Post Brexit Extradition
European Arrest Warrants (EAW)
Since 2004 EU Member States wanting to prosecute or imprison someone who is in another Member State have been able to take advantage of the European Arrest Warrant (EAW).
Prior to the introduction of the EAW, nearly half of the EU member states (13 out of 28) refused to extradite their own nationals. The EAW Framework Decision replaced the old, slow, diplomatic form of extradition with a more streamlined procedure that removed this barrier between EU countries. The EAW system is imperfect, but it has eliminated safe havens.
The statistics reveal the success of the system: Prior to the invention of the EAW fewer than 60 people a year were extradited, yet after the system came into force there were 1,865 extradition requests rising to 15,540 in 2018/19.
Cooperation on matters of criminal justice would ordinarily be high on the list of any government’s list of priorities and the EAW system has been a powerful tool in law enforcement’s armoury for some time. However, the EU has said that the EAW is closely related to freedom of movement, and the UK has ruled out the possibility of freedom of movement remaining after the end of the transition period, effectively ruling out the continuance of EAWs.
The EAW system came to an end on 31 December 2020, although extradition requests initiated by this date will continue to be processed.
What happens now?
Although extradition will still be possible, it is likely to be a much longer and more complex process. Prior to the EAW, arrangements for extradition were contained in the 1957 Council of Europe Convention on Extradition (the Convention). Not only will the UK have to enact domestic legislation but it will be reliant on other countries making equivalent changes depending on whether they repealed their own domestic legislation which gave effect to the Convention since the EAW. Prior to the EAW, extradition requests could often take years to complete, and it is not hard to imagine a return to those timeframes post 31 December 2020.
Both the UK and EU will have an interest in creating a new streamlined process to avoid a return to the delay and complexity of the pre-EAW days, and both sides have already signed a Political Declaration committing to doing so. Against this is the EU’s negotiation position that the UK cannot enjoy the same rights and benefits as Member States. It would therefore be a departure from its negotiating position for the EU to reach an agreement with the UK on equivalent terms to those enjoyed by Member States. Whilst law enforcement and judicial cooperation are important aims of both parties, the potential for extradition to become a political bargaining chip is strong.
So is extradition possible?
Extradition will be possible but whether it will be a judicial process as it is now, or a diplomatic process as it was pre-EAW, is not yet clear. In either case anyone facing extradition should seek expert legal advice to help them navigate what will undoubtedly be a complex set of rules.