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By Stuart, Oct 14 2020 03:33PM

Amid the furore of the Brexit debates, one subject which generated surprisingly little coverage was the impact of the “Leave” decision on international legal co-operation in law enforcement and the United Kingdom’s membership of and participation in the European Arrest Warrant (“EAW”) scheme.


For many years, the process of extradition - the sending of individuals from one country to another either to face prosecution or to serve a sentence of imprisonment imposed following a conviction - was a complicated and arcane procedure. The Court, originally Bow Street Magistrates’ Court and later Horseferry Road, having determined there was sufficient evidence to support a prosecution in the foreign state and no legal reason for refusing the request, would “commit” the individual for a final decision by the Home Secretary – this made the decision as much a political exercise as a legal issue. Appeals abounded in all directions.


In 2002, a “Framework Decision” was agreed by the European Union which was intended to simplify and speed up the process and the EAW came into being. The new system was brought into legal operation in the UK by Part 1 of the Extradition Act 2003. The decision to extradite would be for the Court alone, there would be no need to weigh up the evidence as the request would be subject to an assumption that all legal systems involved would uphold a similar basic standard in fairness and “due process”, to borrow an American term, and adherence to the European Convention on Human Rights (“ECHR”) underpinned the whole scheme. Significantly, the Court of final resort in EAW case would be the Court of Justice of the European Union – the “CJEU”.


The decision to leave the EU in 2016 means withdrawal from the EAW system. Since then, under the Withdrawal Agreement, until the end of this year we will continue with the EAW process and cases where the EAW has been “executed” will continue under the existing law.


There is however uncertainty regarding the impact on extradition proceedings, as well as international co-operation generally, which will follow the expiry of this withdrawal arrangement, currently set for 31st December 2020. The UK will then cease to be part of the EAW scheme; one major reason for this is that the UK Government will no longer accept the over-riding jurisdiction of the CJEU. The question is, what happens next?


One option may be to move the procedures in relation to extradition requests from EU member states to Part 2 of the Extradition Act. This mirrors to a great extent the legal requirements currently in operation but the ultimate decision lies with the Home Secretary so it could be a political rather than legal reason which dictates the outcome of a case and that is not something the EU prefers as a general rule.


Another possibility is to agree with the EU a “fast-track procedure” similar to the Surrender Agreement which came into force in 2019 between the EU on the one hand and Norway and Iceland on the other. There are however significant differences between the current proposals of the UK and EU in relation to such an agreement and experience is already suggesting that agreeing anything between the EU and UK is easier said than done (this Agreement was drawn up in 2006, only 13 years before its implementation).


A third option, essentially the default choice, is to revert to the European Convention on Extradition which operated prior to the EAW system but that dates back to 1957 and is generally considered unattractive for a host of reasons.


It is widely anticipated that the EU will assert that membership of the ECHR is essential to any form of agreement. The ECHR is essentially a British invention, borne of the reaction to the atrocities of the Second World War; it is in fact nothing to do with the EU but is widely seen as a fundamental statement of the standards of a civilised society. In the UK it is enshrined in the Human Rights Act 1998. Some individuals, particularly on the right wing of British politics, are advocating a repeal of this Act, possibly with a replacement in the form of a Bill of Rights; how that would stand against the Convention remains to be seen.



Already Germany, Austria and Slovenia have stated that they will not extradite their own nationals to the UK absent the EAW system. Others may follow. In addition the law has developed in the UK to take into account issues such as “forum” (the best location for a trial to take place) and “absence of a prosecution decision” (designed to prevent people having to sit in gaol for months and months waiting for the case to get off the ground). These are British developments, by no means universal throughout the membership of the EAW system. There may be an issue as to the extent to which these developments may be maintained in any new arrangements.


Recently some European Courts have been expressing misgivings about the conditions in some UK prisons and whether they fall foul of the ECHR, to the extent that extradition requests from the UK might be refused. This does not augur well for a relatively simple new extradition system. Whether the COVID-19 situation makes things worse remains to be seen.


A return to “normality” will mean an opening of the borders and a return to widespread travel around Europe for business and pleasure. People with criminal cases behind them will arrive in the UK and individuals from this country may get into trouble abroad. A functioning extradition system is necessary in international relations; international law enforcement co-operation is essential in a global economy. The departure from the EAW system, whilst perhaps not at the top of people’s lists of considerations when they cast their votes back in 2016, may turn out to be one of the most significant and far-reaching results of the Brexit referendum – yet one that has so far received relatively little attention. Once the ramifications start to be noticed and felt, that may change dramatically.



By Stuart, Jul 1 2020 11:46AM

The dreadful impact of the coronavirus pandemic and COVID-19 has reached deep into the ordinary life of the country, not least in relation to the conduct of proceedings in the Courts and police stations.


At the police station there have been some notable changes in response to the pandemic – some of the custody areas have actually been cleaned, for one thing. Social distancing is in force, albeit in some areas more than others. Other measures include screens (in some places), the issue of personal protective equipment (in some places), the use of remote attendance and video appearances by solicitors (in some places) – in other words, the response to the problem is marked by a lack of consistency in approach.


The Crown Courts have been either closed completely or operating remotely. At time of writing jury trials are slowly re-starting, again with social distancing being a key factor, but not in all Courts and not at the same time.


The Magistrates’ Courts have been, well, inconsistent. Cases involving appearances on bail or in answer to postal requisitions have largely been adjourned but some cases have gone ahead, primarily those which involve “priority” matters (such as custody cases or those involving domestic violence allegations). Cases which may only require a single hearing, such as a sending to the Crown Court, are clearly being preferred. Account freezing orders, for example, are being granted but applications to have them set aside are having to wait.


Lawyers have been attending remotely - except for those who have attended in person. Hearings being conducted remotely are frequently interrupted by automated announcements that a particular individual has hung up or been put through to the Court. The inability to speak directly to prosecutors or clients is causing considerable delay – that is a problem inherent to the system which was of course designed to reduce delay. A statement relating to remote working from the Judicial Office on Friday 19th June 2020 had to be “clarified” on 21st June 2020.


As the lock-down is eased, things may return to “normal” (for better or worse) but there will be a back-log of cases to be added to the back-log of cases which already existed prior to the lock-down. Various ideas have been mooted as ways to tackle this, including in the Crown Court suggestions ranging from Judge-only trials or trial by a Judge and 2 Magistrates to a reduction in the size of the jury from 12 to 7.


Nothing has been decided. However this is in many ways no reason for complaint – “quick fixes” rarely fix anything and decisions borne of difficult circumstances frequently lead to a worse situation. Hard cases make bad laws, after all. Could it be that the principal lesson from 2020 is the need in a civilised society for a properly-funded criminal justice system in which everyone can have confidence? This correspondent is not holding his breath on that one.


By Stuart McDonald

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The Criminal Justice System is a dynamic environment with changes occurring frequently.  With this constantly changing landscape both in the law and funding, our focus is always on access to justice and ensuring we do the best job we possibly can for our client.  In each of our blog posts, we aim to bring you our view on a topic that is important to each of us.  Please do check back to see the latest post which we will link to on our Twitter account  @hallinans.

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