Dying hope for a post-Brexit extradition deal

This blog was first published by The Times on 11 June 2020

15 June 2020

Britain and the EU are unlikely to agree on an alternative to the European arrest warrant.
 

Extradition arrangements between Britain and EU have been low on the list of post-Brexit negotiating priorities.

Yet recent developments in the Madeleine McCann case highlight what the UK stands to lose if no deal is struck on future criminal law enforcement co-operation — and how Brexit has already affected arrangements around the European arrest warrant.

In January, Germany, Austria and Slovenia stated that they may refuse to extradite their nationals to the UK. This means that Christian Brückner, the Bavarian-born suspect in the McCann case, will be unlikely to be extradited to the UK unless miracle progress is made on an extradition system to replace the existing scheme.

There is still a last-gasp opportunity for this to be achieved and negotiations at the end of this month will be critical.

The ideal would be that the UK can reach an agreement that mirrors the surrender arrest warrant scheme between the EU, Norway and Iceland. This is similar to the arrest warrant in most ways except that the list of offences covered requires dual criminality, in other words that the crime concerned must be an offence in both countries. Arguably this would not be a problem for UK courts, given that dual criminality is a requirement under the UK Extradition Act 2003 for non-EU countries.

However, there are three strong reasons why agreement on such a successor scheme looks unlikely. First, the EU favours a “single governance framework”, including the role of its Court of Justice as supreme arbiter of EU law.

Brussels considers this vital for the uniform interpretation of EU data protection law. The UK government vehemently objects to both a role for the EU court and an overarching governance structure, proposing instead the establishment of a joint committee for the resolution of disputes.

Second, the EU will expect the principles of democracy, the rule of law and human rights to underpin any future co-operation. The UK’s refusal to commit on human rights is an obstacle to agreement.

Lastly, Britain’s draft negotiating position treaty includes a provision on UK access to the European criminal records information system. It is doubtful that the EU would grant this given that it is not afforded to states outside the Schengen information system.

More likely is that an agreement will not be reached, either now or before the end of the year, meaning that Britain will become a “third state” from 2021 and that extradition will revert to “old” law, effectively the provisions of the 1957 European Convention on Extradition.

Although well understood by all those UK agencies that will be affected, the processes involved are more cumbersome, lengthy and expensive than the present schemes. The UK will have to make bilateral extradition agreements with different countries, requests for extradition will be through diplomatic channels rather than judicially driven and access to tools such as Europol and Eurojust will be lost.

As with a lot of post-Brexit arrangements, life will go on. Yet when issues such as the reignited McCann investigation arise, we will lament the loss of the existing scheme.

This blog was first published by The Times on 11 June 2020.

Further Information

For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.

 

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