Under the EU/UK Trade and Cooperation Agreement (“TCA”), a new nationality bar is created per Article LAWSURR 83.
During the Brexit transitional arrangements, three countries (Germany, Austria and Slovenia) confirmed that they would not extradite their own nationals to the UK. Now that the TCA is in place, the ten countries listed below have notified their intention to exercise an absolute bar on the extradition of their own nationals to the UK:
- Croatia
- Finland
- France
- Germany
- Greece
- Latvia
- Poland
- Slovakia
- Slovenia
- Sweden
(Austria and the Czech Republic have noted their own nationals will only be extradited to the UK with their consent).
Under the TCA, where a state refuses to extradite their own national it is a requirement that the state refers the case to its own prosecution authority.
Article LAWSURR 83.3:
“In circumstances where a State has refused to execute an arrest warrant on the basis that, in the case of the United Kingdom, it has made a notification or, in the case of a Member State, the Union has made a notification on its behalf, as referred to in paragraph 2, that State shall consider instituting proceedings against its own national which are commensurate with the subject matter of the arrest warrant, having taken into account the views of the issuing State. In circumstances where a judicial authority decides not to institute such proceedings, the victim of the offence on which the arrest warrant is based shall be able to receive information on the decision in accordance with the applicable domestic law”.
In cases where the matter is prosecuted in the Member State, the TCA establishes an obligation to provide the appropriate support to victims and witnesses surrounding the proceedings.
It seems inevitable that this will lead to jurisdictional and evidential challenges, not to mention practical difficulties in securing statements and getting witnesses to court. Vulnerable witnesses may not want to travel to a foreign country, where they may not understand the language or the legal proceedings.
In addition, the sentencing guidance attached to certain crimes can differ considerably between different countries. It is possible that someone convicted of a crime in the UK that would normally carry an immediate custodial sentence could be treated less severely in their home state.
This also has the potential to impact current investigations in the UK, some of which may have already involved many hours of police time. It will also cause concern for victims of crime that they will not see the accused face UK proceedings.
This is a developing story and it may take months before we see how the practical problems are resolved and whether more EU countries will signify their intention to opt in to this new bar.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
©Gherson 2021