Ashya King Case

European Arrest Warrant and Ashya King case: the need for ‘context’

The final piece in the Ashya King blog group is written by Dr Kim McGuire, Lecturer in Law at UCLan, she looks at the case from a Criminal Law perspective.

For a lecturer in Law with a Historical background, the case of Ashya King reveals several interesting aspects, only two of which can be discussed here. The case has proven highly emotional, and widely publicised, with most criticism focussing upon the effect on the child and his parents. Many critics of the way the case was handled emphasise the rights of parents, in particular to decide what medical treatment their children should receive. In hindsight the parents appear to have the child’s best interests at heart. The case has also raised concerns over the legal aspects, not least the use of the European Arrest Warrant. In part, such criticism has fuelled the fires of organisations such as UKIP[1], and Eurosceptics[2] from other political parties, who highlight the perception of the ‘overuse’ and potential for abuse of the European Arrest Warrant. [3] There is some evidence for such perceptions, with the European Commission, for example, stated in 2011 that there was a ‘systematic issuing of European arrest warrants for very minor offences”.[4] This is in contrast to its stated intended aims when introduced in 2004,[5] of resolving extradition issues for serious cross-border crimes, including terrorism offences, and organised crime. In 2009 the Council of Europe had made resolving the use for minor offences a priority.[6]

In 2013 the UK Home Affairs Committee published its report on the European Arrest Warrant [7]where it argued that

‘… in its existing form, there are many problems with the EAW. It is based on a system of mutual recognition of legal systems which in reality vary significantly. Some countries may seek extradition simply to expedite their investigations, whereas others do so in pursuit of relatively minor crimes… It has … facilitated miscarriages of justice in a number of cases, irrevocably damaging the lives of those affected.’[8]

However, whilst ‘overuse,’ ‘abuse’, and miscarriage of justice are legitimate concerns, the Ashya King case must not be allowed to be used by euro sceptics and opponents of the warrant per se for their own ends. It must, instead, be seen in its own particular context. Whilst parents’ rights do exist, Section 1 of the Children and Young Persons Act 1933 creates the offence of child cruelty when an adult with responsibility for a child wilfully neglects the child in a manner likely to cause injury to the child’s health. This offence can be committed by failing to provide medical assistance.

In the Ashya King case, at the time the European Arrest Warrant was first issued, 29th August 2014, at the request of Hampshire Police, on evidence supplied by Southampton General Hospital, it appeared that Ashya’s parents might be culpable of such an offence. The Crown Prosecution Service stated that

‘… the evidence indicated that there was a likelihood that this five-year-old boy was at serious risk of threat to his life, and that he could not receive the care that he required unless he was under the care of medical professionals… There was a reasonable suspicion that Ashya’s health and safety were likely to be seriously harmed if he was not returned to medical care urgently…”. The information was from medical professionals who were extremely worried that a child was in real danger and that, as a result of being removed from Southampton General Hospital and taken abroad without a medical plan for treatment and care, this seriously ill little boy would not get the care that he desperately needed. Therefore the CPS was asked to consider if there was a reasonable suspicion that Mr and Mrs King had committed an offence of child cruelty through wilful neglect.[9]

When new evidence revealed that this was not the case, the CPS ‘… acted as quickly as we could to take the necessary steps to release Mr and Mrs King from custody as soon as possible [and continued] to work with the UK courts and Spanish authorities to progress matters as quickly as possible.” The CPS arranged with Southampton Magistrates Court for proceedings to be dropped and the EAWs discharged.

Whilst issuing an Arrest Warrant for merely removing Ashya would have been an abuse of the warrant, it appears that there were legitimate concerns for his safety, given the evidence supplied by Southampton General Hospital. It is difficult to argue that the criminal courts, police and prosecutors, in England and Spain did not act appropriately, both at the time of the issue of the warrant, and its withdrawal. With hindsight it is easy to claim the actions were unnecessarily excessive, but not to dispute that given the evidence at the time, the correct actions were taken. It is all too easy for a highly emotive event to be hi-jacked by those with ulterior motives. Whilst debate on the European arrest warrant is necessary, this case should not form ammunition for its opponents.

[1] Diane James, UKIP’s Home Affairs and Justice spokesman ‘King case shows danger of European Arrest warrant’ http://www.ukip.org/king_case_shows_danger_of_eaw

[2] The European Arrest Warrant is one of a number of European justice and home affairs cooperation measures to which Britain has signed up under the Lisbon Treaty. The previous government negotiated a mass opt-out from the whole “pillar” of those measures on the understanding that it could then opt back in to a selected number that it deemed vital. This opt out clause ends 1st December 2014, and hence becomes the deadline for deciding which aspects to ‘opt back in’: potentially this is the interest in the EAW for many political parties.

[3] Tory MP for Somerset Jacob Rees-Mogg raised the issue in Prime Minister’s questions on Wednesday, 2nd September 2014: ‘If even the respected Hampshire police can use the European arrest warrant to create an injustice, could my right hon friend have any confidence that other member states with less well developed legal systems will not use the arrest warrant for worse purposes in future?” ‘Ashya King case gives Eurosceptics chance to air Lisbon treaty grievances’ http://www.theguardian.com/law/blog/2014/sep/04/ashya-king-eurosceptic-tories-lisbon-treaty-grievances.

[4] European Commission, Report from the Commission to the European Parliament and the Council on the Implementation of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedure between Member states, COM (2011) 175 final 11April 2011 online: http://ec.europe.eu/justice/criminal/files/eawimplementation report 2011 en.pdf p.7

[5] On the 1st January 2004 Part 1 of the Extradition Act 2003 (“the 2003 Act”) came into force, implementing a new system of extradition between signatories to the European Council Framework Decision on the European Arrest Warrant (“the Framework Decision”).2 The system is designed to expedite the transfer, between judicial authorities within the European Union, of suspected and convicted persons whose extradition is requested by means of an EAW.

[6] Council of Europe 2009, http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%208302%202009%20REV%204.

[7] Pre-Lisbon Treaty EU police and criminal justice measures: the UK’s opt-in decision’ on Thursday 31 October 2013 (Ninth Report, Session 2013-14, HC 615).

[8] Ibid.

[9] CPS stops proceeding in relation to Brett and Nagmeh King. http://www.cps.gov.uk/news/latest_news/ashya_king/2nd September 2014.

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