A need for pragmatism post-Brexit

In the countdown to Brexit it was unclear what the extradition arrangements between the UK and EU would look like on 1 January 2021. However, concerns of a no-deal scenario evaporated when the UK and EU finally agreed the Trade and Cooperation Agreement (TCA). Part Three of the TCA covers ‘law enforcement and judicial cooperation in criminal matters’. Extradition or ‘surrender arrangements’ are set out at Title VII. This arrangement replaces the Framework Decision 2002/584/JHA (FD) on the European Arrest Warrant (EAW). The European Union (Future Relationship) Act 2020 (EUFRA) amends the Extradition Act 2003 (EA 2003) to take account of these changes.

The EAW is now an ‘arrest warrant’. The EU27 countries continue as Category 1 territories, governed by Part 1 of the EA 2003. This allows the timeframes surrounding extradition in these cases to move at a similar pace. Norway and Iceland are now under Category 2 territories, governed by Part 2 of the EA 2003.

While there is no reference in the TCA to ‘mutual trust’ as under the FD, cooperation between the UK and EU is based on ‘the parties’ and member states’ longstanding respect for democracy, the rule of law and the protection of fundamental rights and freedoms of individuals, including as set out in the Universal Declaration of Human Rights and in the European Convention on Human Rights’ (Title VII, Article LAW GEN 3).

Key developments

• The new provisions do not apply where the requested person (RP) was arrested on an EAW or where extradition was ordered before 31 December 2020. In the case of Polakowski & Others, the validity of EAWs following the end of the transitional period was challenged on the grounds that there was no legal basis for the RP’s surrender under the EAW and no basis in domestic law for their continued detention or remand on bail conditions after 11pm on 31 December 2020.  

The Administrative Court dismissed this challenge on the basis that the correct starting point was to look at EA 2003 and the domestic law that had modified it, and not the FD, or any other EU law or unincorporated international agreement.

• EAWs issued before 31 December 2020, where no arrest has been made, will be treated as ‘arrest warrants’ for the purpose of the new surrender arrangements. (Title VII, Article 112).
• The Court of Justice of the European Union will have no jurisdiction over the new arrangements. Instead, officials from the UK and EU will oversee Part 3 of the TCA as part of the Specialised Committee of Law Enforcement and Judicial Cooperation (SCLEJC). In practice, the committee will refer to the case law under the old system given how closely the new agreement mirrors the FD.
• Proportionality was not explicitly covered in the FD but is referred to in the EAW handbook and has been part of the EA 2003 under section 21A since 2014. Under the TCA, Part 3 Title VII Article 77: ‘Cooperation through the arrest warrant shall be necessary and proportionate, taking into account the rights of the requested person and the interests of the victims, and having regard to the seriousness of the act, the likely penalty that would be imposed and the possibility of a state taking measures less coercive than the surrender of the requested person particularly with a view to avoiding unnecessarily long periods of pre-trial detention’.

The joint political declaration on Article 77 confirms that the ‘principle of proportionality is relevant throughout the process leading to the surrender decision… Where the executing judicial authority has concerns about the principle of proportionality, it shall request the necessary supplementary information to enable the issuing judicial authority to set out its views on the application of the principle of proportionality’.

Positively, proportionality consideration should now apply to both accusation cases and conviction cases. This may see a reduction of some of the more questionable extradition requests. The wording of Article 77 also points to a focus on less coercive measures (already part of domestic legislation under section 21B EA 2003 since 2014).

All parties will benefit from pursuing pragmatic solutions to extradition requests from the EU. As demonstrated through the pandemic, the use of virtual interviews at the police station and full hearings via video link are now common. In certain extradition cases, these tools would be of benefit to all parties in order to expedite progress.  

• Article 79 – under the TCA the UK will require dual criminality in all cases save for those involving group liability for offences concerning terrorism, drug trafficking or serious offences of violence.
• Article 82 – creates a political offences exception. The starting point is that an arrest warrant may not be refused on the basis of political considerations, unless the UK or an EU state notify the SCLEJC that it is only to be applied to specified terrorist offences (Article 82(2)).
• Article 83 – creates a nationality bar. Article 83(2) outlines that the UK or EU27 may refuse to extradite their own nationals. During the transition period, Germany, Austria and Slovenia activated this option. This may have the greatest impact for import cases where the UK wants to bring someone back who has committed a serious crime. If states take up this bar then it is likely to stall the objectives of the TCA.
• Article 84 – concerns diplomatic assurances and the ability of a state to require assurances from the requesting state where there might be concerns about the fundamental rights of the requested person if surrendered.

Criticism of the agreement

The main concern surrounding the TCA is the loss of access to the Schengen Information System II (SIS II), a law enforcement and judicial database shared between the EU27, Norway, Iceland, Switzerland and Lichtenstein. Before the new agreement, SIS II allowed UK law enforcement and security officials access to real-time information from those states.

The home secretary has expressed confidence that the UK is safer out of the EU, but senior law enforcement and security figures have expressed concerns about the loss of access to real-time data, and the impact on tackling terrorism and organised crime. Fortunately, there is still provision under the TCA for sharing data and cooperation. We will only understand the full impact in due course, but the loss of SIS II is significant when considering that in 2020 UK law enforcement accessed the system over 600 million times.

Brexit did not eliminate the ongoing threats to the UK from terrorism, financial crime and organised cross-border criminal activity. Cooperation remains essential.

Conclusion

Surrender arrangements between the UK and EU under the TCA look very familiar to the extradition arrangements under the EAW FD. Any impact on the number of requests will become clearer over the coming months. What has not changed is that past mistakes will continue to follow some foreign nationals who have established themselves in the UK. There will remain the necessity to challenge situations where the fundamental rights of those individuals are at risk.

Chris Stevens is an extradition solicitor at Gherson, London