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Extradition post-Brexit: the TCA at a glance
Áine Kervick
On 17 December 2020, the EU Security and Justice Sub-Committee (the Committee) launched an inquiry into the outcome of the UK-EU future relationship negotiations which resulted in the UK and the EU agreeing the terms of the Trade and Cooperation Agreement (TCA) regarding future law enforcement and criminal justice cooperation between the UK and EU (see our earlier blog here). On 26 March 2021, the European Union Committee of the House of Lords published the results of the inquiry in a report entitled “Beyond Brexit: policing, law enforcement and security” which can be found here.
Perhaps the first practical negative consequence for the UK to emerge “Beyond Brexit” from an extradition perspective relates to Article 83 of the TCA which allows EU Member States to refuse to extradite their own nationals to the UK. Germany, Austria and Slovenia had already exercised the Nationality bar during the transition period, which ended on 31 December 2020.
Notifications of an “absolute” Nationality bar
On 16 February 2021, the Committee held a public evidence session with Kevin Foster MP, Home Office Parliamentary Under-Secretary of State, to discuss the law enforcement agreement within the UK-EU Trade and Cooperation Treaty.
In a letter from the Home Office sent to the Committee dated 5 March 2021, the Government confirmed that ten EU Member States had notified their intention to refuse to extradite their own nationals: Croatia, Finland, France, Germany, Greece, Latvia, Poland, Slovakia, Slovenia and Sweden.
In addition, Austria and the Czech Republic will only extradite their own nationals with the requested person’s consent.
It has also been reported that 8 further countries may attach restrictions, such as prison sentences being served in home nations, and we await further details of this.
In light of the above it appears that only the remaining seven EU member states broadly agree to reciprocity with the UK: Belgium, Ireland, Spain, Italy, Bulgaria, Cyprus and Malta.
Nationality bars
The background to Article 83 is derived from some EU Member States’ long-held constitutional bars against the extradition of their own nationals to non-EU countries.
Article 83 of the TCA allows a Member State to refuse to extradite their own nationals to the UK. Where a Member State seeks to take advantage of Article 83, that State is required to ‘consider’ instituting proceedings in-country against its own national which are commensurate with the subject matter of the UK arrest warrant, having taken into account the views of the issuing State (and with the obligation to provide appropriate support to victims and witnesses). It remains to be seen how the various Member States will approach these mandated “considerations.”
Whether this is just the start of an imbalance between the EU and the UK in respect of extradition remains to be seen. The UK has never imposed a nationality bar in respect of incoming extradition requests to the UK for its own nationals and indeed remains willing to extradite UK citizens to the EU.
Practical implications
The large number of EU countries exercising the nationality bar is significant. It is too early to see what practical and political impact this will have. However, some potential consequences include:
- increased difficulties in the UK’s ability to request, receive and prosecute EU citizens based in the EU for criminal conduct committed in the UK;
- disparity in sentences between EU Member States and the UK running the risk of incentivising EU citizens to return to their home country where they may, at best, benefit from the nationality bar and at worst receive a lesser sentence than they would have in the UK for conduct committed here;
- bail applications in criminal (rather than extradition) proceedings becoming more difficult when made by EU citizens in the UK and a corresponding increased prison population in the UK where there is already serious overcrowding.
This is a time of upheaval for UK extradition law and practice. The nationality bar highlights one way in which the TCA takes Britain further from the EAW regime than had perhaps been envisaged or desired.
Further Information
For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.
About the Authors
Áine Kervick is a 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.
Virginia is a trainee solicitor in the Criminal Litigation team. She joined Kingsley Napley in August 2016 as a paralegal in the criminal team, prior to which she also gained experience in extradition.
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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
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