European Arrest Warrant post Brexit
February 16, 2021
The European Arrest Warrant (EAW) is a simplified system for extradition between the EU Member States and up until 31st December 2020, the UK had the ability to apply for an EAW in order to have an individual returned to the UK to face prosecution or for the purpose of enforcing a custodial sentence.
In the wake of Brexit, there is a need to consider whether our ability to do so has shifted and as a firm that deals with many international clients we are often asked what ability the UK has to extradite them from an EU member state to face prosecution or punishment in the UK.
Although various extradition treaties exist between countries, the EAW is a different beast and there are no equivalent arrangements outside of the EU or the EEA. The EAW finds its origins in the principle of free movement of people amongst EU member states and the possibility that someone might abscond from one member state to another with relative ease.
Many countries such as Germany have very strict constitutional rules which prevent them from extraditing their own citizens to other countries and many of those countries had to take steps to amend their constitution when the EAW was introduced. Some of those countries have refused to extradite their citizens to the UK while we have been in the Brexit transition period and now have the option to do so long-term under the new arrangements.
For a long time, the potential impact of Brexit on the EAW was unknown and many practitioners could only speculate over what the impact of Brexit would be on mutual cooperation in respect of law enforcement. In the wake of 31st December 2020, we now have some clarity on the position.
On 31st December 2020, the UK and EU reached an agreement on the terms of the UK’s departure from the EU by agreeing 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”)
Chapter VII of the agreement outlines what provisions have been put in place to facilitate cooperation between EU member states and the UK in relation to law enforcement. The agreement mirrors the agreement already in place between EU member states and Norway/Iceland and introduces the concept of “surrender” which is intended to replace the EAW system as a fast-tracked system of extradition between EU member states and the UK with limited grounds for refusal and time-limited processes.
Much of the new system mirrors the arrangements which were previously in place under the EAW arrangements and to a great extent there very few changes to the grounds on which a state can refuse to execute an arrest warrant.
Under the terms of the agreement cooperation through an arrest warrant is governed by the principle of proportionality. Surrender must be necessary and proportionate taking into account the rights of the subject and the victim and having regard to the seriousness of the act and the likely penalty that would be imposed as well as the possibility that the subject is likely to face long periods of pre-trial detention.
It also required states to consider the possibility of taking action that may be less coercive than the surrender process such as referring cases to their own prosecution authorities where appropriate.
Under the agreement, an arrest warrant may be issued for the prosecution of any offence which carries a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made of at least four months.
Surrender, like the EAW, is subject to the concept of “dual criminality”– where an offence must exist in both jurisdictions. However, the agreement includes a lengthy list of offences in respect of which dual criminality is presumed. This list includes the most common offences and is wide enough to ensure that there are limited circumstances in which the warrant could be refused on the grounds of lack of “dual criminality”.
One of the key features of the surrender system is that it makes specific provisions for a “nationality exception”. Under this provision states can opt to impose a “nationality bar” or in other words, refuse to surrender their own nationals, or only do so in certain circumstances. Within the agreement there is a provision requiring any such member state refusing extradition to consider commencing 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.
This is a provision which states must opt into. Under the transitional arrangements, Germany, Austria, and Slovenia all imposed a “nationality bar” and it is expected that they and other states will do the same under the terms of the agreement.
Other grounds for refusal
The agreement provides a lengthy list of other grounds under which a state may refuse to execute a warrant for surrender, which may be applicable in particular circumstances such as where the subject of the warrant is already being prosecuted for the same offences by the executing state, or where there are grounds to believe that the warrant has been issued for the purpose of punishing someone on the grounds of sex, race, religion, or sexual orientation. Another such ground for refusal includes where the subject has been convicted in their absence and can demonstrate that they were not notified of those proceedings and had no knowledge of the same.