UK-EU security cooperation after Brexit Contents

4The European Arrest Warrant


55.The European Arrest Warrant (EAW) is a simplified procedure through which EU Member States can issue a warrant for arrest and extradition, which is valid throughout the bloc. The EAW enables extradition decisions to be made by judicial authorities alone (based on the principle of ‘mutual recognition’), without political involvement. Warrants are subject to strict time limits: final decisions in the extraditing country must be made within 60 days of arrest, or within 10 days if the defendant consents to the surrender.62 Other advantages of the EAW over standard extradition arrangements include Member States’ inability to refuse to surrender their own nationals; much more limited grounds for refusal; and the absence of “double criminality”, which means that the offence does not have to be an offence in both countries for the extradition to take place, provided it is sufficiently serious.63 As a result, the EAW is significantly faster and cheaper than its predecessor arrangements, based on the 1957 European Convention on Extradition.64

56.The UK’s use of the EAW is significant. In 2016–17, it resulted in 1,735 individuals being arrested in the UK; in total, there have been over 12,000 EAW arrests since April 2009, and over 1,000 people have been surrendered by other EU Member States to the UK.65 Before the EAW entered into force in 2004, the UK extradited fewer than 60 people per year to any country, and Spain was apparently the “destination of choice” for British criminals seeking to avoid arrest.66 The extradition to France of Rachid Ramda, one of the perpetrators of the Paris bombings of 1995, took 10 years under the previous surrender arrangements.67

57.The Government has been emphatic about the value of the EAW. As Home Secretary in 2014, Theresa May told The Sunday Times that losing access to it would make the UK “a honeypot for all of Europe’s criminals on the run from justice”.68 At the time, she was seeking parliamentary approval for the Government’s request to opt into continued participation in a number of EU justice and home affairs measures, including the EAW. Rob Wainwright also emphasised its value, stating that it is “far better for Britain’s security [ … ] that those 2,000 criminals a year are taken off our streets and back to their countries”, and that losing this capability would be a “public security issue” for the UK.69

58.Use of the EAW is currently restricted to Member States of the EU, and Sir Julian King told our predecessors that it would be “the most challenging of the areas” of security cooperation to retain access to after Brexit. He said that he would find it “quite difficult to conceive” of a scenario in which the UK and its EU partners “could not find a way to extradite”, but that it would “not be as quick or as straightforward as the EAW model.”70

59.Subject to the outcome of negotiations, the UK and EU’s proposals for a transition or implementation period after 29 March 2019 appear consistent with continued access to the European Arrest Warrant. If the UK and EU cannot conclude and ratify an extradition agreement by the end of that period, however, or if an overarching security treaty (including extradition arrangements) is not agreed in time, the UK may have to fall back on the 1957 European Convention on Extradition.

60.Like most international extradition agreements, the Convention operates through diplomatic channels, so extraditions would require political approval in the extraditing country. It does not impose the sort of strict time limits imposed by the EAW, and does not require participating countries to extradite their own citizens.71 The Director of Public Prosecutions, Alison Saunders, has described the EAW as “three times faster” and “four times less expensive” than alternative arrangements, including the Convention, and highlighted in 2016 that many Member States have repealed domestic legislation underpinning the Convention, which could limit their ability to extradite to the UK.72

61.In our view, the efficiency and effectiveness of the European Arrest Warrant is beyond doubt—particularly when compared to previous arrangements, which were far more lengthy and costly. The EAW has enabled the extradition of over 12,000 individuals from the UK to the EU in the last nine years. In the Prime Minister’s own words, losing access to the EAW could render the UK a “honeypot” for criminals escaping the law. It is reassuring, therefore, that both sides of the negotiation are committed to the UK’s full participation in the European Arrest Warrant during the transition period. However, we have real concerns about the consequences for extradition arrangements once the UK is no longer considered an EU Member State for extradition purposes.

The Government’s aims

62.The Government’s future partnership paper on security and law enforcement referred to the EAW as one aspect of the internal security “toolkit” assembled by Member States, but did not refer to it within its proposals for a new partnership in this area. The Home Secretary told us in October that she was “optimistic that we can reach a treaty with the EU, which will include Europol, European Arrest Warrants, and the various structures and databases”.73 The Policing Minister said in January that the EAW is “one of the tools in the toolbox that we want to preserve, and we want to preserve that capability as close to the existing status quo as possible”.74

The viability of existing models

63.Norway and Iceland are the only non-EU countries to have negotiated a surrender arrangement with the EU that shares many of the benefits of the EAW, such as simplified procedures. The only significant differences between the two arrangements are that the Norway/Iceland model enables all parties to refuse to extradite their own nationals, and it includes a “political offence” exception in relation to terrorism offences.75 Such an exclusion, if applied to a UK-EU agreement, would mean that EU countries could refuse to extradite suspected terrorists to the UK if their crimes are regarded as political in nature. Professor Peers told our predecessors that the exceptions demanded from both sides in the Norway/Iceland negotiations had an impact on how long they took to conclude.76 The agreement was finalised in 2014 after 13 years of negotiation, but has still not been fully ratified, so is not in operation.77

64.According to Professor Peers, the more that an agreement between the UK and EU differs from the EAW for various reasons—to include a proportionality test, for example—the longer it will take to negotiate and agree.78 He also pointed out that there are constitutional reasons why some Member States cannot extradite their own citizens outside the European Union.79 Prior to the EAW, 13 of the then 25 Member States refused to extradite their own nationals for constitutional reasons, and some of them—including Portugal, Slovakia, Latvia and Slovenia—revised their constitutions to avoid negative rulings from their constitutional courts.80 Germany’s constitutional amendment allows the surrender of a German citizen to an EU Member State or international Court, but not to non-EU domestic courts,81 and Slovakia is subject to the same limitations.82 The Law Society of Scotland noted that Ireland would also have to amend its domestic law in order to give effect to any UK-EU extradition agreement.83 As a result of these restrictions, Professor Peers said that “the likelihood is that the European Union side at least would insist that it cannot cover the extradition of its own citizens to the UK”.84

65.Of the 1,773 EAW extradition requests made by UK authorities between 2009 and 2016, 983 were for UK nationals and 790 were for individuals from other countries, including those of unknown nationality.85 698 were identified as EU nationals,86 and the NCA advised us that around 300 extraditions to the UK (out of over 1,000 surrendered individuals) were of “own nationals” of EU Member States.87 The value of the EAW was illustrated by the case of Zdenko Turtak, who raped an 18-year-old woman in Leeds in March 2015, after dragging her from a bus stop and beating her with a rock. A DNA match traced the offender to his home country of Slovakia. He was extradited under an EAW, convicted in Leeds Crown Court in October of the same year, and sentenced to 14 years’ imprisonment.88 Slovakia would not have been able to surrender one of its own nationals under any agreement other than the EAW.

66.Some witnesses were optimistic about the UK’s prospects for securing an agreement similar to the EAW or the Norway/Iceland agreement. Sir Alan Dashwood said: “I see no reason why it should not be possible to negotiate an arrangement that corresponds to the existing situation”.89 The high number of extraditions between the UK and EU may provide an impetus for reaching a favourable agreement, but political considerations may well stand in the way. In a paper published before the EU referendum, the then Government said that there is “no guarantee that the UK could secure a similar agreement [to Norway and Iceland] outside the EU given that we are not a member of the Schengen border-free area”.90 An Explanatory Memorandum by the Commission, which accompanied a proposed Council Decision to enter into a surrender agreement with the two countries, included the following statement:

Despite the decision not to link the European arrest warrant to Schengen, the Council agreed that it would be useful to apply the surrender procedure model to the Schengen countries, given their privileged partnership with the EU Member States.91

67.The CJEU’s jurisdiction is also relevant to the UK’s future extradition arrangements. Professor Mitsilegas highlighted that the Norway/Iceland agreement requires both countries to keep under constant review the case law of the CJEU, which is “not a very binding kind of provision on the jurisdiction of the court but it is something that leaves the door open for courts to look at what each other is doing”. With an agreement entirely analogous to the EAW, however, he asserted that the UK would “have to comply 100% with the case law of the Court of Justice. I see no other way, personally”. Sir Alan Dashwood concurred that this was “probably true”, and Sir Julian King also highlighted it as an issue:

The closer you are to questions of co-operation with the legislative framework—you have taken the example of the European arrest warrant—the more that question is posed, because the legislative framework exists under ECJ jurisdiction. There you have that problem in its most pronounced form.92

68.The Norway/Iceland agreement provides for the establishment of a “mechanism [ … ] to ensure regular mutual transmission of such case law” between the CJEU and the national courts. The agreement also provides for a dispute settlement procedure involving “a meeting of representatives of the governments of the Member States of the European Union and of Iceland and Norway, with a view to its settlement within six months”.93 The Lords EU Committee concluded last year that such a mechanism would be compatible with the Government’s desire to end the direct jurisdiction of the CJEU.94 Ultimately, if there is a substantive divergence in interpretation of the Norway/Iceland agreement, it may be terminated with six months’ notice.95

69.It is imperative that the UK’s future relationship with the EU includes speedy and simple extradition arrangements for serious crime, based on mutual recognition of judicial decisions, and that these arrangements are as similar as possible to the EAW model. In particular, being forced to fall back on the 1957 European Convention on Extradition would be a catastrophic outcome.

70.We do not understand why the Government’s future partnership paper on security and law enforcement cooperation makes no proposals for a future extradition arrangement with the EU. Based on comments by Ministers, we assume that the Government plans to include an extradition agreement in its overarching security treaty with the EU. However, if it is planning to try to achieve the extradition agreement through a parallel route instead, it should make that clear to Parliament and the public.

71.We are concerned that there are serious legal and constitutional obstacles to achieving an extradition agreement that is equivalent to the existing European Arrest Warrant. In particular, we are alarmed by evidence that any agreement requiring Member States to extradite their own citizens could cause serious delays to ratification, as it would be inconsistent with some countries’ constitutions. Based on the evidence we have received, the closer the UK wants to remain to the status quo in its extradition arrangements after Brexit, the more likely it is that the EU will demand a stronger role for the Court of Justice of the EU. It might be possible to replicate Norway and Iceland’s extradition agreement without direct CJEU jurisdiction, but the UK could then lose the ability both to extradite individuals whose crimes could be considered political in nature, and to require some (or all) Member States to extradite their own citizens to the UK.

72.We call on the Government to publish a full risk assessment of the likely impact of such a scenario, including the number of individuals whose recent extraditions would have been made impossible by such arrangements, and the crimes for which they were extradited. We recognise that there has been some criticism of the EAW, but there is also some risk that the UK may be forced to abandon the proportionality tests introduced to it more recently, in order to reach a speedy agreement. If the Government is planning to abandon these features of the EAW to ensure that a treaty can be agreed and ratified in good time, it must first make it clear what the impact would be on UK justice and security.

62 European Justice Portal, European Arrest Warrant, accessed February 2018

63 European Justice Portal, European Arrest Warrant, accessed February 2018

64 House of Commons Library, Briefing Paper 07016, The European Arrest Warrant, 18 April 2017

65 National Crime Agency written evidence (PSC009), 20 February 2018

69 Oral evidence taken on 7 March 2017, Q153

70 Oral evidence taken on 28 February 2017, Q103

71 House of Commons Library, Briefing Paper 07016, The European Arrest Warrant, 18 April 2017

72 Oral evidence to the Home Affairs Sub-Committee of the House of Lords Select Committee on the European Union, 2 November 2016

73 Oral evidence taken on 17 October 2017, Q45

74 Oral evidence taken on 23 January 2018, Q157

75 Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway - Declarations, Official Journal L 292 , 21/10/2006

76 Oral evidence taken on 6 December 2016, Q22

77 Council Decision 2014/835/EU, 27 November 2014

78 Oral evidence taken on 6 December 2016, Q22

79 Oral evidence taken on 6 December 2016, Q25

82 Camino Mortera-Martinez, Arrested development: Why Brexit Britain cannot keep the European Arrest Warrant, Published by the Centre for European Reform, 10 July 2017

83 Law Society of Scotland written evidence (EUR0003)

84 Oral evidence taken on 6 December 2016, Q25

87 National Crime Agency written evidence (PSC009), 20 February 2018

89 Oral evidence taken on 5 December 2017, Q54

92 Oral evidence taken on 28 February 2017, Q132

93 Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway - Declarations, Official Journal L 292 , 21/10/2006

94 House of Lords European Union Committee, Brexit: judicial oversight of the European Arrest Warrant, 27 July 2017

95 Article 41 of the Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway

Published: 21 March 2018