The Post-Brexit criminal justice co-operation landscape
The UK’s decision to the European Union could herald a wave of reforms to co-operation between the UK and the EU on Justice and Home Affairs (JHA) matters.
Prior to the introduction of the European Arrest Warrant (EAW), it was acknowledged that the extradition system within the EU could be slow, problematic and uncertain. Some states, like France, refused to extradite their own nationals; others, like the UK, were notorious for complex procedures.
The UK Government confirmed in its negotiation strategy document at paragraph 51 that it is not seeking to remain party to the EAW as part of the future relationship. Post-Brexit there are four main options for the UK’s extradition arrangements with the EU, all of which have been subject to intense academic, political, and practical consideration. These are:
- Renegotiation with the EU of an EAW-style agreement. Historically, similar agreements have been reached with the EU by Norway and Iceland. The US also has an extradition Treaty with the EU that supplements its bilateral agreements with each Member State. This is the stated ambition of both the UK and the EU in the Political Declaration within the Withdrawal Agreement. However, the role of the Court of Justice of European Union (CJEU) is any such agreement is likely to prove controversial: the UK’s current ‘red line’ is that the CJEU should not be permitted to make any rulings binding on a UK court, whereas the EU insists that the CJEU must be able to review any agreement that determines the rights of EU citizens.
- Reverting to the 1957 Council of Europe Convention on Extradition, which was set aside following the introduction of the EAW Framework Decision, and which it is argued would provide the UK with more autonomy over extradition arrangements. However, extradition under the 1957 Convention was notoriously slow, technical, and allowed States to refuse to extradite their own citizens. Moreover, it is likely that several Member States will need to pass new legislation to allow them to exchange extradition requests with the UK under the 1957 Convention.
- Negotiation of separate bilateral agreements with some, or all, of the remaining 27 Member States. Inevitably, this would be a lengthy and complex process with inconsistent and uncertain outcomes.
- The “cliff-edge” outcome, if no immediate alternative is found.
Measures to mitigate the “cliff-edge”
On 22 October 2020 the Extradition (Provisional Arrest) Act came in to force and amended Part 2 of the Extradition Act 2003. The Act creates a new power of arrest without a warrant in the case of an individual sought for extradition purposes on foot of a request, which could include an INTERPOL Red Notice, which has been certified as being from one of a number of “trusted countries” and in connection with a serious offence. The six “trusted countries” when the Act came into force are Australia, Canada, Liechtenstein, New Zealand, Switzerland and the United States of America. A “serious offence” is defined as one punishable in the UK with a custodial sentence of three years or more and that the conduct is sufficiently serious to make it appropriate to issue a certificate.
All EU member states plus Norway and Iceland are also specified in the Act but this provision cannot come into force until the end of the transition period. The Government’s intention, in the event of no deal on extradition to replace the EAW, is transfer existing EAWs onto the INTERPOL system as Red Notices, which would then confer a power of arrest under the Act.
Other criminal co-operation measures
Beyond extradition, it remains unclear whether the UK will continue to participate in the European Investigation Order (EIO), access EU criminal justice databases, such as the latest Schengen Information System 2 (SIS 2) and the European Criminal Records Information System (ECRIS). Neither is it yet known whether the UK will continue to play a role in institutions such as Eurojust, the EU judicial co-operation agency, and Europol, the EU agency for law enforcement co-operation. As with extradition, the Government’s stated ambition is to negotiate a comprehensive new agreement which replicates, as far as possible, these existing arrangements. However, after leaving the EU the UK will become a ‘3rd country’ under EU law. Therefore, the rights and protections afforded to individuals in the UK will no longer automatically be deemed to be equivalent to those of the remaining Member States, which will make data and information sharing between the EU and the UK much more difficult. Also as with extradition, the specific nature of jurisdiction to be afforded to the CJEU over any new arrangement is likely to be controversial.
The draft EU Withdrawal Agreement of 2019 provides for the UK to continue using the EAW and other EU measures during the transition period (i.e. until 31 December 2020). This allows for any requests made through the EAW system before the end of the transition period to be complied with (Article 62). However, there have been changes: Article 185 of the Withdrawal Agreement permits a Member State to indicate to refuse to surrender its own citizens to the UK during the transition period, reflecting the constitutional bars some EU Member States have on the extradition of own nationals to non-EU countries. On 31 January 2020 (Exit Day), the EU published a declaration confirming that Germany, Austria and Slovenia had indicated their intention to avail of the possibility to refuse extradition of their nationals to the UK in response to an EAW, as provided for by Article 185.
After the transition period, if a deal is reached, the Political Declaration states at paragraph 87 that the UK and EU should “establish effective arrangements based on streamlined procedures and time limits enabling the United Kingdom and Member States to surrender suspected and convicted persons efficiently and expeditiously, with the possibilities to waive the requirement of double criminality, and to determine the applicability of these arrangements to own nationals and for political offences”. However, it is far from clear how this will be achieved or what such arrangements will look like. The EU has a similar-sounding surrender agreement with Norway and Iceland, but this took 13 years to be brought into force after it was agreed in principle in 2006. Nor is it as extensive as the “bespoke treaty” the UK is seeking.
Sticking point: the UK ‘red line’ and the future role of the CJEU
The UK Government has imposed a ‘red line’ over the post-Brexit jurisdiction of the CJEU. In short, it will not enter into an agreement which would allow the CJEU to over-rule the UK courts or to give binding judgments over how the agreement must be applied in the UK. However, the EU has been equally clear that any agreement which affects the rights of EU citizens, as any equivalent to the EAW would, must be subject to the CJEU’s jurisdiction. In addition, the EU has stated that the UK will not be offered anything more advantageous than its existing agreements with other ‘3rd countries’. These respective positions create an impasse with no obvious solution: the UK wishes to replicate its existing arrangements but outside of the jurisdiction of the CJEU, whereas the EU says that this is impossible.
- Centre for European Reform, Plugging in the British – Completing the circuit, Sophia Besch, Ian Bond and Camino Mortera-Martinez, June 2018.
- Home Affairs Committee, UK-EU security cooperation after Brexit, March 2018; and Follow-up Report, July 2018
- House of Commons, Justice Committee, Implications of Brexit for the justice system, March 2017.
- UK Government, Future Partnership Paper.
- Department for Exiting the European Union, Technical note on security, law enforcement and criminal justice, May 2018.
- House of Commons Home Affairs Committee, Home Office preparations for the UK exiting the EU, 5 December 2018.
- RUSI, No Deal, No Data? The Future of UK-EU Law Enforcement Information Sharing, 26 February 2019.
- House of Lords Library, Extradition (Provisional Arrest) Bill [HL] Briefing for Lords Stage, 27 January 2020.
- UK Government, The Future Relationship with the EU; The UK’s Approach to Negotiations, February 2020.