Looking beyond the transition period: will there be surrender?

Perhaps the only thing certain is that extradition between the UK and the EU will change after 23:00 on 31 December 2020. Following the fourth round of negotiations, the UK Government confirmed that it will not seek to extend the Transition Period beyond the calendar year. In the absence of new surrender arrangements taking effect beforehand, the present European Arrest Warrant (EAW) system will screech to an abrupt halt. This will have profound implications for regional law enforcement and security.

In this article, we will describe the origin of the UK’s current extradition arrangements with the EU and examine recent proposals for a bilateral surrender agreement modelled on the EU/Norway and Iceland Surrender Agreement. We will also touch upon other extradition tools, such as the European Convention on Extradition 1957 (ECE) and the new Provisional Arrest Bill for certain non-EU territories. In a further article, we will consider what will happen in practical terms if an agreement is not reached.

From Extradition to Surrender

At the close of the twentieth century, different extradition arrangements existed amongst and between EU Member States. The Treaty of Amsterdam (1997) established an Area of Freedom, Security and Justice within the EU which included a provision to “facilitate extradition between Member States” (Art. K.3). The first concrete step came at the European Council summit convened in Tampere in October 1999 where EU leaders pledged to replace formal extradition procedures with a simple transfer of persons between Member States (para. 35). When it arrived, the legislative instrument, delivered in the form of Framework Decision 2002/584/JHA (FD), gave birth to the EAW.

The preamble to the FD is instructive since it establishes its purpose. It provides that the Member States have decided to abolish “traditional” extradition measures and replace them with a system of “surrender” to avoid “complexity” and “delay” (5). The new system is based on “mutual recognition” (6), which is described as the “cornerstone’ of judicial cooperation”, rooted in a “high-level of confidence” between Member States (7).

The UK transposed the FD into Part 1 of the Extradition Act 2003 (EA) which came into force on 1 January 2004. The UK’s ambivalence towards “surrender” is perhaps best illustrated by its decision to label the Act of Parliament which implemented the FD as the Extradition Act, stubbornly not surrendering to the idea of surrender. Ireland, by contrast, created the European Arrest Warrant Act 2003. The EA omits any reference to Member States preferring to designate them “category 1 territories” instead. Over the years, the UK has introduced additional ‘bars’ to surrender which do not derive from EU law, namely absence of a prosecution decision (s. 12A) and proportionality (s. 21A).

The introduction of the EAW resulted in a colossal expansion in the volume of extradition requests. Between 2004 and 2016, the UK surrendered almost 10,000 individuals to other EU Member States. For its part, the UK has utilised the tool more sparingly. The UK issued 252 EAWs in 2010, rising to a high of 349 in 2016, before reducing to 278 in 2017.  The latest data published by the European Commission (2017) provide that the UK executed more EAWs than any other Member State, with 1,510 arrests and 1,164 consequential surrenders. The next two countries were Romania and Spain, with 853 and 818 arrests respectively.

The Withdrawal Agreement of 17 October 2019 preserved the effect of the EAW until the end of the transition period (i.e. 31 December 2020). Nevertheless, in perhaps a sign of things to come, three jurisdictions, Germany, Austria and Slovenia informed the European Commission that they will no longer surrender their own nationals to the UK during the transition period.

The EAW is dead…

In its command paper titled Approach to Negotiations published on 27 February 2020, the UK Government made clear that it would not accept any CJEU jurisdiction, however limited. As such, it is unsurprising that the Government does not wish to retain access to the EAW over which the CJEU remains the final authority. The UK Government said:

“The UK is not seeking to participate in the European Arrest Warrant as part of the future relationship. The agreement should instead provide for fast-track extradition arrangements, based on the EU’s Surrender Agreement with Norway and Iceland which came into force in 2019, but with appropriate further safeguards for individuals beyond those in the European Arrest Warrant”.

Whilst, at least for the UK, the EAW may be dead, the proposed replacement is an apple which has not fallen far from the tree.

…but long live the Arrest Warrant!

The Commission’s Draft text of the Agreement on the New Partnership with the United Kingdom of 18 March 2020 (EUDA) includes a section on “surrender”. Perhaps in response to the UK’s position, the EUDA largely replicates the Surrender Agreement (SA) between Norway, Iceland and the EU, which was completed in 2006 but only came into effect last year.

Like the SA, the EUDA follows the architecture of the FD with an exchange between designated competent judicial authorities assisted by designated competent central authorities. The EUDA creates an Arrest Warrant (AW) which is similar in scope and in form to the EAW. Rather interestingly, and perhaps in reaction to recent litigation concerning competency, it expressly designates a “public prosecutor” as a judicial authority.

In line with the SA, the EUDA has three key differences with the FD:

  1. There is a ‘political offence’ bar, a common feature in older extradition agreements, (see Art. 3 of the ECE, for instance). Its application, however, is limited to a small group of offences.
  • There is a ‘nationality’ bar. The EUDA provides that the parties may declare that they will not surrender their own nationals or will only do so under certain conditions. Given that the UK did not seek a nationality bar prior to enactment of FD, it is unlikely that the UK will seek its adoption. Nevertheless, it seems that other Member States may (or must) adopt the bar, just as some have done during the life of the transition period. This could result in pressure on the UK Government to reciprocate.
  • The EUDA allows the parties reciprocally to notify each other about whether they wish to waive dual criminality in respect of a list of 32 specified offences (akin to those in Art. 2(2) FD/Sch. 2 EA). The position is rather more flexible than the hard-line approach under the FD which provides that Member States “shall” waive dual criminality for those matters.

One key difference between the SA (on one hand) and the EUDA and the FD (on the other), is that the greater protections in respect of trial in absence contained in the FD have found their way into the EUDA. The text of Art. 4a FD, including Box D of the EAW, is replicated in full. The amendment is perhaps unsurprising given that the legislative instrument that inserted Art. 4a into the FD came into effect in 2009, three years after the SA was drafted.

Given that the model arrest warrant format attached to the SA appears near identical in form and structure to the EAW, it seems likely that, if the new arrangement were to take effect, EAWs could be received and processed by UK courts without having to be transmitted in a separate AW form. This is likely to be a welcome relief for all, not least issuing states.

However, there is an important difference between the FD and SA (on one hand) and the EUDA (on the other). The EUDA prescribes a series of procedural rights which are not found in Art. 11 FD. These are worth considering in detail:

  • The executing judicial authority must inform the requested person that he/she has a right to appoint a lawyer in the issuing state;
  • Where the requested person is sought for purposes of prosecution, he/she will have a right to legal aid in the issuing state;
  • The executing competent central authority should facilitate communication between the requested person and the issuing competent central authority to assist the requested person in appointing a lawyer in the issuing state;
  • The executing state must provide a requested person with legal aid until a surrender decision is taken;
  • On arrest, the requested person has a right to notify another of his detention unless a temporary derogation of the right is necessary for compelling reasons;
  • On arrest, the requested person has a right to consular assistance;
  • Those requested persons under the age of eighteen enjoy further rights.

Many of the above rights are unlikely to cause difficulty in England and Wales. Consequential amendments may be required to certain provisions of the EA (e.g. consent – s. 45) and to PACE Code C (treatment in custody).

The new provisions on the right to instruct a lawyer in the issuing state will be a welcome addition for many requested persons. The possibility of instructing a lawyer in the issuing state may permit requested persons to challenge the proportionality of AWs before the issuing judicial authority as opposed to relying on the safety valves of proportionality (s. 21A) and Art. 8 ECHR before the executing judicial authority (at least, in the UK). The corollary to this, however, is that UK judges may be less willing to refuse surrender on Art. 8 or proportionality grounds where an issuing judicial authority has re-considered the proportionality of an AW and believes that it should be maintained.

It is unclear how attempts to compromise AWs in the issuing state can be reconciled with the duplicated requirement to execute an AW as a matter of urgency. Practice in the England and Wales, at least, is that extradition hearings are rarely adjourned to await the outcome of such applications unless the hearing is imminent.

The true effect of the positive rights created require additional examination. Turning to legal aid, will the Legal Aid Agency be permitted to apply a means test anymore? An end to the paltry maximum income requirement in proceedings before the magistrates’ court, which affects the ability of workers and the self-employed to receive legal representation, would be a positive development.

It is noteworthy that the EUDA is silent on whether the UK will be permitted to maintain, or perhaps more accurately, not prohibited from maintaining, its additional barriers to surrender, such as absence of a prosecution decision.

Finally, unlike the SA, the EUDA makes no mention of oversight specifically in the surrender context. However, in light of UK Government’s resolution to divorce itself from CJEU primacy, it is presumed that the dispute resolution, uniform interpretation and review mechanisms, all of which are found in the SA, will be adopted and possibly developed in tandem.

One difficulty perhaps is that the UK’s queasy attitude to surrender is likely to be enhanced. In the absence of the CJEU’s ‘guiding hand’, emphasising mandatory execution and the requirement for mutual trust and respect at every step, the UK may move back towards traditional extradition. Other critics will note, however, that despite having the right to refer questions to the CJEU under Art. 267 TFEU for the last five years, the High Court only made its first preliminary reference in extradition proceedings in February 2020, after the UK had formally withdrawn from the EU. Accordingly, there is already significant divergence between the UK and the EU and uniform interpretation is and will remain illusory.

The UK’s position: surrender but on our terms

The UK has published its own Draft Agreement on Law Enforcement and Judicial Cooperation in Criminal Matters (UKDA), which covers extradition in Part 4. Interestingly, it retains the language and terminology of “surrender”. There is much overlap with the EUDA, perhaps suggesting light at the end of the tunnel. Whilst broadly mirroring the architecture of the FD, there are some features of note.

The UKDA provides for transmission of AWs directly between issuing and executing competent central authorities, whilst also allowing for Interpol assistance. Currently, EAWs are transmitted via alerts propagated on SIS II. This has the distinct advantage that EAWs need not be directed at any particular Member State. However, as we describe below, the UK faces the loss of access to SIS II at the end of the transition period, and thus the UKDA already envisages a return to ad hoc notification.

Further, as with the EUDA, the list of 32 offences for which dual criminality may be waived is one which operates on the basis of reciprocal agreement. As such, s. 64(5) and s. 65(5), s. 215 of and Sch. 2 to the EA may be maintained.

Interestingly, where a requested person consents to surrender, the UKDA allows that person “if appropriate” to expressly renounce his/her specialty protection. It remains to be seen whether there will be a return to the law pre-2014 where consent to surrender in the UK automatically entailed a waiver of speciality rights or if s. 45 EA will be amended to allow waiver on an ad hoc basis.

The most striking additions are twofold. First, the UKDA’s express inclusion of a specific ‘proportionality’ bar, mirroring the present terms of s. 21A EA, but with application to both accusation and conviction AWs. This would seem in conflict with the EU’s position which establishes that proportionality is a matter for the issuing state (see for instance, Kovalkovas, C‑477/16 PPU at para. 47) or the more recent litigation regarding whether public prosecutors are competent issuing judicial authorities.

The UK’s s. 21A EA, for which there is no equivalent in the FD, no doubt already raises eyebrows in Member States. It allows a UK court to consider, inter alia, the likely penalty if the requested person were to be found guilty of the offence for which surrender is sought, relying on our own sentencing practice in the absence of further information from issuing states. It seems most unlikely that the EU will accept terms which give discretion to the executing judicial authority to impose its own view of proportionality over that of the issuing judicial authority.

Second, the UKDA also includes a ‘trial readiness’ requirement which incorporates the familiar language of the “to charge or to try” bar introduced in 2014. That requires that the issuing state has taken the decisions to charge and to try, unless the only reason for not having done so is the absence of the requested person from the issuing country.

Perhaps more than any other bar, s. 12A serves as an Anglo-centric mechanism which imposes our criminal justice architecture on issuing states. Where s. 12A is raised, UK courts often engage in the tortuous process (which is no doubt just as tortuous for executing states replying to endless requests for further information) of making detailed enquiries into the procedural law of Member States before arriving at a binary conclusion. It seems fanciful that the EU would accept such a provision.

The alternatives to surrender

Whilst we consider that a surrender agreement is firmly in the UK and the EU’s interest, and the SA provides a blueprint for such co-operation without CJEU oversight, unless and until an agreement is reached, there is a serious possibility of a return, in the event of ‘no deal’, to the extradition arrangements contained in the European Convention on Extradition (ECE). Such an outcome in our view would be devastating and would pose a considerable threat to regional law enforcement. The ECE is simply not fit for purpose in twenty-first century: it is an analogue tool in the age of digital.

We take this view because the ECE requires that all extradition requests are made through diplomatic channels in an approved way (i.e. in accordance with certain formalities). Thereafter, the executing state processes such requests through a mixed judicial and executive system which divides responsibilities between the executing court and Home Office/Interior Ministry.

There seems to be little domestic appetite for returning to the ECE. It was described as “a catastrophic outcome” by the House of Commons Home Affairs Select Committee. Former DPP Alison Saunders described ECE requests as taking three times long to process and being four times more expensive than the EAW.

Whilst in its ‘no deal’ preparations it is believed that the UK has issued Interpol Red Notices and ECE requests in respect of all fugitives that it seeks, it is unclear whether any EU Member States have taken similar such action. Indeed, not all EU Member States have the necessary apparatus in place. Some have rescinded the relevant legislation implementing the ECE. Others have not ratified the four additional Protocols. This is unsurprising given the FD’s express intention of replacing the ECE.

Separately, at last December’s State Opening of Parliament, the Government announced a new Extradition (Provisional Arrest) Bill to some fanfare. The Bill had its third reading in the House of Lords on 15 June 2020 (winning the curious honour of being the first occasion for the Lords to vote remotely) and is due reach its first reading in the House of Commons on 16 June 2020.

The Bill is a topic which merits its own analysis and one to which we will return in the near future. However, it is worth noting that, if enacted, it cannot and will not fill the void left by the EAW. It is of limited scope since it solely applies to specified “category 2 territories” (Australia, Canada, Lichtenstein, New Zealand, Switzerland and the United States of America). The limited volume of provisional requests received from these jurisdictions means that it unlikely to herald any practical change.

Further bumps in the road

Whilst we have focused our analysis on the EAW, it is worth noting that there is a raft of further criminal co-operation mechanisms which face a similar fate on 31 December 2020.

By way of example, the EU has made clear that non-Schengen third countries cannot have access to the aforementioned SIS II system. Alerts on SIS II cover those wanted for surrender (Art. 26), missing persons (Art. 32), those subject to court orders/judgments (Art. 34), discrete checks on people and vehicles (Art. 36) and objects sought for seizure or use as evidence in criminal proceedings (Art. 38). Notably, the EUDA does not provide for real-time exchange of alerts. The UKDA, in stark contrast, optimistically asserts that the Government “remains of the view that there is mutual interest in providing capabilities similar to SIS II and that this is legally possible”.

The UK Government adopts a similar desire to replace existing mechanisms relatingtothe European Criminal Records Information System (ECRIS) in which antecedent records are exchanged between Member States, the sharing of DNA profiles, fingerprints and vehicle registration marks, cooperation with (but not membership of) EUROPOL and EUROJUST, arrangements for the transfer of prisoners and mutual legal assistance not rooted in the European investigation order. The UK wishes to access these resources without CJEU oversight of its data protection regime. This is likely to be a barrier to the EU accepting the UK’s position.

The EU has drawn its own red line. It announced that there will be “automatic termination” of all law enforcement and judicial cooperation with the UK if the UK removes itself from the jurisdiction of, or does not comply with judgments from, the European Court of Human Rights (ECtHR). ECtHR membership is thus a perquisite for a surrender agreement.

The FD forms part of a tapestry of criminal co-operation measures which have been developed over the past twenty years and whose effect will expire in little over six months. Over the past fifteen years, the EAW has proven itself as a highly effective (if sometimes controversial) law enforcement tool which has revolutionised the simplicity, speed and volume of surrender between Member States. It is not one which should be conceded lightly or dismissed as collateral damage in negotiations. Happily, there appears ample room for agreement. The question is whether there is political will.

Authors: Jonathan Swain & Stefan Hyman

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