On Dec. 1st the Home Office stated to Parliament that, "There is no intention for extradition to any EU jurisdiction after the end of transition period to be made subject to a court ruling that there is a prima facie case."
As I explained in https://www.express.co.uk/comment/expresscomment/1372705/Brexit-latest-news-EU-laws-european-arrest-warrant-extradition-Boris-Johnson, this can lead, and in numerous cases has led, to profound injustices, where people in Britain have been extradited "with stream-lined procedures" to Europe only to find that they then have to sit in prison for long months while the local investigatory-cum-prosecutory authorities seek evidence to put together a case against them. And during this time they have no right to a public hearing. Habeas Corpus as we understand it has no place in those jurisdictions.
This is why a UK court, faced with an extradition request, should have the power to demand a guarantee from the requesting country, in the shape of evidence that the investigation by the prosecutory authorities was already concluded and that there is a prima facie case to answer.
In the previous legislation there was provision for a court to reject a European Arrest Warrant if it believed that a "fundamental right" of the person concerned was at risk. Unfortunately the only "fundamental rights" recognised were those protected by the European Convention on Human Rights. This does not include Habeas Corpus, as I explained in the above-cited article. And all EU member states are signed up to the ECHR, so this was never a viable safeguard.
What has changed with the 'Deal'?
We now have the insertion of the Universal Declaration of Human Rights, alongside the ECHR, as a benchmark for "fundamental rights". Now the UDHR, unlike the ECHR, bans arbitrary arrest and imprisonment (art. 9). The ECHR avoids using the word "arbitrary".
An arbitrary arrest and imprisonment is an arrest made arbitrarily, on the mere say-so of the authority issuing the warrant, without serious evidence of wrong-doing having already been collected.
This is forbidden by our Magna Carta, in the little-noticed article 38, which says, (I translate from the original Latin) "No judicial officer shall initiate legal proceedings against anyone on his own mere say-so, without reliable witnesses having been brought for that purpose", as I explained in more detail in https://magnacarta800th.com/articles/magna-carta-europe-yesterday-today/. The rights safeguarded by Magna Carta and Habeas Corpus, both "constitutional laws", must surely have the status of "fundamental rights".
Now the text of the Deal states:
"Article LAW.SURR.84: Guarantees to be given by the issuing State in particular cases", where subsection "c" gives one reason why the executing State may refuse to surrender a person:
" (c) if there are substantial grounds for believing that there is a real risk to the protection of the fundamental rights of the requested person, the executing judicial authority may require, as appropriate, additional guarantees as to the treatment of the requested person after the person's surrender before it decides whether to execute the arrest warrant."
In many EU States there are indeed substantial grounds for believing that there is a real risk to fundamental rights such as Habeas Corpus, and the Magna Carta right not to be subjected to arbitrary arrest without serious evidence already collected. It will therefore be perfectly appropriate now for a UK court to require guarantees from the requesting State, in the shape of evidence of a prima facie case, already collected.
UK sovereignty over the freedom of our bodies can thereby now be re-affirmed. Did someone in government read my article, to bring about this reversal in policy!?
