The impact of Brexit on the operation of the European Arrest Warrant (“EAW”) and its attendant extradition arrangements has been the topic of much debate since the 2016 referendum. The EAW system, in place since 2004, allows for a streamlined extradition process between EU Member States. While co-operation between the UK and EU on justice and law enforcement after Brexit will be the subject of negotiations from March 2020, notifications by Germany, Austria and Slovenia that they will not extradite to the UK following Brexit, have shed some light on the UK’s position during the transition period.
Germany, Austria and Slovenia have domestic laws in place which prohibit the extradition of their citizens. Carve-outs were made in each case for the EAW system but when the UK ceases to be a Member State at 11pm tonight, it will no longer be able to participate in this scheme. Article 185 of the EU Withdrawal Agreement states that Member States who do not wish to extradite their own nationals outside the EU for reasons of national law may refuse to surrender them immediately following exit day, subject to notifying the European Commission.
Under the Withdrawal Agreement, the UK is entitled to reciprocally refuse to extradite its own citizens to Germany, Slovenia, Austria, and any other EU Member States, electing to notify under Article 185. The Home Office has said that in these cases, the UK would expect the authorities in the Member State refusing surrender, to prosecute those suspected of criminality in the UK, in their own jurisdiction.
The EAW has been a vital tool for law enforcement in the UK and the EU. According to NCA figures on the use of the EAW, between 2009 and 2018, the UK extradited 9853 persons and received 1271 surrendered persons under the EAW system. While a newly-negotiated extradition agreement will be a key component of the justice negotiations between the UK and the EU, the UK will be in a disadvantaged position during transition.