The new post-Brexit extradition arrangements between the UK and the EU
On Christmas Eve, the UK and the EU agreed the terms of 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 Trade and Cooperation Agreement’). Title VII of Part 3 of the Trade and Cooperation Agreement governs extradition or, to use the language of the agreement, ‘surrender arrangements’ between the UK and the EU. The effect of these provisions is to closely replicate the arrangements under the Framework Decision on the European Arrest Warrant (‘the Framework Decision’) and the surrender agreement between Norway and Iceland and the European Union (‘the Iceland/Norway Agreement’).
At domestic level, the new arrangements have been implemented by the UK through the European Union (Future Relationship) Act 2020 (‘the 2020 Act’) which was passed by Parliament on 30 December 2020 and given Royal Assent at midnight of the same day. It came into force at 11pm on 31 December 2020. The Trade and Cooperation Agreement has not yet been ratified by the European Parliament and the Council of the European Union, but Article FIN PROV 11[1] of Part 7 (Final Provisions) provides for the provisional application of the agreement on both sides from 1 January 2021. The Council of the European Union approved provisional application on 29 December 2020 and, as noted, the UK passed the relevant implementing legislation on 30 December 2020.
Overview of the new surrender arrangements
The key points to note are that the surrender arrangements under the Trade and Cooperation Agreement are sufficiently similar to those under the Framework Decision to require very few changes to be made to the Extradition Act 2003 (‘the 2003 Act’). As noted below, the new arrangements do not apply to EAW cases where the person was arrested (including provisional arrests) or extradited prior to 31 December 2020, and other EAWs issued prior to this date will be treated as arrest warrants for the purpose of the new surrender arrangements. Iceland and Norway are no longer Part 1 territories for the purpose of the 2003 Act.
The new arrangements reflect the core elements of the EAW and Iceland/Norway schemes in that it is a system of surrender based on arrest warrants that are issued and executed by judicial authorities with no role for the executive in the process. Like the other schemes, the new arrangements include limited grounds upon which to refuse to execute an arrest warrant and tight timescales within which the surrender process must be completed.
As noted below, the Trade and Cooperation Agreement contains a number of new provisions that distinguish it from both the Framework Decision and the Norway/Iceland agreement. However, there are two points of general significance about the arrangements as a whole that are worth noting at the outset.
First, the Court of Justice of the European Union has no jurisdiction over the new surrender arrangements; Part 3 of the Trade and Cooperation Agreement is overseen by a ‘Specialised Committee on Law Enforcement and Judicial Cooperation’ set up for the purpose of the agreement (see the dispute settlement provisions at Title XIII of Part 3).
Second, in marked contrast to the Framework Decision and, to a lesser extent, the Iceland/Norway agreement, Part 3 of the Trade and Cooperation Agreement makes no reference to ‘mutual trust’ or ‘mutual confidence’ in one another’s legal systems. Although the principle of mutual trust is a defining characteristic of the EAW scheme (see, for example, Konecny v District Court in Brno-Venkov [2019] 1 WLR per Lord Lloyd-Jones), the practical importance of this change in tone is likely to be limited in light of the general presumption of good faith applicable to all of the UK’s close extradition partners (see Ahmad and Aswat v Government of the United States [2006] EWHC 2927). This is particularly in light of Article LAW Gen 3 of the Trade and Cooperation Agreement which makes clear that Part 3 is based on “the Parties’ and Member States’ longstanding respect for democracy, the rule of law and 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, and on the importance of giving effect to the rights and freedoms in that Convention domestically”.
Proportionality
In a significant change from the terms of the Framework, and the Norway/Iceland Agreement, one of the first provisions of Title VII (the surrender arrangements) states that cooperation through the arrest warrant system is subject to the principle of proportionality including the need to consider the possibility of less coercive measures “with a view to avoiding unnecessarily long periods of pre-trial detention” (Art Law Surr 77). This latter point is again emphasised at Art Law Surr 93 which deals with the time-limits applicable to a surrender decision.
The primary function of this provision would appear to be to give a basis in the agreement for the existing bars in sections 21A and 21B of the 2003 Act which had no express basis in the Framework Decision but were implemented by the UK in July 2014 to permit extradition to be refused in cases where it would be disproportionate (s21A), or postponed to allow consideration to be given to less coercive measures (s21B).
Dual criminality
The dual criminality provisions are largely the same as those in the Framework Decision and, in particular, the Trade and Cooperation Agreement replicates the ‘Framework List’ of offences in respect of which dual criminality is presumed, with the only difference being that the list in the Trade and Cooperation Agreement specifies that corruption includes bribery (Art Law Surr 79(4) and (5)).
The Trade and Cooperation Agreement also includes a provision (similar to one contained in the Norway/Iceland agreement) making it clear that dual criminality should not be a bar to extradition in cases involving group liability for offences of terrorism, drug trafficking or serious offences of violence (Art Law Surr 79(3)). The Framework Decision does not contain such a provision but its inclusion in the Trade and Cooperation Agreement is unlikely to have much practical effect in circumstances where offences of terrorism, drug trafficking and serious violence were already included in the ‘Framework list’.
Nationality
One of the more significant departures from the EAW scheme is the inclusion of an optional nationality bar (Article Law Surr 83). This change was first implemented under Article 85 the Withdrawal Agreement which permitted EU Member States or the UK to submit a declaration to the effect that they would no longer extradite their own nationals. The Trade and Cooperation Agreement includes a new provision that applies where a State refuses to execute an arrest warrant on grounds of nationality, and obliges that State to ‘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.
The procedure under the Trade and Cooperation Agreement requires the United Kingdom or the European Union to notify the Specialised Committee on Law Enforcement and Judicial Cooperation of the names of the States that will apply the nationality bar (Article Law Surr 83). It can be expected that the EU will submit notifications on behalf of the three states that submitted declarations under Article 85 of the Withdrawal Agreement (Germany, Austria and Slovenia) and it is possible that other EU Member states will take a similar approach.
The UK did not opt to impose a reciprocal nationality bar under the terms of the Withdrawal Agreement and there is no sign that the UK government will choose to do so under the terms of the new surrender arrangements. This means that the practical impact of the nationality provisions is likely to be limited to domestic cases where UK investigators and prosecutors would wish to extradite an accused person from an EU state of which they are a national and in respect of which a notification has been made under the nationality provisions.
Diplomatic assurances and additional safeguards for requested persons
The Trade and Cooperation Agreement contains a provision that does not feature in either the Framework Decision or the Iceland/Norway agreement and which makes express provision for the use of diplomatic assurances in cases where there are substantial grounds for believing that there is a real risk to the fundamental rights of the requested person (Art Law Surr 84). This reflects the already well-established practice of UK courts seeking diplomatic assurances in cases where extradition would otherwise fall to be refused on human rights grounds (see Kirkanov v District Prosecutor’s Office, Bulgaria [2017] EWHC 827 (Admin)).
Art Law Surr 83 also makes provision for the assurances to be given in cases involving whole life sentences. While a similar provision is contained in the Framework Decision, Art Surr 83 permits the executing State to “make the execution of the arrest warrant subject to the condition that the issuing State gives a guarantee deemed sufficient by the executing State that the issuing State will review the penalty or measure imposed, on request or at the latest after 20 years, or will encourage the application of measures of clemency”. This provision goes significantly further than its equivalent in the Framework Decision and potentially further than the requirements of Article 3 of the European Convention of Human Rights (EHCR). Thus, it is possible that extradition might be refused in a ‘life without parole’ case in reliance on Art Law Surr 83 even though UK whole life terms have been found to meet the requirements of Article 3 of the ECHR (Hutchinson v United Kingdom 43 BHRC 667). Such cases are likely to be rare however given how seldom whole life terms are imposed in the UK.
The Trade and Cooperation Agreement also includes additional safeguards for a requested person that do not feature in either the Framework Decision or the Iceland/Norway agreement and, in particular: (a) the requested person’s right to be informed of their 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 (b) the right to have their state’s consular authorities notified of their arrest.
Domestic implementing legislation
As the new surrender arrangements largely mirror those under the EAW system, the only change of substance to the 2003 Act is to the Part 1 dual criminality provisions in sections 64 and 65. In each section, the final sub-section removing the dual criminality requirement in Framework List cases has been repealed by section 12 of the 2020 Act. It is likely that an equivalent provision will be inserted once the UK and the EU have made the relevant declarations pursuant to Art Law Surr 79(4) that the condition of double criminality will not be applied to the list of offences in Article Law Surr 79(5) of the Trade and Cooperation Agreement.
The only other changes to the 2003 Act are given effect pursuant to Regulation 53 of the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (‘the 2019 Regulations’) and reflect the fact that the UK is no longer participating in the Schengen Information System, and that the ‘Framework List’ is not derived from the Framework Decision and cannot be amended by Order in Council.
The eleventh-hour nature of the Brexit agreement meant that, presumably for the convenience of the Parliamentary counsel, on 31 December 2020, the 27 EU Member States were re-categorised as Part 2 territories under the 2019 Regulations, only to be immediately re-categorised back to Part 1 territories pursuant to section 11 of the 2020 Act. The only lasting change is that, for the time being, Iceland and Norway have returned to being Part 2 territories (see Regulation 25 of the Law Enforcement and Security (Separation Issues etc) (EU Exit) Regulations 2020).
Transitional arrangements
The overall scheme contains two important transitional provisions. First, the effect of Regulation 57 of the 2019 Regulations would appear to be that the new rules do not apply to EAW cases where: (a) the person has been arrested pursuant to an EAW prior to 31 December 2020; (b) the person has been provisionally arrested under Part 1 of the 2003 Act prior to 31 December 2020; or (c) the person has already been extradited to or from the UK prior to that date. The effect of this transitional provision is not entirely clear however owing to the odd way in which the EU member states were designated under the 2019 Regulations (which contain a transitional provision) and then re-designated under the 2020 Act (which does not).
Second, Article Law Surr 112 of the Trade and Cooperation Agreement provides that, in cases where no arrest has been made, EAWs issued under the Framework Decision prior to 31 December 2020 shall be treated as arrest warrants for the purpose of the new surrender arrangements.
[1] The Article numbers in the Trade and Cooperation Agreement referred to below are likely to change when the agreement is finalised.
