The European Arrest Warrant

The basis of the European Arrest Warrant (the EAW) is the Council Framework Decision on the European arrest warrant and the surrender procedures between Member States. The Framework Decision, made in June 2002, superseded the previous extradition arrangements between EU Member States as set out in the Council of Europe’s 1957 European Convention on Extradition (the ECE).

The main intention behind the Framework Decision was to speed up the extradition process between Member States. It achieved this by adopting a “system of surrender” between judicial authorities, based on the principle of mutual recognition and trust between Member States. The Framework Decision was implemented in the UK by Parts 1 and 3 of the Extradition Act 2003, which came into force on 1 January 2004.

Supporters of the EAW – including the Government and law enforcement authorities – argue that it has streamlined the extradition process within the EU and made it easier to ensure wanted persons are brought to justice.

Opponents have argued that it is used too frequently and favours procedural simplicity over the rights of suspects and defendants. Particular criticisms relate to its disproportionate use for trivial offences, and to difficulties reconciling the “mutual recognition” concept with variable criminal justice standards across Member States.

The Government has attempted to address some of these criticisms, for example by legislating to introduce a new “proportionality test” that the judiciary will need to consider before agreeing to extradite an individual from the UK under an EAW.

In 2014, Parliament voted in favour of the UK remaining within the EAW, rather than adopting some other form of extradition arrangements with Member States.

This paper aims to act as a guide to the numerous reports and reviews that have considered the EAW to date, focusing on areas of controversy around the operation of the EAW in practice and on the opt-out decision. Having set out the background, this paper explores the possible impact of Brexit on the UK’s extradition arrangements with the EU. A number of alternative options to the EAW have been identified: reverting to the 1957 European Convention on Extradition; concluding an agreement with the EU; or concluding separate bilateral agreements with each of the 27 Member States. These possibilities are currently the subject of an inquiry by the House of Lords EU Home Affairs Sub-Committee. This paper sets out the pros and cons of each of these alternative options.