Court hears first challenge to lawfulness of EAWs post Brexit

On 15 January 2021, the High Court heard the first challenge to the validity of European Arrest Warrants (“EAW”) received by UK authorities before the end of the transition period on 31 December 2020. The applications for writs of habeas corpus submitted to the court on behalf of five requested persons fall into three categories of case, namely cases where, prior to 31 December 2020:

1. an EAW was issued, certified and arrest made but the extradition hearing is outstanding;
2. extradition pursuant to an EAW was ordered but an appeal is now outstanding; and
3. an appeal against extradition was concluded but there is an outstanding application to re-open.

Counsel for the requested persons argue that as of 1 January 2021 the UK is no longer an EU Member State and as a consequence, in the absence of any explicit agreement to the contrary, neither the Council Framework Decision 2002/584/JHA on the EAW nor any provision of Union law, including the transitional arrangements in the Withdrawal Agreement, continue to have effect and so there remains no legal basis to interfere with the liberty of any person on the basis of previous arrest on an EAW.

Post transition surrender arrangements

Extradition between the UK and the EU post transition remains governed by Part 1 of the Extradition Act 2003, which was enacted to give effect to the Framework Decision on the EAW. Part 1 of the 2003 Act, as amended, does not refer explicitly to EAWs but rather is drafted in terms of “Part 1 warrants”. A Part 1 warrant is defined as “an arrest warrant which is issued by a judicial authority of a category 1 territory […].” “Arrest warrant” and “judicial authority” are correspondingly defined in the UK-EU Trade and Cooperation Agreement 2020, which makes prospective provision for the future surrender arrangements between the UK and EU Member States and EU Member States remain category 1 territories for the purposes of the 2003 Act. The Agreement also makes explicit savings provision at Articles 112 of Title VII for the application of the new surrender arrangements to “European arrest warrants issued in accordance with Council Framework Decision 2002/584/JHA by a State before the end of the transition period where the requested person has not been arrested for the purpose of its execution before the end of the transition period.” Explicit savings are not made for the continued application of the Framework Decision to cases where arrest was made pursuant to an EAW prior to 31 December 2020.

The substance of the applications

The requested persons argue that it is no answer to their challenge that Part 1 of the 2003 Act remains in force because, inter alia, any retention of the Framework Decision extradition arrangements would be subject to the EU law principle of conforming interpretation. The Framework Decision clearly states that the EAW scheme operates between “Member States” and it would be inconsistent with the decision, and the spirit of the UK’s departure from the EU, to stretch interpretation to include the UK. Further, the loss of CJEU jurisdiction over the operation of the scheme in the UK is said to be fatal to the schemes’ continued application. Finally, they argue that a number of key features of the EAW provided for in the Framework Decision do not form part of UK law, the most notable of which is in respect of specialty protection.

These applications are resisted by the CPS relying on the lawfulness of the arrest warrants at the time of issue and the clear legislative intent that warrants issued before the end of the transition period would remain unaffected by the UK’s exit from the EU as set out in Article 62(1)(b) of the Withdrawal Agreement 2019, which states that the Framework Decision “shall apply in respect of European arrest warrants where the requested person was arrested before the end of the transition period”.

Comment

A test to the post-Brexit extradition arrangements was inevitable. While the courts will be anxious to ensure a smooth transition, the position is less than certain. Though not directly applicable, section 16 of the Interpretation Act 1978 provides some insight into Parliamentary intention in relation to the analogous situation where enactments are repealed. It provides that, absent explicit contrary intention, the repeal of an enactment does not affect any “right, privilege, obligation or liability acquired, accrued or incurred under that enactment”. The consequence of this provision is that had Part 1 of the 2003 Act been repealed at the end of the transition period, there would arise no new right of review for those persons whose extraditions were ongoing under the old law. Part 1 of the 2003 Act, however, has not been repealed and EU Member States remain designated territories for the purpose of that Part. This, coupled with the explicit savings provision in the Trade and Co-operation Agreement in respect of EAWs issued in cases where arrests have not taken place before the 31 December 2020 cut-off point and the text of Article 62(1)(b) of the Withdrawal agreement, provide strong evidence of Parliament’s intention that extradition proceedings initiated pursuant to warrants lawfully issued prior to the end of the transition period should continue despite Brexit. Whether an explicit savings provision additional to Article 62(1)(b) of the Withdrawal Agreement was necessary for the categories of cases that are the subject of this application is a matter for the courts but, in the event that these applications are successful, there will be far-reaching consequences for numerous ongoing extradition proceedings with the potential need for proceedings to be discontinued and requests by Member States made afresh. Such an outcome would be hugely disruptive for the courts and the CPS and would likely in some cases give rise to fresh challenges from requested persons on grounds of delay.