Given the indissoluble links of geography, culture and economics between the UK and mainland Europe, it was inevitable that many of the changes ‘Brexit’ brought about, would be changes in name only. One example of this is the system of extradition between EU Member States, known as the European Arrest Warrant (EAW) – which provided for the swift and smooth transfer of ‘wanted’ individuals between legal jurisdictions. In the days before the EAW, the process of extraditing Rachid Ramda, wanted for the 1995 Paris metro bombing, from the UK to France took 10 years; by way of contrast, under a European Arrest Warrant in 2005 it took a mere 56 days for Hussain Osman, wanted for the 21/7 London tube bombings, to be brought back to the UK from Italy.
Although the UK withdrew from the EAW system on 31 December 2020, the same mechanism for streamlined extradition was effectively continued, albeit ‘re-branded’ as part of the terms of the Trade and Co-operation Agreement (TCA) between the UK and the EU, from 1 January 2021.
The arrangements under the TCA continue to be governed by the same UK legislation which applied to the old European Arrest Warrant (the Extradition Act 2003) and continue to be administered in England and Wales by the National Crime Agency, which validates international warrants and alerts local Police Forces. The new UK/EU “surrender arrangements” provided by the TCA mirror the EAW system in important ways-
• An arrest warrant can be issued for any offence which carries a potential custodial sentence of at least 12 months, or where a custodial sentence has already been made against the individual of at least 4 months;
• The issue of the warrant is subject to the principle of “dual criminality” i.e the type of activity must be recognized as a criminal offence in both countries;
• After arrest, the individual will have an initial Court hearing, at which they are given the opportunity to ‘consent’ to be surrendered abroad, and if they do not consent, a more in-depth Extradition hearing at a later date to make a final decision (though all taking place within a tight timeframe).
One important difference that should be noted, however, is that the TCA allows a ‘Nationality Bar’ to be imposed i.e for a given country to refuse to extradite their own nationals. Several major EU countries, including France and Germany, have invoked this clause – although the UK has not.
Fast track extradition between neighbouring democracies is unquestionably a useful tool in law enforcement and the proper functioning of civil society – but as ever, any legal power must be exercised with proper due care and attention, otherwise significant wrongs can occur, as the case of my client Stefan Albescu demonstrates, almost extradited as a result of ‘mistaken identity’.
My client Mr Albescu is a Romanian National who came to the UK in 2015 and who at the time of the material events in 2019 was living in the East Midlands with his wife and children. He was a man of good character who had never before been arrested.
Unfortunately, in the early hours of Sunday 21 July 2019 Mr Albescu was arrested at his home address on suspicion of drink driving. He was taken to his local Police Station.
At 11.12am the following morning Mr Albescu was charged with driving offences and granted unconditional bail to attend Court at a later date.
However, at 11.15am Mr Albescu was then further arrested on the basis of a European Arrest Warrant (EAW) which had been issued by Hungary on 13 October 2016 and certified by the National Crime Agency on 28 June 2017. This was in respect of a conviction warrant issued on 5 September 2016 in relation to an allegation of “fraudulently obtaining a passport”.
The EAW was issued against a man named Stefan Alexandru Albescu, whose date of birth was 30 March 1971.
My client Stefan (not Alexandru) Albescu had a date of birth of 31 March 1976.
The warrant was not backed for bail and therefore the following morning Mr Albescu was transferred to HMP Wandsworth in a state of distress, not only because he knew himself not to be the person named in the EAW, but also because he was claustrophobic and was experiencing considerable alarm at the thought of being confined in the prison transport van.
Mr Albescu was then taken before Westminster Magistrates Court for an initial Court hearing, where he did not consent to extradition and asserted that this was a case of mistaken identity. Bail was refused and his detention continued until 26 July 2019 when the Judge finally agreed that my client was not the person named on the EAW and he was thus released from custody that afternoon, having been detained in prison for over 5 days.
My client’s detention at HMP Wandsworth was particularly distressing given that he was a man of good character, who had never before seen the inside of a Police Custody Suite, let alone a high security prison, where he was being detained at the threat of deportation to a foreign country and separation from his wife and children; all of the time knowing himself not to be the person who was really wanted (and adding insult to injury, he had mistakenly been told following his arrest that the individual was wanted for an offence of murder, significantly increasing the stress of this already nightmarish and Kafkaesque situation)
The effect which these events had had upon Mr Albescu is amply summed up in an entry in his GP records 3 days after his release which describes his condition as follows:-
“Shock, PTSD, put in prison for 5 days as they thought he was another Hungarian man wanted for murder, but different name and DOB. Very shocked when released. Plan: advised to see counselling, insight details given. Zopiclone 7.5mg tablets…one tablet a night when needed to aid sleeping.”
Mr Albescu later described to me how he had suffered disturbed sleep for weeks, including nightmares about being locked in a cell with no one coming to let him out, and the cell getting smaller and smaller so that he thought he was suffocating. He woke up terrified on several occasions even when he was back in the safety of his own home.
I was able to get Nottinghamshire Police to accept liability without the need for Court proceedings, and after rejecting the initial Police offer of settlement in the sum of £5,300 damages I was ultimately able to secure a substantial settlement of £22,500 for Mr Albescu in proper recognition of the duration of his detention and the mental trauma which it had caused to him.
Please contact me for expert advice and representation if you have suffered a wrongful arrest under either the old European Arrest Warrant system or the new Surrender Arrangements provided for by the Trade & Co-operation Agreement.
Names and personal details have been changed.