«This series of briefing papers explores issues arising for consideration in domestic criminal law and practice as the Government embarks on ...»
BREXIT BRIEFING 2
13 JULY 2016
BREXIT BRIEFING NO. 2
The implications for extradition.
This series of briefing papers explores issues arising for consideration in domestic
criminal law and practice as the Government embarks on re-framing the terms of our
relations with the EU.
This second paper examines the impact of the decision to withdraw from the EU on the UK’s current extradition arrangements, in particular the European Arrest Warrant (“EAW”) system. The focus of the paper is on the legal consequences that will follow from a decision to trigger the process of withdrawal under Article 50 of the Treaty on European Union, and possible alternatives to the current system of extradition that could be adopted in any post-EU legal system.
THE CONTEXTThe source of the UK’s extradition obligations in international law are the bi-lateral and multilateral extradition treaties and agreements to which the UK is a party.
Within the European Union, extradition is governed by the EU Framework Decision on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) (the “Framework Decision”). The UK’s international law extradition obligations are implemented in domestic law through the Extradition Act 2003 (“the 2003 Act”).
The 2003 Act is made up of two parts:
(i) Part 1 gives effect to the UK’s obligations under the Framework Decision and applies to states designated by the Secretary of State as “category 1 territories”. It involves a streamlined system of surrender between EU Member States (and Gibraltar) based on the mutual recognition of arrest warrants and judicial decisions.
(ii) Part 2 of the 2003 Act governs extradition with states designated as “category 2 territories”, which in practice is currently any non-EU state with whom the UK has extradition relations.
THE IMPACT OF BREXITUntil the Article 50 process is completed, the UK will remain a member of the European Union and the provisions of the Framework Decision will continue to apply.
It follows that, in the short term at least, there will be no change to the way extradition law operates under the 2003 Act.
However, as a measure of secondary EU law, the Framework Decision applies only to EU Member States. The inevitable consequence of the completion of the Article 50 process, and the termination of the UK’s membership of the EU, will be that the UK’s rights and obligations under the Framework Decision will lapse. The result is that there will need to be at least some modification to the terms of the UK’s extradition relationship with the EU and consequential amendments to the relevant provisions of domestic law.
POST-BREXIT OPTIONSThree main options for the UK’s extradition relationship with the EU arise for
1. Renegotiating an EAW style agreement with the EU
2. Reliance on the European Convention on Extradition
3. Negotiating separate bi-lateral agreements with some or all of the remaining 27 Member States
OPTION 1: AN EAW STYLE SYSTEMOne option is for the UK to renegotiate its extradition arrangements with the EU to maintain a streamlined system of surrender that mirrors, or is similar to, the EAW system. Such an arrangement between Iceland and Norway and the EU was agreed in principle in 2006 and, following 13 years of negotiation, was finally approved by the EU in 2014. It has not yet entered into force.
However, there are a number of factors that may affect the willingness and/or ability of the UK to adopt this course of action.
First, both Iceland and Norway are members of the European Free Trade Association (“EFTA”) and the Schengen acquis (the EU’s border-free zone) placing them in a position closely aligned to the EU without actually being members. The willingness of the EU to negotiate a similar arrangement with the UK may depend on the outcome of the Article 50 negotiations, and in particular whether or not the UK becomes a member of EFTA or, alternatively, adopts a more arm’s-length position.
Second, notwithstanding the close relationship between both Norway and Iceland and the EU, the surrender agreement took five years to negotiate and eight years later is still not in force. It follows that it may not be possible for the UK to renegotiate its extradition arrangements with the EU within the two-year period provided for by Article 50. If this is the case then some kind of transitional provision will be required to ensure that the UK retains an effective extradition relationship with the EU.
Third, there may be limited political will to re-enter an EAW style relationship with the EU. The EAW system has been the subject of criticism, in particular in relation to the extradition of British nationals and its use to seek extradition for comparatively minor offences. It may be possible for the particular terms of any agreement reached to address some of these concerns.1 However, given that much of the criticism of the EAW procedure focussed on its summary nature, it is unlikely that these concerns could be comprehensively addressed while retaining the scheme’s core features.
Finally, one of the justifications for the EAW system is the need for an integrated approach to judicial cooperation in the context of the free movement of people. It follows that the extent to which it is considered necessary or desirable to be part of such a system may depend on the extent to which any post-Brexit settlement involves the acceptance of the free movement principle.
However, notwithstanding the above considerations, an EAW-style agreement remains a significant option. It is important to note that (unlike Norway and Iceland) the UK will be negotiating as a current member of the EAW system whose extradition processes are already in harmony with those of the EU. A potentially important factor may be that the Norway/Iceland agreement does not provide for the CJEU to have jurisdiction over disputes, and instead provides for a harmonisation of approach through the “constant review” of case-law (Article 37 of the Agreement) which may make this a more attractive option for the UK Government.
Impact on domestic law
If an Iceland/Norway style surrender agreement could be negotiated and brought into force by the end of the Article 50 process, this could be given effect in domestic law by amending Part 1 of the 2003 Act to reflect any differences between the new agreement and the existing EAW procedures. It would also be necessary to enact transitional arrangements to cover EAWs issued under the present system.
However, as noted above, if no agreement has been reached by the end of the Article 50 period, an interim solution would be required to ensure that the UK’s ability to extradite to and from all 27 Member States is not compromised. The most likely such arrangement would be Option 2 set out below.
For example the surrender agreement between the EU and Norway and Iceland places no obligation on the state parties to extradite their own nationals. It also allows state parties to require assurances that extraditees will be entitled to a re-trial following a trial in absentia, a protection removed from the EAW scheme by Council Framework Decision 2009/299/JHA.
OPTION 2: THE EUROPEAN CONVENTION ON EXTRADITION
Both the United Kingdom and the 27 other EU Member States have signed and ratified the European Convention on Extradition 1957 (the “ECE”). It follows that the default position if the UK chooses not to negotiate new extradition arrangements with the EU, either collectively or individually, would be for extradition between the UK and the remaining Member States to be based on the ECE.
The main consequence of adopting this course would be that the UK would no longer have access to the expedited warrant-based surrender arrangements that operate under the Framework Decision. As a result, extradition to EU would to be conducted under the procedures of Part 2 of the 2003 Act. The main procedural
differences would be as follows:
The process would no longer be a purely judicial one. Extradition requests would have to be made through diplomatic channels, and the Secretary of State would be required to make an initial decision regarding certification. The final decision on surrender would also lie with the Secretary of State. It is likely that these additional procedures would add to the overall length of EU extradition proceedings, as is the case in relation to the existing arrangements with non-EU signatories to the ECE.
The ‘dual criminality’ 2 requirement would apply to all offences and all territories. A controversial aspect of the EAW system was the abolition of the dual criminality requirement in relation to 32 categories of offences (the so called ‘Framework List’). By contrast the ECE takes a conventional approach to dual criminality, requiring proof that the conduct in respect of which extradition is sought is criminal in both the requesting and the executing jurisdictions. This change is unlikely to result in a material difference in practice. In his 2011 review of the UK’s extradition arrangements, Sir Scott Baker noted that the review panel had not been made aware of any “difficulties arising in practice from the abolition of the double criminality rule”. The reason for this is likely to have been that there were very few cases in practice in which extradition was sought for conduct that was not also criminal in the United Kingdom. Indeed, there is only one reported case of extradition being ordered in relation to a Framework List offence which, at the time that the conduct occurred, was not a crime in England and Wales.3 There would still be no requirement to prove a prima facie case. Although there has been criticism of the EAW system on the basis that it does not require the requesting judicial authority to prove a prima facie case, 4 it is to be noted that reverting to ECE would not result in the reintroduction of such a test.
Dual criminality is the principle of extradition law by which extradition may only be sought and granted for conduct which is criminal in both the requesting and executing jurisdictions.
Jama v Senior Public Prosecutor, Gera, Germany  EWHC 3276 (Admin). The conduct in the EAW concerned the drug ‘khat’, which has since been criminalised in England and Wales.
Shami Chakrabit, “It’s not just Eurosceptics who think the European Arrest Warrant is rotten”, The Guardian, 10 November 2014: https://www.theguardian.com/commentisfree/2014/nov/10/euroscepticsthink-european-arrest-warrant-rotten.
Most of the bars to extradition would remain. However, there would be some differences. For example, some bars (death penalty, speciality, earlier extradition or transfer, and deferral) would be considered by the Secretary of State following the extradition hearing rather than, as currently happens in Part 1 cases, by the judge at the extradition hearing.
The newly introduced bars to extradition in s.12A (absence of a prosecution decision) and s.21A (proportionality) would no longer apply. It is difficult at this stage to predict the impact of this development. It may be that the more formal and time-consuming process under the ECE would result in a reduction in the number of EU extradition requests issued for minor offences, or in relation to prosecutions that were not at an advanced stage, thus reducing the need for such bars. However, the absence of a proportionality bar in Part 2 cases is already controversial and, in relation to s.12A, in at least some European jurisdictions, certain formal stages of the process (such as charge and a prosecution decision) cannot take place while the suspect is abroad. This would suggest that these issues are likely to continue to be contentious. It would remain open to the Government to legislate for proportionality and/or prosecutorial decision bars in Part 2 cases should that be considered necessary.
Human rights considerations. While the human rights provision in Part 2 (s.87 of the 2003 Act) is in the same terms as its Part 1 equivalent (s.21), the courts would no longer be bound to apply the principles of mutual trust that underpin the Framework Decision. This may not make a significant difference to the approach of the domestic courts given that all 27 EU Member States are signatories to the ECHR, and the principle of mutual trust is a variant of the principles of good faith and reciprocity that apply in the case of all extradition requests. However, there have been cases in which the UK courts have expressed real discomfort as to the fairness of proceedings in other EU states (for example the case of Gary Mann)5. It may be that, post-Brexit, domestic courts will have greater opportunity to scrutinise human rights issues in relation to EU extradition requests than was previously the case.
The jurisdiction of the European Court of Justice (‘CJEU’). The CJEU has only had jurisdiction over the UK in relation to the Framework Decision since 1 December
2014. There has yet to be a CJEU reference in relation to a UK extradition matter, although it is possible that one could be made and considered prior to the conclusion of the Article 50 process. Once that process is complete it seems likely that UK courts might still consider extradition decisions of the CJEU to be of persuasive value, at least in relation to matters of policy such as the benefits of co-operation between states, even though such decisions would no longer bind the UK courts.
EU states would be entitled to refuse to extradite their own nationals. This is provided for by Article 6 of the ECE. This would have no impact on UK extradition proceedings (unless the UK also chose to adopt such a bar), but may well impact on the ability of domestic prosecutors to secure the extradition of EU nationals from their state of nationality to face trial in the UK. A notable example of a current prosecution that would be affected by such a bar is the SFO prosecution of the German national Deutsche Bank Euribor traders, Andreas Hauschild, Joerg Vogt, R (Mann) v Westminster Magistrates’ Court  EWHC 48 (Admin).
Ardalan Gharagozlo and Kai-Uwe Kappauf, whose extradition is currently being sought from Germany.