent law is deemed to have over-ridden and annulled the provisions of the earlier law.

Not so, said their Lordships. They said that the ECA72 had the status of a “constitutional act”, and so could not be over-ridden by subsequent legislation under implied repeal, but only if the repeal was explicitly spelt out in the text of the subsequent Act.

Since the WMA85 did not explicitly repeal any provisions of the ECA72, which it might have done by including words like “any provisions in or deriving from the ECA72 notwithstanding”, but didn’t, then in this case the earlier ECA72 must be held to prevail over the later WMA85. They even added, as a consolation “sop” to the defence, that Parliament is in any case free to repeal the ECA72 whenever it wishes, as long as it does so explicitly.

The Metric Martyrs now presented an appeal to the House of Lords, but it was thought that their appeal was not worthy of consideration, so the decision of the Appeal Court acquired the status of LEGAL PRECEDENT, which as every law student knows, is now binding on subsequent decisions.

This “innovation” by Laws and Crane can be summarised in general terms as follows:

  1. There are now two levels of law in the United Kingdom: a) Constitutional laws and b) Ordinary laws. There are different rules applicable if Parliament wishes to repeal any of them.
  2. In cases where there is a conflict between two ordinary laws, the later law is deemed to annul those provisions of the previous law in conflict with it, under the well-established doctrine of “implied repeal”, whereby that part of the earlier law, if found to be in conflict with the later, is declared null and void.
  3. In cases where there is a conflict between an ordinary law and a previous constitutional law, then the constitutional law is held to prevail over the ordinary law, UNLESS the subsequent ordinary law EXPLICITLY repeals a provision in the preceding constitutional law. Parliament can repeal any constitutional law by simple majority vote, for one bedrock rule of our constitution is that No Parliament Can Bind Its Successors. This is also the basis for the doctrine of implied repeal.
  4. So, what Laws and Crane established is the principle that Parliament cannot change the constitution by implied repeal.
  5. By the same token, if there is a conflict between two “constitutional laws”, then it must surely follow that UNLESS the subsequent constitutional law EXPLICITLY repeals a provision in the preceding constitutional law, then the preceding constitutional law prevails.

Therefore if the Extradition Act of 2003 had been intended to over-ride Habeas Corpus and Magna Carta sec. 38, it should have said so explicitly. In fact it did not abrogate section 38 of Magna Carta! Indeed section 38 is hardly ever talked about because, in the English-speaking world at least, it is considered too obvious that you need evidence of wrong-doing before starting legal proceedings against anyone.

To get round this, a UK court would have to deny that Magna Carta and Habeas Corpus had constitutional status, or Parliament would have to repeal them. It is highly doubtful that either would have the heart and stomach to do so. The wave of public anger and indignation would be overwhelming.

That the European Arrest Warrant is in fact incompatible with Habeas Corpus is dealt with by Jonathan Fisher QC in his learned Opinion (para. 4 page 2, and para.s 70-85 pages 19-22):

How to rid ourselves of the European Arrest Warrant

THE EUROPEAN ARREST WARRANT (EAW) IS UNCONSTITUTIONAL.

IT MUST – AND CAN! – BE STRUCK DOWN.

HERE IS HOW.

 

© by Torquil Dick-Erikson, 24/3/2018

Not just EAW arrests, but all arrests made on no evidence, such as those suffered by Lauren Southern, and others.

Most think the EAW is just about catching criminals. It is not. It is a tool for tyranny. It is a threat to the freedom of the innocent. It can be wielded by the British authorities, but also by any judiciary – however dodgy – anywhere in Europe, against any of us.

Theresa May and Amber Rudd want it to continue indefinitely, in a Security Treaty to be signed between the UK and the EU, even after Brexit.

Here is the shocking interview of Lauren Southern by Tommy Robinson,

Ms Southern, a Canadian citizen aged 22, was subjected to a banning order by the British authorities, preventing her from entering the UK, on grounds that she intended to interview Tommy Robinson, who they said was a “right-wing, racist leader”. On a previous visit she had distributed leaflets saying that “Allah was a Gay God” – as an experiment to test the reaction of the public and the authorities, and to verify the extent to which freedom of speech is curtailed now in the UK.

Not only was she banned from entering, she was also detained by Kent police for 3 days. During this time they telephoned her father in Canada to tell him that they were holding her under the Prevention of Terrorism Act, although they had no reason to suspect her of being a terrorist. Her father recorded the conversation.

It is indeed shocking, that people are now being detained, as Ms Southern was, on no evidence of wrong-doing. And as indeed happens regularly with the EAW, although there is in that case the (fake) excuse that the foreign authority issuing an EAW “must” already have evidence, although in fact the foreign authorities don’t have to have any evidence under their own Napoleonic laws as I explained during the CIB conference that Lord Pearson kindly hosted in March last year.

What happened to Ms Southern is a clear breach of Magna Carta, section 38. This (usually unnoticed) section is the basis of Habeas Corpus, which prevents people from being arrested and imprisoned on no evidence.

In their incredible wisdom, 800 years ago, our forefathers laid down, in Latin – and the Latin is important – in just fifteen words, the basis of our freedom from arbitrary arrest and prosecution or persecution and harassment by officers of the State. It says:

Nullus balivus ponat aliquem ad legem, simplici sua loquela, sine testibus fidelibus ad hoc aductis.”

In English:

“No legal officer (balivus, originally “bailiff”) shall put anyone to the law ie shall start legal proceedings against anyone (NB “anyone” “aliquem” – this is a universal human right, not limited to “free men”), on his own mere say-so, without reliable witnesses who have been brought for the purpose.”

N.B. Note the use of the past participle “aductis”: the witnesses, the evidence, must have been already collected BEFORE legal proceedings, such as an arrest, are started. In continental jurisdictions they often order suspects to be arrested first, and then, AFTERWARDS, they seek evidence. They are allowed to do this under the provisions of their own Napoleonic-inquisitorial systems, which are alien to our own Magna Carta heritage. This procedure, also called “fishing expeditions”, is NOT ALLOWED under Magna Carta and Habeas Corpus laws.

This means that nobody can be subjected to any legal act, like arrest or detention, without previously collected EVIDENCE.

Ms Southern and Tommy Robinson talk about legal redress for her dreadful experience at the hands of the British State. Might I suggest that what she suffered was an abuse of due process, indeed a perversion of justice, at the hands of the Kent police officers who detained her thus, on NO EVIDENCE. Her Habeas Corpus rights were VIOLATED.

Now if Ms Southern brings a case against the Kent police for unlawful detention (or some such offence, maybe false imprisonment…?), the Kent police might put forward the counter-argument that the PTA provisions gave them that power, and, since it comes after Magna Carta and indeed after the Habeas Corpus Act of 1679 (and any subsequent modifications), it over-rides those guarantees under the doctrine of implied repeal.

This counter-argument can be invalidated as follows:

There was a famous case some years ago, when some market traders in Sunderland were convicted and given a criminal record for having sold bananas by the pound weight instead of by the kilogram as had become compulsory under an order complying with an EU directive, issued under the legal force of the European Communities Act 1972. The defendants of this absurdly unfair conviction became known as “The Metric Martyrs”. They appealed against their conviction, but their appeal failed.

We must look at the reasons given, why their appeal was turned down.

When the Appeal Court Lords Laws and Crane confirmed the conviction of the Metric Martyrs, they gave a novel answer to their defence’s arguments: their defence had argued that the 1985 Weights and Measures Act, which allowed market produce to be sold in lb and/or kg, was subsequent to the 1972 ECA (under whose provisions the order criminalising the sale of fruit by the pound weight instead of by the kilogram had been issued). Therefore, argued the defence, the WMA1985 over-rode that part or that effect of the ECA1972 under the doctrine of implied repeal, whereby if there be a conflict between laws then the subsequent law is deemed to have over-ridden the provisions of the earlier law.

Not so, said their Lordships. They said that the ECA72 had the status of a “constitutional act”, and so could not be over-ridden by subsequent legislation under implied repeal, but only if the repeal was explicitly spelt out in the text of the subsequent Act.

Since the WMA85 did not explicitly repeal any provisions of the ECA1972, which it might have done by including words like “any provisions in or deriving from the ECA72 notwithstanding”, but didn’t, then in this case the earlier ECA72 must be held to prevail over the later WMA85. They even added, as a consolation “sop” to the defence and to Eurosceptics in general, that Parliament is in any case free to repeal the ECA72 whenever it wishes, as long as it does so explicitly.

The Metric Martyrs now presented an appeal to the House of Lords, but it was thought that their appeal was not worth hearing, so the decision of the Appeal Court acquired the status of LEGAL PRECEDENT, which as every law student knows, is now binding on all subsequent decisions.

This “innovation” by Laws and Crane can be summarised in general terms as follows:

  1. There are now two levels of law in the United Kingdom: a) Constitutional laws and b) Ordinary laws. There are different rules applicable if Parliament wishes to repeal any of them.
  2. In cases where there is a conflict between two ordinary laws, the later law is deemed to annul those provisions of the previous law in conflict with it, under the well-established doctrine of “implied repeal”, whereby that part of the earlier law, if found to be in conflict with the later, is declared null and void.
  3. In cases where there is a conflict between an ordinary law and a previous constitutional law, then the constitutional law is held to prevail over the ordinary law, UNLESS the subsequent ordinary law EXPLICITLY repeals a provision in the preceding constitutional law. Parliament can repeal any constitutional law by simple majority vote, for one bedrock rule of our constitution is that No Parliament Can Bind Its Successors. This is also the basis for the doctrine of implied repeal.
  4. However what Laws and Crane established is the principle that Parliament cannot change the constitution by implied repeal.
  5. So by the same token, if there is a conflict between two “constitutional laws”, then it must surely follow that UNLESS the subsequent constitutional law EXPLICITLY repeals a provision in the preceding constitutional law, then the preceding constitutional law prevails.

So if in a case against the Kent police charging them with unlawful detention or false imprisonment, their defending counsel should argue that the PTA1972 over-rides any provisions of Magna Carta 1215 or indeed Habeas Corpus, under “implied repeal”, the counter-argument could be to say that Magna Carta has CONSTITUTIONAL status, and so has Habeas Corpus. Therefore if the PTA1972 had been intended to over-ride it it should have said so explicitly. In fact it did not abrogate section 38 of Magna Carta! Indeed section 38 is hardly ever talked about because, in the English-speaking world at least, it is considered too obvious that you need evidence of wrong-doing before starting legal proceedings against anyone.

After all the public razzmatazz (on both sides of the North Atlantic) about celebrating our Magna Carta heritage in 2015, I would like to see a judge having the brazen face to deny that Magna Carta has Constitutional Status! And since Ms Southern is a Canadian citizen, and Ms Pettibone (who was also so detained) is a US citizen, and both countries proclaim Magna Carta as a founding document of their – and our – civilization, I think that this argument ought to have the power to crush these miserable bureaucrats who try to steal our liberties.

As indeed was the original intention of those who drafted it, all those centuries ago.

And indeed as commentators from Coke to Churchill have repeated down the ages.

Previous attempts to get us out of the tentacles of the EU through the law courts have failed. Largely owing to the unwillingness of the judges to go against Parliament. And to the general climate of opinion which was held to be in favour of EU membership.

But now that Brexit has won the referendum, and the government is officially in favour, some judges might at least be willing to follow the precedent of the Appeal Court’s Laws and Crane…. who will thereby be hoisted with their own petard!

Torquil has also brought to our attention another appalling example of why we must leave the EAW – the case of a Catalan Professor at St. Andrews University who faces possible extradition to Spain.

The European Arrest Warrant – further reasons for pulling out

My speech on the subject of “European Law – will it go away with Brexit?” was delivered at a CIB-organised meeting at the House of Lords on 15th March 2017. You can download the full text here.

For those who wish to know more, I made a submission to the House of Lords in 2013-4 as a contribution to the debate at that time on whether to opt back into the EAW or not. This was posted on the CIB website a while ago and can be downloaded here. However, there were three appendices to the submission which were not previously available. They now can also be downloaded.

Appendix A shows the article I published in the New Law Journal in 1990. Readers may recall the famous miscarriages of British justice – the Birmingham 6 and the Guildford 4 – some Irishmen wrongly convicted of placing bombs in pubs for the IRA. After 15 years while these innocents languished in prison, the British system did acknowledge that this had been due to the investigators (the police) beating confessions out of them and then lying on oath in court. As a result of this, a well-known campaigner called Ludovic Kennedy then campaigned, with the support of barrister Michael Mansfield, to introduce elements of the French inquisitorial system, where investigations are conducted by, or under strict supervision of, a judge, not the police. My article served to show that this solution would not give the desired results, on the contrary.

Appendix B reproduces two pages from the official programme distributed to the participants at the seminar I attended in Spain in April 1997 where the Commission unveiled its Corpus Juris project for a single criminal code for all Europe. They serve to dispel and disprove the myth put about at the time by the Europhiles that  was NOT anything out of the EU institutions, just a “thinkpiece” dreamed up by some unaffiliated academics (untrue – see page B1); and the other myth that its scope was limited only to the defence of the financial interests of the EU, with no intention to expand it later to cover all other forms of criminal law and justice (again, untrue, see page B2 – where they openly call it an “embryo criminal code for Europe”).

Appendix C, taken from Hansard, gives the briefing paper I wrote which was read aloud in the Commons by Nick Hawkins MP in 2003. I think it is necessary to put this on the record because it shows that the government had done no research whatsoever into the continental criminal law system to which they were recklessly exposing British people in Britain; in fact, they did not bother to discuss and refute what I said, but simply disregarded my analysis completely. All that the government spokesman Bob Ainslie MP could say at the time was “Well, we see that the Italian justice system is very different from ours”. My main point was to show that the Italian system makes no hard and fast distinction between an investigation phase and a prosecution phase – an investigation is always “against” a suspect – so the government’s pretence that a case had to be “prosecution-ready” was meaningless.

The proposed alternative to the European Arrest Warrant is not satisfactory

I am afraid that David Davis’s scheme for a new European Arrest Warrant is not at all satisfactory as it stands. Here is the essence of it:

__________

Under the proposal a new “ad hoc” legal commission would replace the European Court of Justice (ECJ) which currently rules on extraditions.

The new panel would have a Supreme Court judge, an ECJ judge and one from a third neutral country to rule on each extradition.

__________

This proposal as it stands is merely cosmetic, and here is why:

Any oversight by a superior body, whether our own Supreme Court or even more so by a new ad hoc mixed legal commission can only see and ensure that the current EAW legislation is applied by the lower courts.

And the main problem is that it is not proposed here to alter the current EAW legislation, which says that prisoners must be surrendered at a bald, unsupported, demand from the requesting State, with no examination by a court of the requested State of evidence of whether there is a serious case to answer or not.

It is – wrongly and wrongfully – ASSUMED by many in Britain that the EU states will all have assembled evidence of guilt and will be “prosecution-ready” before they issue an EAW (as is the normal practice in Britain). Indeed according to the Treaty we are bound to trust them blindly to have done so, under the doctrine of “mutual confidence and recognition”.

Our politicos and legal eagles, not to mention pundits, are still – willfully? – ignoring the fact that the practice in States ruled under the Napoleonic-inquisitorial dispensation is to arrest a suspect FIRST, and only AFTER they have him under lock and key, do they try to build a case and seek evidence against him. This often takes months, while the unfortunate rots in duress vile with no public hearing, as we have seen happen all too often.

This is not – as our own people assume – due to the sloppiness of continentals in applying standards that we in Britain consider to be right and normal; it is the way their system functions normally, and is supposed to function. They do not work to our standards,  but to their own, which are completely different from, indeed alien to, ours.

I have been through the historic reasons, going back 800 years, for this profound difference elsewhere and shall not do so again here.

Whether the grounds for suspecting, and for arresting, a particular person amount to serious evidence of a case to answer, or flimsy evidence that would not stand up to serious scrutiny, or no evidence at all but merely clues, or just a hunch, or even a prejudice, on the part of the investigators, is sorted out in Britain by our Habeas Corpus.

This provides a right for a prisoner to be brought into a public hearing in open court within HOURS or at most a few days after arrest. And there he can demand to be shown the evidence on which he was arrested. He must there be “charged”, and in Britain and other English-speaking nations a charge must be based on hard evidence, already collected, of a case to answer. No right to any such speedy public hearing exists in continental States, where six months, extensible, in prison “pending investigaton” with no public hearing, is considered a normal limit (for many categories of cases, not only extreme terrorism cases), as per the Corpus Juris proposal for a single unified criminal code for all Europe.

Some years ago an attempt by our own government to introduce 42-day detention without charge nor public hearing in terrorist cases was resisted and opposed on principle by none other than David Davis himself, who nobly resigned his seat and stood for re-election on this very point, and was returned again by his electorate who clearly shared his concern to keep our traditional safeguards of the liberty of the subject. Has he forgotten this? How can it have escaped his notice that the EAW as it stands brings in not just six weeks, but six months, in the case of Andrew Symeou eleven months, detention without charge or public hearing?

The European Convention on Human Rights provides no remedy. Its article 6 merely says that a prisoner must have a public hearing within a “reasonable” time after arrest, and the continentals will say that it is “reasonable” for them to take six months to investigate a person and assemble evidence against him of a case to answer.

One solution could be to force the continental States to hold a Habeas Corpus public hearing within hours of receiving a prisoner to show that there is a case to answer, or to release him. We have already seen that this would not be accepted by them for it goes against their whole legal culture. Indeed in 2002 the late Neil McCormick QC MEP presented a motion to the EU Parliament to set up a “Euro-Habeas Corpus” to go with the EAW, but it was overwhelmingly voted down.

So it will have to be our own courts who demand that an EAW, or indeed a warrant received from any foreign State, must be accompanied by evidence of a case to answer which can be examined by a UK court with the power to reject it if considered insufficient. This is what happened before the European Extradition Act of 1989. The delays complained about were largely due to the foreign authorities, who are quite unaccustomed to having to investigate first and arrest after. They prefer to do it the other way round. Under our previous legislation, they had to do it our way. Now we have to do it their way.

At present the UK is forced to conform to the continentals’ yardstick. This flies in the face of Magna Carta (clause 38).  But people on British soil (even if not British citizens) must be entitled to the protection of British laws. This always used to be the case, and it must be restored.

The renewal of border checks will enable the UK to keep out known foreign criminals whose identities have been flagged up to us by foreign authorities. So the garish scare-mongering about “Britain becoming the Costa del crime” and the “honeypot for criminals” argument can be laid to rest.

The practical argument that supporters of the EAW cannot answer is: if no substantial evidence of guilt is collected BEFORE arrest, how can the authorities know that they have got the right person to accuse? Indeed the record of the EAW’s application shows many cases where perfectly innocent people (including even a British judge – Colin Dines!!) were targeted and made to suffer forced transportation and often lengthy imprisonment, thus allowing the truly guilty parties to escape scot-free.

Even if we had our own Supreme Court to oversee the application of the EAW, it can only do so on the basis of the legislation as it stands. However sympathetic it might be towards an obviously innocent victim of a monstrous judicial muddle, or even of persecution on a trumped-up charge, as long as the doctrine of “mutual recognition” remains on our Statute book, the Supreme Court cannot do anything other than apply it. Willy-nilly. Judges in our lower courts have even been embarassed about EAW cases like this, but have been powerless to do anything other than apply the law as it stands. The Supreme Court would be in a like position.

So a reform of the EAW needs to insist that when foreign authorities send us a warrant to arrest someone on British soil, they must also send an indication of the evidence of a prima facie case to answer. Otherwise we cannot prevent them from using the EAW as a tool for fishing expeditions.

Is David Davis going to set us free from the EAW?

It is very good to see that David Davis, by raising the point about the supremacy of the ECJ’s jurisdiction over the EAW, has taken a first step to breaking us free from the shackles of the continental inquisitorial justice system, so alien from ours. I am hoping that he might now take a second step, viz, as follows:

In my speech on Alien Legal Systems, at the CIB event in the House of Lords on March 15th this year, I mentioned David Davis. Here is an extract from that speech, with my personal challenge to him which he might now answer, and indeed perhaps he will answer it:

 “For us in Britain, the preliminary public hearing in open court,  where the prisoner is formally charged, must take place within hours, or at the most a few days, after his arrest and detention.

Some years ago there was an attempt to extend this, in serious terrorist cases, to three months, then reduced to six weeks. An MP called David Davis fought a noble battle of principle against this – he resigned his seat and stood again for Parliament on this very point – Habeas Corpus. He won and was returned to his seat. In the end, Parliament fixed a maximum limit of 28 days of detention without charge, and only in exceptional cases of terrorism. This is what we in Britain consider to be “reasonable”.

But for many EU states, under their Napoleonic-inquisitorial jurisdictions, it is considered “reasonable” to keep a prisoner under lock and key with no public hearing for six months, extensible by three months at a time. These are the terms of the Commission’s Corpus Juris proposal for an embryo single uniform criminal code to cover the whole of Europe, including the British Isles. This is what is may be faced by anyone in Britain who is targeted by a European Arrest Warrant. And on a long list of crimes, not just terrorist cases.

Now is the David Davis who resigned his seat to stop the six weeks’  detention bill on no evidence, the same David Davis now in charge of the government’s Brexit department? If so, does he share Ms Rudd’s wish to keep us subject to, not six weeks, but six months and, in the case of Andrew Symeou, nearly a whole year’s detention with no public hearing? If he opposes it, will he please say so openly?

This is no marginal matter. As I have shown, whoever controls criminal justice, controls the police and prisons, and thus holds the  ace of trumps in the struggle for power over a country. And that is precisely what Brexit is really about – who shall hold power in this land? Shall it be the unelected bureaucrats in Brussels? Or shall it be the people of Britain?

So we see that the European Convention is a very thin blanket,  designed to cover systems with Habeas Corpus as well as those without. It can only work if the woolly ambiguity of its use of words like “reasonable” [in article 6, referring to a prisoner’s right to a public hearing within a “reasonable time”] remains unchallenged.”

[For your ease of reference, the whole speech is here (7 pages)]