EAW – A means to an end at any cost?

On Thursday 28 August the parents of Ashya King – Brett and Naghemeh – walked out of Southampton General Hospital with the 5-year-old against medical advice.

The following day it was reported that the family had travelled into France and were on their way to Spain.

On Saturday 30 August 2014 a European Arrest Warrant (EAW) was issued for the parents of Ashya King. The EAW was said to be ‘based around neglect’.

Hampshire Assistant Chief Constable (ACC) Chris Shead stated that it was‘feared the battery on his (Ashya’s) medical feeding unit, which is designed only for temporary use and is not easy to replace, has now run out’. He further stated that it was ‘unclear whether Ashya’s parents had spare batteries.‘ This fear evaporated when Ashya was seen in a video with his father and the machine was plugged into the wall and it was explained by Naveed King (Ashya’s brother) in a further video that they had plugged the machine into an adaptor whist travelling in the the car.

Astonishingly, ACC Shead stated that the allegation of neglect in the EAW ‘did not necessarily mean the parents would be charged with that offence‘ and the use of the EAW appeared justified by him ‘as it gives us the power to arrest and then we will be able to speak to them.’ This is not what an EAW is for and those initial comments perhaps best illustrate the hastiness with which the decision appears to have been made to issue an EAW rather than perhaps considering less draconian measures to ascertain the welfare of Ashya. After all, INTERPOL did not issue a RED notice for Brett and Naghemeh. Rather they issued the more appropriate YELLOW notice to its member countries which is‘issued to help locate missing persons, often minors, or to help identify persons who are unable to identify themselves.’

Following the issuing of the EAW, the parents of Ashya were arrested in Spain and held in police custody until Monday 1 September when they were transferred to the High Court in Madrid where the case was adjourned following their indication that they would not consent to extradition. The Judge remanded them into custody for 72 hours. Ashya was taken into hospital all alone.

How is an EAW issued? 

Extradition to the UK is governed by Part 3 of the Extradition Act 2003. An EAW can be issued for a person to be prosecuted for an offence; to be sentenced having been convicted or to serve a sentence that has already been imposed.

According to the CPS website, if issuing an EAW to prosecute a person, the reviewing lawyer at the CPS must normally be satisfied that the Full Code Testis met. It goes on to state that there ‘may be a small number of exceptional cases where it is appropriate to consider making an extradition request based on the Threshold Test if the suspect presents a substantial bail risk.’

Despite the CPS remaining quiet for several days, a statement made in the afternoon of Monday 1 September 2014 confirmed that an EAW had been issued for the offence of ‘cruelty to a person under the age of 16 years.’ A statement from a CPS spokesperson that was quoted on the ITV website stated:

In order to make that decision the CPS, working closely with Hampshire Police reviewed the evidence available at that time in accordance with the Threshold Test of the Code of Crown Prosecutor. This is where there is not yet sufficient evidence to charge an offence but that further evidence is expected to be provided by investigators.

An extradition request based on a decision under the Threshold Test is only appropriate where the suspect or in this case suspects, present a substantial bail risk. The CPS website describes the circumstances where it would be appropriate to issue an extradition request based on the Threshold Test as being ‘exceptional’. Consent to proceed with the extradition request will only be given by the Head of Division (Extradition) or Deputy Head of Division in circumstances that are exceptional. Examples provided – again on the CPS website – is if the suspect could pose a serious risk to public safety in the requested state or they pose a significant flight risk and are wanted for a serious offence in the UK. There is no definition of what denotes a ‘serious offence’.

So applying this to the King case did they pose a serious risk to public safety in Spain? Quite simply the answer has to be no. Do they pose a significant flight risk? This is more difficult to answer but again i would have to say ‘no’ due to the fact that they had a residency in Spain and following the release of the video by Brett King it is clear that the intentions of him and his wife were to arrange for the sale of their property in Spain to raise funds for Ashya to receive potential life saving treatment in the Czech Republic that was not available to their son in the UK. At all times up to their arrest they were with Ashya. So although they left the UK i would not say they should be considered a substantial flight risk. A flight risk perhaps, but not a substantial flight risk. In any event it is unclear as to whether child cruelty to a child under the age of 16 warrants the label of a ‘serious offence’. It is certainly not at the top end of the scale of gravity especially when considering the features of this particular case. If the criteria for issuing an extradition request under the Threshold Test could not be met then the EAW should never have been sought.

However, once a court date has been set for an extradition hearing in the requested state a review must be carried out by the CPS so that the Full Test Code is applied and/or another ‘strict assessment’ should be made prior to extradition taking place. It is understood that the CPS are reviewing the case tonight and if it is considered that the Threshold Test is no longer met, let alone the Full Test Code not being met, then the EAW is likely to be withdrawn and the Kings will be discharged from the extradition proceedings in Spain and released from custody. In order to withdraw the EAW the CPS would have to apply to the Court that issued it to have it withdrawn. Only the court can withdraw an EAW – neither the police, prosecutor or National Crime Agency have the power to withdraw an EAW after it has been issued by the court.

If the EAW is not withdrawn the Kings will face an extradition hearing and until that time, if they are not granted bail, will remain in Spanish custody.

Whilst all this is going on a seriously ill 5-year-old boy remains in hospital without his parents and family around him. As a Judge once said to me in a ruling that extradition would be a disproportionate interference with my client’s young ill sons Article 8 ECHR rights:

‘One should not under-estimate the value of emotional and practical support parents provide to a sick child’

I hope the CPS are listening.