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«This series of briefing papers explores issues arising for consideration in domestic criminal law and practice as the Government embarks on ...»

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The numbers of extradition requests and length of proceedings may change.

The introduction of the EAW system had a significant impact on the increase in extradition requests processed by the UK courts. In 2002 the total number of persons surrendered was 52, of which 39 were to EU Member States (or states that are now EU Member States).6 By the year 2013-2014 the number of surrenders to EU Member States had risen to 1067, and the number of surrenders to non-EU states had risen less markedly to 31.7 While extradition to non-EAW countries takes an average of 10 months to complete, extradition under the EAW system takes an average of three months to complete.8 It is therefore likely that a move to a non-EAW extradition arrangement will result in extradition to and from the EU taking longer than it does under the present system.

Impact on domestic law In terms of domestic law, Option 2 is the most straightforward. It would require the repeal of Part 1 of the 2003 Act, and the re-designation of the 27 EU Member States as category 2 territories with the result that Part 2 of the 2003 Act would apply to them.9

OPTION 3: BILATERAL EXTRADITION AGREEMENTS

It is open to the UK to negotiate separate bi-lateral extradition agreements with individual EU states. The UK Government may not be attracted to renegotiating its individual extradition relationships with all 27 EU states, not least because they have each ratified the ECE, and extradition forms only one small part of the complex legal arrangements that will fall to be renegotiated as part of the Article 50 process.

There are however some states with which the UK has an especially close relationship (such as Ireland), or from which it receives particularly high numbers of extradition requests (such as Poland), with which the UK may choose to negotiate a bespoke arrangement. For example, prior to the 2003 Act, England and Ireland operated a system of ‘backing of warrants’ (not wholly dissimilar to the expedited surrender procedure under the EAW system) which was governed not by Treaty but by reciprocal primary legislation in both countries. Importantly, Article 28(2) of the ECE specifically allows state parties to enter into supplementary bi-lateral arrangements. This could mean that, in due course, the UK enters into simpler Freedom of Information Response, 11 June 2007, Extradition requests from foreign countries, placed in the Library of the House following a written answer from Joan Ryan to Mike Hancock on 2 May 2007 (Official report: Column 1679W).

7 nd

House of Lords, Select Committee on Extradition law, 2 Report of Session 2014-2015, Extradition:

UK law and practice, Oral and Written Evidence, Post-Legislative Assessment of the Extradition Act 2003, submission by the Home Office (EXL0001), Annex B.

See House of Commons Home Affairs Committee, Pre-Lisbon Treaty EU police and criminal justice measures: the UK’s opt-in decision, dated 31 October 2013, at paragraph 8.

Separate arrangements would be needed for Gibraltar.

arrangements with some countries but introduces further safeguards in relation to others.

Impact on domestic law The nature and extent of the changes to domestic law required by any bi-lateral extradition treaties, or other arrangements negotiated with individual EU Member States, will depend on the nature of those arrangements. All that can confidently be predicted at this stage is that some amendment to the 2003 Act would be necessary were this to occur.

SOME PRACTICAL IMPLICATIONS

Transitional arrangements. The transitional provisions arising from the post-Brexit extradition arrangements with the EU are likely to be complex, although much will depend on the precise nature of the political settlement. There has already been media speculation as to what will become of extant EAWs that have not yet been executed, such as that in the high profile case of Julian Assange. However, unless specific provision is made for existing EAWs, the effect of s.16 of the Interpretation Act 1978 would appear to be that they would continue to be enforceable.

Schengen II. The second generation Schengen Information System (‘Schengen II’) is a state-of-the-art IT system used by EU Member States and members of the Schengen acquis to share information for law enforcement, immigration and border control purposes. In the extradition context, SIS II is used for the transmission of EAWs. When introduced into the UK in 2015, the Government stated that it gave the UK access to 37,000 EAWs and 43,000 national and public security alerts.10 At this stage it is unclear whether or not the UK will retain access to SIS II. Even if it does, unless the UK has negotiated an EAW style extradition arrangement with the EU the likely result of either no longer being part of the EAW system and/or no longer having access to SIS II will be a significant reduction in the number of European extradition requests received by the UK.

CONCLUSION

Until the Article 50 process is completed, there is unlikely to be any change to the UK’s extradition arrangements with the EU Member States. What happens thereafter will depend on the outcome of those negotiations. If no new arrangements have been agreed during this period, it is likely that our extradition arrangements will be governed by the ECE and EU Member States will be re-designated as Part 2 territories under the 2003 Act.

Explanatory Memorandum (unnumbered), 13 February 2015, Council Implementing Decision on the putting into effect the provisions of the Schengen Acquis on data protection and on the provisional putting into effect of parts fo the provisions of the Schengen Acquis on the Schengen Information System for the United Kingdom of Great Britain and Northern Ireland.

In the longer term the UK may choose to enter into an EAW style system similar to the agreement reached with Iceland and Norway, or negotiate specific arrangements with individual EU Member States. All that can be said with certainty is that the future is unclear.

Members of 6KBW College Hill edit the leading textbooks ‘EU Law in Criminal Practice’ (Oxford University Press), and ‘The Extradition and Mutual Legal Assistance Handbook’ (Oxford University Press). Please contact Andrew Barnes (andrew.barnes@6kbw.com) if you would like further information about our work on extradition, EU matters or otherwise.



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