Mutual recognition and co-operation underpin many EU law provisions. This article looks at some of the legislative options for one particular provision following Brexit; the European Arrest Warrant (EAW).
As the UK’s withdrawal from the EU progresses, vast legislative changes will be required in order to avoid a legal black hole particularly when navigating unchartered constitutional waters. The current proposal is for the Great Repeal Bill to transpose all EU law into domestic law. However, not all EU law can be transposed directly as some measures depend on co-operation with other Member States. The way in which these provisions will operate in the future largely depends on the outcome of the UK’s negotiations with the EU.
The EAW, based on the mutual recognition of criminal justice systems, has accelerated surrender procedures and reinforced the EU principle of free movement of persons. Any EU Member State may use the EAW to seek the return of a person who is wanted in that country in relation to a crime. It may seek the return of the person to stand trial, face sentencing after conviction, or serve a sentence already handed down by a court in that country. The EAW was enacted in the UK by the Extradition Act 2003 which replaced existing extradition arrangements with EU Member States. Before the EAW was introduced, extradition used to take an average of one year, but now that has been cut to an average of 48 days. However, the operation of the EAW hasn’t been without criticism in the past, in particular its disproportionate use by some countries for trivial offences. Nevertheless, in 2013, the UK sought to opt back into the EAW while withdrawing from other pre-Lisbon Treaty measures.
Figures issued by the National Crime Agency show that there were a total of 6514 surrenders by the UK to other Member States between 2009 and 2016. The UK received 901 surrenders during this period, which illustrates its use of proportionality when deciding whether to pursue the prosecution of certain offences through the EAW.
The UK Government has indicated that one of its negotiating priorities will be to maintain strong security cooperation with the EU. The Secretary of State for Exiting the European Union has said the Government’s aim is to keep ‘justice and security arrangements at least as strong as they are’. While political discussions remain ongoing, three possible options for future extradition arrangements between the UK and EU have emerged:
- Reliance upon the European Convention on Extradition 1957;
- Conclude an agreement with the EU;
- Conclude bilateral agreements with EU Member States.
All of the EU Member States have signed and ratified the European Convention on Extradition 1957 (the Convention). Therefore, in the absence of any new arrangement, the extradition relationship between the UK and the EU could be governed by the Convention. However, there are noticeable differences in the level of provision between the two including:
- The EAW operates between judicial authorities without the need for executive approval whereas applications under the Convention would have to be made by diplomatic means, requiring for example the approval of the Secretary of State.
- Unlike the EAW, the Convention does not impose stringent time limits on each stage of the extradition process.
- Unlike the EAW, Article 6 of the Convention, allows states the ability to refuse an extradition request for one of their nationals.
- There are no bars to extradition on the grounds of proportionality or in the absence of a prosecution decision under the Convention as provided for under the Extradition Act 2003.
Concerns have been voiced by experts that the substantial variations under the Convention could cause lengthy delays in securing extradition warrants. The Director of Public Prosecutions for England and Wales has described the EAW as ‘three times faster’ and ‘four times less expensive’. Following an analysis of the evidence received by it, the House of Lords EU Home Affairs Sub-Committee concluded in its report of December 2016, that the Convention ‘cannot adequately substitute for the EAW’.
Rather than reverting to the Convention, another alternative may be to negotiate a surrender agreement with the EU, similar to that concluded by Norway and Iceland. Although concluded in 2014 the agreement has yet to come into effect. While very similar to the EAW, it includes two discretionary exceptions: an option for parties to refuse to extradite their own nationals and a political offence exception. Helen Malcom QC, an expert in extradition cases, noted that ‘other than that, word for word, it is the same as the EAW…’.
A substantial problem identified with this approach, however, is that the negotiations could become very protracted, especially if the UK was to seek exemptions that would require technical detail. Furthermore, the UK differs from Norway and Iceland as it is not a member of Schengen zone which was instrumental in them achieving agreement with the EU. This was highlighted by the UK Government in May 2016 when it said there was no guarantee that the UK could secure a similar agreement outside the EU given that it is not a member of the Schengen border-free area.
Another issue arises in the context of dispute resolution. The UK has declared its unwillingness to be subject to the jurisdiction of the Court of Justice of the European Union (CJEU), therefore bespoke dispute resolution arrangements would need to be made. Although the arrangement made with Norway and Iceland is not bound by the CJEU, Article 37 of the Agreement provides for a constant review of CJEU case law.
The third possible option may be to negotiate separate bilateral agreements with each of the 27 EU Member States, as allowed under Article 28 of the Extradition Convention. Such an exercise would be very complicated and time consuming. The former President of Eurojust, Mike Kennedy, is far from optimistic at the prospect of this happening. He speculated that as the UK only has a two-year deadline, negotiating within that time ‘…is akin to impossible’. It has been suggested that the UK may instead want to focus on making arrangements with specific countries with which it has a close relationship (such as Ireland), and from which it receives a high level of extradition requests (such as Poland).
What does this mean for Northern Ireland?
The Department of Justice has indicated that its main priorities include continued participation in the EAW and access to criminal justice cooperation measures. The PSNI has echoed these priorities highlighting implications for it on three levels; operations in Northern Ireland, co-operation on the island of Ireland and cooperation with the police forces of other Member States. The Detective Chief Superintendent told the NI Assembly’s Justice Committee that the loss of the EAW would be one of the PSNI’s main concerns and that ‘the loss of European instruments provides a real challenge for policing on the island of Ireland’.
The PSNI has stressed that continued cross-border cooperation is key to combating organised crime and paramilitary activity in Northern Ireland. While it stated that Brexit will not adversely affect the culture of cooperation with An Garda Síochána, it would provide a challenge to pursuing wanted individuals in the Republic of Ireland via the EAW.
Within the devolved space, an EU future relations project board has been set up and discussions continue at a departmental level with the relevant officials in the other administrations. At a national level, the Joint Ministerial Committee (EU negotiations) was established to facilitate engagement between the UK Government and devolved administrations on issues relating to Brexit. However, given the current political instability, Northern Ireland has had no representation on the Committee for several months. It is unclear, as yet, what input Northern Ireland will have in relation to the development of extradition measures should a deal be negotiated with the EU or not.