Chapter 1: Introduction
Introduction
1.The European Arrest Warrant (EAW) was adopted by the European Union to facilitate the extradition of individuals between Member States to face prosecution for a crime, or to serve a prison sentence for an existing conviction.1 In the UK, around 1,000 individuals per year are surrendered to other EU Member States under the EAW while, on average, the UK issues over 200 European Arrest Warrants a year seeking the extradition of individuals to the UK.2
2.In our report on Brexit: UK-EU security and police cooperation, published in December 2016, we reviewed the options for replacing the EAW when the UK leaves the EU.3 Subsequently, the Home Secretary described the European Arrest Warrant as an “effective tool that is essential to the delivery of effective judgment on … murderers, rapists and paedophiles”, and announced that “it is a priority for [the Government] to ensure that we remain part of the arrangement”.4
3.The Government has also confirmed—in its White Paper on The United Kingdom’s exit from and new partnership with the European Union—that it plans to bring to an end the jurisdiction of the Court of Justice of the European Union (CJEU) in the UK, and that it will seek to agree a new approach to interpretation and dispute resolution with the EU.5
4.In our report on security and police cooperation between the UK and the EU after Brexit, we warned that there might in practice be limits to how closely the UK and the EU-27 can continue to work together on security and police matters if they are no longer accountable to, and subject to oversight and adjudication by, the EU’s supranational institutions—notably the CJEU.6 We highlighted the potential tension between the Government’s objectives in relation to the CJEU, and its desire to continue cooperating with the EU in the fight against crime and terrorism in much the same way that it does now.
5.More recently, Sir Julian King, European Commissioner for the Security Union, also linked the role of the CJEU and the level of law enforcement cooperation that the UK and the EU can maintain in future, using the EAW to illustrate his point:
“The UK has exported 8,000 people under the European Arrest Warrant and imported a thousand, it is an active user, but there you are talking about an element of the acquis and legal and criminal proceedings, so you have to have some level of arbitration. The existing level of arbitration is the European Court of Justice, so that is an issue that will have to be worked through in the negotiations.”7
What this report is about
6.In this report, we examine the practical ramifications that the Government’s stance on the CJEU might have for future criminal justice cooperation with the EU, paying particular attention to the European Arrest Warrant. We explore what bringing an end to the jurisdiction in the UK of the CJEU and other EU institutions could mean in practice, and what a ‘bespoke’ approach to levelling the playing field between the UK and EU and resolving disputes—as desired by the Government8—might look like in the area of criminal justice. We also consider the main options for replacing the EAW, and examine how dispute settlement and CJEU case law are dealt with in those alternative approaches.
7.The report is part of the coordinated series of Brexit-themed inquiries launched by the European Union Committee and its six sub-Committees following the referendum on 23 June 2016, which aim to shed light on the main issues likely to arise in negotiations on the UK’s exit from, and future partnership with, the European Union. It draws on a series of evidence sessions that the sub-Committee held between 24 March, when the inquiry was launched, and 5 April. The sub-Committee was then stood down with the dissolution of Parliament in advance of the June 2017 general election.
8.We make this report to the House for debate.
Background
9.The European Arrest Warrant (EAW) facilitates the extradition of individuals between EU Member States. 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 courts in both countries.
10.As shown in Table 1 and Table 2 below, more EAW subjects are extradited out of than into the UK: in the period 2010—2015, the ratio of individuals surrendered to other EU Member States compared to individuals surrendered to the UK was about 8:1. In terms of arrests in the UK under the EAW, around half of those arrested in any given year in the period 2010–2015 were arrested in response to EAWs issued by Poland. Partly this is due to the fact that until recently, Poland made more requests for extradition under the EAW than any other Member State, often for less serious crimes than other countries.9 Over the same period, Ireland, Spain and the Netherlands arrested the largest number of individuals in response to EAWs issued by the UK.10
Table 1: Wanted from the UK: EAW Statistics 2009 to May 2016
Part 1 EAWs—Calendar Year |
2010 |
2011 |
2012 |
2013 |
2014 |
2015 |
Total |
|
Requests11 |
4,369 |
6,512 |
6,290 |
5,522 |
13,460 |
12,613 |
48,766 |
|
Arrests12 |
1,307 |
1,332 |
1,331 |
1,775 |
1,519 |
2,041 |
9,305 |
|
Surrenders13 |
1,038 |
1,079 |
1,025 |
1,126 |
1,097 |
1,149 |
6,514 |
Source: National Crime Agency, Wanted from the UK: European Arrest Warrant Statistics 2009–2016 (Calendar Year) (July 2016): http://www.nationalcrimeagency.gov.uk/publications/european-arrest-warrant-statistics/wanted-from-the-uk-european-arrest-warrant-statistics/691-wanted-from-the-uk-european-arrest-warrant-statistics-2009-may-2016-calendar-year [accessed 19 July 2017]
Table 2: Wanted by the UK: EAW statistics 2009 to May 2016
Part 3 EAWs—Calendar Year |
2010 |
2011 |
2012 |
2013 |
2014 |
2015 |
Total |
|
Requests |
252 |
226 |
271 |
219 |
228 |
228 |
1,424 |
|
Arrests |
141 |
151 |
148 |
170 |
156 |
150 |
916 |
|
Surrenders |
133 |
136 |
136 |
127 |
145 |
123 |
800 |
Source: National Crime Agency, Wanted by the UK: European Arrest Warrant Statistics 2009—May 2016 (Calendar Year) (July 2016): http://www.nationalcrimeagency.gov.uk/publications/european-arrest-warrant-statistics/wanted-by-the-uk-european-arrest-warrant-statistics/690-wanted-by-the-uk-european-arrest-warrant-statistics-2009-may-2016-calendar-year [accessed 19 July 2017]
11.In Protocol 36 to the Lisbon Treaty, the UK had secured a right to decide, by 31 May 2014, whether or not it should continue to be bound by the approximately 130 police and criminal justice measures adopted prior to the entry into force of the Treaty. The EAW was one of 35 such measures that the UK chose to re-join in December 2014, following the exercise of the Protocol 36 block opt-out.14 In choosing to re-join these measures, and as provided for in the Lisbon Treaty, the UK accepted that the measures would be subject to the jurisdiction of the CJEU and the enforcement powers of the Commission (under Article 258 TFEU) from 1 December 2014.
12.This means that, in effect, the UK has already had to decide—within the last three years—whether to accept the jurisdiction of the CJEU in this area in return for continued use of tools like the EAW.15 In 2014, the Government argued that this trade-off was in the national interest in respect of the 35 measures, including the EAW, which it judged that the UK should re-join. The then Home Secretary, Rt Hon Theresa May MP, told the House of Commons:
“Since the Lisbon Treaty came into effect, the UK has signed up to 90 new Justice and Home Affairs measures, accepting the jurisdiction of the [CJEU] over them. We face the same choice today: whether to accept the jurisdiction of the [CJEU] over the small package of [pre-Lisbon] measures that we wish to remain part of from 1 December, so that our law enforcement agencies can continue to use those powers to fight crime and keep us safe; or reject those measures and accept the risk to public protection that that involves … we must act in the national interest to keep the British public safe.”16
Box 1: Examples of EAW successes
|
Source: BBC News, Q&A: European Arrest Warrant (5 December 2014): http://www.bbc.co.uk/news/world-europe-23239493 [accessed 20 July 2017]
13.The referendum result raises the prospect that the Government will need to revisit this trade-off in the course of negotiations on the UK’s exit from, and future partnership with, the European Union. The EAW has brought high-profile criminals back to the UK, as shown in Box 1. But because the Government’s expressed intention is to remove the UK entirely from the jurisdiction of the EU institutions that perform oversight of the EAW, it now faces a much larger challenge than the Protocol 36 decision. The Government’s plans for the CJEU create a tension with the operational necessity to deport serious criminals from the UK quickly and effectively, and to ensure that those who are wanted by the UK answer for their crimes in this country. In the chapters that follow, we explore this tension as well as the options that the Government might pursue to maintain close police and security cooperation with the EU post-Brexit.
1 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, pp 1–20)
2 National Crime Agency, Wanted by the UK: European Arrest Warrant Statistics 2009 - May 2016 (Calendar Year) (July 2016): http://www.nationalcrimeagency.gov.uk/publications/european-arrest-warrant-statistics/wanted-by-the-uk-european-arrest-warrant-statistics/690-wanted-by-the-uk-european-arrest-warrant-statistics-2009-may-2016-calendar-year [Accessed 19 July 2017] and National Crime Agency, Wanted from the UK: European Arrest Warrant Statistics 2009 - May 2016 (Calendar Year) (July 2016): http://www.nationalcrimeagency.gov.uk/publications/european-arrest-warrant-statistics/wanted-from-the-uk-european-arrest-warrant-statistics/691-wanted-from-the-uk-european-arrest-warrant-statistics-2009-may-2016-calendar-year [Accessed 19 July 2017]. The most high-profile recent subject of a European Arrest Warrant was Julian Assange, the Australian founder of WikiLeaks, who until recently was facing extradition to Sweden to answer an accusation of rape, but who sought asylum in Ecuador’s London embassy.
3 European Union Committee, Brexit: future UK-EU security and police cooperation (7th Report, Session 2016–17, HL Paper 77)
5 Department for Exiting the European Union, The United Kingdom’s exit from and new partnership with the European Union, Cm 9417, paras 2.3 and 2.9: https://www.gov.uk/government/publications/the-united-kingdoms-exit-from-and-new-partnership-with-the-european-union-white-paper/the-united-kingdoms-exit-from-and-new-partnership-with-the-european-union--2 [accessed 3 July 17]
6 European Union Committee, Brexit: future UK-EU security and police cooperation (7th Report, Session 2016–17, HL Paper 77) paras 38 and 39
7 ‘Brexit: UK may have to recognise ECJ court rulings to keep security cooperation’, The Guardian
(30 April 2017): https://www.theguardian.com/uk-news/2017/apr/30/brexit-uk-may-have-to-recognise-ecj-court-rulings-to-keep-security-cooperation [accessed 03/07/2017]
8 European Union Committee, Brexit: future UK-EU security and police cooperation (7th Report, Session 2016–17, HL Paper 77) para 32
9 Council of Bars and Law Societies of Europe and European Lawyers Foundation, EAW-Rights: Analysis of the implementation and operation of the European Arrest Warrant from the point of view of defence practitioners (January 2017): http://www.ccbe.eu/fileadmin/speciality_distribution/public/documents/CRIMINAL_LAW/CRM_projects/EN_CRM_20161117_Study-on-the-European-Arrest-Warrant.pdf, p 21 [accessed 19 July 2017]
10 All figures drawn from National Crime Agency, Wanted by the UK: European Arrest Warrant Statistics 2009—May 2016 (Calendar Year) (July 2016): http://www.nationalcrimeagency.gov.uk/publications/european-arrest-warrant-statistics/wanted-by-the-uk-european-arrest-warrant-statistics/690-wanted-by-the-uk-european-arrest-warrant-statistics-2009-may-2016-calendar-year [accessed 19 July 2017] and National Crime Agency, Wanted from the UK: European Arrest Warrant Statistics 2009 - May 2016 (Calendar Year) (July 2016): http://www.nationalcrimeagency.gov.uk/publications/european-arrest-warrant-statistics/wanted-from-the-uk-european-arrest-warrant-statistics/691-wanted-from-the-uk-european-arrest-warrant-statistics-2009-may-2016-calendar-year [accessed 19 July 2017].
11 The number of requests received by the UK does not represent the number of wanted people in the UK. Some Member States issue requests to numerous Member States when they do not know where a subject may be. A large proportion of the requests received by the UK will be for people who are not, and never have been, in the UK.
12 This represents the number of people who have been identified as being in the UK and have been arrested.
13 People arrested on an EAW have the right to appeal against or to contest their extradition. The surrenders figure represents the number of people who—having either failed in their appeal or chosen not to appeal—are extradited.
14 Command Paper 8897 set out the list of 35 measures that the UK would re-join. Home Office, Decision pursuant to Article 10 (5) of Protocol 36 to The Treaty on the Functioning of the European Union, Cm 8897, July 2014: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/326698/41670_Cm_8897_Accessible.pdf. The House of Commons debate and vote on the Government’s approach took place on 10 November 2014: see HC Deb, 10 November 2014, col 1223. The House of Lords debate took place on 17 November 2014: see HL Deb, 17 November 2014, col 327.
15 Further details on this can be found in a series of contemporaneous reports published by this Committee. 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); European Union Committee, The UK opt-in to the Europol Regulation (2nd Report, Session 2013–14, HL Paper 16); European Union Committee, The United Kingdom opt-in to the draft directive on proceeds of crime (32nd Report, Session 2010–12, HL Paper 295)
16 HC Deb, 10 November 2014, col 1238