Brexit: future UK–EU security and police cooperation Contents

Chapter 4: Criminal justice tools

European Arrest Warrant

124.The European Arrest Warrant (EAW) facilitates the extradition of individuals between EU Member States to face prosecution for a crime of which they are accused, or to serve a prison sentence for an existing conviction.153 Like a number of other EU criminal justice tools, it is based on the principle of ‘mutual recognition’ of judicial decisions between Member States, meaning that the receiving Member State recognises the decision of the authorities in the issuing Member State, avoiding the need to litigate through the domestic court system of the receiving Member State. The EAW was one of the 35 police and criminal justice measures that the UK re-joined in December 2014, following the exercise of the Protocol 36 block opt-out.

125.The arguments for and against the UK retaining the European Arrest Warrant were rehearsed in detail at the time of the 2014 decision, including in reports from this Committee and in the Impact Assessments published in the Government’s July 2013 and July 2014 Command Papers.154 They were also addressed in the 2015 report of the ad hoc Extradition Law Committee.155 This included consideration of the alternatives to the European Arrest Warrant, notably the prospect of reverting to the 1957 Council of Europe Convention on Extradition, which had been relied upon before the EAW came into existence. The then Home Secretary, Rt Hon Theresa May MP, argued in November 2014 that the Convention had “one crucial aspect that would cause us problems”, namely the length of time that extradition procedures would take, which “could undermine public safety”.156 She also told the House of Commons that without the EAW, 22 Member States of the EU, including France, Germany and Spain, could refuse to extradite their own nationals to the UK, another “problematic” aspect of opting to revert to the Convention.157

126.The Crown Prosecution Service still regarded the EAW as “absolutely vital”.158 The National Crime Agency also listed the EAW among their top three priorities for the forthcoming negotiations on UK withdrawal from the EU.159 Helen Ball, the Metropolitan Police Service’s Senior National Coordinator for Counter-Terrorism Policing, told us that on a scale of 1 to 10, she would currently rate the EAW “about an 8” in terms of its importance to CT policing: “it is an extremely valuable power to have”.160

127.Ms Ball also said that, looking to the future, she “would take it to 10”.161 The reason the EAW might increase in importance “relates to the way people might have left our local communities and travelled, and might return or go back to a European country. We would want to bring them to justice in the UK using our extraterritorial powers”. More generally, she emphasised that the UK “must not be in a position where a terrorist can think, ‘Okay, there is a safe haven where it is going to take a very long time for me to be extradited and come to justice’”. If the European Arrest Warrant were no longer available, “we would want something that meant that we could bring people to justice swiftly”.162

128.The Crown Office and Procurator Fiscal Service told us there was “clear evidence that EAWs allow suspects to be surrendered far more speedily than traditional extradition processes”, and emphasised that this “benefits the public purse but more importantly is an important element in delivering justice and upholding the rights of both victims of crime and accused persons”. They warned that leaving the EAW and falling back on pre-existing arrangements “would be both retrograde and uncertain”.163 The Law Society of Scotland suggested that the original reasons for opting into the EAW were “still sound”, and the UK Government should therefore “give careful consideration to an approach which avoids disengagement from the European Arrest Warrant process”.164

Alternatives to the European Arrest Warrant: Norway and Iceland

129.Norway and Iceland, neither of whom is a member of the European Union, began negotiating an extradition agreement with the EU in 2001. The agreement was concluded in 2014, but has yet to enter into force.165 The terms of that agreement are similar to the EAW, but it includes the option for Norway and Iceland on the one hand, and the EU on the other, to refuse to extradite their own nationals.166 Helen Malcolm QC, of the Bar Council, noted that the EU’s agreement with Norway and Iceland contained a further discretionary reason for non-return, namely a political offence exception in addition to the discretion not to surrender own nationals, but that “other than that, word for word, it is the same as the EAW and the form at the end of it is worded identically to the EAW form”.167

130.In May 2016 the Government suggested that “Norway and Iceland’s Schengen membership was key to securing even this level of agreement”, and that “there is no guarantee that the UK could secure a similar agreement outside the EU given that we are not a member of the Schengen border-free area”.168

131.A number of our witnesses stressed the benefit of signing a single extradition treaty with the EU, as Norway and Iceland have done, were the UK to replace the EAW. The National Crime Agency told us that “it would seem to be optimal—second-order optimal—to have a treaty with the EU as opposed to going around and negotiating with 27 Member States”.169 Helen Malcolm took the same view, for reasons of speed and simplicity.170

132.Both Helen Malcolm and Professor Peers warned, however, that any negotiation process could be protracted.171 Professor Peers suggested that if the UK were “simply going to copy things”, negotiations could be relatively straightforward, but if it were to seek some exceptions from EU laws, “which Norway and Iceland did with extradition and the European Arrest Warrant and which we might want to do as well, it adds to the negotiation”.172

133.The Crown Office and Procurator Fiscal Service also noted that while non-EU states had negotiated arrangements very similar to the EAW with the EU, “we see formidable obstacles to a similar arrangement being in place for the UK by 2019/20”. They also warned that on their understanding, “a necessary condition of these arrangements is that the non-EU states submit to the jurisdiction of the CJEU to adjudicate upon their operation”.173

Alternatives to the European Arrest Warrant: the 1957 Council of Europe Convention

134.The Law Society of Scotland drew our attention to three main differences between the European Arrest Warrant and the 1957 Council of Europe Convention on Extradition (the 1957 Convention), which predates the EAW and which the UK could potentially fall back on:

135.The Law Society of Scotland argued that reverting to the 1957 Convention would be likely to result in an increased burden for all agencies of the criminal justice system, who would have to “operate on a more cumbersome extradition process resulting in a high probability of delay and the possibility of less [sic] applications being made and processed”.175 Professor Peers concurred: “It will mean not only transitional challenges, which we are getting already, but significantly fewer people extradited, taking significantly longer and quite possibly more expensive in each case.”176

136.Alison Saunders, the Director of Public Prosecutions (DPP), described the EAW as “three times faster and four times less expensive” than the alternatives, and drew our attention to four main problems with operating under the 1957 Convention rather than the EAW: first, that a number of EU Member States had rescinded the domestic legislation underpinning the Convention when they adopted the EAW; second, the own nationals exemption; third, the increased cost; and fourth, the potential for delays.

137.On the first point, the National Crime Agency and Helen Malcolm QC pointed out that many countries that were part of the EAW had repealed legislation that allowed them to have an extradition arrangement with another Member State.177 The Law Society of Scotland highlighted the Republic of Ireland, which had “repealed all pre-existing extradition arrangements with the UK prior to the adoption of the European Arrest Warrant”, and as a result would have to amend its domestic law to give effect to any new arrangement.178

138.On the issue of own nationals, the DPP explained that the UK extradited around 1,000 people per year from the UK, fewer than 5 per cent of whom were UK nationals. It also sought the extradition of other EU Member States’ own nationals—the DPP cited around 150 cases where the EAW allowed EU citizens to be extradited to the UK from their home countries.179 In November 2014 the then Home Secretary illustrated the significance of the own nationals exemption in the 1957 Convention by citing the case of a sexual assault on a 16-year-old girl in Hampshire in 2007, by a Greek national who then fled to Greece. A European Arrest Warrant was used to return him to the UK, and she told the House of Commons that “Without the arrest warrant, the individual who committed that crime would still be in Greece today.” She also noted that before the EAW came into force, Greece did not surrender its own nationals, having entered a reservation to that effect to the 1957 Convention.180

139.As for delays, the DPP expressed concern that extraditions that currently take “days” under the EAW could take “months or years” under alternative arrangements.181 In May 2016, the Government pointed out that prior to 2004, fewer than 60 individuals a year were extradited from the UK,182 whereas since 2004 the EAW had enabled the UK to extradite over 7,000 individuals accused or convicted of a criminal offence to other EU Member States. Over 95% of these were extraditions of foreign nationals. Over the same period, the EAW had been used to extradite over 1,000 individuals to the UK.183

140.The Law Society of Scotland pointed out that more prolonged extradition proceedings also incurred higher costs, especially in custody cases—costs that would fall on other EU Member States as well as the UK.184

Conclusions and Recommendations

141.The European Arrest Warrant is a critical component of the UK’s law enforcement capabilities. We see no reason to revise our assessment—and that of the Government in 2014—that the 1957 Council of Europe Convention on Extradition cannot adequately substitute for the European Arrest Warrant. Accordingly, the most promising avenue for the Government to pursue may be to follow the precedent set by Norway and Iceland and seek a bilateral extradition agreement with the EU that mirrors the EAW’s provisions as far as possible. The length of time it has taken to implement that agreement—which was signed a decade ago but is still not in force—is, however, a cause for concern. An operational gap between the EAW ceasing to apply and a suitable replacement coming into force would pose an unacceptable risk.

142.Although the EU’s agreement with Norway and Iceland contains the option of applying the nationality exception in Article 7, it is not self-evident that the UK should seek to negotiate an equivalent provision in any future extradition agreement with the EU, bearing in mind the loophole that such an exemption can create. At the same time, it is conceivable that the EU-27 may not be willing to waive the right to refuse to extradite their own nationals outside the framework of the EAW and without the concept of EU citizenship that underpins it.

Other criminal justice tools

143.In view of the accelerated timetable for producing our report, the scope of our inquiry has been limited to flagship measures facilitating police and security cooperation. There are nonetheless a small number of other, less well-known measures that our witnesses highlighted as worthy of inclusion among the UK’s priorities in any forthcoming negotiation. We list them below.

144.An overarching point made to us was that the 2014 process demonstrated that the 35 police and criminal justice measures the UK re-joined “could not be compartmentalised”, and were instead “part of a very complex network of arrangements, agreements, understandings and controls”. Lord Kirkhope described it as a “spider’s web”, and warned that “if you start to dismantle even some of the more minor things, you run the risk of affecting others which are actually more important”.185 We agree, and note this is consistent with the nature of the measures we list below, which could be considered complementary to some of the higher-profile EU tools.

145.Professor Peers made a related point, arguing that in any future relationship with the EU, the UK should look to “strike a balance between effective investigations and prosecutions, which the EU instruments obviously point us towards, and sometimes facilitate, and human rights and civil liberties protection, which is built into some of them but could be stronger in others”.186

146.On a similar note, the Law Society of Scotland drew our attention to the “roadmap” on procedural rights of suspects and accused persons adopted by the Council of Ministers in 2009, which sets out a legislative timetable for the adoption of measures to safeguard the right to a fair trial across the European Union.187 They pointed out that the UK had made “positive decisions” to opt into two of the five legislative measures proposed in that roadmap—the Directive on the Right to Interpretation and Translation in Criminal Proceedings and the Directive on Right to Information in Criminal Proceedings.188 They therefore argued that the Government should avoid any “reversal or erosion” of those opt-in decisions, which could diminish the rights of the individual.189

Mutual recognition of asset freezing and confiscation orders

147.The Framework Decision providing for mutual recognition of confiscation orders is one of the 35 pre-Lisbon police and criminal justice measures that the UK re-joined in December 2014.190 The DPP, Alison Saunders, listed mutual recognition for proceeds of crime among the Crown Prosecution Service’s top four priorities in any forthcoming negotiation on a UK exit from the EU.191

148.She explained that although it was a fairly new measure, the CPS saw it as a “very important package” that allowed them to ask other EU member states to recognise UK orders and enforce them abroad, and vice versa. For example:

“If we have a confiscation order here and we know that the assets are in Spain, and our courts say that you can confiscate those assets and enforce it by forcing the sale of the property, it means that Spain will do that. Spain does not question our order.”192

149.The CPS had already seen an increased number of requests from European countries asking them to freeze assets here, including from countries that had never made requests before, which Ms Saunders suggested might be linked to the process being “much simpler, much easier, and much quicker”.193 She also highlighted that in cases where more than £10,000 was being recovered, the proceeds that were recovered were split 50/50, so that there was a slight financial incentive to co-operation.194

150.Helen Ball, the Metropolitan Police Service’s Senior National Coordinator for Counter-Terrorism Policing, also told us she would prioritise “the ability to work together to freeze and seize people’s financial assets”. Helen Malcolm also identified this as a priority.195

European Investigation Order

151.The National Crime Agency listed the European Investigation Order (EIO)—due to come into effect in May 2017—among its priorities.196 The EIO is designed to replace a series of existing measures—including the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters and the 2000 EU Convention on Mutual Assistance in Criminal Matters—with a single instrument intended to make cross-border investigations faster and more efficient.

152.Mutual Legal Assistance (MLA) is used to seek and provide assistance in gathering evidence for use in criminal cases. It is generally used to obtain material that cannot be obtained on a police cooperation basis, for example where a judicial order or other compulsory measure must be used to source the desired information or evidence. The EIO will enable the judicial authorities of one Member State to request that evidence be obtained in another Member State (the issuing Member State) for the purposes of a criminal investigation. In keeping with the principle of mutual recognition, a request under the EIO must in principle be accepted and acted upon by the receiving Member State without further formality, subject to a limited number of exceptions. The UK has opted into the EIO, which was adopted after the entry into force of the Lisbon Treaty.

153.David Armond, Deputy Director-General of the NCA, told us that the EIO would “make it much easier for our country to work with European neighbours on live investigations and on developing cross-jurisdictional prosecutions”.197 Professor Peers also highlighted it as one of several post-Lisbon measures that the UK “might want to consider staying part of, perhaps in some amended form”. He suggested that the UK had opted into the measure because it would become the main means of transferring evidence between Member States, so if the UK were not party to it, “there was a risk that we would be at the back of the queue because it has deadlines in it to transfer evidence”. He added that the then Home Secretary may have been “thinking of the French or the Germans, or whoever, who would always answer each other’s requests and leave ours sitting in the back of the drawer somewhere”. Professor Peers took the view that this would “still be a risk”, and concluded that it would “still be useful to participate in that in some form”.198

European Supervision Order

154.The European Supervision Order (ESO) is one of the pre-Lisbon police and criminal justice measures that the UK re-joined in December 2014.199 In certain circumstances, the ESO allows a person accused of a crime in another EU Member State to return to their home Member State and be supervised there until their trial takes place in the Member State where the offence took place. It is designed to increase the likelihood that non-residents who are prosecuted in a different EU Member State will be granted bail rather than remanded in custody, both to avoid the prosecuting Member State bearing the financial cost of the detention, but also to avoid other adverse impacts of pre-trial detention on individuals with no ties to the Member State in which they are to be tried.

155.The ESO may therefore be seen as complementary to the European Arrest Warrant, a point made by Helen Malcolm QC, who emphasised her wish to see the ESO (also known as Eurobail) maintained. She noted that “it mitigates some of the problems with the European Arrest Warrant”.200 Professor Peers also highlighted the ESO, noting that “there is no Council of Europe fall-back at all” for the measure. This meant the UK would have to negotiate an alternative arrangement “from scratch” were it to relinquish participation upon leaving the EU.201

Conclusions and Recommendations

156.The scope of our inquiry has necessarily been limited to the most significant measures facilitating police and security cooperation. We note, however, that measures in this area are part of a complex and interconnected network of agreements and arrangements that can be difficult to compartmentalise. For example, high-profile measures such as the European Arrest Warrant may work more satisfactorily alongside complementary measures such as the European Supervision Order. It follows that the Government’s approach to negotiations will need to take account of the risk that relinquishing less well-known measures could undermine the effectiveness of tools that are higher up the list of priorities.

153 Council Framework Decision 2002/584/JHA, 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States, OJ L 190 (18 July 2002)

154 European Union Committee, EU police and criminal justice measures: The UK’s 2014 opt-out decision (13th Report, Session 2012–13, HL Paper 159); European Union Committee, Follow-up report on EU police and criminal justice measures: The UK’s 2014 opt-out decision (5th Report, Session 2013–14, HL Paper 69); HM Government, Decision pursuant to Article 10 of Protocol 36 to The Treaty on the Functioning of the European Union, Cm 8671, July 2013: [accessed 01 December 2016]; HM Government, Decision pursuant to Article 10(5) of Protocol 36 to the Treaty on the Functioning of the European Union, Cm 8897, July 2014: [accessed 1 December 2016]

155 Select Committee on Extradition Law, The European Arrest Warrant Opt-in (1st Report, Session 2014–15, HL Paper 63)

156 HC Deb, 10 November 2014, cols 1236–1237

157 Ibid.

163 Written Evidence from the Crown Office and Procurator Fiscal Service (FSP0003), p 2

164 Written Evidence from Law Society of Scotland (FSP0001), p 9

165 Council Decision 2014/835/EU, 27 November 2014 on the conclusion 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, OJ L 343/1 (28 November 2014). Denmark is not party to this agreement.

166 The CJEU’s September 2016 ruling in the Petruhhin case (Case C-182/15) is also relevant.

171 Ibid.

172 Ibid.

173 Written evidence from the Crown Office and Procurator Fiscal Service (FSP0003), p 2

174 Written evidence from Law Society of Scotland (FSP0001), p 8

175 Written evidence from Law Society of Scotland (FSP0001), p 7

177 Q 9 and Q 17

178 Written Evidence from Law Society of Scotland (FSP0001), p 9

180 HC Deb, 10 November 2014, col 1237

182 The figure of 60 includes all countries, not just EU Member States.

184 Written Evidence from law Society of Scotland (FSP0001), p 7

187 Resolution of the Council, 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, OJ C 295/1 (4 December 2009)

188 Directive 2010/64/EU, 20 October 2010 on the right to interpretation and translation in criminal proceedings, OJ L 280/1 (26 October 2010), and Directive 2012/13/EU, 22 May 2012, on the right to information in criminal proceedings, OJ L 142/1 (1 June 2012)

189 Written evidence from Law Society of Scotland (FSP0001), p 10

190 Council Framework Decision 2006/783/JHA, 6 October 2006 on the application of the principle of mutual recognition to confiscation orders, OJ L 328/59 (24 November 2006)

194 Ibid.

196 Directive 2014/41/EU, 3 April 2014, regarding the European Investigation Order in criminal matters, OJ L 130/1 (1 May 2014)

198 Q 1. The Law Society of Scotland also highlighted the EIO to us in their written evidence (FSP0001), p 10

199 Council Framework Decision 2009/829/JHA, 23 October 2009, on the application between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention, OJ L 294/20 (11 November 2009)

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