Extradition Post Brexit: What has changed?

The European Arrest Warrant (EAW) is a simplified system for extradition between EU Member States. It allows EU members to request the arrest and detention of criminals in other countries without lengthy extradition procedures. The UK has used the EAW since 2004. It  benefited from its efficiency and speed in extraditing suspects.

As a result of Brexit, the UK’s participation in the European Arrest Warrant ended on 31 December 2020, when the transition period under the Withdrawal Agreement expired. This means that the UK can no longer issue or execute EAWs with EU countries, and vice versa. Instead, the UK and the EU have agreed on a new framework for extradition cooperation, which is set out in Part III of the Trade and Cooperation Agreement (TCA).

The TCA aims to maintain a high level of security cooperation between the UK and the EU after Brexit, including on extradition matters. However, it also introduces some significant changes and challenges for both sides. In this post, we will highlight some of the main features and implications of the new extradition arrangements under the TCA.

How does extradition work under the TCA?

The TCA establishes a new surrender procedure between the UK and EU countries that is similar to but not identical to the European Arrest Warrant system.

Under this procedure:

– The UK can issue an arrest warrant for a person who is wanted for prosecution or sentencing in another country, or vice versa. The warrant must contain certain information, such as the identity of the person sought, the nature and legal classification of the offence, and the penalty or sentence imposed if available.

– The country where the person sought is located must recognise and execute the warrant without any further formality, unless one of the grounds for refusal applies.

– The grounds for refusal include: human rights considerations; double jeopardy; political offences; ne bis in idem (no one can be tried twice for the same offence); immunity; lapse of time; territoriality; nationality; specialty (no one can be prosecuted for an offence other than that for which they were extradited); trial readiness; death penalty; military offences; consent; and temporary surrender.

– Some grounds for refusal are mandatory, while others are optional or discretionary, depending on whether the country executing the warrant has made a declaration to that effect.

– The executing country must decide whether to surrender the person sought within certain time limits, which vary depending on whether the person consents or not, and whether there are any appeals or other obstacles.

– The time limits are generally shorter than those under the previous extradition arrangements between the UK and EU countries before 2004, but longer than those under the EAW system.

What are some of the advantages and disadvantages of  the new extradition arrangements?

The new extradition arrangements under  the TCA have some advantages over  the previous ones before 2004, such as:

– They provide a streamlined and simplified procedure for extradition between  the UK and EU countries, without requiring diplomatic involvement or lengthy negotiations.

– They ensure that  there is no political interference or influence in extradition decisions, as they are based on judicial cooperation and mutual recognition of warrants.

– They respect  the fundamental rights and freedoms of  those involved in extradition proceedings, by providing safeguards such as human rights grounds for refusal, legal assistance, and remedies.

However, compared to  the European Arrest Warrant system, there are disadvantages or challenges,

such as:

– They introduce more complexity and uncertainty into  extradition cases, as there are more grounds for refusal, more declarations by countries opting out of certain provisions, and more variations in national laws and practices.

– They create more delays and costs in extraditing fugitives, as there are longer time limits, more possibilities for appeals or litigation, and less use of electronic communication tools.

– They reduce  the effectiveness and efficiency of cross-border law enforcement cooperation, as there are fewer incentives for countries to surrender their own nationals, or to extradite people for minor offences.

What are some of  the implications of Brexit for extradition cases?

Brexit has had a significant impact on extradition cases involving the UK and EU countries.

Extradition cases between the UK and the EU have seen a massive drop post Brexit. Many EU countries such as France, Germany and Austria now refuse to extradite their own nationals. It’s no longer possible for the UK to issue a general EU wide arrest warrant. When the country that the suspect is located in isn’t known they must issue an Interpol red notice. The TCA scheme only works when they know which country the suspect is in.

Extradition post Brexit is still evolving. We may yet see more changes to streamline the processes. Extradition post Brexit is more challenging for governments.

Extradition is a complex area. Understanding the law is essential for those involved. See The Extradition Report for the most comprehensive and easy to understand guidance on extradition worldwide from leading extradition expert Richard Barr.

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