ON July 29 the police in Italy arrested Hussain Osman, one of those suspected of the failed bombings in London on July 21. He was arrested under the European arrest warrant, part of the extradition procedures that have recently been implemented throughout the European Union in an attempt to speed up the extradition process.

The UK made an extradition request and three weeks later, on August 17, an Italian court approved Osman’s extradition to take place within 35 days. This delay is to allow Italian police to conclude their own investigations into Osman’s activities. Osman is expected to appeal against the extradition and so would not return to the UK until the end of this month. However, it will come as a surprise to many that the application of the warrant is far wider than for terrorist offences alone and is directly relevant to senior executives — particularly in light of the increasing regulatory burden.

In the UK, the European arrest warrant forms part of the Extradition Act 2003. The warrant was established by the Council Framework Decision of June 13, 2002, and allows the extradition of criminal suspects to other EU countries under a simplified procedure.

The European Commission’s report in February confirms that whereas previously extradition could take more than nine months, the average time taken to execute a warrant now has fallen to 43 days. This does not include those cases where the individual consents to his or her surrender for which the average time taken is now only 13 days.

The European arrest warrant applies to 32 listed criminal offences and, in the UK, under the principle of dual criminality, to all other offences that carry a potential custodial sentence of more than 12 months or, in cases of those who have already been convicted, where the sentence was at least four months. No one, however, will be extradited from the UK for conduct committed in the UK which is not contrary to its law.

The execution of the warrant is now simply a judicial process with no review by executive authorities. The warrant has abolished the political stage of the extradition process and so no political influence can be brought to bear on any particular case.

There are only a few grounds on which the surrender of an individual can be refused. These include where the principle of double jeopardy applies, or an amnesty covers the offence, or the time limit for prosecution of the offence has passed or the offence involves a minor who has not reached the age of criminal responsibility under national laws. The restriction on refusals also means that EU countries can no longer refuse to surrender their own nationals to another member state. But it remains possible for the surrendering country to require the return of its national to its own territory to serve his or her sentence.

Concern has been expressed by Fair Trials Abroad, the campaign group, that the warrant assumes that acceptable minimum standards are in practice and adhered to in all the judicial systems of the EU. It cites the case of the 14 British and Dutch planespotters arrested at a Greek airshow on suspicion of espionage and that of Mark Forrester, a football fan convicted in a Belgian court under a fast-track procedure, as examples of where the human rights of individuals were largely ignored during criminal proceedings in EU countries. There are no explicit grounds of refusal in the Framework Decision for violation of an individual’s fundamental human rights but several EU countries, including the UK, have expressly required that a person’s human rights are taken into consideration when considering the execution of a warrant.

Further, regulators in America and across Europe are extending their reach to foreign shores and becoming increasingly proactive in seeking the extradition of white-collar suspects. This raises implications for individuals or businesses with a pan-European or US dimension as offences, such as fraud or corruption, could result in the extradition of UK directors for trial in another EU country or the US with no hearing to examine the substance of the allegations. Therefore, with the increased use of the warrant and extradition requests by America, businesses and individuals in Britain need to be prepared not only for the impact of domestic regulatory investigations but also for those from further afield.

Neil Gerrard is group head and Elinor Lloyd is an associate in the regulatory group at DLA Piper Rudnick Gray Cary

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