’Brextradition’ – An analysis of the surrender arrangements between the UK and EU27 post-Brexit

This blog post was written before 31 January 2020.

The break-up is official. The UK is not only separating from the EU, but it will become formally divorced on 31 December 2020 when the transition period comes to an end. This article explores the extradition landscape beyond the end of the transition period and considers whether as a result of Brexit, the UK will live to regret losing custody of the European Arrest Warrant (‘EAW’).

Current extradition arrangements

Since 2002, the Council Framework Decision on the European Arrest Warrant (’FD 2002’) has operated to fast-track the surrender of suspects and convicted individuals across the physical borders of the EU. Underpinned by the principle of mutual trust and recognition, the FD 2002 abolished extradition between member states and replaced it with a system of surrender between judicial authorities. The birth of the EAW removed the complexities and potential for delay inherent in the multilateral European Convention on Extradition 1957 (’ECE’) and removed decision making away from the political arena. Member States are defined as ’Category 1’ territories under Part 1 the UK’s Extradition Act 2003 (’EA 2003’).

In 2017, nearly 18,000 EAWs were issued across the EU, with the most common offences being fraud and corruption, drugs, human trafficking, counterfeiting, terrorism and serious criminal damage.[1] The UK has been an active user of the scheme since the implementation of the FD 2002 through the EA 2003. From 2009 to 2017, the UK issued a total of 2,229 requests to other member states, securing the return of 1,221 individuals of 1,441 arrested. In the same time period, a total of 9,646 individuals were extradited from the UK pursuant to EAWs, out of a total of 13,390 arrests.[2] The National Crime Agency (’NCA’) statistics demonstrate a steadily increasing number of EAWs (issuance and surrender) since 2009. The European Commission statistics[3] demonstrate that this trend is EU wide, with the number of total issuances increasing from 6,894 in 2005 to 17,941 in 2017.

The nature of EAW transmission ensures that the time between a request being activated and a Requested Person appearing in court can be a matter of days. According to the European Commission, the average length of time it took for a Requested Person to be surrendered with consent was 15 days, and without consent was 40 days[4].

The transition period

EAWs issued and executed by the UK will continue until midnight on 31 December 2020, when the transition period in the UK comes to an end and the EAW will disappear from the UK legal landscape alongside many other EU-wide criminal justice instruments.

However, until then, requests for surrender from the EU27 will continue to be dealt with under the existing legislation. As the deadline draws near, it is likely that outgoing EAWs from the UK will be more intensely scrutinised (and possibly refused) by courts in other member states as mutual trust and recognition ebbs ever further away.

What’s next?

On 27 February 2020, the UK government published its mandate[5] for the next phase of Brexit discussions. It is clear that the EAW (in addition to other EU measures and tools in the field of criminal justice) does not form part of the government’s plan. The UK’s Serious Fraud Office (‘SFO’) identified the UK’s withdrawal from the EU as a ‘strategic risk’ that could lead to adverse effects on its ability to investigate and prosecute.[6]

In lieu of the EAW, the UK government proposes “fast-track extradition arrangements, based on the EU’s Surrender Agreement with Norway and Iceland which came into force in 2019, but with appropriate safeguards for individuals beyond those in the European Arrest Warrant.”  No details have been provided to suggest how such an agreement might be reached, nor the scope of the proposed “additional safeguards” or to whom those safeguards actually apply.

In light of the fact that the EU’s Surrender Agreement with Norway and Iceland was agreed in principle in 2006 and took another 13 years to come into force[7] whilst Member States entered their declarations and notifications, it is likely the end of the transition period will come too soon with no final resolution, particularly given the Prime Minister’s stated intention to conclude discussions (whether or not a deal is reached) by June 2020[8]. Negotiations are not likely to be helped by the emergence of COVID-19 as government’s turn their attention to events at home in an attempt to prevent the spread of the new virus.

UK extradition practitioners now operate on the almost inevitable assumption that, as of 1 January 2021, the UK will revert to the provisions of the European Convention on Extradition 1957 (’ECE 1957’) as forming the basis of our extradition relationship with the EU27.

Reliance upon the ECE 1957

In order to give effect to the ECE 1957, all EU Member States currently designated as ’Category 1’ territories for the purpose of the EA 2003 will be re-classified as ’Category 2’., This will bring them within the remit of Part 2 of the EA 2003 that contains the provisions for the UK’s extradition arrangements with countries with which it has a bilateral treaty or multilateral treaty obligation. A sub-category of these Category 2 countries will be those which are designated by the Home Secretary as having exemption from the requirement to demonstrate a prima facie case against a Requested Person.

Council of Europe countries who are not Member States (as well as Israel, Republic of Korea and South Africa) but who are signatories to the ECE 1957 are currently designated as not having to demonstrate a prima facie case.  In the absence of a deal making specific provision to the contrary, it is anticipated that the EU27 will join that list.[9] In practical terms, the re-classification of the EU27 as Category 2 territories will make the procedure for requesting and securing the return of Requested Persons from the UK more cumbersome and lengthy. The time limits[10] applicable to extradition proceedings under Part 2 of the EA 2003 are significantly longer than those under Part 1. For instance, the time between arrest and the extradition hearing should be no longer than 21 days in Part 1 cases but can be up to four months in Part 2 (provisional arrest) cases. The physical transmission of requests will be via diplomatic channels introducing an element of politicisation to the process of extradition between the UK and EU27.

Drawbacks of the ECE 1957

Be under no illusions – reverting to the ECE 1957 for extradition arrangements between the UK and EU27 is an inferior option to the system currently in place and is not an adequate substitute for the EAW. The UK’s lack of access to the second-generation Schengen Information System (’SISII’) will have a catastrophic impact upon the UK’s ability to receive up to date alerts in respect of wanted persons. Requests for extradition will have to be sent through diplomatic channels and in the UK will be received/issued by the Home Office. Amendments to the EA 2003 by way of a statutory instrument (currently in draft [11]) will enable individuals to be arrested without an arrest warrant upon receipt of a valid request from a specified Category 2 territory or upon sight of a judicial document which indicates that such an arrest warrant exists for a ’serious extradition offence’.[12]  The countries currently listed in the draft statutory instrument do not include the EU27, but likely will do in the future upon amendment by the Secretary of State.

A further mechanism for arrest in the UK is the INTERPOL red notice and diffusion system. Typically, red notices are not issued by the EU27 for individuals where SISII would be sufficient and more effective at locating individuals and pursuing their surrender. The UK does not currently give effect to Red Notices but may do so in light of the provisions of the statutory instrument cited above. With the UK no longer having access to SISII alerts, designated authorities within the EU27 may be required to circulate data via both SISII and INTERPOL channels. Not only will this result in a greater burden on those authorities but will likely lead to a far greater number of individuals “staying safe” in the UK, not crossing borders and therefore not exposing themselves to an INTERPOL alert. Concerns about the UK becoming a ’safe haven’[13] for criminals are not unfounded, particularly as the UK adjusts to the new regime. An individual who commits an offence in an EU27 state and manages to enter (and stay in) the UK after 1 January 2021 is inevitably (unless the UK begins to give direct effect to INTERPOL red notices) less exposed to the risk of being located, arrested and embroiled in extradition proceedings in circumstances where UK law enforcement will no longer receive SISII alerts and where the bureaucratic burden on Requesting States in issuing extradition requests will be inherently higher. It is not unreasonable to assume that requests for extradition of individuals charged or convicted of minor offences in EU27 states will diminish; an unsatisfactory outcome both for victims of crime in the EU and for communities and the criminal justice system in the UK where those individuals may choose to continue their criminal exploits.

The streamlined ‘Form A’ that is uploaded to SISII will no longer apply, meaning requests for extradition will no longer be contained on a tick box proforma. In addition, of the framework list of 32 offences for which dual criminality is assumed, will no longer apply in the UK. It is notable that the Norway/Iceland agreement includes the abolition of dual criminality for precisely the same list of offences, with a requirement that the offence carries a sentence of three years or more, and with an opt-out clause built in. Whether or not the UK would agree to sign up to the effective re-introduction of the Framework List is currently unclear.

Absent such a deal between the UK and the EU27, Article 2 of the ECE 1957 demands that extradition be granted in respect of offences which are punishable in both the Requesting and Requested State by a sentence of one year or more. In circumstances where an individual has already been convicted, a sentence of four months or more must have been imposed. Whilst dual criminality is known to be a flexible concept, it will inevitably open up arguments not currently available to individuals wanted for a framework list offence that dual criminality is not satisfied. Whether this will delay the extradition process further or increase the number of cases which result in challenges at the higher court level where the offences may be more country-specific remains to be seen.

Conversely, some of the most commonly utilised arguments in resisting EAWs in the UK, such as the insufficient particularisation of the EAW[14] or the absence of a prosecutorial decision[15], will cease to apply in challenging extradition as the equivalent provisions are not to be found in Part 2 EA 2003. The same applies to the proportionality bar[16] contained within Part 1 (but not in Part 2), which was a welcome addition to the EA 2003 in 2014. The proportionality bar enshrined more fundamentally an obligation on the UK courts to balance the Convention rights of a requested person against the nature of the alleged offending behaviour as well as to consider whether less coercive measures would be available. Although compatibility with Convention rights must be considered[17], this is a standalone argument to be made in respect of the consequences of extradition itself rather than as part of a qualitative assessment of the alleged conduct. Given the extraordinary impact which extradition inevitably has on the lives of those involved, this is an unfortunate loss to the legislative framework.

Although the ECE 1957 demands very similar formalities in respect of the request and supporting documentation to be provided in support of an extradition request, the requirements as to detail are less onerous upon the Requesting State. Requests which, under the current regime, may be too vague to satisfy the Section 2 threshold could be more readily acceptable to the UK courts as of 2021. Currently, Part 1 requests are explicitly required to include particulars of identity, any other warrants in place, the circumstances of the conviction or alleged offending (including the relevant conduct, time and place of commission and applicable legal provisions) and details of the sentence applicable or imposed.[18] The equivalent provisions in Part 2 require only that the request includes a statement that the person is accused (or has been convicted) in the Category 2 territory of the commission of an offence specified in the request.[19]  The judge must then determine whether the documents within the request consist of or include particulars of “the person whose extradition is requested” and “the offence specified in the request” as well as the arrest warrant (in accusation cases) or certificate of conviction. Whilst Article 12 ECE 1957 does contain detail as to the particulars required in a request (which largely is reflected in the Part 1 criteria), this was not transposed in respect of Part 2 requests. Whether the legislation is amended to more adequately deal with this lacuna or whether the courts will be left to interpret the issue in line with existing authority remains to be seen.

Perhaps the most important impact of the reversion to the ECE 1957 is the constitutional bar in some EU Member States to the extradition of own nationals. Some of those countries apply exceptions to individuals requested pursuant to an EAW, applying the principle of mutual trust and recognition. However, there will be no obligation (and little political will) for those states to extend this exception to the UK once it has left the EU. Reservations to the ECE 1957, entered at the time of signing, will operate to block the return of Requested Persons to face trial or sentence in the UK. Germany, Austria and Slovenia have already declared their intention not to extradite own nationals during the transition period. Currently, 16 of the EU27 entered the same reservation into the ECE 1957 in respect of own nationals. Other countries may follow, particularly in the event of the UK resolving to abolish the applicability of the European Convention on Human Rights via its domestic legislation; the Human Rights Act 1998.

The UK may additionally find obstacles in procuring extradition from France, Denmark and Hungary in respect of particularly vulnerable defendants due to specific reservations regarding ill-health and hardship of requested persons.  It may also struggle to request (for example) the extradition of any individuals wanted on IRA related terrorism charges, given the historic political conflict and the operation of Article 3 ECE 1957, which prohibits extradition for offences “regarded by the requested Party as a political offence or as an offence connected with a political offence.” This provision was largely muted by the implementation of the FD 2002, with the availability of political arguments reduced simply to requests which were demonstrably political in motive.

Whatever happens during the remainder of the transition period, there is unlikely to be agreement reached that would see the UK continue to participate in the EAW scheme or indeed a similar scheme. The UK will resort to a former partner – the ECE 1957 – for its extradition arrangements with the EU27, a relationship that is likely to have become somewhat stale since its introduction 63 years ago. Despite all the criticisms over the years of the EAW the UK will likely regret leaving not only the EU27 but the loss of the crime fighting measures and tools that came with the relationship, a relationship that was set to continue to blossom in the future as all Member States continued to work together. Instead the UK will be left to wilt.

[1] http://www.nationalcrimeagency.gov.uk/publications/european-arrest-warrant-statistics

[2] Ibid

[3]https://ec.europa.eu/info/sites/info/files/replies_to_questionnaire_on_quantitative_information_on_the_practical_operation_of_the_european_arrest_warrant_-_year_2017.pdf

[4] Ibid

[5]HM Government: “The Future Relationship with the EU: The UK’s Approach to Negotiations” Published February 2020. (Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/868874/The_Future_Relationship_with_the_EU.pdf)

[6] Serious Fraud Office Annual Report and Accounts 2016-17. Available at: https://www.sfo.gov.uk/publications/corporate-information/annual-reports-accounts/

[7] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A22006A1021%2801%29

[8] HM Government: “The Future Relationship with the EU: The UK’s Approach to Negotiations” Published February 2020. Para 9.

[9] Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019

[10] Section 76 EA 2003

[11] Extradition (Provisional Arrest) Bill 2019-20 (HL Bill 03)

[12] One carrying a sentence of three years or more.

[13] For example: https://www.bbc.co.uk/news/uk-scotland-38883530; https://www.lawsociety.org.uk/news/press-releases/no-deal-brexit-jeopardises-uk-ability-to-extradite-criminals/

[14] Section 2 EA 2003

[15] Section 12A EA 2003

[16] Section 21A EA, added by section 157(2) Anti-social Behaviour, Crime and Policing Act 2014

[17] Section 87 EA 2003

[18] Section 2 EA 2003

[19] Section 70 EA 2003