Extradition in a post-Brexit world

Since 2004, the European Arrest Warrant (EAW) has operated to simplify the cross-border surrender of suspects and convicted individuals– for the purpose of prosecution or executing a custodial sentence in another Member State. Designed to ensure that open borders and free movement in the Union are not exploited by those seeking to evade justice, the EAW has proven the most successful instrument of judicial cooperation in criminal matters in the Union. 

Following UK's withdrawal from the EU, the UK can continue to operate the EAW system until midnight on 31 December 2020, when the transition period comes to an end and the EAW will disappear from the UK legal landscape. The UK’s decision to withdraw from the EAW scheme raises interesting questions regarding the future of the extradition regime in the UK.  

What's Next?

Extradition arrangements between the UK and EU seem to be low on the list of post-Brexit negotiating priorities. Furthermore, the negotiations are certainly not helped by the emergence of COVID-19, as governments turn their attention to events at home in an attempt to prevent the spread of the virus. 

Norway and Iceland-Style Agreement 

Back in February, in lieu of the EAW, the UK government proposed “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.”  However, to date, the government has provided no details as to how such an agreement might be reached or the scope of the proposed “additional safeguards”. Given that the Surrender Agreement was agreed in principle in 2006 and the necessary legal formalities took another 13 years to complete, combined with the current negotiations stagnation, it appears extremely unlikely that the UK could achieve a separate extradition agreement prior to the end of the transition period. 

Will the UK revert to the 1957 Convention?

In the most likely event that no agreement is reached by the end of the year, the UK will revert to the provisions of the 1957 Convention as forming the basis of our extradition relationship with the EU.

The 1957 Convention governs extradition relations between EU member states and Council of Europe Countries (as well as Israel, South Africa and South Korea). It was the basis upon which extradition arrangements between EU states was underpinned prior to the introduction of the EAW.

In order to give effect to the 1957 Convention, the UK will have to incorporate it into domestic law. All EU Member States currently designated as 'Category 1' territories will be re-classified as ’Category 2’ for the purposes of the Extradition Act 2003 (EA). This will bring them within the remit of Part 2 of the EA 2003 that currently contains the provisions for the UK’s extradition arrangements with non-EU countries with which it has a bilateral treaty or multilateral treaty obligation. 

Reverting to the 1957 Convention was considered in part by the House of Lords European Union Committee back in 2017, which reiterated earlier comments that the Convention "cannot adequately substitute for the European Arrest Warrant". But there are numerous problems in reverting to the 1957 Convention.

The key issues of reverting to the 1957 Convention

1. Double/Dual Criminality

The rule of double or dual criminality reinforces that extradition should only take place in respect of conduct which is not only an offence against the law of the Requesting State but also against the law of the Requested State.

The Framework Decision provides a list of 32 offences for which dual criminality is assumed. If the conduct for which the requested person is sought falls within the 'Framework List', this removes the need for the executing Member State to establish whether the conduct would also be an offence in that country. However, as of 1 January 2021, the 'Framework List' will no longer apply in the UK. Under the 1957 Convention, extradition will only be granted in respect of offences which are criminal in both the Requesting and Requested States and are punishable by at least one year’s imprisonment, or where a conviction of at least four months’ imprisonment has been imposed.  

This change will potentially provide fertile ground for the challenging of Part 2 requests- not currently available to individuals wanted for a 'Framework List' offence- that dual criminality is not satisfied. Whilst being a welcome development, this is likely to increase the number of cases which result in challenges at the higher court level and cause further delay to the extradition process. 

2. Proportionality Bar

For many years one of the most frequent criticisms of the EAW scheme was the increasing volume of extradition requests made to the UK for 'trivial' offences. To address these concerns, the proportionality bar was introduced within Part 1 (but not Part 2) of the EA 2003 in 2014, offering a welcome new avenue of challenge for those wanted to stand trial in the Requesting State. The bar has imposed an obligation on the UK courts to consider whether or not extradition would be disproportionate in any given case, based upon the seriousness of the alleged conduct, the likely penalty were the requested person to be found guilty and the possibility of less coercive measures being taken by the foreign authority.

Under the 1957 Convention, the proportionality bar will cease to apply in challenging extradition as the equivalent provision are not to be found in Part 2 EA 2003. It may be that the more formal and time consuming process under the 1957 Convention will automatically result in a reduction in the number of requests issued for minor offences, thus reducing the need for such a bar. When needed, it may be possible for individuals to mount a similar challenge under Article 8 of the European Convention on Human Rights- the right to private and family life- instead. However, given that proportionality has been recognised as a necessary standalone bar to extradition within the EU (despite the availability of Article 8), this is clearly an unfortunate loss to the extradition framework.

3.'Own Nationals' Exception

Article 6 of the 1957 Convention permits contracting parties to refuse to extradite their own nationals – a bar to extradition that the EAW regime had dispensed with as between EU states. A number of EU member states have made the necessary reservation under Article 6 allowing them such a refusal. Indeed, Austria, Germany and Slovenia have already confirmed that they will no longer extradite their own nationals to the UK. Others, such as Poland, Greece and several of the Scandinavian countries have historically refused to extradite their nationals, and may continue to decline doing so outside of the EAW framework. 

In addition, extradition under the Convention could be barred even if a reservation has not been entered but there is a domestic constitutional bar in place. Some Member States have constitutional rules that prohibit the extradition of their own nationals to countries outside the EU and it is highly unlikely that they would have any intentions of changing their constitutional provisions which govern this position, just to accommodate the UK after Brexit.  

These new barriers are likely to result in the reduction of the number of people brought to justice on both sides of the Channel post 31 December 2020. 

4. Political Influence, Time and Cost

According to the UK’s Institute for Government, an EAW-based extradition takes on average 48 days, whereas an extradition under the rules of the 1957 Convention can take up to a year. The difference arises from the fact that the EAW extradition process is purported to be a purely judicial one, whilst Part 2 extraditions are dealt with through diplomatic channels that often involve protracted negotiations and thus higher costs.

Currently, under the EA 2003, Part 1 requests (EAW) are received by the National Crime Agency, whilst Part 2 requests are directed to the Home Office.  Under Part 2, the Secretary of State is required to make an initial decision regarding certification- a power that is conferred on the NCA in respect of Part 1 requests- and the final decision on surrender-which, under Part 1, lies with the Court. 

Reverting to the 1957 Convention means that all extradition requests will have to be made through diplomatic channels, thus introducing an element of politicisation to the process of extradition between the UK and EU, decreasing the purview of the Courts’ involvement in the process and increasing the time and cost of the proceedings. 

Conclusion

There is widespread consensus among extradition practitioners that the 1959 Convention cannot adequately substitute the EAW system. A reversion to the old framework will increase the costs, time frames and complexity of the extradition process- the issues that the creation of the EAW was especially designed, and served, to resolve.

Although over time it may be possible to reach a Norway and Iceland-style surrender agreement with the EU or secure bilateral agreements with individual Member States, losing the EAW framework constitutes a step-backwards in dealing with extradition in a timely and cost efficient manner. It is likely to undermine the UK's efforts in the areas of national security and crime prevention.