Extradition post-Brexit: the Irish questions

15 November 2021

On 9 November 2021 Advocate General Kokott handed down her opinion in respect of Case C-479/21 concerning Mr Sn and Mr Sd following a reference from the Irish Supreme Court which was made on 3 August 2021. Her opinion stated that the provisions of the Withdrawal Agreement and TCA which ensure the continuation of the European arrest warrant regime in respect of warrants issued by the United Kingdom (“UK”) during the transition period are binding on Ireland.

If the Court of Justice follows this opinion, it would mean that any European arrest warrants issued by the UK Judicial Authority prior to or during the transition period, including where the individual was not arrested until after the transition period, are valid and binding on Ireland despite the UK’s withdrawal from the EU.

Irish Supreme Court’s reference

The questions referred were as follows:

  1. Can the provisions of the Withdrawal Agreement, which provide for the continuance of the European arrest warrant regime in respect of the UK, during the transition period provided for in that agreement, be considered binding on Ireland having regard to its significant content regarding the area of freedom security and justice (“AFSJ”); and
  2. Can the provisions of the Agreement on Trade and Cooperation (“TCA”) which provide for the continuance of the European arrest warrant regime in respect of the UK after the relevant transition period, be considered binding on Ireland having regard to its significant AFSJ content?

The Facts

Mr Sd was arrested in Ireland under a European arrest warrant dated 20 March 2020 issued by the UK which sought his surrender in respect of a prison sentence of eight years. Mr Sd was arrested in Ireland on 9 September 2020 (before the end of the transition period[1]). On 8 February 2021 the Irish High Court made an order for his surrender to the UK and he was committed to prison.

Mr Sn was arrested in Ireland on 25 February 2021 (after the end of the transition period) under a European arrest warrant dated 5 October 2020 issued by the UK (before the end of the transition period[2]), which sought his surrender for the prosecution of 14 offences. He was remanded in custody pending extradition proceedings.

In February and March 2021, applications were made on behalf of the two requested persons seeking a determination under Article 40.4.2 of the Constitution of Ireland concerning the legality of their detention on the basis that the European arrest warrant regime no longer applied between Ireland and the UK. The application was refused and they appealed to the Supreme Court. The Supreme Court considered it possible that the arrangements set out in the agreements relating to the European arrest warrant regime are not binding on Ireland and referred the matter to the CJEU as an urgent matter (under Article 107 of the Rules of Procedure of the Court of Justice).

The Questions Arising

Essentially the court has been asked to determine whether Ireland is obliged to execute European arrest warrants issued by the UK, notwithstanding the UK’s withdrawal from the European Union. This question required some technical analysis of the EU law behind the two relevant agreements (“the agreements”).

The AG began by noting that on the face of the agreements it appears that the execution of European arrest warrants is addressed by the provisions therein. However, she went on to consider the possible relevance of Protocol No 21 (to the TEU and TFEU adopted in the context of the Treaty of Lisbon in 2007). Protocol 21 provides that Ireland is not bound by EU measures related to AFSJ, unless it expressly opts in to the measure in question; Ireland has not opted in. Accordingly, the question becomes:  whether Ireland needed to have “opted in” to the provisions relating to the European arrest warrant [in the Withdrawal Agreement and TCA] in order for those provisions concerning the continuance of the European arrest warrant regime during the transition period and after to apply.

That question in turn depends on whether Protocol No 21 applies to the provisions in the Withdrawal Agreement 2020 and TCA. Protocol 21 will not apply to those provisions if the EU based the agreements on its external powers to conclude a withdrawal agreement (Article 50(2) TEU) and an association agreement (Article 217 TFEU) and not on its competence relating to the area of freedom, security and justice. Of central importance was the fact that the two surrender regimes (Article 50(2) TEU and Article 217 TFEU) did not create new obligations for Ireland but rather, extended existing ones.

Ireland’s obligations in respect of the European arrest warrant

Ireland’s obligations in respect of the European arrest warrant predated the Lisbon Treaty and Protocol 21 under Framework Decision 2002/582 and the amending Framework Decision 2009/299. Both are binding on Ireland even though Ireland has not explicitly notified the Council that it wished to take part in their adoption or “opted in”.

However, the UK was no longer a Member State at the time of issuing the two arrest warrants in the present case and so the Framework Decision 2002/584, which refers to the European arrest warrant in the context of cooperation between Member States, could not serve as the basis for their execution.

The obligations therefore appeared to derive from the Withdrawal Agreement which entered into force on 1 February 2020. The transition period ended on 31 December 2020 and Article 127 provides that EU law should be applicable to and in the United Kingdom during the transition period unless the Withdrawal Agreement provides otherwise (which it does not):

Article 62(1) of Part Three of the Withdrawal agreement covers on-going judicial cooperation proceedings in criminal matters and provides:

‘In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, the following acts shall apply as follows:

(a)      …

(b)      Council Framework Decision 2002/584/JHA … shall apply in respect of European arrest warrants where the requested person was arrested before the end of the transition period for the purposes of the execution of a European arrest warrant, …;

Article 185 of the Withdrawal Agreement also provides that Member States may decide that they will not surrender their nationals to the United Kingdom. The Federal Republic of Germany, the Republic of Austria and the Republic of Slovenia had made this decision at the relevant time but Ireland had not.

Finally, the TCA 2021 came into force on 1 May 2021. Title VII in Part Three of the TCA (Articles 596 to 632) establishes an extradition regime between the Member States and the United Kingdom. Article 632 provides that Title VII ‘shall apply in respect of European arrest warrants issued in accordance with Council Framework Decision 2002/584/JHA … by a State before the end of the transition period where the requested person has not been arrested for the purpose of its execution before the end of the transition period’.

AG Opinion

The AG robustly rejected the arguments that the European arrest warrant regime fell within the scope of Protocol No 21 which meant that Ireland was not required to participate: Protocol No 21 only applies in respect of measures that have been, or should have been, based on a competence derived from Title V of Part Three of the FEU Treaty. Conversely, a measure that touches on the area of freedom, security and justice will not be covered by the protocol if it is not necessary to base it on such a competence.

The opinion states that the agreements are based on the competence relating to the arrangements for a withdrawal (Article 50(2) TEU) and on the competence to conclude an association agreement (Article 217 TFEU). The competence is not based on matters relating to the AFSJ.

She further considered whether Article 62(1)(b) of the Withdrawal Agreement or Part Three Title VII of TCA (relating to extradition arrangements) should additionally have been based on a competence relating to the AFSJ. She rejected arguments that the predominant purpose test could not be applied when measures touch upon Protocol No 21 and noted that the Withdrawal Agreement must necessarily be able to deal with the full range of matters covered by EU law.

She concluded that Article 62(1)(b) of the Withdrawal Agreement is correctly based on Article 50(2) TEU and Part Three Title VII TCA on the basis of Article 217 TFEU alone. It is not necessary to combine that competence with a competence relating to the area of freedom, security and justice.

References

[1]  Article 62(1)(b) and Article 185 of the Withdrawal Agreement apply and provide that Framework Decision 2002/584 will continue to apply in respect of the European arrest warrant.

[2]  Article 632 of the TCA provides that the new extradition regime established by Part Three, Title VII, of that agreement is to apply to this scenario.

Further information

Kingsley Napley provides specialist advice for individuals and businesses subject to criminal and civil investigations relating to breaches of competition law.  For further information on the issues raised in this blog post, please contact a member of our criminal team

 

About the author

Áine Kervick is an Associate in our Criminal Litigation team. She has a particular interest in the international dimension of criminal cases and advises individuals in respect of extradition requests and INTERPOL Red Notices. She is also experienced in acting for individuals in internal investigations with a focus on legal professional privilege in criminal investigations and has written a number of articles on the subject.

 

We’re pleased to announce that we’ll be hosting our annual conference on cross-border criminal law on Thursday 5 May 2022. This in-person event will take place in our London office and will focus on accountability for international crimes for both individuals and corporates. Click here to find out more how to register.  

 

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