Dr Sarah Munro

While 31 January 2020 was celebrated by many as the day Brexit was ‘done,’ for another 11 months the United Kingdom remained subject to European Union rules, including those relating to the European Arrest Warrant (EAW). On 31 December 2020 this transition period came to an end. So what is the status now of extradition between the UK and EU?

For Brexit purists – and the legal practitioners, judges and members of the public involved in criminal cases – it is unfortunately not as simple as saying EAWs have no further application within the UK.

European Arrest Warrants

The EAW system was a recognised success. Framework Decision 2002/584/JHA, incorporated into UK law via the Extradition Act 2003, was designed to remove the complexity and potential for delay inherent in the traditional system of extradition among EU Member States. Based on principles of ‘mutual trust’ and ‘mutual recognition’ of judicial decisions, EAWs facilitated the extradition of individuals between Member States to face prosecution or serve prison sentences. Such streamlining led Director of Public Prosecutions, Alison Saunders, to describe EAWs as ‘three times faster and four times less expensive’ than the alternatives. Approximately 1,000 individuals per year were surrendered by the UK to other Member States under an EAW, while the UK issued over 200 EAWs annually.

Nevertheless – despite warnings from the National Crime Agency – in negotiating its future relationship with the Union, the UK government stated it would not be seeking to participate in the EAW. According to The Guardian, this was ‘after the EU made clear it could not be part of it unless it accepted freedom of movement and the jurisdiction of the European Court of Justice.’ Unable to cross these ‘red lines’ politically, the UK sought to agree ‘fast-track extradition agreements, based on the EU’s surrender agreement with Norway and Iceland ….’ In the interim, the Withdrawal Agreement provided that the Framework Decision would continue to apply in respect of all persons arrested before the end of the transition period. This transitional arrangement was tested for the first time last month when the Queen’s Bench Division of the High Court ruled that the extradition of five individuals could not be halted as a result of Brexit because their EAWs were issued before the UK left the EU. 

Surrender arrangements

On Christmas Eve 2020, the Trade and Cooperation Agreement was agreed. Title VII of Part Three governs ‘surrender arrangements’ between the EU and UK. It clarifies that EAWs issued prior to the end of the transition period but where the person has not yet been arrested shall be treated as arrest warrants for the purposes of the surrender arrangements – completing the transitional provisions begun in the Withdrawal Agreement –  and the jurisdiction of the Court of Justice has been replaced with oversight by a Specialised Committee on Law Enforcement and Judicial Cooperation. Ultimately the surrender arrangements are an amalgamation of the Iceland/Norway Agreement and the Framework Decision, requiring little modification to the Extradition Act 2003.

One significant point of departure however is that the surrender arrangements allow for a nationality exception: Member States can now refuse to extradite their nationals to the UK and vice-versa.

The end of mutual trust?

During the transition period, Austria, Germany and Slovenia each declared they would no longer be sending their nationals to face trial or serve a sentence in the UK due to constitutional limitations prohibiting them from extraditing their nationals to non-EU countries. Amendments to their constitutions to allow for extradition to the UK were not sought. This – one could infer – was on the basis of ‘mutual trust’ (or lack thereof) underpinning the EAW system. These Member States could no longer implicitly rely on their nationals being afforded the same rights by the UK as they would be by other Member States bound by identical obligations to their own. If this could not be guaranteed, they would rather bring individuals to justice themselves – or leave them free.

This same lack of trust can already be witnessed in the post-transition period. Last month, an Irish High Court judge stated he would be seeking clarification from UK authorities on post-Brexit extradition law in respect of an Irishman sought by the UK under an EAW. Specifically, assurances are sought on whether he would be charged with any other alleged crimes, and would receive a reduction in any possible sentence for time served in Ireland. Both elements are incorporated in the Framework Decision and the surrender arrangements and so are, presumably, easy assurances for UK authorities to give. Nonetheless, it is notable a historically close Member State still felt the need to ask.

It therefore appears that, notwithstanding textual similarities, it is this intangible principle of mutual trust which is missing – and missed – from the surrender arrangements. What does this mean for the UK’s extradition arrangements with the EU moving forward? Shall we see an increase in Member States no longer willing to extradite their nationals to the UK? Will the UK reciprocate and not extradite UK nationals to those Member States? It is likely, at the very least, that those Member States who exercise this derogation in respect of Iceland and Norway will also do so for the UK.

It is also probable we will see an increase in the time taken to extradite individuals to the UK as Member States test-out post-Brexit extradition arrangements and seek assurances that the protections promised by the UK in its surrender arrangements emulate those guaranteed under the EAW system.

If the EU and the UK cannot learn to trust one another, everyone suffers – victims of crime can’t get closure, witnesses have a longer wait before they find out if they have to give evidence, and the subject (detained or at large) doesn’t know when or where a hearing will take place.

Dr Sarah Munro is an associate in the criminal litigation department at Livingstone Brown, Glasgow.