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01 Feb 2021

Edward Grange quoted in Criminal Law Week on “Polakowski and others v Westminster Magistrates’ Court and others”

Partner Edward Grange has been quoted in Criminal Law Week on “Polakowski and others v Westminster Magistrates’ Court and others”, discussing the Extradition Act 2003 and the end of the Brexit transition period.

“In light of the tangled web of last minute legislative amendments brought into force at the end of the transition period, it was perhaps inevitable that there would be a challenge to EAWs issued prior to 31 December 2020 where the requested person had also been arrested before that date. Had the applicants succeeded, it could have had wider-reaching consequences than just extradition, undermining the UK’s relationship with the EU on other issues such as mutual legal assistance. It was therefore an important issue to raise.

“That the challenge was brought so quickly could be the reason why all the parties to the applications for habeas corpus (that the court converted to
an application for judicial review: see § 1 above) overlooked Article 185 of the withdrawal agreement, which shattered the applicants’ central argument that Article 62 of the withdrawal agreement, which provides for the application of the framework decision, only applied up to 11 pm on 31 December 2020. Article 185 states that, inter alia, Article 62 has effect from the end of the transition period and without limit of time. Had it been identified earlier, it is likely the applications would not have been brought in the first place. In any event, the court found that the parties to the withdrawal agreement had agreed expressly that the term “member state” as it appears in the framework decision should be read as if it includes “the UK”.

“This case is unlikely to be the last brought by lawyers seeking to challenge lacunae caused by the UK government’s last minute deal that resulted in the UK/EU Trade and Cooperation Agreement,” said Edward.

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