Negotiations over the weekend with Boris Johnson and EU Commission president Ursula Von Der Leyen failed to make any apparent progress. Further telephone communication is planned over the week to try and come to a deal. The media has largely focused on the trade deal but no-deal Brexit has repercussions for every aspect of our lives, including security, sharing of data and the UK’s ability to extradite those accused or convicted of crimes to EU States and to extradite those the UK wishes to prosecute to the UK from the EU States.
The European Arrest Warrant (EAW) which all member states have relied on since 2004 eases and speeds up the process of extraditing accused or convicted persons from EU member State to EU member State. Prior to the EAW, it reportedly took on average up to one year to extradite individuals. The EAW regime is ‘quicker and clearer’ than its predecessor. That is in part as a result of the fact that a decision to execute an EAW must be made within 60 days of the arrest of the individual who forms the subject of the warrant, with the possibility to extend that period by 30 days, or within ten days of that person’s surrender to the relevant authorities. These times can be extended.
The UK’s membership of the EU also meant that the UK was party to a number of agreements regarding Law enforcement and Security and mutual cooperation between states and the sharing of information. The Government has recently published Regulations in this area in the event of a no-deal Brexit.
Leaving the EU and extradition
On 25 January 2019, the UK Government published the draft Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 along with a draft explanatory memorandum. The purpose of the draft Regulations was to address the situation across the criminal justice and security field of a no-deal Brexit and to provide, where possible, alternative arrangements to address the fact that on exit day the UK will no longer be a member of various EU-derived criminal justice bodies or schemes. In these Regulations all European States were re-designated as Part 2 Territories. Gilbraltar was designated as the only Part 1 Territory whereas previously all EU member states were Part 1.
On 13 October 2020, the draft Law Enforcement and Security (Separation Issues etc) (EU Exit) Regulations 2020 were published. This draft Statutory Instrument refers back to the draft Regulations prepared in early 2019. In terms of extradition it has very few amendments, sadly showing how little progress has been made in that period. The only amendment is to include Iceland and Norway as Part 2 Territories.
These Regulations contain provisions on a wide range of law enforcement matters concerning the UK’s exit from the EU after the transition period, including:
- Amendments to the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (SI 2019/742) (law enforcement regulations) comprising Eurojust, Europol, cross border surveillance, confiscation and freezing orders, extradition and mutual legal assistance
- Amendments to the Criminal Justice (Amendment etc) (EU Exit) Regulations 2019 (SI 2019/780) (criminal justice regulations) comprising European Protection and Supervision Orders, and the Mutual Recognition of Financial Penalties.
What does this mean?
When we exit the European Union we will no longer be able to rely on the EAW or on other cooperation agreements such as:
- The reciprocity of freezing and evidence orders designed to support Counter terrorism;
- The Schengen acquis arrangements regarding police and judicial co-operation including cross-border surveillance;
- Participation in Eurojust (the European Union Agency for Criminal Justice Cooperation, where national judicial authorities work together to combat serious organised cross-border crime;
- Participation in Europol (the EU’s law enforcement Agency);
- Exchange of information and intelligence;
- Joint investigation teams under the 2000 Convention on Mutual Assistance in criminal matters;
- The freezing Order (and other) powers under European Investigation Order Directive (EIO Directive) which provides for a standardised process for requesting and sharing evidence in criminal investigations and is generally used for material which cannot be obtained on a police-to-police basis.
How does this impact extradition?
Under the Withdrawal Agreement, the UK is able to continue to make use of the EAW regime provided that the process for extradition commences before 31 December 2020. But European member states are not required to extradite their own nationals and neither is the UK.
The EAW relies on the freedom of movement of people’s rights for EU Citizens. If the UK is unwilling to uphold this (which it is not) the EAW cannot be relied on. The Extradition Act 2003 will therefore be amended to redesignate EU countries to Part 2 Territories (countries with an extradition treaty with the UK), joining the list of countries like the US, Russia, India, Canada etc.
If no alternative arrangement or agreement is made which seems likely, the UK will have to fall back on the 1957 European Convention on Extradition. This allows the UK to enter into multilateral or bilateral agreements and these will need to be negotiated and laws amended on both sides. Any agreement will have to be mutual and each state will need to be satisfied that agreements will be kept to. For example, there is some debate at the moment that US-UK extradition is much less common than UK-US (David Davis has been vocal about this in parliament, supported by Boris Johnson). It is felt by some that the US do not always keep to “their side of the bargain”. Although evidence of this is not apparent. Given that the UK has been previously happy to partake in the EAW scheme, it is anticipated that it will be able to enter into agreements with individual member States, but this will be time consuming and a matter of negotiation.
Last month the Extradition (Provisional Arrest) Bill 2020 received Royal Assent. This gives the police the power to arrest individuals wanted by “trusted countries” for serious crimes overseas. This means the police can arrest immediately without first applying to a judge for a UK arrest warrant. The Act only relates to the power of arrest in the event that falls when the EAW falls. It has been made clear that a UK court has no obligation to extradite a suspect who has been arrested using this or any power and the protections contained within the Extradition Act 2003 will be available for every person who faces extradition in the UK. This Bill does not make any individual extradition any more or less likely. It merely deals with the power to arrest which it was feared could be lost with the loss of the EAW. The trusted countries are Australia, Canada, Liechtenstein, New Zealand, Switzerland and the USA. These countries were chosen as the UK has a “high level of confidence in them as extradition partners, in their criminal justice systems and in their use of extradition”. The 27 EU countries as well as Iceland and Norway will be added to the list. They may be removed if the provision inserting them is not brought into force by the end of 2021.
Under the EAW, the UK had a clear streamlined system that broadly worked well and was relatively straightforward. Without an agreement, we have more negotiations, less certainty and ultimately less security and justice.