The Government, yesterday, released a document outlining the UK’s approach to forthcoming Brexit negotiations including the revelation that the UK will not be seeking to remain party to the European Arrest Warrant (“EAW”) regime.
The EAW regime came into force across EU states in 2004 and provides for a streamlined process of extradition between participating states. The loss of the EAW, as a law enforcement tool, was considered to be an inevitable consequence of the decision to exit the EU and the completion of the Article 50 process as the EAW Framework Decision, a piece of secondary EU law, applies only to member states. UK law enforcement authorities have been vocal in the run up to exit day about the value of the EAW, Europol and other EU information-sharing measures such as the Schengen Information System II (“SIS II”), in tackling serious crime and terrorism.
The Government’s strategy document signalled a desire to negotiate a mechanism akin to the Surrender Agreement between Iceland and Norway and the EU, which came into force in November 2019. The Surrender Agreement, which broadly mirrors the EAW system, was approved by the EU in 2014 following 13 years of negotiation.
It remains unclear at this early stage whether the EU would be willing to enter into such an agreement with the UK. Both Norway and Iceland maintain close ties with the EU as members of the European Free Trade Association (“EFTA”) and the Schengen zone. Whether such an arrangement will be feasible in the case of the UK is likely to hinge on the outcome of other aspects of the negotiations.
While the UK retains access to the EAW system throughout the transition period, Article 185 of the Withdrawal Agreement allows member states to refuse to surrender their nationals to the UK in response to an EAW request. Germany, Austria and Slovenia, countries which all have a constitutional bar against extraditing their citizens for which a carve out was made at the national level for the EAW process, have all made declarations under Article 185.
The UK also stands to lose access to SIS II, which allows for real-time fugitive alerts, the European Criminal Records Information System (“ECRIS”) and the Prum system for cross-border DNA exchange. Whatever the course of the negotiations, meaningful co-operation between the EU and the UK in respect of extradition will almost certainly be contingent on the UK remaining a member of the European Convention on Human Rights and the General Data Protection Regulation at a minimum.