Brexit next steps: The European Arrest Warrant

Joanna Dawson

The European Arrest Warrant (EAW) is a simplified system for extradition between EU Member States. As a member of the EU the UK has used the EAW since 2004. Under the Withdrawal Agreement (WA) this will continue until the end of the transition period.

This Insight explains how the EAW works. It sets out what will happen during the transition period and examines the prospects for new arrangements.

What is the EAW?

The EAW is a fast track extradition procedure between EU Member States. A Member State can make a request when they want to prosecute or imprison a person who is in another Member State. The EAW is based on the principle of ‘mutual recognition’ of judgments between Member States.

Mutual recognition means the authorities in one Member State can arrest and ‘surrender’ a person to another Member State. They do this on the basis of a request from a judicial authority in the other Member State. The process is concluded with minimal inquiry into the basis of that request.

The EAW was a response to the free movement of people within the EU. It recognised the possibility that criminals might try to evade justice by moving between Member States. Before the EAW’s introduction, extradition arrangements were notable for their complexity and potential for delay.

According to data from the National Crime Agency, extradition requests to the UK under the EAW increased from 1,865 in 2004 to 12,613 in 2015. Requests made by the UK to other Member States have gone up from 96 to 228 per year over the same period. According to Government statistics, in 2018/19 15,540 requests were made under the EAW process, and 1412 EAW related arrests were made.

What space is there for negotiations?

The UK and the EU aim to negotiate new arrangements for criminal justice cooperation. These will include extradition. The new arrangements would come into force at the end of the transition period.

No countries outside the EU or the EEA currently have extradition arrangements that are equivalent to the EAW. The EU has said that access to the EAW is linked to allowing freedom of movement. The UK Government has rejected the possibility of maintaining freedom of movement at the end of the transition period.

What will happen during the transition period?

Under the WA, the UK and Member States can continue to use the EAW, provided the process is initiated before the end of the transition period.

However, the WA allows Member States to refuse to surrender their own nationals to the UK using the EAW during the transition period. Some Member States have constitutional rules that prohibit the extradition of their own nationals to countries outside the EU. The UK has the option to reciprocate by refusing to extradite its own nationals to any EU country that exercises this option.

Germany, Austria and Slovenia have said that they will no longer extradite their own nationals to the UK. If a national from one of these countries commits a crime in the UK and subsequently leaves, it will only be possible to prosecute them if the authorities in their own country are willing to do so.

The Home Affairs Select Committee has raised concerns about this exemption. The committee pointed out that victims of serious offences committed in the UK might need to travel to EU countries to take part in trials if the accused is not extradited. It suggested that the Government should be open with Parliament and the public about what this means for access to justice for victims. It also called for practical arrangements to be put in place to support the prosecution of EU nationals in their own countries.

What happens after transition if no agreement is reached?

If no new agreement is reached the UK will fall back on previous arrangements. These are contained in a 1957 Council of Europe Convention on Extradition. This will require amendments to domestic legislation. The UK will also be reliant on other Member States making equivalent amendments because some have repealed legislation that gave effect to the Convention since the EAW.

Unlike the EAW, the Convention does not impose time limits and requests are made through diplomatic rather than judicial channels. There are also more grounds on which extradition can be refused than under the EAW.

The May Government published an assessment of the impact of there being no agreement on extradition arrangements. It stated that relying on the 1957 Convention would mean that requests would be subject to a longer and more complex process, and extraditions would be more difficult. It also noted that prior to the implementation of the EAW, the UK extradited fewer than 60 people each year. It pointed to the example of Rachid Ramda, whose 2005 extradition to France on terrorism charges took 10 years from the original request.

The Extradition (Provisional Arrest) Bill

The Extradition (Provisional Arrest) Bill was introduced in the House of Lords by the Government in January 2020. It would provide police with the power to arrest without a warrant for the purposes of extradition. Currently the Bill only applies to certain non-EU countries. This is because the power already exists under the EAW and is therefore not needed for Member States during the transition period. The Government has said the power could be extended to EU countries in the future if the UK lost access to the EAW. However during the second reading debate in the House of Lords the minister stated that the Bill was not an “attempt… to replicate the capability of the EAW”. The police has requested this power as part of its contingency planning if no agreement is reached.

Will replacing the EAW be difficult?

The Political Declaration (PD) on the future relationship between the UK and the EU says both parties should have streamlined procedures and time limits that allow them to surrender those suspected or convicted of crimes efficiently and quickly.

The PD also raises the possibility of waiving the requirement of ‘double criminality’. This is a feature of most extradition agreements. It means the offence a person is being extradited for must be an offence in both countries involved.

The EU’s draft negotiating mandate notes that arrangements for future law enforcement and judicial cooperation will need to take into account the fact that the UK will be a non-Schengen third country. The UK will no longer allow the free movement of persons. And the draft negotiating mandate states that a third country cannot enjoy the same rights and benefits as Member States. The EU mandate also proposes that any agreement reached should be terminated if the UK were to denounce the European Convention on Human Rights (ECHR), and suspended if the UK repealed domestic legislation that gives effect to the ECHR (namely the Human Rights Act 1998).

The UK Government’s written statement on the future relationship suggests: “it is in the UK’s and the EU’s mutual interest to reach a pragmatic agreement” on law enforcement and judicial cooperation. However, the UK Government position states that EU law must not “constrain the autonomy of the UK’s legal system in any way”.

Can the EAW be replaced with a ‘surrender agreement’?

A ‘surrender agreement’ between the EU, Norway and Iceland (non-EU countries but in the Schengen zone) came into force in November 2019. It mirrors the EAW in most respects and is the first extradition agreement with a non-EU country to do so. However, it contains a similar exemption for the extradition of a country’s own nationals as in the WA. Norway, Iceland and the EU first agreed in principle to these arrangements in 2006 but the completion of necessary legal formalities by all the states concerned took a considerable length of time.

The Home Affairs Select Committee has suggested that the Home Office is “overly-optimistic” about the ease with which replacement arrangements can be negotiated, given how long it took for Norway and Iceland to negotiate an agreement.