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Post-Brexit UK/EU Extradition Arrangements

Posted on 13 January 2021

On 24 December 2020, only days before the end of the transition period, the UK and the EU agreed the terms of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community of the One Part and the United Kingdom of Great Britain and Northern Ireland, of the Other Part. In a surprise to some extradition practitioners, the Agreement included (at Title VII of Part 3) comprehensive provisions relating to the surrender of citizens between the UK and the EU. A copy of the Agreement can be found here.

The surrender arrangements are very similar to those provided for by the Framework Decision on the European Arrest Warrant (EAW) (which can found here) and those in place between Norway and Iceland and the EU. As a result, the UK's future extradition relationship with EU member states will largely operate on a 'business as usual' basis.

However, some notable features of the new arrangements are that:

  • The Agreement specifically provides that the new arrangements are subject to the principle of proportionality, and must take into account "the rights of the requested person and the interests of the victims, and having regard to the seriousness of the act, the likely penalty that would be imposed and the possibility of a State taking measures less coercive than the surrender of the requested person particularly with a view to avoiding unnecessarily long periods of pre-trial detention" (Article LAW.SURR.77). Whilst proportionality was an existing principle under the UK's domestic legislation (the Extradition Act 2003), it was not provided for in the EAW Framework Decision.
  • The role of the European Court of Justice as the court of last instance in all EAW cases has been removed, to be replaced by the "Specialised Committee on Law Enforcement and Judicial Cooperation", which appears to have a mixture of judicial and administrative functions.
  • Under the terms of the Agreement, the UK or EU Member States are permitted to refuse to execute an arrest warrant on the grounds of nationality, i.e. States can elect to refuse the extradite their own citizens (Article LAW.SURR.83). Any State wishing to make use of this provision must notify the Specialised Committee. It is presently anticipated that only a few EU Member States will make use of this provision (Austria, Germany and Slovenia) but it is of course possible that others will as well. The UK is not expected to do so.

Whilst the negotiation of the Agreement was still underway, in October 2020 the Extradition (Provisional Arrest) Act 2020 (2020 Act) received Royal Assent. The 2020 Act allows for the arrest of individuals sought by "trusted countries" without an arrest warrant from a domestic court. "Trusted countries", which are listed in Schedule A1 (which can be found here), include the so-called 'five eyes states' USA, Canada, Australia and New Zealand, together with Lichtenstein and Switzerland. In anticipation of a no-deal scenario, or at least the absence of a suitable replacement for the EAW scheme, all 27 EU member states were pre-emptively added to Schedule A1 to permit arrest on a request received from a judicial authority in an EU member state without a UK arrest warrant.

In the event, adding the 27 EU member states to Schedule A1 of the 2020 Act, and re-designating the same states as Part 2 territories under the Extradition Act 2003 as a necessary condition precedent to permit the prompt arrest of fugitives from EU states was not needed, and appears to have been the Government's "Plan B" in the event that negotiations failed. Indeed, the opposite is the case: the deal, in the abstract at least, is probably closer to continuing the EAW scheme than the Government might have expected to achieve.

The future utility of the 2020 Act (discussed here and here) will depend on the identity and number of states added to the existing list. Whilst the 2020 Act was ultimately not needed to preserve the mutual recognition of domestic arrest warrants within the EU, it may yet prove a talking point in years to come depending on which states are sufficiently "trusted" by future governments to benefit from its provisions.

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