All Change, Please: Post-Brexit extradition and beyond

04 March 2020

The first round of negotiations between the UK and EU on 03-05 March 2020 include law enforcement and judicial cooperation. The future of international cooperation in criminal matters between the UK and EU has remained uncertain throughout the lengthy Brexit/transition process.

The shape of that future has become clearer with the publication of the UK’s Approach to Negotiations on 27 February 2020 (following the EU’s own on 25 February).

The UK’s formal position is a clear reflection of the Government’s red lines, with repeated emphasis that there must be no jurisdiction of the CJEU.

It is unsurprising against that backdrop that the UK has explicitly signalled a clear intention to leave the EAW behind [51]:

“The UK is not seeking to participate in the European Arrest Warrant as part of the future relationship. The agreement should instead provide for fast-track extradition arrangements, based on the EU’s Surrender Agreement with Norway and Iceland which came into force in 2019, but with appropriate further safeguards for individuals beyond those in the European Arrest Warrant”.

For now, there are no details about what the “appropriate further safeguards” will be. In the Extradition Act 2003, the UK enacted additional bars not found in the Framework Decision at a domestic level, notwithstanding raised eyebrows from other Member States about whether there was scope to do so. The UK may seek to replicate the additional bars on a more formal footing during the negotiations for any future agreement.

Though the Surrender Agreement (“SA”) between Norway, Iceland and the EU largely mirrors the familiar  Framework Decision, some of the differences are worth examining.

The SA provides for a ‘nationality exception’ (notably absent from the Framework Decision) which allows Norway, Iceland, or any of the Member States, to make a declaration that they will not surrender their own nationals, or will only do so under certain conditions.

Even before the EAW scheme, the UK had rejected the idea of ‘a nationality bar’ for its own nationals. However, with several Member States having such bars written into their domestic laws and constitutions, it seems certain the EU will require the option to be included in any future agreement. Austria, Germany and Slovenia have already notified the UK of their intention to refuse to extradite own nationals to the UK under the Withdrawal Agreement. That may re-ignite debate about refusing to extradite UK nationals on a reciprocal basis.

The protections in respect of trial in absence under the Framework Decision were amended in 2009 to include more stringent conditions, which have not found their way into the SA. It’s unclear how the UK intends to address this in negotiations. It seems likely the UK would want the higher standards found in the Framework Decision, not lower.

The SA also allows that Norway and Iceland “may” declare, on the basis of reciprocity, that the ‘dual criminality’ test need not apply to a schedule of specified offences (commonly referred to as the ‘framework list’ in domestic extradition proceedings). In contrast, the Framework Decision determined that matters falling in those categories “shall” be a basis for surrender. It’s unclear if the UK would seek to mirror this latitude going forward.

Other changes to extradition

The Extradition (Provisional Arrest) Bill announced in the Queen’s Speech (and a topic worthy of its own consideration) is due to reach Committee stage on 5 March 2020. Whilst not expressly concerned with the EAW, the possibility of extending its scope in the event of a loss of the EAW has clearly been considered.

Unless and until an agreement is reached with the EU, ‘no deal’ remains the default, which would herald a return to the 1957 European Convention on Extradition. That would mean far more significant change for extradition proceedings between the UK and Member States.

All change

The UK’s document also touches on a raft of other measures, including a number which are no doubt familiar to extradition practitioners.

With the EU having made clear that non-Schengen third countries do not have access to the Schengen Information System, the UK wants an agreement with the EU to provide “similar capabilities”, akin to the agreements already in place between the EU and Switzerland, Norway, Iceland and Liechtenstein.

The UK also wants an agreement “similar” to that provided by the European Criminal Records Information System (ECRIS) [35-37]; for “similar” capabilities to those offered under the new Prüm system for DNA, fingerprints and vehicle registration but explicitly with no jurisdiction for the CJEU [39]; arrangements for “fast and effective” MLA building on the relevant Council of Europe Conventions [52]; cooperation with, but not membership of, Europol [46]; “effective and reciprocal arrangements” for the transfer of prisoners, building on the 1983 Council of Europe Convention on the Transfer of Sentenced Persons and its Protocols [53].

The EU has drawn its own red line that there should be “automatic termination” of law enforcement and judicial cooperation with the UK if it were to step away from the ECHR.

With the UK Police having been found to have violated Article 8 of the ECHR over data retention, and with the UK purportedly indicating that it may be heading towards a more dramatic withdrawal from it altogether, the waters for future cooperation are already troubled. If the UK refuses to be bound by the ECHR, or continues non-compliance, then the path to an agreement will be difficult.

Whatever the outcome, it’s clear that international criminal justice and judicial cooperation with the EU will be subject to changes across the board. Whether the new mechanisms amount to effective high-speed replacements, or something closer to a replacement bus service, is yet to be seen.

Jonathan Swain