The European Arrest Warrant is unconstitutional. It must – and can – be struck down.
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.
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 three 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 and Baroness Cox 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 15 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.
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.
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.
Part 2 of this argument will be published here tomorrow.