Extradition and Brexit
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.