UPDATED: Extradition to the EU-27 under the UK/EU Trade & Cooperation Agreement: similarities and ten key differences

04 January 2021

Stefan Hyman & Jonathan Swain set out the implications of the new cooperation agreement.

Read the full article here.

The Position as of 31st December 2020
 
Since the initial publication of this article on the new criminal cooperation measures between the EU27 and the UK (on 28 December 2020), there have been several developments in the field of extradition which will have effect from exit day for practitioners. Where appropriate, the article has been updated to reflect that.
 
1. The Government has made consequential amendments to the Extradition Act 2003 (“EA”) through the European Union (Future Relationship) Act 2020 (“EU(FR)A”), which received Royal Assent on 31st  December 2020. This has the following effects:
 
• Pursuant to s. 11 of the EU(FR)A designates the EU27 as Category 1 territories from 23:01 on 31st December 2020. The original designation instrument, The Extradition Act 2003 (Designation of Part 1 Territories Order) 2003 (S.I. 2003/3333), will receive a new schedule (Sch. 1A) containing the EU27 (note: the link above will redirect to the legislation as on 30th December 2020, which will not contain the new schedule).
 
• Requires dual criminality in all cases. S. 12 of the EU(FR)A removes the “European Framework” list as a method for proving an ‘extradition offence’ under s. 10(2) of the EA. Therefore, dual criminality will be a requirement for all new arrests. s. 64(5) (not sentenced) and s. 65(5) (sentenced) of the EA are repealed and the deeming provisions (s. 64(2) and s. 65(2)) altered to remove reference to the subsections. Nevertheless, the “European Framework” list, which will be renamed “Trade and Cooperation Agreement”, remains defined in s. 215 EA and Sch. 2 thereto (which a couple of additions). This is because issuing judicial authorities in the UK may still rely on these provisions when making requests to the EU27 (if the relevant Member State makes a designation under Art. 79(4) of Title VII to Part 3).
 
• It does not make any amendments to the ‘charge and try’ bar (s. 12A) or the ‘proportionality’ bar (s. 21A). The statutory provisions remain the same leaving any ‘reorientation’ to the common law.
 
It is notable that the passage of the bill was not without criticism, across party lines, about the security implications of the TCA and, in particular, loss of access to SIS II.
 
The readiness of the UK's domestic provisions says nothing of the corresponding position in the EU27, as we have identified above.
 
2. In terms of proportionality, the EU and the UK published a joint political declaration concerning Arts. 77 and 93 of Title VII of Part 3 (criminal cooperation). At first blush, this suggests that Art. 77 requires the executing judicial authority (domestically being Westminster Magistrates’ Court) to seek the view of the issuing judicial authority in the requesting state, presumably via the provision in Art. 93(2), on proportionality where it considers execution of the arrest warrant to be disproportionate. However, the Declaration also makes plain that the executing state is entitled "to consider proportionality and the possible duration of pre-trial detention" when determining whether to surrender in accordance with domestic laws. We will return to the consequence and effect of this provision in a later post.
 
3. Our attention has been drawn to The Law Enforcement and Security (Separation Issues etc.) (EU exit) Regulations 2020 (S.I. 2020/1408), which amend  The Law Enforcement Security (Amendment (EU Exit) Regulations 2019 (S.I. 2019/742), one of at least three statutory instruments concerning security cooperation at the end of the implementation period.  Reg. 25 adds Iceland and Norway to the designation of territories under Part 2 of the EA. Accordingly, Norway and Iceland will (again) be Part 2 territories from 23:01 on 31st December 2020. We have amended the article accordingly.
 
4. On 1st January 2021, the Extradition Act (Provisional Arrest) Act 2020 comes into force through The Extradition (Provisional Arrest) Act 2020 (Commencement No. 1) Regulations 2020 (S.I. 2020/1652). We have discussed these provisions elsewhere. Given the conclusion of the TCA, the only countries designated for what will be s. 74A of the EA are Australia, Canada, Iceland, Lichtenstein, New Zealand, Norway, Switzerland and the United States of America.
 
Over the weeks that come, we will be carefully monitoring the volume of arrests under the EA to assess the impact of the loss of the SIS II system.

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