8UK participation in the European Arrest Warrant79
Overview
8.1The European Arrest Warrant (“EAW”) establishes an EU-wide mechanism for the arrest and surrender (extradition) of individuals who are wanted for a criminal prosecution or for the execution of a prison sentence or detention order. Operational since 1 January 2004, the EAW is based on the principle of mutual recognition: a warrant issued by one EU country’s judicial authority is valid and enforceable throughout the EU. The EAW is simpler and quicker than traditional forms of extradition because:
- it is based on direct contacts between judicial authorities, without political involvement;
- an EAW must be dealt with and executed as a matter of urgency and strict time limits apply;
- there is no double criminality check for 32 of the most serious criminal offences;
- there are limited grounds for refusing to execute an EAW; and
- EU countries cannot refuse to surrender their own nationals.
8.2The EAW has resulted in a substantial reduction in the time taken to return and prosecute serious criminals who might otherwise seek to exploit free movement within the EU to evade justice.80 Similar arrangements apply (since 1 November 2019) between the EU and Iceland and Norway.81
8.3In July 2020, the European Commission published two documents concerning the EAW: the first, a Commission report on Member States’ implementation of the EAW; the second, a Commission staff working document examining data provided by Member States on the operation of the EAW in 2018. Both documents include information and statistical data on the UK’s implementation and application of the EAW.
8.4The Commission report concludes that implementation of the EAW is “satisfactory […] in a significant number of Member States” but highlights “issues of compliance in some” where Member States have departed from the Framework Decision establishing the EAW. Examples cited include importing a requirement for an EAW to be “trial ready” (meaning that there is sufficient evidence to charge and try the subject of an EAW at the time of surrender) or applying a proportionality test when deciding whether to execute an EAW. The Commission staff working document shows a steady increase in the number of EAWs that have resulted in the surrender of the person sought since 2015. The largest number of arrests in 2018 was in the UK (1,294). In the same year, the UK surrendered 873 individuals to other EU Member States (second only to Germany); the UK issued 176 EAWs (though the breakdown by category of offence indicates that the actual total is 276 EAWs); and 185 individuals were surrendered to the UK.
UK participation in the EAW
8.5In December 2014, the then UK Government decided to opt out of all EU police and criminal justice measures because of a concern that the EU’s Court of Justice (CJEU) would be given full jurisdiction to interpret these measures, with unpredictable consequences for the UK. It considered nonetheless that there were sufficiently compelling reasons to rejoin (with immediate effect) 35 of these measures, including the EAW and the Schengen Information System (“SIS II”), a centralised EU database used to circulate “real time” alerts on individuals subject to an EAW.82 According to the Government’s Impact Assessment, participation in the EAW and SIS II were expected to “bring significant justice benefits for UK victims of crime by removing bars to extradition and thus increasing the UK’s ability to extradite individuals back to the UK to face justice”.83
8.6Although the UK left the EU on 31 January 2020, the EAW will continue to apply until the end of the year under the transition provisions of the EU/UK Withdrawal Agreement.84 As envisaged in the Agreement, Germany, Austria and Slovenia have given notice that they may refuse to surrender their own nationals to the UK during the transition period “for reasons related to fundamental principles of national law”.85 The EU and the UK both want to continue cooperation on surrender/extradition after transition. The Political Declaration agreed in October 2019 calls for:
…. effective arrangements based on streamlined procedures and time limits enabling the United Kingdom and Member States to surrender suspected and convicted persons efficiently and expeditiously, with the possibilities to waive the requirement of double criminality, and to determine the applicability of these arrangements to own nationals and for political offences.
8.7The EU’s draft legal text (published in March 2020) proposes a mechanism for surrender/extradition based largely on the EAW, but with the inclusion of a “political offence” exception and a nationality exception, more extensive rights for individuals arrested under a warrant, and greater flexibility in the application of time limits for individuals who do not consent to their surrender.86 The UK’s draft working text for an agreement on law enforcement and judicial cooperation in criminal matters (published in May 2020) also includes provisions on extradition which are similar in many respects to the EU’s.87 The UK text, however, includes proportionality and trial readiness as possible grounds for refusing to execute a warrant. Where there is a bar on the surrender of a country’s own nationals, it requires the country concerned to consider instituting proceedings in its own courts and to ensure that appropriate measures are in place to assist any non-resident victims and witnesses.
8.8More substantial differences are evident in the approach taken by the EU and the UK to the protection of fundamental rights and to the role of the Court of Justice. The EU’s draft legal text stipulates that all criminal justice and law enforcement cooperation is conditional on the UK’s continued adherence to the European Convention on Human Rights (ECHR) and on the ECHR being given continued effect in the UK’s domestic law. The EU also gives the CJEU the final word in resolving any dispute concerning the interpretation or application of a provision of EU law or a concept of EU law referred to or contained in any agreement with the UK.88 By contrast, the draft UK text foresees no role for the CJEU and omits any reference to the ECHR or to its significance in underpinning cooperation in this area, but makes clear that a judicial authority would not be able to execute a warrant which it considered would (according to its own national law) “be contrary to the fundamental rights of the person concerned”.89
The Government’s position
8.9In his Explanatory Memorandum of 20 July 2020, the Minister for Security (Rt Hon. James Brokenshire MP) confirms that the EAW will remain operational in the UK until the end of the transition period and is implemented in the UK through Part 1 of the Extradition Act 2003. The EU/UK Withdrawal Agreement also includes provisions to ensure that EAW procedures can continue to their conclusion if the subject of an EAW has been arrested before the end of the transition period, even if they extend beyond 31 December 2020.
8.10The Minister notes that the European Commission documents do not propose any changes to the EAW but make clear the Commission’s intention to continue monitoring Member States’ compliance with the EAW (including relevant CJEU case law) and to “take measures where appropriate”. He considers that “there are no recommendations within either report which concern the UK” and that there are no legal, policy or financial implications for the UK, but adds:
Under the Withdrawal Agreement, the UK and the EU have agreed to establish arrangements based on streamlined procedures and time limits to enable the UK and the EU to continue to surrender suspected and convicted persons efficiently and expeditiously.
Action
8.11Ask the Minister to provide further information on UK implementation of the EAW and the prospects for agreeing new extradition/surrender arrangements with the EU, as well as potential obstacles.
Letter to the Minister for Security (Rt Hon. James Brokenshire MP), Home Office
Thank you for your Explanatory Memorandum on these documents which concern the implementation and use of the European Arrest Warrant (“EAW”) in the UK.
You indicate that there are no legal, policy or financial implications for the UK. We note, however, that the Commission report on Member States’ implementation of the Framework Decision establishing the European Arrest Warrant raises two concerns which may be relevant to any future extradition arrangements between the EU and the UK. First it says that the requirement for an EAW to be “trial ready” deviates from the Framework Decision, modifying the obligation to execute an EAW unless one of the stated grounds for non-execution applies. Second, the Commission report makes clear that the grounds for non-execution of an EAW are exhaustively listed in the Framework Decision itself. It highlights the “proportionality principle” as one of the additional grounds for non-execution provided for in the domestic laws of some Member States which are not compliant with the Framework Decision. Both of these grounds for non-execution of an EAW are enshrined in the Extradition Act 200390 and are also included in the UK’s draft working text for an agreement on law enforcement and judicial cooperation in criminal matters.91 They do not form part of the EU’s draft legal text, nor are similar provisions contained in the surrender agreement between the EU and Iceland and Norway.
The EU and UK positions appear difficult to reconcile. We ask you to clarify:
- your reasons for considering that a “trial readiness” test and a proportionality test are consistent with the EAW Framework Decision;
- the importance you attach to maintaining the same tests in any future arrangements on surrender/extradition agreed with the EU; and
- the progress being made on this aspect of the future relationship negotiations with the EU.
The Impact Assessment which the then Government published in July 2014 to inform its decision to rejoin the EAW concluded that participation in the Schengen Information System (SIS II) would “maximise the UK’s ability to identify and arrest people who pose a threat to public safety and security and make sure that they are brought to justice”.92 The European Commission considers that there are legal as well as political constraints which preclude the UK from participating in SIS II after transition. Should this view prevail in the future relationship negotiations (locking the UK out of SIS II), would it affect your assessment of the benefits of agreeing new extradition/surrender arrangements with the EU or the compromises the Government might be willing to make?
The surrender agreement between the EU and Iceland and Norway is the only precedent for a third country agreement offering terms similar to those provided under the EAW Framework Decision. The agreement requires the parties to set up a mechanism for sharing relevant case law of the CJEU and domestic courts in Iceland and Norway, including case law relating to similar surrender instruments (such as the EAW), with a view to ensuring “as uniform an application and interpretation as possible” of the agreement. Would such a mechanism address the Government’s concern that the CJEU should not have any jurisdiction in the UK after transition?93
Finally, you state:
Under the Withdrawal Agreement, the UK and the EU have agreed to establish arrangements based on streamlined procedures and time limits to enable the UK and the EU to continue to surrender suspected and convicted persons efficiently and expeditiously.
In fact, the agreement you refer to reflects a common aspiration set out in the Political Declaration agreed by the EU and the UK in October 2019, not a legally binding commitment to establish such arrangements.94 As indicated above, we would welcome regular updates on the progress made in securing new arrangements on surrender/extradition as negotiations enter their crucial final stages.
79 (a) Report from the European Commission to the European Parliament and Council on the implementation of Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member states; Council number 9339/20, COM(20) 270; Legal base —; Home Office; Devolved Administrations consulted; ESC number 41379.
(b) Commission Staff Working Document: Replies to questionnaire on quantitative information on the practical operation of the European Arrest Warrant—Year 2018; Council number 9341/20, SWD(20) 127; Legal base —; Home Office; Devolved Administrations consulted; ESC number 41383.
80 See the examples cited in Command Paper 8897, published in July 2014, containing an Impact Assessment on the 35 EU police and criminal justice measures the UK proposed to rejoin following its “block opt-out” in December 2014.
81 See 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 and the Notice of entry into force.
82 Referred to as “Article 26 alerts”: see Regulation (EU) 2018/1862 of 28 November 2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters, amending and repealing Council Decision 2007/533/JHA, and repealing Regulation (EC) No 1986/2006 of the European Parliament and of the Council and Commission Decision 2010/261/EU.
83 See p.69 of Command Paper 8897, July 2014.
84 See Article 127 of the EU/UK Withdrawal Agreement.
85 See Article 185 of the EU/UK Withdrawal Agreement and the Declaration by the European Union, OJ L29/188, 31 January 2020.
86 See Part Three, Chapter Seven of the draft legal text.
87 See Part Four of the draft text.
88 See Part Three of the draft EU text, Article LAW.OTHER.44 on suspension and disapplication and Part Five, Article INST.16 on disputes raising questions of Union law.
89 See Article SURR 4 of the UK’s draft text setting out the grounds for mandatory non-execution of the arrest warrant.
90 Sections 11 and 12A of the 2003 Act provide that the absence of a prosecution decision is one of the grounds for refusing to execute an EAW. Sections 2(7A) and 21A of the Act require a judge to consider whether extradition based on an EAW would be “disproportionate”, taking into account the seriousness of the conduct alleged to constitute the extradition offence; the likely penalty that would be imposed if the requested person was found guilty of the extradition offence; and the possibility of the relevant foreign authorities taking measures that would be less coercive than extradition.
91 See Articles SURR 7 and 8 in Part 4 of the draft text.
92 See p.72 of Command Paper 8897.
93 See p.3 of Command Paper 211, published in February 2020, on The Future Relationship with the EU: The UK’s Approach to Negotiations.
94 See para 87 of the Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom, agreed by the EU and the UK in October 2019.
Published: 9 September 2020