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The European Arrest Warrant – Brexit implications

European Arrest WarrantUnder the European Arrest Warrant (EAW), a warrant issued by one European Union (EU) member state’s judicial authorities is valid across all the other member states. EAWs apply both to warrants issued in order to prosecute someone and to those issued to ensure someone completes a custodial sentence for an existing sentence. The effect of the EAW means that:

  • the member state receiving the warrant need not recognise the crime in question in its own domestic policing and judicial systems; and
  • that member states cannot reject extradition on political grounds.

The EAW is a matter of real relevance to UK policing: since its introduction in 2004, over 10,000 people have been extradited from the country. In 2017 alone, 1,735 arrests were made in the UK under the EAW.

Concerns over the EAW predate the result of the Brexit referendum but there is no doubt that they have increased since June 2016. In June this year, the EU’s chief negotiator, Michel Barnier, was quoted as saying that the UK will be forced out of the EAW after Brexit because of the EAW’s connection to the free movement of people. He also suggested that the UK government’s determination to dispense with the Charter of Fundamental Rights and the jurisdiction of the European Court of Justice (ECJ) over UK law also played into the matter. His comment has sparked widespread concern, not least in political circles: David Davis, the erstwhile Brexit secretary, had long touted the EAW as an essential cornerstone of the UK’s post-Brexit security set-up.

Even before the UK’s formal withdrawal from the EU, extraditions are already being affected by Brexit. For example, the Irish Supreme Court has refused to extradite a company director convicted of tax fraud in the UK on the basis that he would “continue to be imprisoned in the United Kingdom beyond 29 March 2019, when the United Kingdom will withdraw from the European Union”.

Alternatives to the EAW for the UK

If Michel Barnier is correct, the UK will need to negotiate a new agreement in substitution for the EAW. There are two main alternatives.

  1. A variation of the 1957 European Convention on Extradition. However, this was the mechanism used prior to the EAW and, in consequence, several EU member states no longer use it and may need to re-enact it. Additionally, the Convention places no time limit within which extradition must be achieved, which is something that Theresa May criticised in her previous incarnation as Home Secretary.
  2. An agreement similar to that which the EU has concluded with Norway and Iceland. This would be based on a premise of close cooperation while also allowing both parties to decide whether or not to extradite a citizen. The UK government has already intimated that such an arrangement would not be satisfactory.

In effect, the UK appears to have its eye on a bespoke arrangement that closely mirrors the EAW. Potential opposition to this comes from several corners. Obviously, the EU27 member states would have to agree to extradite their citizens automatically to a non-EU member state – and it is uncertain whether they would do so. Moreover, in the UK, there is an argument that all EU member states are not equal when it comes to their human rights’ records and, in particular, their prison conditions. A further and very significant obstacle is the role that the ECJ might play and what alternatives to its supervisory function might be acceptable both to the UK and the EU27.

Article supplied by Clifford Johnston & Co Solicitors