Cross-border co-operation on policing, security and criminal justice after Brexit Contents

3Extradition

35.Following the UK’s vote to leave the EU in June 2016, law enforcement agencies on both sides of the border highlighted the importance of maintaining a functional extradition system after Brexit.78 Effective extradition processes between the UK and Ireland are key to preventing criminals from exploiting the border to evade prosecution.

36.Co-operation on the extradition of persons between the UK and Ireland previously took place under the European Arrest Warrant (EAW). When the transition period ended, the UK lost its access to the EAW. As part of the Trade and Co-operation Agreement (TCA), the UK and EU agreed replacement surrender arrangements. The new suspect surrender arrangements agreed between the UK and EU are similar to the EU’s Surrender Agreement with Norway and Iceland.

European Arrest Warrant

37.The EAW is a fast-track extradition process between EU Member States which came into force in 2004.79 The EAW allows an EU Member State to request an arrest in another EU Member State when seeking to prosecute or imprison a person.80 The principle of ‘mutual recognition’ of judgments means that judicial authorities in an EU Member State can facilitate the arrest and surrender of a suspect or criminal to another Member State.81 The EAW provides for expedited extradition processes by imposing strict time limits on the surrender of individuals.82 Colin Murray and Dr Clare Rice noted that the EAW provides for a more efficient extradition process than past extradition arrangements, because it “operates on a presumption that EU Member States maintain equivalent protections for defendants in their criminal justice systems”.83 They argued that that presumption removes “a number of practical, as well as political, obstacles to the effective extradition of criminals and suspects”.84

38.The introduction of the EAW addressed historical political tension between the UK and Ireland caused by extradition.85 Before the introduction of the EAW, extradition between the two countries had been “notoriously difficult”.86 Colin Murray and Dr Clare Rice stated that throughout the Troubles “extradition processes were laborious and frequently subject to legal objections”.87 We heard how political tensions on extradition between the two countries had largely ceased, in part due to the use of the EAW. The shift from extradition through diplomatic channels to arrangements based on mutual recognition of judicial processes was cited as a major reason for the strengthening of trust on extradition between the UK and Ireland.88 The Government’s Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, concluded that the EAW had taken “the political dimension out of extradition”.89

39.Effective co-operation on extradition between judicial authorities in the UK and Ireland allows Northern Ireland law enforcement agencies to tackle cross-border criminality. We heard that over two-thirds of EAWs sought by the PSNI between 2007 and 2017 related to Ireland.90 From September 2018 to August 2019, the PSNI issued 38 EAWs, 26 of which related to Ireland.91 In 2018, then PSNI Chief Constable, Sir George Hamilton stated that the EAW underpinned the PSNI’s ongoing collaboration with the Gardaí in “ensuring that the border cannot be used by criminals to evade prosecution”.92 Robin Walker MP, Minister of State, Northern Ireland Office told us in November 2020 that the Government was seeking in the future relationship negotiations to “replicate the capability that is currently available in extradition co-operation between the UK and Ireland”.93

The 1957 European Convention on Extradition

40.If the UK and EU had not been able to agree future extradition arrangements, co-operation between the UK and Ireland would have reverted to the terms of the 1957 Council of Europe Convention on Extradition.94 Under the 1957 Convention, requests for the extradition of persons are made through diplomatic rather than judicial channels. Unlike the EAW, no time limits are put on the surrender of wanted persons.95 An Institute for Government report found that the time taken to process an extradition request could have increased from an average of 48 days under the EAW to a year under the Convention.96

41.Before the announcement of the TCA, Naomi Long MLA, Minister for Justice, Northern Ireland Executive argued that extradition would take longer if the Convention had had to be used:

One of the biggest challenges about extradition is simply the length of time it would take under those older arrangements in comparison to the speed with which we can operate at the moment under the European arrest warrant.97

She argued that extended timescales for extradition would have provided criminals and suspects with opportunities to evade justice.98 The PSNI concurred that the use of the 1957 European Convention on Extradition would delay extradition.99

42.Before the agreement of replacement extradition arrangements, we heard that the Convention could have created political tension between the UK and Irish Governments. Jonathan Hall QC told us “however unlikely it may now seem, those relations may be put under pressure”.100 Dr Kramer agreed that the Convention “brings in the possibility that decisions can become more political, whereas before it was judges making decisions based on the rules”.101 Naomi Long told us that while the political sensitivities of extradition “are nothing like they were in the 1970s and 1980s”, they “remain issues that could be exploited”.102

43.Owing to the inefficiencies and difficulties associated with use of the 1957 European Convention on Extradition, before the agreement of new extradition arrangements in the TCA, Colin Murray and Dr Clare Rice concluded that “it is imperative for cross-border co-operation on the island of Ireland that an arrangement is reached in relation to suspect surrender” that does not rely on the Convention.103 Naomi Long told us that the Northern Ireland Department for Justice did not want co-operation with its Irish counterparts to rely on Council of Europe Conventions.104

44.We welcome the Surrender agreement agreed as part of the Trade and Co-operation Agreement. Its introduction will avoid the significant delays that might have occurred if the UK and Ireland had been forced to rely on the cumbersome 1957 European Convention on Extradition.

New Suspect Surrender Arrangements

45.Part Three of the TCA includes the provision of new surrender arrangements between the UK and EU to replace use of the EAW.105 Witnesses told us that the arrangements are very similar to the EU’s Surrender Agreement with Norway and Iceland, and replicate the provisions of the EAW as closely as possible in line with third country precedents.106

46.Professor Valsamis Mitsilegas said the arrangements demonstrate a high level of ambition between the UK and EU to continue to co-operate closely on extradition, following the UK’s exit from the EU.107 Gemma Davies agreed and commented that “much of the new arrangements are very similar to arrangements under the EAW”.108 She pointed out that “Norway and Iceland are full members of Schengen, so this is an unprecedented agreement for a non-EU, non-Schengen country”.109

47.Under the TCA, suspect surrender continues to take place through judicial channels rather than political ones.110 Contributors to our inquiry told us that this was important in allaying concerns that extradition processes between the UK and Ireland could become political again.111 The agreement also establishes time limits for the surrender of persons as part of the new UK/EU surrender arrangements.112 The time limits included are the same as those under the EAW.113 As well as helping to ensure efficient extradition processes between judicial authorities, Dr Dickson and Dr Kramer noted that these time limits “help to protect the due process rights of suspected and convicted persons as well as safeguarding those of victims and witnesses”.114

48.The new suspect surrender arrangements emphasise the principle of proportionality in extradition processes between the UK and EU. The TCA states:

Co-operation through the arrest warrant shall be necessary and proportionate, taking into account the rights of the requested person and the interests of the victims, and having regard to the seriousness of the act, the likely penalty that would be imposed and the possibility of a State taking measures less coercive than the surrender of the requested person particularly with a view to avoiding unnecessarily long periods of pre-trial detention.115

Professor Valsamis Mitsilegas commented that the new suspect surrender arrangements differ from the EAW in that proportionality features “much more strongly in the [Trade and Co-operation] agreement, as an element that underpins the very operation of extradition”.116 He added that the UK had “raised proportionality concerns during the operation of the European arrest warrant system, where proportionality was not a ground to refuse the execution of the warrant under EU law”.117

49.Gemma Davies noted that the concept of proportionality in the new suspect surrender arrangements “is similar to” the proportionality bar prescribed in UK law by section 21A of the Extradition Act 2003.118 Colin Murray argued that while the explicit inclusion of the principle of proportionality was welcome, its inclusion reflected developments in “the [European] Commission guidance on how the European arrest warrant operates” and therefore he did not think it would “necessarily make that much of a difference to how suspect surrender operates”.119 Dr Dickson and Dr Kramer concluded that the inclusion of the principle of proportionality “mitigates concerns over countries requesting persons for very minor offences”.120

50.The new suspect surrender arrangements agreed between the UK and EU are similar to the EU Surrender Agreement with Norway and Iceland and include many of the features of the European Arrest Warrant. Importantly for co-operation between the UK and Ireland, the new arrangements mean that extradition will continue to be subject to judicial control rather than operating through political channels. The emphasis on the principle of proportionality is welcome and represents an improvement on the European Arrest Warrant.

51.Despite the similarities between the new UK-EU suspect surrender arrangements and the EAW, there are some notable differences between the two agreements. These include:

52.Contributors to our inquiry agreed that the political offence exception clause included in the new suspect surrender arrangements was unlikely to create problems for extradition processes between the UK and Ireland. Gemma Davies told us that the allowance for states to refuse to execute a warrant for a political offence was “quite narrowly defined”.122 She also added that she would not expect Ireland to exercise the political offence exception.123 Colin Murray told us “that jurisprudence developed from the late 1980s onwards” in Ireland meant that “the ecosystem exists where that [the political offence exception] should not be a particular problem with the new suspect surrender arrangements” between the UK and Ireland.124 Dr Dickson and Dr Kramer noted that “the explicit exclusion of terrorism from the political offences exception mitigates concerns that this exception could be used to prevent the surrender of people involved in terrorist activities in Northern Ireland”.125

53.We also heard that the ability of states to exercise a nationality exemption and thereby prevent or limit the extradition of its own nationals was unlikely to create issues for extradition between the UK and Ireland. Colin Murray told us that “there is not a nationality bar on extradition within the Irish constitution”,126 while Gemma Davies commented that Ireland was not expected to invoke the nationality exemption.127 PSNI Assistant Chief Constable, Mark McEwan informed us that the PSNI did not believe the nationality exemption in the agreement would impact on UK-Irish relationships on extradition.128

54.The new suspect surrender arrangements contain the condition of double criminality for extradition processes between the UK and EU Member States. This means an offence that a warrant is based on must exist in both jurisdictions.129 However, the UK or an EU Member State can choose to notify the Specialised Committee on Law Enforcement and Judicial Co-operation that it will waive the condition of double criminality in regard to certain offences listed in the agreement.130

55.Contributors to our inquiry told us that the requirement to establish double criminality could slow extradition processes between the UK and Ireland down.131 In written evidence to the Committee, Gemma Davies commented that

The UK has chosen to require dual criminality in all cases at present. It is open to the UK to notify the Specialised Committee that it will apply the ‘list-system’ of offences which do not require dual criminality in the future. The UK and Ireland – both as common law countries probably have greater alignment in relation to criminal offences than the UK has with civil law countries. However, dual criminality is likely to result in legal challenge and could be a factor in slowing down cases. More research is needed on areas that are likely to be problematic for dual criminality.132

56.PSNI Assistant Chief Constable, Mark McEwan informed us that as the UK and Ireland are aligned “at such a serious level of criminality that we would be seeking to extradite somebody, we do not anticipate it having an impact in that way”.133 Mr Walker concurred that there were currently no instances the Government was “aware of where this would cause a problem between Ireland and the UK”, but added that the Government would monitor this closely.134 Minister Walker said that the principle of double criminality is “sufficiently important that it bears being established in every case in order to avoid individuals being extradited from the UK for things that are not offences under our laws” and that therefore the Government was not intending to seek a waiver.135

57.The new extradition arrangements agreed between the UK and EU include some important differences from the European Arrest Warrant. The Trade and Co-operation Agreement introduces a political offence exception and allows states to refuse to extradite their own nationals. There is a requirement to establish double criminality, which can be waived in defined circumstances, although the Government has no plans to do so. Those differences should not significantly affect extradition processes between the UK and Ireland. However, the speed of extradition between the UK and Ireland may be slowed in some cases, if there is a requirement to establish double criminality as part of the process of suspect surrender. The Government must commission a review of the effect of the new extradition arrangements after they have been in force for two years. Research on the effect of the need to establish double criminality on the speed of extradition processes between the UK and Ireland should form part of this review.

58.The TCA establishes methods of transmitting arrest warrants between the UK and EU Member States.136 Stefan Hyman & Jonathan Swain have noted that the preferred mechanism is the secure transfer of arrest warrants between judicial authorities.137 However, Dr Dickson and Dr Kramer argued that where the location of a suspect is not known “the procedure for transmitting warrants is less clear”.138 Previously, the UK would have been alerted to these types of arrest warrants through SIS II, but that is no longer possible as the UK has lost access to SIS II following the end of the transition period.139 Importantly, this loss of access has occurred just as Ireland begins to use the system: Dublin started to avail itself of SIS II on 15 March 2021.140 Dr Dickson and Dr Kramer noted that the new surrender arrangements set out three possibilities for transmitting arrest warrants where the location of a suspect is not known. These are:

Dr Dickson and Dr Kramer argued that “these options make it much more likely that a person whose location is unknown can evade detection for longer periods of time”.142 They raised additional concerns with regard to this for security in Northern Ireland due to the openness of the border on the island of Ireland.143

59.Steve Rodhouse, Director General of Operations, National Crime Agency told us that the Agency was clear that it would have preferred to maintain access to SIS II.144 The Government has sought to mitigate this issue by using the Interpol I-24/7 system. Mr Rodhouse told us that there was “a very similar degree of functionality” between the Interpol system and SIS II, and that “the data that the I-24/7 system carries, including alerts for wanted people, is very similar to the data on the Schengen Information System”.145 He added:

The caveat I have always put on this is that, going forward, we are reliant on EU member states making use of the I-24/7 system. To some extent, that relies on them doing additional work and potentially dual entering. If they have somebody who they feel is wanted in Europe, they would typically use the Schengen Information System to circulate them across Europe. Going forward, we are asking those EU member states to no doubt do that but, if they believe there is a possibility that person might be within the UK, they would also need to take out an Interpol red notice or diffusion, and circulate it via the I-24/7 system.146

60.Steve Rodhouse informed us that the NCA was confident that crime agencies in EU Member States understood the UK’s need for them to input warrant notices into Interpol as well as SIS II.147 He said that it was “early days” but there was no reason using the I-24/7 system “should be suboptimal, but we need to ensure that the system is well used.”148 PSNI Assistant Chief Constable, Mark McEwan also cautioned that it was premature to say definitively how the new system would work but said that the PSNI foresaw “it should work smoothly”.149 He added that although UK law enforcement and crime agencies were reliant on partner agencies in EU Member States to enter their data into both SIS II and Interpol, it was in their interests to do so.150

61.Professor Steve Peers told us that “it is well known that, reportedly, simply signing up to the Schengen Information System enables more effective transition of requests than any alternative measure”.151 He added that whether the transmission of arrest warrants through Interpol, where the suspect is not known, could fully replace using SIS II “remains to be seen”.152 Colin Murray, Reader in Public Law, Newcastle Law School agreed, stating that, with regard to the new processes, “the fly in the ointment” was how this would be picked up by partner law enforcement agencies in other countries”.153

62.In March 2021, Minister Walker informed us that the transition to co-operation with EU Member States via Interpol channels, in the absence of SIS II, was working well so far.154 The Minister argued that the UK’s engagement with EU countries prior to the end of the transition period had smoothed this transition:

Before the end of the transition period, when we did not know what arrangements would be in place in this regard, we had extensive engagement with member states, which generally expressed their willingness to continue to share critical law enforcement data with the UK using Interpol channels. We have made sure that UK information previously shared via SIS II has been circulated via Interpol, where appropriate, and that includes sharing information on wanted persons.155

63.The UK’s loss of access to SIS II has the potential to create delays in UK law enforcement agencies receiving arrest warrant notices when the location of the suspect is not known, if partner agencies in EU Member States do not routinely enter arrest warrant notices into the Interpol I-24/7 database. We would hope that, given the UK’s historical role in Interpol and the demonstrable benefits for pan-European safety and security, this would be something that EU Member States would support and encourage. The Government must set out how it plans to mitigate, limit or eliminate delays in receiving arrest warrants and operational information from EU partners following the loss of access to SIS II. The Government and relevant UK law enforcement agencies must also set out how it plans to encourage partner agencies in EU Member States to enter arrest warrants into the Interpol I-24/7 database to mitigate the operational loss of SIS II.

78 For example, see: Irish Department of Justice and Equality, 2017 Annual Report on the operation of the European Arrest Warrant, 10 December 2018; Brexit: Northern Ireland security at risk if UK kicked out of EU extradition system, warns police chief, The Belfast Telegraph, 20 June 2018

79 House of Commons Library, Brexit next steps: The European Arrest Warrant, 20 February 2020

80 House of Commons Library, Brexit next steps: The European Arrest Warrant, 20 February 2020

81 House of Commons Library, Brexit next steps: The European Arrest Warrant, 20 February 2020

82 House of Commons Library, Brexit next steps: The European Arrest Warrant, 20 February 2020

83 Colin Murray & Dr Clare Rice (CBC0010)

84 Colin Murray & Dr Clare Rice (CBC0010)

85 For example, see: Northern Ireland Human Rights Commission (CBC0002); UK-Irish Criminal Justice Co-operation Network (CBC0005); Colin Murray & Dr Clare Rice (CBC0010).

86 Dr Amanda Kramer and Dr Rachael Dickson (CBC0009)

87 Colin Murray & Dr Clare Rice (CBC0010)

88 For example, see: Dr Amanda Kramer and Dr Rachael Dickson (CBC0009); Colin Murray & Dr Clare Rice (CBC0010).

89 Jonathan Hall QC, Independent Reviewer of Terrorism Legislation (CBC0001)

90 Colin Murray & Dr Clare Rice (CBC0010)

91 UK-Irish Criminal Justice Co-operation Network (CBC0005)

93 Q175 (Robin Walker MP, Minister of State, Northern Ireland Office)

94 House of Commons Library, Brexit next steps: The European Arrest Warrant, 20 February 2020

95 House of Commons Library, Brexit next steps: The European Arrest Warrant, 20 February 2020

96 Institute for Government, Negotiating Brexit: policing and criminal justice, September 2018, p. 10

97 Q125 (Naomi Long MLA, Minister of Justice, Northern Ireland Executive)

98 Q126 (Naomi Long MLA, Minister of Justice, Northern Ireland Executive)

99 Police Service of Northern Ireland (CBC0004)

100 Jonathan Hall QC, Independent Reviewer of Terrorism Legislation (CBC0001)

101 Q43 (Dr Amanda Kramer, School of Law, The Queen’s University of Belfast)

102 Q155 (Naomi Long MLA, Minister of Justice, Northern Ireland Executive)

103 Colin Murray & Dr Clare Rice (CBC0010)

104 Q128 (Naomi Long MLA, Minister of Justice, Northern Ireland Executive)

106 See: Q215; Dr Rachael Dickson and Dr Amanda Kramer (CBC0014); Gemma Davies (CBC0015).

107 Q215 (Professor Valsamis Mitsilegas, School of Law, Queen Mary University of London)

108 Gemma Davies (CBC0015)

109 Gemma Davies (CBC0015)

110 Dr Rachael Dickson and Dr Amanda Kramer (CBC0014); Gemma Davies (CBC0015)

111 Dr Rachael Dickson and Dr Amanda Kramer (CBC0014); Gemma Davies (CBC0015)

112 See: Article LAW.SURR.95: Time limits and procedures for the decision to execute the arrest warrant and Article LAW.SURR.101: Time limits for surrender of the person, HM Government, 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, 24 December 2020

113 Q224 (Professor Valsamis Mitsilegas, School of Law, Queen Mary University of London); Gemma Davies (CBC0015)

114 Dr Rachael Dickson and Dr Amanda Kramer (CBC0014)

116 Q226 (Professor Valsamis Mitsilegas, School of Law, Queen Mary University of London)

117 Q226 (Professor Valsamis Mitsilegas, School of Law, Queen Mary University of London)

118 Gemma Davies (CBC0015)

119 Q226 (Colin Murray, Reader in Public Law, Newcastle Law School, Newcastle University)

120 Dr Rachael Dickson and Dr Amanda Kramer (CBC0014)

121 Gemma Davies (CBC0015)

122 Q227 (Gemma Davies, Associate Professor, Northumbria Law School, Northumbria University)

123 Q227 (Gemma Davies, Associate Professor, Northumbria Law School, Northumbria University)

124 Q224 (Colin Murray, Reader in Public Law, Newcastle Law School, Newcastle University)

125 Dr Rachael Dickson and Dr Amanda Kramer (CBC0014)

126 Q231 (Colin Murray, Reader in Public Law, Newcastle Law School, Newcastle University)

127 Gemma Davies (CBC0015)

128 Q296 (Mark McEwan, Assistant Chief Constable, Police Service of Northern Ireland)

129 Gemma Davies (CBC0015)

131 See: Q224 (Gemma Davies, Associate Professor, Northumbria Law School, Northumbria University); Q223 (Professor Steve Peers, School of Law, University of Essex)

132 Gemma Davies (CBC0015)

133 Q296 (Mark McEwan, Assistant Chief Constable, Police Service of Northern Ireland)

134 Q352 (Robin Walker MP, Minister of State, Northern Ireland Office)

135 Q352 (Robin Walker MP, Minister of State, Northern Ireland Office)

136 See Article LAW.SURR.87: Transmission of an arrest warrant and Article LAW.SURR.88: Detailed procedures for transmitting an arrest warrant, HM Government, 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, 24 December 2020

138 Dr Rachael Dickson and Dr Amanda Kramer (CBC0014)

139 Dr Rachael Dickson and Dr Amanda Kramer (CBC0014)

140 European Commission, Press Corner, Daily News, 15 March 2021

141 Dr Rachael Dickson and Dr Amanda Kramer (CBC0014)

142 Dr Rachael Dickson and Dr Amanda Kramer (CBC0014)

143 Dr Rachael Dickson and Dr Amanda Kramer (CBC0014)

144 Q333 (Steve Rodhouse, Director General of Operations, National Crime Agency)

145 Q333 (Steve Rodhouse, Director General of Operations, National Crime Agency)

146 Q333 (Steve Rodhouse, Director General of Operations, National Crime Agency)

147 Q333 (Steve Rodhouse, Director General of Operations, National Crime Agency)

148 Q333 (Steve Rodhouse, Director General of Operations, National Crime Agency)

149 Q254 (Mark McEwan, Assistant Chief Constable, Police Service of Northern Ireland)

150 Q254 (Mark McEwan, Assistant Chief Constable, Police Service of Northern Ireland)

151 Q225 (Professor Steve Peers, School of Law, University of Essex)

152 Q225 (Professor Steve Peers, School of Law, University of Essex)

153 Q225 (Colin Murray, Reader in Public Law, Newcastle Law School, Newcastle University)

154 Q354 (Robin Walker MP, Minister of State, Northern Ireland Office)

155 Q354 (Robin Walker MP, Minister of State, Northern Ireland Office)




Published: 28 April 2021 Site information    Accessibility statement