The EAW is dead. Long live the EAW – The consequences of “Brexit” for the European Arrest Warrant

Like it or loathe it, the European Arrest Warrant has become firmly established within the UK legal landscape since its introduction into UK law by the Extradition Act 2003 on 1st January 2004. To its supporters it has become an essential tool for fighting transnational crime and terrorism in an increasingly globalized world. To its detractors it is an illiberal instrument that sacrifices the rights of UK citizens on the altar of the European integrationist project. Now that there is a very real possibility of the UK leaving the European Union, it seems appropriate to consider how the extradition of fugitives would be effected between the UK and the EU if the country were to vote “leave “on 23rd June.

The first point to make is that in the event of a “leave” vote the EAW will still be as much a part of UK law on 24th June as it was on 23rd June. The “leave” vote will simply trigger the leaving process governed by Article 50 of the Treaty of the European Union, which starts with the UK government giving the European Council notice of its intention to leave to the EU. Once the process has been triggered, the UK will have to negotiate a withdrawal agreement with the EU. If no agreement is reached within 2 years (this period can be extended by unanimous vote of the European Council) of the UK giving the European Council notice that it is leaving, the EU treaties will cease to apply to the UK and it will no longer be a part of the EU, deal or no deal. As part of that process, the UK will doubtless have to negotiate the form its future extradition relations with the EU will take.

The UK’s extradition arrangements are currently governed by the Extradition Act 2003. This is a piece of primary UK legislation that was passed following the adoption by the UK of the European Council Framework Decision on the European Arrest Warrant of 13 June 2002 (“Framework Decisions” being EU measures that were binding upon the result to be achieved but left the means of achieving it up to the individual member states – they are no longer used following the coming into force of the Treaty of Lisbon in 2009). The Act is split into 2 parts, with Part 1 governing extradition to the EU and Part 2 governing extradition to countries outside the EU with which we have extradition treaties. Extradition under Part 2 is generally viewed as a more cumbersome and complicated process than under Part 1 because it contains more ways of challenging an extradition request and the executive has a very limited role to play in the decision to extradite because it is ultimately the Home Secretary that makes the extradition order in Part 2 cases (a District Judge alone makes the extradition order in Part 1 cases). Interestingly, The Extradition Act 2003 does not actually use the term “European Arrest Warrant”. It simply codifies a scheme for extradition that transposes the requirements of the Framework Decision into UK law and the countries that Part 1 applies to are designated via secondary legislation.

The UK’s extradition relationship with the EU therefore exists in UK law independently of any primary EU legislation and this would still be the case if the UK voted to leave and did not reach a new agreement. We would therefore in theory still be able to extradite to the EU even if we left the EU and did not reach a new agreement on extradition with it. It would however be hugely problematical to have remaining in force a piece of legislation that was enacted pursuant to EU law when we were no longer part of the EU. Also, in practice, a leave vote would represent a massive, possibly insurmountable, problem for the operation of the EAW because if we were no longer in the EU we would no longer be bound to adhere to the primary concept that underpins the operation of the EAW scheme, that of “mutual trust and recognition”.

Prior to the coming into force of the Extradition Act 2003, extradition from the UK could be difficult to achieve and it was at that time a more “traditional” system of extradition in the sense that it involved the executive in all cases. The UK was between 1991 and 2003 subject to a uniform extradition system that applied to all the Member States of the Council of Europe known as the European Convention on Extradition 1957 and the genesis of the EAW can clearly be seen within this scheme. A crucial difference between that scheme and the EAW is that the European Convention on Extradition permitted member states to make “reservations” that meant they could tailor their extradition arrangements according to their own stipulations. This is not possible under the EAW scheme.

The EAW did away with much of the complexity of the old law and introduced the concept of “mutual trust and recognition”, which is the principle that the decisions of the competent judicial authorities of one Member State should be respected, upheld and enforced by the competent judicial authorities of all the other Member States without much (or any) scrutiny (the Framework Decision in fact speaks of replacing the system of “extradition” with a system of “surrender”). The principle has led to a culture in EAW cases of a presumption in favour of extradition, with the presumption only being rebuttable with great difficulty. Once the court is presented with a European Arrest Warrant that complies with all the formalities of the Extradition Act 2003 the law essentially places the onus on the person being extradited to demonstrate why they should not be extradited, rather than on the requesting judicial authority to demonstrate why the should be extradited. This means that often in practice any argument that is advanced in opposition to an EAW, particularly on human rights grounds, is met with a stock response along the lines of “the court is entitled to assume that the requesting state, as an EU member and signatory to the European Convention on Human Rights, is acting in good faith and is capable of protecting this person’s rights”. And that is the end of it in the absence of cogent evidence amounting to a “very strong case” rebutting that presumption.

Without mutual recognition, the UK court would be free to subject an EAW to greater scrutiny and ask more searching questions of the judicial authority that issued it. This is not to say that mutual trust and recognition does not exist between the UK judicial authorities and those in non-EU countries, but in those bilateral relationships trust has been earned (and in the case of some countries, lost). It is not a given as it is in EAW cases. There is therefore an argument for jettisoning the Extradition Act 2003 and the EAW altogether and starting afresh, entering into bilateral extradition treaties with each EU member state and making every extradition case the equivalent of a “Part 2” case, or resurrecting a scheme similar to that of the European Convention on Extradition that would make individual bilateral treaties unnecessary but would allow a greater degree of flexibility in the extradition arrangements that we had with each state party. This would mean that we could enter into a properly calibrated bespoke extradition arrangement with each country, adding additional safeguards into the relationship with those countries whose criminal justice systems have much room for improvement (this is not to be taken as me arguing from any position of innate superiority – our prospective extradition partner might, with some justification, take the same view of our criminal justice system) and making extradition quicker and easier between those countries whose criminal justice systems we genuinely trust (although such a scheme would be highly unlikely to get off the ground in practice).

For an example of a European non-EAW country that we have an effective extradition arrangement with we need look no further than Norway. Norway is not an EAW country and extradition to it is governed by Part 2 of the Extradition Act therefore the mutual recognition principle does not apply. However, extradition to Norway is rarely refused because it generally issues requests only for relatively serious offences, it has a well-developed legal system and it is a signatory to the European Convention on Human Rights.

As an extradition practitioner who believes that the system should be geared towards respecting and upholding the rights of those subject to extradition requests, the outcome that I would most like to see in the event of a “leave” vote would be for the EAW to be jettisoned and for the UK to enter into bilateral treaties with each EU member state.

I suspect however that this is something of a pipe dream. It is unlikely that the EU would agree to it and could probably insist upon an EAW-style arrangement with it as one of the conditions of access to the single market. It is also likely that the impetus for keeping an EAW-style arrangement would come from within the UK. The EAW is one of the 35 police and justice measures that the UK opted in to following the Lisbon Treaty. It would therefore be rather nonsensical for it to seek to jettison it after having adopted it voluntarily and there are only a few people within the “leave” campaign at the moment that are voicing any criticism of the EAW. Also, crucially, the UK law enforcement establishment is very enthusiastic about the EAW and extolls its virtues as an essential tool for fighting crime and terrorism. The ease and speed with which extradition from the EU can be achieved currently are not things that will be sacrificed lightly. The law enforcement establishment will therefore be very keen to ensure that in the event of a leave vote the UK retains a system that is as closely analogous to the EAW as possible, and any attempt to reform it positively (but with the likely effect of making it harder to extradite people) will probably be defeated by the argument that reform will somehow make us less secure.

In the event of a leave vote and the consequent death of the EAW, it is therefore most likely that the ghost of the EAW shall continue to haunt us in some form or another.