Imagine you have just returned from abroad only to be told at passport control that there is a problem with your documentation and would you mind waiting a few minutes while it is sorted out? This, it turns out, is a ploy to keep you waiting quietly and shortly later armed policemen arrive, handcuff you and take you away to a police station where you spend two nights in the cells.
During the course of this disturbing experience you learn that you are the subject of a European Arrest Warrant (EAW) served by a Greek magistrate. You are then brought before an extradition tribunal.
You are still rather bemused as you are not aware of having committed any crimes in Greece (or anywhere else for that matter). You then learn that the EAW refers to an offence it is alleged you committed eight years ago and that this supposedly took place in your London residence, not in the foreign country demanding your extradition.
Kafkaesque is a much over-used adjective, but it is difficult to come up with a more fitting description for what Kensington-based antiques dealer, Malcolm Hay, has been experiencing since 14th July, 2007, the date of his initial arrest. Sadly, his surreal experience is far from over and has all but destroyed his business. His is a story that should get anybody committed to genuine civil liberties frothing with anger as well as huge concern. It epitomises the way in which our political class have abandoned us as a people to the mercies of that strange post-liberal, post-democratic emerging state based in Brussels.
Mr Hay lodged an appeal with the Greek authorities over his sentence and a stay was putting on the EAW until the appeal was heard. The Greek authorities demanded a ‘caution’ of £20,000 from him, which his Greek lawyers advised him not to pay. A new warrant unbeknown to Malcolm Hay was then prepared and on 2nd February of this year he was removed from a plane at Heathrow by police, taken the cells for a night and brought before Westminster Magistrates Court again. He subsequently paid the caution and is now awaiting the result of the appeal. If the guilty verdict is confirmed he expects to be deported to Athens in December to serve possibly years in jail.
Putting to one side, briefly, the question of Mr Hay’s guilt or innocence, there are two really disturbing aspects to this case. First, under the EAW, the prosecuting authorities from an EU member state do not have to provide any actual evidence of wrong-doing for the authorities in another country to execute the warrant. The only requirement is that the forms be filled in correctly. So, goodbye Habeas Corpus. Mr Hay has discovered that, outrageously, British officials gave advice to the Greeks on how best to pursue the case against him.
Second, and even more incredibly, it is possible for a prosecuting magistrate to have a citizen extradited from elsewhere in the EU even if the alleged offence did not take place on the territory of the country seeking extradition. In this case, the Greek authorities claimed that Mr Hay had sold stolen antiques in London to a dealer from Athens. As he points out, this precedent could have very serious implications for the workings of the European Single Market. Potentially, therefore, any British person dealing with other EU businesses could find him or herself subject to extradition proceedings. The ‘evidence’ for the assertion of wrong-doing against Mr Hay was a receipt the Greek dealer produced when she was accused of having in her possession illegally-held artefacts. Even a casual examination of Malcolm Hay’s receipt for a small number of small items shows that they do not correspond to the much larger objects discovered in Athens by the police.
At Mr Hay’s trial, held in his absence, the defence team invited the judges to view the stolen artefacts and to compare them to the items on the receipt written out in London. This they revealingly refused to do. Also rather suspiciously, all charges were dropped against the Greek defendant.
A growing number of British and other EU citizens are beginning to find themselves subject to the EAW. They are typically forced to take their judicial chances with legal systems that do not live up to the demands of traditionally liberal jurisprudence. Malcolm Hay’s case is unique in as much as it is the first time, as far as I am aware, that a UK resident is being extradited to another country under the EAW for an offence said to have taken place in this country. Far from rallying to help one of their own, the UK authorities have been complicit, shamefully, Mr Hay claims, in assisting his forced removal to Athens.
Chris Huhne, when Lib Dem shadow Home secretary, said his party should be having second thoughts about the EAW. This was a bit rich since his party in the European Parliament was instrumental in devising it and pushing through what is a now a legally-binding EU directive. What odds that Ken Clarke, in his desire to empty British prisons, might deny Greek gaols one more inmate?
Marc Glendening is Director of ICCwatch, and, Director of the Democracy Movement.