The new Extradition Bill in the Queen's Speech
A key criminal justice concern with Brexit that finally gained attention this week is that the UK's withdrawal from the European arrest warrant (EAW) scheme means the police will lose the power to arrest fugitives wanted by other EU states without first having to apply to a UK court for a warrant of arrest. This power to arrest on an EAW is important, and has undoubtedly speeded up extradition proceedings when the request is received from a fellow EU member state.
In contrast, requests for extradition from non-EU states can take many months to be executed. The request has to be presented in a form that satisfies UK law. It usually has to be delivered via diplomatic channels. The Home Secretary has to certify that the request meets the criteria set by legislation. The request is delivered to the court where it is checked again before an arrest warrant is issued. These delays are tolerated given the relatively small number of non-EU extradition requests processed every year.
But the numbers of EAWs received is significantly higher – there were 1,453 arrests on EAWs in the fiscal year 2017-2018 alone, for offences ranging from murder to shoplifting. The problem is obvious: it is going to take an enormous additional expenditure of police and court time and resources to obtain arrest warrants to execute such a high volume of requests.
The government has proposed a solution. This week in the Queen's Speech it published brief details of an Extradition (Provisional Arrest) Bill which is intended to "replicate the immediate power of arrest currently available in respect of persons wanted by EU Member States when a EAW has been issued". The speech is light on detail, but the plan is to give the police a power of arrest for fugitives who have committed 'serious offences' who pose a risk to the public if at large in the UK. The power would only be exercisable if there is a certified INTERPOL Red Notice in existence from a 'trusted country' with a 'robust criminal justice system'. A list of such 'trusted countries' will be drawn up by the government, subject to Parliamentary approval.
It is likely that all 27 EU member states would immediately find their way onto the list, effectively permitting the arrest of fugitives wanted by EU member states on Red Notices. This measure may be a relatively uncontroversial stop-gap to fill the coming void in UK-EU cooperation in criminal justice matters post-Brexit. But it has a potentially far greater significance.
Unlike many countries, hitherto the UK has declined to give its police power to arrest on an INTERPOL Red Notice. One reason for this is that included in the scheme are states which have poor human rights records who routinely imprison dissidents. Despite the safeguards built into the INTERPOL Constitution and that organisation's efforts to weed out the worst abuses of its system, thousands of warrants from such states are issued every year and remain active. Their targets are liable to be picked up at any time and held in detention pending a judicial resolution of the underlying extradition request.
The UK has extradition arrangements with many of these states. It is to be assumed that the UK government past and present therefore regards them as 'trusted countries'. Are these states to be added to the post-Brexit list, permitting the police in the UK to arrest on a Red Notice without first having received a formal extradition request? What does a 'robust criminal justice system' mean? One that is fair and free from political interference, or one that efficiently convicts large numbers of defendants? Can the presence or absence of a state in the list be reviewed by an English court?
The dilemma is best illustrated by the contrast with existing arrangements under the EAW scheme. Not only is the state issuing an EAW a party to and bound by the European Convention on Human Rights, but the authority issuing an EAW in that state, whether a public prosecutor or a court, is supervised not only by their own superior courts, but the European Court of Justice. INTERPOL is altogether a different creature. It is immune from legal challenge and is not supervised by any court, domestic or international. It is under no obligation to publish the decisions it makes, and works largely in secret at its headquarters in Lyon.
The concerns raised here will be the first of many raised in the coming months. But it increasingly looks like international cooperation in criminal justice matters post Brexit will be tied more closely to the different, and necessarily lower standards fixed by international institutions like INTERPOL, rather than the closely regulated European legal environment.