In the countdown to Brexit, it was unclear what the extradition arrangements between the UK and EU would look like on 1 January 2021. However, concerns of a ‘no deal’ scenario evaporated when the UK and EU agreed the terms of the Trade and Cooperation Agreement (“TCA”) on 24 December 2020.
Part Three of the TCA covers ‘Law Enforcement and Judicial Cooperation in Criminal Matters’. Extradition or ‘surrender arrangements’ are set out at Title VII.
Domestic legislation under the Extradition Act 2003 (“EA 2003”) is amended by the European Union (Future Relationship) Act 2020 (“EU(FR)A”) which was given Royal assent on 31 December 2020.
The Framework Decision on the European Arrest Warrant (“EAW”) is no longer in force. The EU(FR)A amends reference to the Framework Decision in the EA 2003 and replaces it with the TCA. The EU27 countries and Gibraltar are designated as Category 1 territories. Norway and Iceland are designated as Category 2 territories.
Underlying principles of the TCA
Whilst there is no reference in the TCA to ‘mutual trust’, the general provisions of Title VII, Article LAW GEN 3, state that cooperation between the UK and EU is based on:
“…the Parties’ and Member States’ long-standing respect for democracy, the rule of law and the protection of fundamental rights and freedoms of individuals, including as set out in the Universal Declaration of Human Rights and in the European Convention on Human Rights, and on the importance of giving effect to the rights and freedoms in that Convention domestically”.
Some key developments under the TCA
- The new provisions do not apply where the requested person has already been arrested on an EAW or where extradition was ordered before 31 December 2020.
- For EAWs issued before 31 December 2020, where no arrest has been made, they will be treated as ‘arrest warrants’ for the purpose of the new surrender arrangements. (Title VII, Art 112).
- The Court of Justice of the European Union will have no jurisdiction over the new arrangements. Instead, officials from the UK and EU will oversee Part 3 of the TCA as part of the Specialised Committee of Law Enforcement and Judicial Cooperation.
- Proportionality was not a feature of the Framework decision on the EAW but has been part of the EA 2003 under s21A since 2014. One difference under Art 77 is that proportionality does not appear to be confined to accusation cases and should apply to conviction cases too.
- There is also emphasis on consideration of less coercive measures to surrender. This has also been a feature of domestic legislation since 2014 under s21B EA 2003. Art 77:
“Cooperation through the arrest warrant shall be necessary and proportionate, taking 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”.
For those facing extradition to an EU country the language of the TCA may herald a change in the approach to dealing with extradition requests. This may be optimistic thinking, but during the COVID-19 pandemic legal systems have had to adopt pragmatic solutions. The use of virtual interviews at the police station and full hearings via video link are now common and generally efficient. In certain cases, these tools would be a benefit to all parties in order to progress cases more swiftly and align with the principles espoused under Art 77 and the EA 2003.
- Art 78 defines the key principles of the TCA and they closely reflect the original Framework decision.
- Art 79 deals with the scope of the arrest warrant. Dual criminality will need to be established in each case and there is no longer the Framework list.
- Art 82 creates a political offence exception.
- Art 83 creates a nationality bar. Art 83(2) outlines that states may refuse to extradite their own nationals. During the transitional period, Germany, Austria and Slovenia opted to do this.
- Art 84 concerns diplomatic assurances. This was not in the Framework decision but confirms use of assurances in a) whole life sentence cases, b) transfer of sentences and c) where there are risks to the fundamental rights of an individual.
Criticism of the TCA
The core criticism of the TCA surrounds on-going security for the UK and the loss of access to the Schengen Information System II (“SIS II”). SIS II is a police and judicial database shared between EU27, Norway, Iceland, Switzerland and Lichtenstein. Before the new agreement, SIS II allowed police and security officials’ access to real time information from those states alongside the UK’s Police National Computer.
The Home Secretary has expressed confidence that the UK is safer now that we have left the EU, however, senior law enforcement and security figures have outlined their concerns about the loss of access to real time data and the impact on tackling terrorism and organised crime.
The TCA, in Part 3, provides for established cooperation tools between the UK and EU, such as the exchange of DNA & fingerprints and vehicle data (Title II), Passenger Data (Title III), Operational Information (Title IV), Cooperation with Europol (Title V), Cooperation with Eurojust (Title VI), Mutual Legal Assistance (VIII), Exchange of criminal records (Title IX), Anti Money laundering and counter terrorism financing measures (Title X) and Asset freezing and confiscation (Title XI).
Despite these provisions, Sir Iain Blair (the former Metropolitan Police Commissioner) stated on BBC Radio 4’s Today programme that the country will be less safe as “we’ve lost full access to Europe-wide, real-time, interrogatable databases on criminal records, fingerprints, criminal intelligence.”
To put into context the potential impact on an operational level, in 2020 UK police forces accessed SIS II over 600 million times.
An early challenge to the new arrangements - Polakowski & Others
In the case of Polakowski & Others a challenge was pursued under a writ of habeas corpus for five requested persons. The argument advanced, was that following the end of the transitional period there was no legal basis for their surrender under the EAW and no basis in domestic law for their continued detention or remand on bail conditions after 11pm on 31 December 2020.
The Court decided that the challenge should not have come under a writ of habeas corpus. Instead, they agreed to hear the application as one for permission for judicial review. In dismissing the challenge, the Administrative Court held that the arguments in support of the application were misconceived.
They found that as a matter of constitutional principle the correct starting point was to look at the domestic EA 2003 and the domestic law that had modified it and not the Framework decision, any other EU law or unincorporated international agreement.
The Judges considered the various amendments to the domestic law:
“These provisions make clear that the intention was that the 2003 Act should continue to apply – in its unamended form – to extradition cases coming before the courts after 11 p.m. on 31 December 2020 where the arrest took place before that time. The EUFRA in particular envisages that in such cases a court will have to decide whether the offence specified in the EAW is an extradition offence.’ That is flatly inconsistent with the applicants’ submission that they are entitled to be discharged because the UK courts now lack jurisdiction to deal with EAW cases”.
Surrender arrangements between the UK and EU under the TCA look very familiar to the extradition arrangements under the Framework decision on the EAW. Understanding how the relationship between the EU and UK will work in practice will take time as cases progress through the Westminster Magistrates’ Court and the Appeal Courts.
We will be watching closely the number of arrests made under the new system, the challenges raised and the level of cooperation between the EU and the UK in criminal matters.
Fundamentally, Brexit did not change the challenges that the EU and UK face from terrorism, financial crime and organised criminal activity. Cooperation will continue, as it is in the interests of both sides.
If you are facing extradition or are concerned that you may be subject to extradition proceedings in the future, please contact us.
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.