APRIL 18 could be a red letter day for Scottish justice’s standing in the free world because it is difficult to see how the European Arrest Warrant (EAW) can lead to the extradition of Professor Clara Ponsati.
For under the Extradition Act 2003 Section 64 (3), the person being extradited must be charged with a crime that is also a crime in Scots law – the so-called dual or double criminality test – and “violent rebellion” is simply not in the law of Scotland. And that’s before issues of human rights are even considered.
READ MORE: Scotland sends Spain a message ... You can't have our Clara!
The Crown brings the case on behalf of the Spanish courts. It could argue that the rest of the EAW charges such as “misappropriation of public funds” allow Ponsati to be extradited because there are similar criminal offences in Scots law, yet such secondary charges proceed from the main charge of “violent rebellion” so the whole warrant must be correct or Spain’s case is lost.
The only offence akin to rebellion in Scots law was sedition, but the first SNP government repealed the law on sedition in 2010, so the Spanish authorities appear to have botched their warrant. The rules on EAWs are relatively straightforward, and you would think the person who signed those rules – the Framework Decision of June 13, 2002 – into EU law would know them well.
It was none other than the then president of the EU Council (Justice, Home Affairs and Civil Protection) Mariano Rajoy. Yep, him. What is the Spanish for “oops”?
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