Brexit and extradition: good news for fugitives, bad news for British justice

The UK currently participates in approximately 40 European Union measures aimed to support and enhance internal security and judicial cooperation among member states. With a further Brexit extension being agreed until 31 January 2020, the absence of a transitional agreement and a general election fast approaching, the uncertainty regarding what happens to many of these measures after Brexit remains.

The Extradition Act 2003 (EA2003) provides the domestic legal basis for the UK’s obligations on extradition. The EA2003 introduces the European Arrest Warrant (EAW) and surrender procedures between member states contained in what is called the “Council Framework decision 2002/584/JHA” (Framework Decision). The EA2003 also governs extradition to countries outside of the EU where extradition treaties exist.

The EAW regime sought to harmonise extradition rules between member states and has been incredibly successful, ushering in a much improved, cost effective and timely means of extraditing individuals between member states. The EAW has been an effective tool for UK and EU law enforcement with approximately 8,000 individuals exported to other member states and 1000 imported to the UK.

Despite the general Brexit uncertainty, the one thing we do know is that if the UK leaves the European Union without a deal we will be leaving the EAW regime. Shortly after the Brexit referendum concerns were expressed by the House of Lords European Union Committee on the effect of our leaving the EAW regime:

“We stress, however, that a transitional arrangement that simply extends the status quo in relation to the EAW will be difficult to secure.  In leaving the EU, the UK will no longer be party to other, related EU arrangements, such as the EU Charter of Fundamental Rights, EU Data protection laws, and laws on EU citizenship. We therefore remain concerned about the prospect of a “cliff edge” in our extradition arrangements, and emphasis that a gap between the EAW ceasing to apply and a suitable replacement coming into force would pose an unacceptable risk to the safety of the people of the UK.”

Now, at least, there seems to be a slightly more settled position in the event of a no deal Brexit but it’s a far cry from the present EAW regime.

EAW’s and the position until 31 January 2020

The current position in respect of the execution of an EAW by a member state, until the UK leaves the EU, has been the subject of recent European Court of Justice scrutiny. The case of “RO” concerned an individual arrested in Ireland under two EAW’s issued by the courts of the UK and Northern Ireland, in respect of allegations including murder and rape. The case was referred to the court by the High Court in Ireland for a preliminary ruling on, inter alia, the following question:

“Having regard to the UK’s notification under Article 50 Treaty on European Union (“TEU”); the uncertainty of the relationship between the UK and the EU after withdrawal and the uncertainties as to whether [RO] would be able to enjoy the rights under the treaties, charter or relevant legislation whether a requested member state is required by EU law to decline to surrender a person subject to a EAW, whose surrender would otherwise be required under the national law of the member state:

a. In all cases;

b. In some cases, having regard to the particular circumstances of the case?

c. In no cases?”

It should be noted that RO raised objections to his surrender to the UK on the basis of, among other things, the withdrawal of the UK from the EU and Article 3, European Convention for the Protection of Human Rights and Fundamental Freedoms, stating that he would suffer inhuman and degrading treatment if he were to be imprisoned in Maghaberry Prison in Northern Ireland.

The court found that the principal of mutual trust between member states, particularly in areas of freedom, security and justice, requires a presumption that all member states will be complying with EU law and in particular the fundamental rights recognised by EU law. The Framework Decision sought to harmonise the extradition rules between Member States and “has at its basis a high level of trust which must exist between member states”.

The Court went on to say that a notification under Article 50, TEU simply triggered a procedure set out in the TEU and did not suspend the application of EU law within the relevant member state. Therefore, the refusal of a Member State to execute an EAW in these circumstances would amount to a unilateral suspension of the terms of the Framework Decision and therefore unlawful.

The court did, however, recognise that member states tasked with executing the EAW will need to satisfy itself that the person subject to the EAW is not deprived of their rights under Articles 26 – 28, Framework Decision nor that they are subject to inhuman or degrading treatment within the meaning Article 3, European Convention on Human Rights. In those circumstances it may be appropriate to refuse to surrender the individual, notwithstanding the right of that individual to challenge these issues within the Court system of the issuing member state.

The court ruled that the fact the UK government had exercised its rights under Article 50, TEU is not a reason for a Member State to justify the non-execution of an EAW. The court also said that given the provisions of Articles 26 – 28 of the Framework Decision and Article 4 of the charter were protected by provisions in UK law, there was no evidence that RO was unable to assert those rights before the courts of the UK after its withdrawal from the EU.

To refuse to extradite RO on those grounds was therefore not justifiable. The principles set out in RO have since been considered and endorsed in the European Court of Justice decision of “MA & Others” C2019:53 and the European Council Decision (EU) 2019/584 on 11 April 2019 which stated that as the EU and UK take the joint decision to extend the period under Article 50 TEU until, at that time, 31 October 2019 this decision will “have the consequence that the UK will remain a member state until a new withdrawal date, with full rights and obligations”.

Notwithstanding the above case law, the withdrawal agreements to date, including the October 19 agreement, by and large seek to extend the status quo on justice and home affairs measures. In doing so, the UK has sought to preserve the EAW status amongst the UK and other member states. The latest withdrawal agreement states that the relevant Framework Decision shall apply in respect of the EAW process in relation to individuals arrested before the end of the transition period, a period which could extend to December 2020 and possibly beyond. No guidance is available in respect of EAW’s issued after withdrawal but before 31 December 2020 where a person has not been arrested.

Although Article 62 of the current withdrawal agreement states that the Framework Decision shall apply in relation to EAW’s (where the requested person was arrested before the end of the transition period) the problem is not fully resolved as concern has been expressed in various quarters that Article 185 of the withdrawal agreement specifically acknowledges that member states may refuse to surrender its nationals to the UK pursuant to the EAW. Some commentators suggest that this is likely to apply to those member states with constitutional bars on extraditing its citizens.

No deal Brexit

The government recognises that operational continuity and security, of both the UK and the EU, would be seriously undermined if there were to be a complete and abrupt stop to co-operation on the day the UK leaves the EU. To ensure continuity, the government has sought to introduce draft legislation to address the gaps in the event of the UK’s withdrawal from the European Union.

The Law Enforcement and Security (Amendment) (EU) Exit Regulations 2019 is one such piece of legislation which deals with three linked policy areas including security, law enforcement and judicial cooperation which will include EAW’s.

Given that the EAW will no longer be available in a no deal scenario this draft legislation would have the effect of re-designating the Part 1 territories in the Extradition Act 2003 as Part 2 territories and reverting to the contingency plan of dealing with extradition requests in accordance with the 1957 European Convention on Extradition.

Reverting to the 1957 Convention was considered in part by the House of Lords European Union Committee back in 2017, which reiterated earlier comments that the 1957 Convention “cannot adequately substitute for the European Arrest Warrant”.  There exist numerous problems in reverting to the 1957 Convention including the following:

1. Some member states had rescinded their legislation implementing the convention and that given extradition is a two country process simply amending the Extradition Act 2003 will not be sufficient as there will need to be reciprocal legislative change in other member states which may be unlikely. In our view that has the potential to be a further major obstacle to simply reverting to the 1957 Convention;
2. A return to the 1957 Convention would see a return to a “political, rather than judicial, approach to extradition” and in doing so create further practical problems because extradition requests would have to be made through diplomatic channels which would require the secretary of state to make an initial decision on certification; and
3. The constitutional bars to extradition referred to above would remain and Article 6 of The 1957 Convention specifically provides that parties to the convention have the right to refuse extradition of its nationals.

Alternatives to the 1957 Convention include bilateral extradition agreements with each of the member states but this will be almost impossible to achieve swiftly, and the agreements are all likely to differ making arrest and extradition difficult to enforce consistently. An example of such a bilateral agreement with the EU exists with Norway and Iceland although this agreement is yet to come into force and took 13 years to negotiate between 2001 and 2014.Given the difficulties with the alternatives, in the event of a “no deal” Brexit, it would presently appear that we will be reverting to the considerably less effective and more costly 1957 Convention.

Brexit with a deal

No one knows what the extradition process will actually look like after Brexit in circumstances where a deal is achieved although we can be pretty sure that the UK government will be looking for arrangements which mirror the current EAW system as closely as possible. One thing is for sure however, whatever system is agreed post Brexit it is unlikely to measure up to and perform as well as the existing EAW regime and the UK will be worse off for it.