The future of the European Arrest Warrant (EAW) regime in the UK after Brexit has been on the minds of many criminal law practitioners, law enforcement agents and politicians since the UK voted to leave the EU on 23 June 2016.
The matter was brought into focus on 5 April 2017, as two former Eurojust (the EU's Judicial Cooperation Unit) presidents, Mike Kennedy (also a former Chief Operating Officer of the Crown Prosecution Service) and Aled Williams, were questioned by the EU Home Affairs Sub-Committee in relation to the options for replacing the EAW after Brexit.
Background to EAWs
The EAW was introduced on 1 January 2004 and replaced separate extradition arrangements between EU Member States.
It is a mechanism by which individuals wanted for significant crimes are extradited between Member States, to be prosecuted or to serve a prison sentence. The purpose of the system was to provide faster and simpler procedures for extradition between Member States and to remove the ability of Member States to refuse to surrender their own citizens to another EU country. There has been some criticism of EAWs over the years from those who believe that they have been issued for minor offences and without proper consideration of whether extradition is proportionate.
Recent evidence and potential options
The Sub-Committee's inquiry into the replacement of the EAW after the UK leaves the EU is focussed on examining how an end to the jurisdiction of the Court of Justice of the European Union (CJEU) accords with the UK's ability to sustain "deep cooperation" with the EU in the fight against crime and terrorism.
The evidence provided to the Home Affairs Sub-Committee follows the written evidence of Sir Francis Jacobs, former Advocate General of the Court of Justice of the European Communities, on 22 March 2017. Sir Francis suggested that such a clean break with the CJEU may result in "damaging self-harm" and that "some measure of acceptance of the future case-law of the CJEU may therefore prove necessary if the Government’s priority policy aims are to be secured."
At the hearing on 5 April 2017, Mr Williams suggested that after the UK has left the EU, it may be possible to retain some of the benefits of the EAW through greater use of Eurojust. He continued to cite the example of third countries, outside the 27 Member States, which have a presence at Eurojust as liaison prosecutors.
Mr Kennedy did not share this optimism and queried how the current multilateral agreement, with the common final jurisdiction of the CJEU, could be replicated without a superior overarching judging authority or court. Even if there is a willingness from within the EU and in the UK to work together, Mr Kennedy noted that there needed to be a mechanism in place for this to happen.
Mr Williams stated that there would be a mutual interest on behalf of the EU Member States and the UK to find a solution, particularly in circumstances in which the UK currently sends seven or eight individuals to the EU for every individual sent from Member States to the UK.
The question of where the stated "red line" will be drawn was debated in the hearing and it was agreed that if the jurisdiction of the CJEU is to be excluded in its entirety, an alternative will have to be found which is acceptable to Member States and the UK alike.
Mr Kennedy was not hopeful that Eurojust could assume the influence and role which Mr Williams had suggested, noting that it is essentially a "body of judges and prosecutors to exchange information in the fight against cross border crime" and that the EAW is just one of its instruments. Mr Kennedy said that he could see a role for Eurojust in heading off problem cases at the early stage if the UK was a liaison prosecutor, but not much more.
The suggestion from the Lords that the 1957 convention on extradition could be used as a "fall back" option if a solution was not found was dismissed by Mr Kennedy and Mr Williams, as the old system was slow and inefficient. There would also be the practical problem of countries having to re-legislate to incorporate the old law.
Mr Williams suggested that regardless of the system which is brought in, the UK may adopt a "tiered" approach whereby individuals are extradited to some Member States without much hesitation but with more consideration with respect to others, where human rights concerns exist.
Future and Conclusions
The inquiry will continue to hear more evidence but there appears a conflict between the UK Government's crime fighting hopes and the inevitable political and legislative changes which Brexit will bring.
It is difficult to imagine that any replacement to the EAW regime in the UK will include as many advantages as the EAW does to law enforcement, and could signal an end to the free movement of suspects between the UK and the EU.