BLOG: Extradition proceedings in the UK post-Brexit: the new normal

On Christmas Eve 2020, the UK and EU announced and published the text of the EU-UK Trade and Cooperation Agreement, following the UK’s exit from the European Union. James Lloyd looks at the deal’s provisions for extradition arrangements between the remaining 27 EU member states and the UK, and some of the key changes which practitioners will encounter in extradition proceedings from 1 January 2021.

At the start of November 2020, in a piece entitled “Extradition proceedings in the UK post-Brexit: unwarranted concern”, the Carmelite Blog looked at then-extant arrangements for extradition between the UK and EU member states after Brexit, concluding that a reversion to rules under the Council of Europe’s 1957 European Convention on Extradition (‘the ECE’) was close to inevitable, and that “the UK’s ability to request the extradition of EU nationals may have been irreparably damaged.”

On Christmas Eve, we saw a last-minute reprieve, with the EU and UK announcing the so-called ‘deal’ – the Trade and cooperation agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part (‘the Agreement’).

The provisions of the Agreement, insofar as they relate to extradition, have been given effect in the UK through amendment to the Extradition Act 2003 by Part 1 of the European Union (Future Relationship) Act 2020 (“FRA”), which came into force on New Year’s Eve.

The headline

If there is a single headline to be drawn from the text of the Agreement for extradition practitioners, it is this: the Agreement avoids reversion to the ECE.

Article LAW.SURR.109: Relation to other legal instruments

1. Without prejudice to their application in relations between States and third countries, this Title, from the date of entry into force of this Agreement, replaces the corresponding provisions of the following conventions applicable in the field of extradition in relations between the United Kingdom, on the one side, and Member States, on the other side:

(a) the European Convention on Extradition, done at Paris on 13 December 1957, and its additional protocols […]

Territory designation

Perhaps the most significant provision to arise from the Agreement, as now enacted in the UK, is the re-re-designation of EU member states. The remaining EU member states (“EU27”) had previously been destined for re-designation as Part 2 territories under Regulation 55 of the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019.

Instead, the EU27 shall remain designated Part 1 territories by virtue of s.11(1) of the FRA.

The continuation of Part 1 treatment for the EU27 is undoubtedly a positive outcome, continuing existing arrangements for the judicial issuance and execution of arrest warrants. Avoiding the diplomatic rigmarole associated with Part 2 requests will mitigate the impact of other changes, and should ensure the efficacy of the surrender system to a much greater extent.

However, not all that glisters is gold. The UK remains a third country for extradition in the eyes of the EU27. Therefore, the UK may encounter struggles in seeking the extradition of foreign nationals to the UK which EAW signatory states do not: EU27 states faced with equivalent competing arrest warrants under the EAW scheme and the Agreement are likely to favour the former:

Article LAW.SURR.94: Decision in the event of multiple requests

1. If two or more States have issued a European arrest warrant or an arrest warrant for the same person, the decision as to which of those arrest warrants is to be executed shall be taken by the executing judicial authority, with due consideration of all the circumstances, especially the relative seriousness of the offences and place of the offences, the respective dates of the arrest warrants or European arrest warrants and whether they have been issued for the purposes of prosecution or for the execution of a custodial sentence or detention order, and of legal obligations of Member States deriving from Union law regarding, in particular, the principles of freedom of movement and non-discrimination on grounds of nationality.

3. In the event of a conflict between an arrest warrant and a request for extradition presented by a third country, the decision as to whether the arrest warrant or the extradition request takes precedence shall be taken by the competent authority of the executing State with due consideration of all the circumstances, in particular those referred to in paragraph 1 and those mentioned in the applicable convention.

Norway and Iceland do not enjoy the same treatment as the EU27 and are now Part 2 territories for the purposes of the Extradition Act 2003. The UK has not maintained the benefit of the EU-Norway or EU-Iceland surrender agreements.

Surrender agreement

The Agreement includes, at Title VII, a surrender agreement which is surprisingly similar in scope and application to the EAW scheme. The new scheme continues to provided that judicial authorities may issue an arrest warrant for the surrender of Requested Persons on either of the familiar accusation or conviction bases.

The Agreement mirrors the EAW framework in almost all material senses, such that little consequential amendment of the EA 2003 has been necessary.

Practitioners will be relieved that there are no material changes to:  

• Definitions of “[issuing/executing] judicial authority”

• The scope of the surrender agreement
  • Offences punishable by maximum sentence of at least 12 months; or
  • Sentences passed of at least 4 months.

• Consent to be extradited

• Grounds for mandatory non-execution of the arrest warrant
  • Amnesty;
  • Double-jeopardy; and
  • Age of criminal responsibility.

• Other grounds for non-execution of the arrest warrant
  • Forum;
  • Trial in absence;
  • Retrial rights etc.

• The content and form of the arrest warrant
  • the requirement on the requesting state to provide a translated copy of the warrant in one of the official languages of the executing state remains.

 N.B. the Agreement includes a new right conferred upon Requested Persons [Article LAW.SURR.89.2] “to be provided with a written translation in the native language of the requested person or in any other language which that person speaks or understands”.

• Detention pending final hearing

• Specialty rights

• Subsequent extradition

Information sharing

The UK shall not maintain access to the Second Schengen Information System (SIS II) – the most-used information-sharing system for security across the European Union which provides ‘real time’ alerts of EAWs being issued.

The loss of SIS II is significant: the UK now has to rely on the Interpol I-24/7 database (which is not routinely used by all EU27 states) to access uploaded red notices. In time, the EU27 may increase the frequency with which red notices are uploaded. Currently, the I-24/7 is a very poor replacement.

Supervisory jurisdiction

The supervisory jurisdiction of the Court of Justice of the European Union (CJEU) ends with the Agreement. The Agreement provides for a new “Specialised Committee on Law Enforcement and Judicial Cooperation” to oversee disputes. [Article INST.2.1.r]

The Agreement declares that cooperation is based and contingent on the parties’ continued respect for 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. [Article LAW.GEN.3.1] The Agreement suggests that cooperation in respect of criminal and extradition would be “terminated on account of the United Kingdom or a Member State having denounced the European Convention on Human Rights”. [Article LAW.OTHER.136.2]

Own nationals

In July 2019, the Carmelite Blog highlighted the difficulties the UK may face in future when seeking to extradite nationals of some of the EU27 from their home state, given constitutional and political barriers, concluding that “there is every possibility that any attempt to extradite own nationals under the ECE would fail, absent some additional political agreement.” By November 2020 it was clear that “the UK has not persuaded EU Member States to propose or implement constitutional reforms.”

The Agreement, on its face, seeks to deal with the difficulties posed by the constitutional bars of countries such as Germany on extraditing its own nationals to foreign states, and to abrogate states’ ability to oppose the extradition of their own nationals as a matter of course.

Article LAW.SURR.83: Nationality exception

1. The execution of an arrest warrant may not be refused on the grounds that the requested person is a national of the executing State.

Despite its unequivocal wording, Article 83 does not create a bright line rule. Under the subsequent terms of the Article, a state may refuse to extradite its own nationals if:

1. The executing state notifies “the Specialised Committee on Law Enforcement and Judicial Cooperation that that State’s own nationals will not be surrendered or that the surrender of their own nationals will be authorised only under certain specified conditions”; and
2. The notification is “based on reasons related to the fundamental principles or practice of the domestic legal order of the […] State on behalf of which a notification was made.”

Where a party to the Agreement refuses to extradite its own national(s), the state must “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.” [Article LAW.SURR.83.3]

The terms of the Agreement therefore enable states such as Germany and Slovenia to renew their refusal to extradite own nationals. Even in the absence of constitutional bars to extradition, given the logistical challenges posed, it is perhaps inevitable that the obligation to consider domestic prosecution in the home state will not result in a significant number of foreign prosecutions, absent further political agreement.

 Dual criminality

The requirement of dual criminality continues through the Agreement [Article LAW.SURR.79.2; Article LAW.SURR.81.1] though may be waived by the UK and EU27 “on the basis of reciprocity” upon notification of the Specialised Committee on Law Enforcement and Judicial Cooperation. Such waiver may only apply to European framework list offences punishable in the issuing state by a custodial state for a maximum period of at least three years. 

The Agreement allows the UK and the EU27 to ‘opt in’ to the European framework list of offences known to all practitioners (and reproduced at Article LAW.SURR.79.5) as a means of demonstrating dual criminality.

The UK has not (yet) opted into the framework list, and thus now requires dual criminality to be demonstrated in all cases relating to warrants from the EU27. This marks a significant, though perhaps temporary, change.

Assurances

The practice of guarantees and assurances being given by or sought from the issuing state should continue in largely uninterrupted form. Article LAW.SURR.84 of the Agreement provides for the execution of warrants under the scheme to be subject to the following guarantees:

1. a review by the issuing state of the Requested Person’s sentence after 20 years; 
2. a return of the Requested Person to the executing state after serving any sentence; or
3. if there are substantial grounds for believing that there is a real risk to the protection of the fundamental rights of the requested person, the executing judicial authority may require, as appropriate, additional guarantees as to the treatment of the requested person after the person’s surrender before it decides whether to execute the arrest warrant.

Where an executing judicial authority “finds the information communicated by the issuing State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to […] Guarantees to be given by the issuing State in particular cases […] be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits provided.” [Article LAW.SURR.93.2]

Rights of the Requested Person

The Agreement reaffirms that a Requested Person shall have the right to be assisted by a lawyer in accordance with the domestic law of the executing State upon arrest. Further, it is stipulated that a Requested Person shall:

1. “be informed of the person’s right to appoint a lawyer in the issuing state for the purpose of assisting the lawyer in the executing state in the arrest warrant proceedings”; and
2. “have the right to have the consular authorities of that person’s State of nationality”.

Old warrants

As noted previously, the new arrangements do not apply to EAWs where the Requested Person was arrested (or provisionally arrested) or where extradition proceedings commenced on or before midnight, 31 December 2020.

The Agreement goes further, stipulating that that the new surrender agreement shall apply to EAWs issued before midnight on 31 December 2020 where no arrest was made before the expiry of the transition period. [Article LAW.SURR.112]

The path ahead

The Agreement marks a real reprieve from some of the difficulties which a ‘no deal’ reversion to the ECE would have posed. The similarity to the EAW scheme will also come as a great relief to practitioners and judicial authorities alike.

The new scheme, however, is no like-for-like replacement. The loss of SIS II, and impending difficulties surrounding own nationals and dual criminality result in a system which is less efficient and likely more complex than the EAW. References to the Specialised Committee on Law Enforcement and Judicial Cooperation also represent entirely unchartered territory.

If there is a benefit to be had from the new system over the EAW, it will perhaps reveal itself in time. For now, this is the new normal.

James Lloyd is a barrister at Carmelite Chambers. He frequently advises and acts on behalf of requested persons in extradition matters relating to Part 1 and Part 2 territories. He has also acted in domestic proceedings, opposing the issuing of European Arrest Warrants by UK courts.