Brexit: An easy escape?

At the time of writing, the UK and the EU are trying to broker a Brexit deal. As you read this, you may or may not know the outcome.

Will we be going into 2021 with a deal or will we ‘hard Brexit’? 

If there has been a deal, what is included in it? It seems impossible that all benefits of EU membership can be included in the deal.

The media coverage of negotiations has been overshadowed by the global pandemic.

However, as an extradition lawyer, my pre-covid-19 perspective of negotiations was that they focused on customs, free movement, fishing rights and access to markets. 

These issues have overshadowed one of the most important benefits of EU membership – cross-border cooperation on crime and security. 

As a member of the EU, the UK was a signatory to the European framework that governs the European arrest warrant (EAW) scheme.

The EAW scheme has been an excellent vehicle for achieving swift apprehension and surrender of fugitives in most cases.

This is achieved by having a pro forma arrest warrant which is signed by a designated judicial authority. 

The surrender of fugitives is therefore underpinned by mutual recognition of judicial decisions.

This is a significant departure from the system prior to the EAW scheme.

The UK’s relationship with the EU was governed by international treaty, the European Convention on Extradition 1957, which was ratified by all EU member states.

In order to seek an individual’s extradition, it was necessary for the request to be submitted through diplomatic channels. This was slower and more complex. 

It is possible for someone to be arrested on a provisional warrant pending the submission of a full extradition request through diplomatic channels.

However, this is generally reserved for more serious crimes and where apprehension is urgent.

The system is not designed to hold anyone accused or convicted of a crime on the basis of information rather than a full extradition request.

Therefore, for most cases a full extradition request will be necessary. 

It is difficult to comprehend on what basis the UK can remain part of the EAW club, post Brexit. Disputes concerning the operation of the framework decision are referred by reference to the European Court of Justice (CJEU) and we will no longer fall under its jurisdiction.

Norway and Iceland negotiated a surrender agreement with the EU, that doesn’t require CJEU membership but took 10 years to negotiate.

They also must commit to remaining up to date with CJEU case law. The Brexiter stance on the CJEU doesn’t sit comfortably with that condition.

I fear that UK negotiators will be concerned with the optics of such a commitment, rather than the benefits that we would derive from being party to a surrender agreement. 

In the likely event that there is no deal, the UK’s relationship with the EU member will revert to the 1957 convention, or perhaps in time, bilateral extradition agreements.

This will mean that for extradition requests, it will be necessary to go through diplomatic channels, rather than transmitted via a member state’s central authority, as an EAW is now. 

It is a more cumbersome procedure. Once arrested on an extradition request, the time frame for proceedings under part 2 of the Extradition Act 2003 – which governs all non-EAW extradition – is lengthier than part 1 which relates to EAW extradition. 

The EAW scheme is but one benefit that the UK enjoyed as part of an arsenal to tackle crime and ensure domestic security.

An example is the Schengen Information System, which is a border database where member states may share information such as outstanding EAWs, car number plates or DNA.

This system allows for quick detection of fugitives. 

Whatever may be touted in the media about the benefits of a cessation of free movement, this is not going to stop fugitives from justice from coming to this country.

If someone is going to flout the rules of their domestic criminal justice system, then membership of the EU will not matter.

A more cumbersome system of extradition between the UK and the EU may make our shores more attractive rather than less. 

Gemma Lindfield is a barrister specialising in extradition and family law at 5 St Andrew’s Hill 5sah.co.uk