Brexit and the EAW: at least now we know what we don’t know

9 August 2018

We know that we know next to nothing about the future legal relationship between the EU and the United Kingdom of Great Britain and Northern Ireland. But does that matter for the purposes of the execution of a European arrest warrant (EAW) sent from the UK to Ireland which was issued before the default Brexit date?

No, it does not matter. At least according to Advocate General (AG) Szpunar in his poetic Opinion delivered on 7 August 2018.

The Irish High Court had requested a preliminary ruling in the matter of Minister for Justice and Equality v RO (Case C-327/18/PPU) on the question of whether Brexit meant that there were exceptional circumstances such that an EAW from the UK ought not to be executed by Ireland. The decision for the AG was clear: it is business as usual for EAWs from the UK (at least until 29 March 2019 and then, who knows? No one).

He began outlining the current legal framework:

  • the European Arrest Warrant Act 2003, as amended, has transposed the Framework Decision into Irish Law;
  • the Extradition Act 2003 has transposed the Framework Decision into UK law; and
  • article 1(2) of the Framework Decision provides that Member States are required to execute any EAW on the basis of the principle of mutual recognition and in accordance with the provisions of the Framework Decision and the exhaustively listed cases of non-execution (save in exceptional circumstances).  Such “exceptional circumstances” were discussed in the well-known Aranyosi and Caldararu in the context of detention conditions and a real risk of inhuman and degrading treatment. 

Aranyosi sets out a two stage test for Member States to apply where there are concerns of a real risk of inhuman or degrading treatment in the requesting State. See our blog here. In the case of RO, the Irish authorities had sought and received information about the detention conditions facing him in the UK and had carried out the two-stage analysis concluding that there was no separate issue or concern regarding his detention in the UK under Article 4 of the Charter (inhuman and degrading treatment) – with the exception of the (unknown) consequences of Brexit.

The AG considered the question of whether notification by the UK under Article 50 TEU has any bearing on the way in which an executing judicial authority should carry out its legal assessment of the current case. He commented: “In the absence of a withdrawal agreement in general, and detailed rules on surrender or extradition procedure between the EU and the UK in particular, this leaves us with the two-year period after notification, which is to say that, things being as they are, on 29 March 2019 the UK will leave the EU. This is the assumption we must work on, since it is the default position”.

RO argued that the withdrawal notice amounted to an exceptional circumstance given that the principle of mutual trust has been “fatally eroded” by the notification and therefore EAWs issued by the UK should no longer be enforceable. For the AG, this argument went too far, pushing “the interpretation of the legal effects of a withdrawal notification beyond the limits of any possible legal interpretation”. Commenting that whilst the UK’s withdrawal from the EU is “perhaps not too palatable an option for anyone concerned”, it is a possibility specifically recognised in Article 50. To prejudge a member state’s motives for withdrawal and classify it as an “exceptional circumstance” fatally eroding any mutual trust, would deprive the provision of any usefulness. To follow RO’s argument, he said, notification would lead to a general unilateral suspension of the provisions of the Framework Decision as at the date of the notification which would contradict the principle that the EAW mechanism can only be suspended in the event of “a serious and persistent breach” by one of the Member States of the principles set out in Article 6(1) TEU. It would also be incompatible with the general principle that Member States cannot suspend the application of provisions of EU law.

Key concerns raised by RO regarding his surrender

RO raised 4 specific concerns with respect to what would happen after his surrender if the UK was no longer part of the EU:

  • Whether he would be entitled to credit for the period spent in custody
  • The UK’s compliance with the rule of specialty
  • What would happen to the prohibition on his further surrender to a third state
  • The UK’s respect for his fundamental rights as set out in the Charter

Brexit means Brexit

The Opinion quotes Theresa May’s well-coined phrase and confirms that once a Member State leaves the EU, the Framework Decision ceases to apply for that Member State - unless there are any rules agreed that say otherwise – and consequently, rights associated with that Framework Decision are lost. However, as long as a State is still a Member of the EU, EU law applies and the duty to surrender RO applies. On this point, the Opinion noted that RO did not provide “concrete evidence” in support of his concerns.

The AG referred to submissions by the Irish minister that the UK has made the decision to withdraw from the EU, “not to abandon the rule of law or the protection of fundamental rights”. Indeed a representative of the UK noted during the hearing that the UK is a founding member of the Council of Europe and was one of the first states to ratify the ECHR. The AG noted, with perhaps a little enjoyment, that as recently as 2016 the then UK Home Secretary (ahem, current Prime Minister) had pleaded for the UK to leave the ECHR. Albeit, he acknowledged, this was not the current Government policy.

In any event, he noted that the current position in cases of extradition to a State outside the EU is to apply the principles set out in Aranyosi when interpreting Treaty provisions on citizenship, non-discrimination and the Charter. Ireland had already applied the two stage Aranyosi test and, he held, it would be incoherent to apply a stronger protection to RO in this case in respect of surrender to the UK than that which would be applied to a request for extradition from a State actually outside the EU. Instead the proposed test set out was as follows:

At the moment of executing the EAW, the Judicial Authority can expect the issuing MS, with respect to the individual surrendered, to abide by the substantive content of the Framework Decision, including for post surrender situations after the using Member State has left the EU. Such a presumption can be made if other international instruments will continue to apply to the MS after it has left the EU. Only if there is tangible evidence to the contrary can the judicial authorities of a MS decide not to execute the EAW.

What do we know?

So it seems that as long as the UK remains bound by other instruments such as the ECHR, individuals subject to EAW requests from the UK should generally be surrendered to the UK. The ECJ will be making a decision on this case in due course and we await that with interest. From the AG’s perspective, for now, it is business as usual. It is worth noting that the European Commission has said that the UK’s continued participation in the EAW is linked to free movement of people, the UK retaining the Charter and allowing the ECJ jurisdiction over UK law. Given this is at odds with the Government’s stated position it is unclear how the two can be reconciled.

What happens on the 29 March 2019 remains a mystery. However, “what is sure is that after withdrawal from the EU, at some point the tide will be receding. EU law will be flowing down the rivers and out of the estuaries”. But which laws will flow and which will remain? Who knows.

Further information

Should you require any further information on this issue please contact our criminal litigation team.  

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