JURIST Guest Columnist Raneta Lawson Mack of Creighton University School of Law says that in order to reconcile the procedural disparities inherent to the collision between inquisitorial and adversarial systems, the European Arrest Warrant can and should provide mechanisms to obtain dismissal of warrants issued based upon processes that were undertaken without notice to the person and which a reasonable person under the circumstances would not expect to occur…

The recent case of Deborah Dark, a grandmother currently residing in the UK and wanted in France for a crime she was convicted of in absentia 20 years ago, exposed some procedural loopholes in the European Arrest Warrant (EAW) surrender policies. Ms. Dark was arrested at the French border in 1989 and charged with a drug offense. After a trial in France, she was found not guilty and released from jail, and she returned to her home in the UK. At that point, Ms. Dark likely had no reason to expect that her case in France would proceed any further. From her perspective as a citizen of the UK, the term "acquittal" probably meant finality just as it would to any person with a common law orientation. Indeed, at that time, except in very rare circumstances, an appeal from an acquittal was not possible in the UK, and the finality of such judgments was recognized as a fundamental component of due process and liberty guarantees.

However, the inquisitorial system in France permits the prosecutor to appeal acquittals in certain cases as a matter of course. Therefore, the fact that the prosecutor appealed Ms. Dark's case would not have been unusual in the French system, and likely would have been expected in certain cases. But, only individuals familiar with France's inquisitorial system would have had this knowledge or expectation, and that category of individuals seemingly did not include Ms. Dark. Moreover, to compound the discrepancy between the UK and French criminal justice systems, it appears that the French courts did not provide Ms. Dark with notice of the appeal. In 1990, Ms. Dark's acquittal was overturned. She was convicted in absentia and ordered to serve six years for the drug offense. In 2005, France obtained an EAW for Ms. Dark's surrender to serve the sentence that had been imposed 15 years earlier.

Ms. Dark first became aware of the EAW when she was arrested in Spain in 2008. She spent one month in prison in Madrid before the Spanish court refused to execute the EAW because of unreasonable delay and the potential for unfairness to Ms. Dark. She was released and returned to the UK, where she was arrested yet again. The UK court similarly refused extradition due to the passage of time between the conviction and the securing of the EAW. The UK court was also concerned that Ms. Dark would likely suffer undue prejudice upon retrial if extradited. To date, the EAW is still outstanding and Ms. Dark's ability to freely move about the EU has been significantly curtailed because authorities in EU Member states are required to detain her upon entry into their countries.

There are at least four options available to Ms. Dark at this juncture:

1. She can remain in the UK secure in the knowledge that she will not be extradited. But, according to Ms. Dark, this option isn't practical because she has an ailing father in Spain whom she would like to visit and care for. Although a court in Spain has refused to extradite Ms. Dark, there is no guarantee that she would not be detained again in Spain because the EAW is still in effect.

2. She can allow herself to be extradited back to France. Pursuant to Article 5 (1) of the EAW Framework Decision, she is guaranteed an opportunity to apply for retrial if the sentence or detention order was imposed in absentia. However, this is another problematic course of action for Ms. Dark because her original trial occurred 20 years ago and the potential for witness unavailability and stale evidence is very high.

3. She can allow herself to be extradited back to France on the condition that she can return to the UK to serve her sentence pursuant to Article 5(3) of the EAW Framework Decision. This option is not acceptable to Ms. Dark because from her perspective an acquittal means a final judgment that a person is not guilty. Of course, in France an acquittal may not necessarily represent the final judgment in a criminal case.

4. She can petition the French courts to dismiss the EAW, thus releasing Member States from the obligation to detain her. This appears to be the approach she is taking at this point, but there is no clear process for an individual to raise such challenges short of surrendering to the EAW. Instead, the EAW contemplates dialogue and cooperation between judicial authorities in Member States. Therefore, it is unclear whether this approach will be effective and until the EAW is dismissed each Member State is required to comply with its terms.

While this unfortunate scenario presents several issues that will undoubtedly need to be resolved within the EAW Framework Decision, at the heart of the case is a collision between two justice systems: the inquisitorial system which permits retrials after acquittal and the adversarial system which, for the most part, adheres to principles of double jeopardy. The EAW certainly cannot take into account all of the procedural disparities among criminal justice systems across the EU. But it can and should provide mechanisms (short of surrender) to obtain dismissal of warrants issued based upon processes that were undertaken without notice to the person and which a reasonable person under the circumstances would not expect to occur. Fairness and justice dictate that diverging procedural approaches should not be taken advantage of to the detriment of Member State citizens.

Raneta Lawson Mack is a professor at the Creighton University School of Law and author of Comparative Criminal Procedure; History, Processes and case Studies (W.S. Hein, 2008)
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