The European Arrest Warrant (EAW) may become one of the casualties of Brexit. Disliked by Eurosceptics since its inception, Theresa May, whether as Home Secretary or Prime Minister will struggle to obtain agreement on extradition negotiations in the event Art 50 is invoked, even if the European Union is willing to allow the UK to have access to this scheme.

The EAW came into force in January 2004 and was largely implemented following the 9/11 attacks as a means to speed up and stream line the extradition process for those accused of serious crimes. They are valid throughout the European Union. EAWs are intended to allow member States to secure the return of those accused or convicted of crimes in a member State  quickly and easily. The aim of the EAW was to replace the previous complex system of extradition with a system of surrender between member states without having to prove a prima facie case, without even having to prove the evidence on which the charge/conviction is based and within strict time limits, which are becoming even stricter through recent initiatives at Westminster Magistrates Court.

But the EAW has faced substantial criticisms especially as it was relied on by many EU members to secure the return of those accused of minor offences such as the theft a light bulb or to insist on return despite trials in home countries sometimes taking decades to conclude. The delays pre trial in some jurisdictions and appalling prison conditions in some Members states have been found not to be Article 6 or Article 3 compliant, yet, having to prove this has been an insurmountable task for many defence practitioners  given the presumption of mutual trust and cooperation between EU Members States.

In July 2014 the UK temporarily opted out of the EAW Framework as a means to try and renegotiate terms. The rules are uncompromising. Even when part of the EU, negotiations, led by Theresa May, took 2 years to finally agree that we could opt back into the EAW scheme by only adopting around 1/3 of the 144 proposals. But, by being within the EU, Theresa May was able to renegotiate some of the terms resulting in amendments to the Extradition Act courtesy of the Anti-Social Behaviour Crime and Policing Act 2014, which introduced a proportionality test (to do away with EAWs issued for such minor offences such as theft of a light bulb, writing graffiti) and allowed the possibility for less coercive measures than extradition to take place for minor offences.

If Art 50 is invoked the Government will only have 2 years to negotiate new terms and the myriad of other EU legislation.  Those advocating leave seem to believe this will be straightforward but if it took 2 years when we were “in“, this looks more like blind optimism. The negotiations in July 2014 were hard fought but ultimately achieved their goal, leverage may well be diminished once outside the EU.

The UK could face the prospect of having to agree 28 bilateral agreements between each individual State. One can only imagine the chaos at court as each lawyer and District Judge is having to flick through their ever growing extradition rule book searching for those 28 bilateral agreements. It will be unworkable and will inevitably result in delays and further time in custody in overcrowded prison conditions at HMP Wandsworth for those facing extradition.

Many may cheer at the prospect of the demise of the EAW, but, until we know what they are to be replaced with, any celebrations should be kept firmly in check.