Nearly a year on from Brexit, how has the UK’s withdrawal from the EU and the European Arrest Warrant (“EAW”) mechanism affected cross-border criminal justice?
Following Brexit, and since 01 January 2021, the Extradition Act 2003 now incorporates parts of the Trade & Cooperation Agreement 2020 (which governs the UK’s relationship with the EU following its withdrawal) rather than the European Arrest Warrant Framework Decision as had been the case previously.
The Trade & Cooperation Agreement 2020 brought about key changes, one being that it provided an opt-out for countries to notify the Specialised Committee on Law Enforcement and Judicial Cooperation of the EU (the “Committee”) under Article 83 of Title VII of the Trade and Cooperation Agreement 2020 that they will not surrender their own nationals for extradition to the UK.
Which countries have notified at intention that they will no longer extradite their own nationals to the UK?
Since 01 January 2021, the following countries have notified an intention to the Committee that they will no longer extradite their own citizens to the UK:
A further two, Austria and Czech Republic, have indicated an intention to not do so without the consent of the requested person.
Policies against extraditing a country’s own nationals are not unusual. However, under the EAW procedure, the right to refuse to surrender one’s citizens is still overridden where both the requesting state and the country of nationality are subject to its framework.
Prior to Brexit and the UK implementing the changes of the Trade & Cooperation Agreement 2020, EU countries were, therefore, required to extradite persons, including their own nationals, to the UK pursuant to an EAW, and unless they agreed to take over the enforcement of the person’s custodial sentence.
However, following the UK’s withdrawal from the EU and the EAW scheme, it is therefore no longer guaranteed that EU countries will extradite their own nationals to the UK.
What does this mean going forwards?
In such circumstances, UK authorities will be therefore left reliant on INTERPOL to pursue accused persons abroad, in the hope that the requested person will, at some point, leave their country of nationality and travel to a state which will cooperate in their surrender. It should also be noted that since Brexit, the UK’s access to the Schengen Information System I has been limited, meaning that additionally, the UK has to either share information bilaterally or use the INTERPOL system.
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