Mutual trust and recognition has been the foundation of European judicial cooperation for 20 years. Having been raised during the Presidency Conclusions of the Cardiff European Council in June 1998, the principle was then cemented in Tampere in 1999 and the rest is history: the Framework Decision on the European Arrest Warrant (‘EAW’) was born in 2002 and European extradition (or ‘surrender’) was changed for good.
As the Framework Decision makes clear, the mechanism of the EAW is based on a ‘high level of confidence’ between Member States (Preamble (10)) and a warrant must be executed on the basis of the ‘principle of mutual recognition’ (Article 1(2)). The UK Courts have essentially been faithful to the principle (see in recent times, for example, Alexander & Di Benedetto [2017] EWHC 1392 (Admin)) and the Court of Justice of the European Union has repeatedly emphaised its importance (see Minister for Justice and Equality v Lanigan (Case C-237/15PPU) [2016] Q.B. 252).
The question looming large as we approach the 20th anniversary of mutual trust is whether the relationship is on the rocks?
However, after a hitherto largely happy marriage, the question looming large as we approach the 20th anniversary of mutual trust is whether the relationship is on the rocks?
The Irish High Court has recently concluded that the ‘common value of the rule of law’ has been breached in Poland (Minister for Justice and Equality v Artur Celmer [2018] IEHC 119), and it has referred the issue to the CJEU for a preliminary ruling (with that hearing currently listed on 1 June 2018). The CJEU will be required to consider the procedure that the Irish High Court ought to adopt given its findings. The UK High Court is due to hear a similar challenge to Polish extradition on 7 June 2018.
The Irish Supreme Court has also recently asked the CJEU to consider what impact the UK’s decision to trigger Article 50 (i.e. Brexit) has upon extradition requests made by the UK (The Minister for Justice and Equality v Thomas Joseph O’Connor [2018] IESC 19).
The state of prisons throughout Europe also continues to pose challenges for executing judicial authorities. Having concluded that there was a real risk of inhuman and degrading treatment in certain French prisons, the Dutch courts called upon the French authorities to provide further information to address the issue (Court of Amsterdam, 13/751468-17, 30 May 2017 and 17 August 2017). The UK High Court is due to hear a similar challenge to French extradition on 24 May 2018.
Where do such decisions leave the principle of mutual trust and recognition? The Courts of one Member State have concluded that another Member State no longer operates under the rule of law. Extradition between Ireland and the UK is seemingly on hold whilst the impact of Brexit is considered by the CJEU.
Indeed, Brexit looms large over this issue. On 9 May 2018, the Government published its Framework for the UK-EU Security Partnership . Whilst the Government’s aims appear laudable, (seeking to deliver significant ‘mutual operation benefit’), there is little on what shape our extradition arrangements will take or how they will operate in practice.
Will mutual trust and recognition make it to its Silver wedding anniversary? Watch this space.
