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Legal Minds

7 September 2017 / by / in

Is there a future for the EAW post-Brexit?

The introduction of the European Arrest Warrant (“EAW”) in January 2004 has streamlined the way in which extradition between EU member states has been dealt with by the courts. It brought in a much simpler process whereby member states could request the extradition of a requested person by submitting, in effect, a form to the executing state.

The Government has previously stated that it considers the UK remaining part of the EAW scheme post-Brexit a priority. It has also said, however, that it aims to end the jurisdiction of the Court of Justice for the European Union (“CJEU”) in the UK.

The recently published report of the House of Lords European Union Committee ‘Brexit; judicial oversight of the European Arrest Warrant’ considers the practical ramifications that the Government’s stance on the CJEU might have for future criminal justice cooperation with the EU, in particular the EAW.

Despite the Government’s assertion that the European Union (Withdrawal) Bill “will not provide any role for the CJEU in the interpretation of…new law”, several experts told the Committee that it would not be feasible to prevent references being made to the CJEU’s case law before the UK courts, even if such case law had no formal status. One expert stated that if the CJEU “is not to be a final arbiter on any of the instruments of mutual recognition…it seems very difficult to see how they would operate in practice”.

In its White Paper on The UK’s exit from and future partnership with the European Union, the Government discussed dispute resolution mechanisms, recognising that “ensuring a fair and equitable implementation of our future relationship with the EU requires provision for dispute resolution”.

The Committee considered the European Free Trade Association (“EFTA”) court as a possible model for dispute resolution. The EFTA court has jurisdiction with regard to EFTA states party to the European Economic Area (“EEA”) Agreement (Iceland, Liechtenstein and Norway). It deals with infringement actions with regard to the implementation, application or interpretation of EEA law and gives advisory opinions to courts in EFTA states on the interpretation of EEA rules. Its function is similar to that of the CJEU save that its opinions are not binding like those of the CJEU.

The Committee noted that the EFTA court applies only to internal market-related disputes and its jurisdiction was not expanded to cover Norway and Iceland’s participation in the EAW. The Committee questioned whether, in the context of the EAW, the EU-27 will be willing to establish bespoke adjudication arrangements such as a parallel court in order to accommodate the UK’s objectives. It was also observed that as recently as the Protocol 36 Decision in 2014, the UK decided to accept the jurisdiction of the CJEU in return for continued use of tools like the EAW.

The Committee then went on to consider alternatives to the EAW.

The Government could attempt to follow the precedent set by Norway/Iceland and seek a bilateral extradition agreement with the EU that mirrors the EAW’s provisions as far as possible. This will not be without its difficulties. Although it contains a provision for a political dispute resolution mechanism, which would be compatible with the Government’s desire to end the CJEU’s jurisdiction in the UK, it applies to two European states moving towards EU membership that also participate in the Schengen area.

There is also the possibility of falling back on the 1957 Council of Europe Convention on Extradition, however the Committee believed that this would significantly slow down extradition proceedings since it would mean going back to making routine extradition requests through diplomatic channels.

The Committee remained concerned about the prospect of a “cliff-edge”, as a failure to secure a suitable replacement coming in to force would pose an unacceptable risk.

What is clear from this report is that there are genuine concerns from the Committee regarding the Government’s position on extradition arrangements between the UK and EU post-Brexit. It is agreed by all parties, including the Home Secretary, that the EAW is a valuable tool in cross-border policing and security, and retaining membership to the scheme is the preferred option. However, it is evident that there are serious obstacles which undermine the possibility of this. If the UK is not willing to allow the CJEU to be the ultimate arbiter of disputes regarding the application of EU law in relation to the EAW, then it is difficult to comprehend how the mutual respect and recognition between parties to the agreement can be maintained at the level required for the EAW scheme to operate effectively. The appetite of the EU-27 to potentially jeopardise the uniformity of the EAW scheme is also in question.

If membership of the EAW is not a possibility, then it is likely that the Government will want to secure an extradition agreement with the EU similar to that of Norway and Iceland. Whilst it is true that, having already been a member of the EAW, the UK would be in a strong position to agree such an arrangement, it has to be remembered that Norway and Iceland are moving towards closer integration with the EU whilst the UK is doing the opposite.

In all of the uncertainty regarding post-Brexit extradition arrangements one thing is certain; any future arrangement will be a compromise on the existing EAW which, despite some negative press, has established itself to be a valuable tool in not only extraditing persons from the UK to the EU but also in securing the extradition to the UK of some of the most wanted persons hiding within EU member states. It is Incomprehensible that the UK will retain all of the benefits of the EAW without retaining CJEU oversight. Boris Johnson’s now infamous quote that the Government’s Brexit policy will allow Britain to “have its cake and eat it” is as fanciful as it is arrogant.

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