BLOG: Extradition proceedings in the UK post-Brexit: unwarranted concern?

With a little more than two months remaining before the end of the Brexit transition period, James Lloyd revisits the UK’s arrangements with the EU for extradition following the UK’s withdrawal from the European Arrest Warrant regime.

In July 2019, in a piece entitled “Extradition proceedings in the UK post-Brexit: difficulties remain”, the Carmelite Blog looked at the difficulties posed by the UK’s exit from the European Union in the absence of a replacement for the European Arrest Warrant scheme (‘EAW’), or an agreement for the UK to remain subject to the EAW after exit day.

The UK’s extradition arrangements have featured on many front pages in the subsequent fifteen months, with the potential extradition of German national ‘Christian B’ to the UK in respect of the Madeleine McCann investigation; the attempts at extradition of US national Anne Sacoolas to the UK in respect of the death of Harry Dunn outside RAF Croughton; and Julian Assange’s ongoing proceedings in respect of extradition to the US. Far less coverage has been afforded to the consequences of Brexit on such requests.

According to statistics published by the National Crime Agency (‘NCA’), the EAW regime accounts for around one thousand extraditions from the UK, and around one hundred and fifty extraditions to the UK per year. It is reasonable to assume that a regime so important to the administration of justice and of palpable public interest might, therefore, feature prominently in the Government’s priorities for the UK’s exit from the EU. If that is the case, the past fifteen months have not shown it.

What’s going on?

Extradition proceedings in the UK remain governed by the Extradition Act 2003, under which, foreign territories are designated either Part 1 (European Arrest Warrant territories) or Part 2 (other territories).

The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 – premised on there being no superseding agreement with the EU – provide that all EAW territories will, from exit day, lose their Part 1 designation (regulation 55) and be re-categorised as Part 2A territories (regulation 56).

Under the transitional provisions of regulation 57, Part 1 requests made before exit day will continue to be processed as such. This allows for a ‘backlog’ of EAWs to be processed by the UK, and avoids cases being discharged where, for example, they await appeal. Live cases currently in limbo, awaiting resolution of the Wozniakarguments relating to the Polish judiciary, will not be discharged if outstanding after exit day. The Regulations cannot extend the validity of requests made by the UK prior to exit day.

All extradition requests made to the UK on or after exit day will be treated as Part 2 requests.

Part 2 requests fall to be processed under either:

• a bilateral treaty between the UK and the Requesting State – the UK is currently party to twenty-eight such bilateral treaties, largely covering countries in South America;
• the Council of Europe’s 1957 European Convention on Extradition (‘the ECE’) – broadly, the system which the EAW replaced;
• multilateral conventions to which the UK and the Requesting State are both parties, such as the United Nations Convention against Transnational Organised Crime; or
• more nebulous diplomatic channels.

It had been expected that unless other agreement were reached, EU extradition requests would revert to being governed by the ECE. The Government has now confirmed this to be the case. On 26 June 2020, in a letter to the House of Lords EU Security and Justice Sub-Committee, Minister of State for Security James Brokenshire MP explained that in the absence of a new reciprocal agreement:

“The UK would no longer use or participate in EU law enforcement and criminal justice tools and mechanisms. […] This would result in some mutual loss of capability for the UK and EU Member States. […] The UK will be ready to transition cooperation with EU Member States to alternative, non-EU arrangements, should that be necessary. This includes […] using Council of Europe Conventions, rather than EU instruments, in areas such as extradition and mutual legal assistance.”

Concerns over returning to the ECE

Reversion to ECE treatment is no silver bullet. The flaws and limitations of the ECE, which the EAW regime was designed to alleviate, have been discussed before, and are well known to Parliament.

The making and accepting of requests under the ECE is a lengthy, slow process. Prior to the UK’s entry of the EAW regime, evidence received by the House of Lords suggests that fewer than sixty people were extradited from the UK each year, compared to around a thousand per year under the EAW alone. Inevitably, reversion to ECE procedure will slow the progress of cases and reduce the number of effective extraditions.

In the absence of new bilateral treaties or significant amendment to existing legislation, reversion to the ECE threatens to create a system far more political in nature, subject to a much lesser degree of judicial oversight. How the UK’s extradition system can maintain any degree of efficacy in the face of such a significant increase of Part 2 requests remains to be seen, and has not been subject to any significant commitment by Government.

Efficacy and speed, however, are perhaps less concerning than other dangers: there are more pressing challenges posed by an attempt to fall back onto the ECE.

ECE rescission: back to the future

As has been clear from the outset of the Brexit process, even where EU Member States might have been receptive to dealing with the UK under the ECE, many have long-since repealed ECE-enabling legislation. As the House of Lords European Union Committee noted as early as July 2017 in its report, “Brexit: judicial oversight of the European Arrest Warrant”, there is:

“…a problem with those Member States that have rescinded their legislation implementing the Convention. The Committee’s concern is that because extradition is a two-way, reciprocal arrangement, in the case of such Member States, simply amending the Extradition Act would not in itself be sufficient. If the UK did not have pre-existing extradition arrangements with certain member states, extradition could become impossible at the moment of Brexit.”

The legislative effort made by the Republic of Ireland, amending its extradition regime to cater for a re-introduction of the ECE in respect of the UK, remains unmatched by other EU member states.

Thus, whilst the UK may find in the ECE a way to continue processing extradition requests from EU Member States, there can be no realistic prospect of reciprocity. Further, UK requests made to EU Member States may face the higher hurdles otherwise mitigated by the ECE and removed by the EAW. The path ahead is as uncertain as it is inconsistent.

Own nationals

Article 6 of the ECE permits a requested state to refuse the extradition of its own nationals. The continued political stance of EU Members States such as Greece, Poland and Sweden suggests that any attempt to extradite own nationals under the ECE in respect of those states would be met with refusal.

Other EU Member States face constitutional barriers toward the extradition of their own nationals. The UK has not persuaded EU Member States to propose or implement constitutional reforms. Indeed, the EU has, since last summer, made a firm declaration that at least Germany, Slovenia and Austria will not extradite their own nationals.

The difficulties posed by this ECE shortcoming are stark and have been highlighted by discussions about the extradition of ‘Christian B’ from Germany to the UK in relation to the Madeleine McCann investigation. The UK can no longer avail itself of the exceptional treatment afforded to the EAW regime by the German constitution. Constitutionally, Germany cannot and will not allow the extradition.

What has been done?

Unfortunately, little has been done to alleviate or address these concerns, in the face of what now appears to be the imminence of the UK’s reversion to the ECE approach.

Despite repeated assurances from Ministers and Government, no political declaration has been made, nor agreement reached with the propensity to address the failings of the ECE and dangers associated with the exit day cliff edge.

In January 2020, the Government introduced to Parliament the Extradition (Provisional Arrest) Bill. The Bill represented an opportunity to mitigate and alleviate some of the vicissitudes of reversion to the ECE. The Bill is currently awaiting Royal Assent. It is an opportunity missed.

In its current form, the Bill applies to Part 2 requests from six ‘trusted’ countries listed in Schedule 1: Australia; Canada; Liechtenstein; New Zealand; Switzerland; and The United States. The Bill designates the NCA as the authority responsible for identifying and certifying alerts from the Schedule 1 ‘trusted’ countries, certifying extradition requests from Interpol alerts. In respect of certified alerts, the Bill confers upon police a power of arrest without a warrant for the purposes of extradition where, previously, a warrant had to be granted by a UK court.

On their face, these are positive developments, which import some of the efficiencies of the EAW approach into the Part 2 process and expedite at least part of the process for dealing with Part 2 requests. However, so limited is their scope at present, that these developments do not and cannot mitigate the difficulties faced in respect of EU Member States. Even were EU Member States to become Schedule 1 ‘trusted’ countries in time, such a move in isolation achieves little more than scratching the surface: expediting the process of bringing a requested person before a court does not address the difficulties faced once proceedings have commenced.

In February 2020, the Government published a further plan for Brexit discussions. The plan suggests an ambition to “provide for fast-track extradition arrangements, based on the EU’s Surrender Agreement with Norway and Iceland which came into force in 2019, but with appropriate further safeguards for individuals beyond those in the European Arrest Warrant.”

Practitioners will approach such a suggestion with cynicism. The Surrender Agreement between the EU and Norway and Iceland, agreed in principle in 2006, took a further twelve years to negotiate. The draft UK-EU agreement proffered by the UK in negotiations was not accepted; no acceptable variant is foreseeable in the medium-term future.

The emergence of coronavirus had a chilling effect on negotiations as governments dedicated attention to public health. Little has been achieved in relation to extradition arrangements since. As at the end of October 2020, negotiations are set to resume. Those of an optimistic disposition may hold out hope for an agreement preserving some of the features of the EAW yet; the negotiators do not.

What next?

Absent extension of the Brexit transition period, or currently unforeseeable progress being made in the next two months, it is inevitable that from 1 January 2021 the UK shall revert to the ECE as the legal basis for extradition to and from EU Member States.

Efforts, insofar as they have been made, to avoid the shortcomings of the ECE have fallen short. The UK’s ability to request the extradition of EU nationals may have been irreparably damaged, and the efficacy of the UK’s extradition arrangements generally shall suffer. Practitioners are therefore likely to face challenging and uncertain times ahead.

Similar challenges will arise from the mere existence of a cut-off date itself. Requests from EU Member States will be designated not by their origin, but effectively by their age: extradition requests received before exit day treated as Part 1 requests; new requests treated as Part 2A requests. The extradition landscape is likely to shift to a dual system for EU requests which may persist for years to come, as requested persons are happened upon by police over time.

To the enterprising advocate, the disparity of treatment as between requests from the same State is ripe for challenge, as may be many aspects of the ECE regime. If and when such requests eventually reach the courts it may be, as a result, that the ECE system is softened and aligned with the EAW regime to a greater extent. Such softening is unlikely to be reciprocated by States to which the UK makes requests. It may also be that a Surrender Agreement can be reached prior to 2033.

Hope that damage may be mitigated further down the line is, however, no comfort to those subject to the ‘new’ regime. Warranted concerns remain.

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, objecting to the issuing of European Arrest Warrants by UK courts.