The Ides of March – the future of the European Arrest Warrant one year into the transition period

It has now been almost one year to the day since 29 March 2017, when Sir Tim Barrow, the UK’s ambassador to the EU, under the gaze of a legion of reporters, strode up the President of the European Council Donald Tusk, to hand-deliver a letter signed by the British Prime Minister. The letter formally notified the EU of the United Kingdom’s intention to leave the EU under Article 50 of the Treaty of the European Union (TEU), beginning a two year withdrawal process from the EU.

One key area of policy which will need to be negotiated by the time the UK ceases to be a member of the EU on 30 March 2019 is continued cooperation with other EU member states in the prosecution of transnational crime and terrorism. Consequently on 21 March 2018 the Home Affairs Select Committee published a report (henceforth referred to as the ‘Select Committee Report’) calling upon negotiators to immediately start focussing on security cooperation post “Brexit” and starkly predicting serious legal, constitutional and political obstacles in the way of achieving continued close policing and security cooperation should the UK fail to agree a deal on this. Despite promises of a ‘bespoke deal’ on transnational security arrangements post-Brexit, the government has been silent on what such a deal would entail and the report voices concerns about the government’s apparent “lack of investment and interest in contingency planning.”

In the lead up to the referendum vote, Hodge Jones & Allen identified some of the possible implications of a leave vote for extradition arrangements within the EU, governed by the 2002 European Council Framework Decision on the European Arrest Warrant (‘EAW’). As per our analysis, the current system has been retained during the transitional period. Half-way through the transitional period, we seem no closer to reaching a position on our extradition arrangements with the EU post ‘Brexit’.

In light of the Select Committee Report and academic analysis since the referendum, this blog will summarise the implications of various policy outcomes in the post-Brexit context.

The EAW System

The 2002 Framework Decision creates the EAW, which greatly simplifies extradition between EU member states. In the UK, its provisions were transposed into national law by Part 1 of the Extradition Act 2003 which deals with extradition between the UK and “Category 1” territories – i.e. other EU member states. Unlike traditional extradition arrangements where surrender requests are made through diplomatic channels, the Framework Decision relies on judicial cooperation. It is governed by the principle of “mutual recognition” of judicial decisions in criminal matters, which requires decisions taken by the judiciary in any member state to be enforced by the judicial authority of any other member state. This means that any national judicial authority can request the surrender of any individual from another judicial authority simply by issuing a European Arrest Warrant, avoiding the involvement of ministers entirely. The Framework provides a template warrant which means this process almost becomes a form-filling exercise, greatly expediting the process. Added efficiency is ensured by the strict limits within which an EAW must be executed – the surrender of an individual where extradition is contested must be completed within 60 days (10 days where uncontested). As per the Select Committee Report,

“In 2016–17, the EAW resulted in 1,735 individuals being arrested in the UK; in total, there have been over 12,000 EAW arrests since April 2009, and over 1,000 people have been surrendered by other EU Member States to the UK.65 Before the EAW entered into force in 2004, the UK extradited fewer than 60 people per year to any country.”

The scheme also severely restricts the possibility of Member States refusing the surrender of an individual based on their nationality or the status of their residency within the relevant country, ensuring the speedy retrieval of serious offenders. This has opened the scheme up to some criticism in that barring a successful legal challenge the system forces a Member State to execute an EAW to a member state with poor records of management of prison systems – an ongoing issue in many member states.

Regardless, the Select Committee Report unequivocally concludes that “it is imperative that the UK’s future relationship with the EU includes speedy and simple extradition arrangements for serious crime, based on mutual recognition of judicial decisions, and that these arrangements are as similar as possible to the EAW model.”

Possible outcomes

There are a number of possible policy options –

1. Remaining part of the Framework Decision 2002 – In order to continue using the EAW, the UK and the EU would have to come to an arrangement that would allow the UK as a third country to remain part of the Framework Decision. This would be unprecedented. No situation exists where a third country has complete access to and use of the EAW. Even Norway and Iceland, both Schengen countries with close links to the EU, had to conclude separate agreements in relation to extradition.
2. Bilateral and Multilateral Agreements with member states – The UK could negotiate 27 separate agreements with member states on a case by case basis. In addition to being prohibitively expensive individual member states have limited competence to enter into international agreements in this area.
3. Reverting to the Convention on Extradition 1957 – All current EU Member States have signed and ratified the Extradition Convention 1957, which governed extradition between EU countries before the Framework Decision and barring any agreement this would be the default position. This would undermine close cooperation between the UK and EU Member States because this convention does not provide for specific time limits, reverts to the use of diplomatic channels and does not rely on the principle of mutual recognition. In addition, several states have formally repealed parts of this Convention. The Select Committee Report concludes “In particular, being forced to fall back on the 1957 European Convention on Extradition would be a catastrophic outcome.”
4. An EAW ‘Style’ Agreement – This option is the preferred option both of the Select Committee and a House of Lords report from 2017. In effect this would mean the UK would enter into an agreement with the EU which duplicates the Framework Decision. Norway and Iceland have such an agreement – though they took almost 13 years to finalise this arrangement despite these countries being part of the Schengen Agreement and actively moving towards greater integration. Importantly, if the UK wants to pursue this option the Select Committee Report considers that based on evidence it has seen the EU is almost certainly going to demand a stronger role for the Court of Justice of the EU in the UK, meaning we would have to compromise on one of our “red lines”.

However, the reality is that there is currently no formal position on extradition arrangements going forward. Consequently the report concludes:

“We do not understand why the Government’s future partnership paper on security and law enforcement cooperation makes no proposals for a future extradition arrangement with the EU. Based on comments by Ministers, we assume that the Government plans to include an extradition agreement in its overarching security treaty with the EU. However, if it is planning to try to achieve the extradition agreement through a parallel route instead, it should make that clear to Parliament and the public.”