A victory declared too soon

On 24 December 2020, the UK Government declared victory over the EU by stating that the Agreement it had reached with the 27 Member States in relation to future extradition arrangements had resulted in a ‘UK win’. It boasted that it had ‘secured fast track arrangements in line with the Norway/Iceland model with additional safeguards so that surrender can be refused if someone’s fundamental rights are at risk, extradition would be disproportionate, or they are likely to face long periods of pre-trial detention.

On the other side of the Channel, the EU stated that it had agreed ‘arrangements based on streamlined procedures subject to judicial control and time limits, providing for UK/EU surrender of suspected and convicted individuals expeditiously with the possibility to waive dual criminality, and to determine applicability for political offences and to own nationals.’

Two months on from the UK declaring victory, the reality of the UK’s new arrangements look far from giving UK law enforcement agencies cause to celebrate.

Already hampered by the loss of investigative tools such as the European Investigation Order, law enforcement agencies in the UK are now faced with the potential inability to seek the extradition of EU nationals from certain member states.

Article LAW.SURR.83 of the Trade and Cooperation Agreement (“TACA”): Nationality exception, introduces for the first time since 2003 a bar to extradition based on nationality. The implementation of the Council Framework Decision on the European Arrest Warrant resulted in all Member States agreeing not to refuse extradition based on the requested person’s nationality. Because extradition arrangements between the UK and EU are no longer conducted in accordance with this EAW scheme, EU Member States are now able to refuse to surrender their own nationals provided notification is given to the Specialised Committee on Law Enforcement and Judicial Cooperation.

This is not a new problem; Germany, Austria and Slovenia notified the General Secretariat of the EU that they would refuse to surrender their own nationals during the transition period that ended on 31 December 2020. Things went from bad to worse last week when a letter from Kevin Foster MP (Minister for Future Borders and Immigration) informed Lord Ricketts (Chair of the EU Security and Justice Sub-Committee) that 10 EU Member States[1] in total have now given such notification of their intention to refuse to extradite their own nationals. In addition, Austria and the Czech Republic have stated that their own nationals will only be extradited with their consent. Assuming such consent would not be forthcoming, that means 12 Member States will now refuse extradition requests from the UK for their own nationals.

Whilst this is not a complete get out of jail free card[2], those who commit crime in the UK and flee to their home jurisdiction may subsequently avoid justice. It was not too long ago that the EAW was heralded as a significant strength in the armoury of UK law enforcement agencies, who (rightly) boasted of securing the extradition from Latvia of Latvian Viktor Dembovskis, convicted and sentenced for the murder of 17 year old Jeshma Raithatha. Under the TACA, Latvia would now refuse to extradite Dembovskis and any prospect of instituting proceedings in Latvia would depend on obtaining the necessary evidence through MLA, which is now made more cumbersome by reliance upon the European Convention on Mutual Legal Assistance 1959.

Whilst heralded as a ‘UK win’ fewer than three months ago, it looks like victory was declared too soon. Only now will the adverse ramifications for law enforcement agencies start to be felt in a UK post Brexit that does not include use of the EAW.

[1] Croatia, Finland, France, Germany, Greece, Latvia, Poland, Slovakia, Slovenia and Sweden

[2] In circumstances where a State has refused to extradite one of its own nationals under the nationality exception, that State shall consider whether proceedings against its own national should be commenced.