Extradition post-Brexit: plus ça change, plus c’est la même chose?

6 October 2021

Rebecca Niblock & Edward Grange (Corker Binning) examine the key changes & similarities to extradition law following Brexit.

  • The introduction of new surrender arrangements under the EU-UK Trade and Cooperation Agreement.
  • Changes effected under the Extradition (Provisional Arrest) Act 2020.

In 2013, we wrote a practitioner’s guide to extradition law (Extradition Law: A Practitioner’s Guide, Legal Action Group, 2013). Given that extradition is a fast-moving area of law, our second edition followed fairly quickly, and was published in 2015. It wasn’t, however, until 2021 that we were able to produce a third edition of the book, which was published last month. The reason for the longer gap came, of course, as a result of the 23 June 2016 referendum decision; although we had thought the outcome as regards the extradition arrangements between the EU and the UK would become clear by 29 March 2019, this date was pushed back to 31 December 2020.

This article looks at two of the legislative changes brought about since our second edition. The first change, the introduction of new surrender arrangements at Part III, Title VII of the Trade and Cooperation Agreement (TCA) between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, while on its face an overhaul, was in fact surprisingly similar to the previous arrangements in the form of the European arrest warrant (EAW) system. The second change, the Extradition (Provisional Arrest) Act 2020 (E(PA)A 2020) was ostensibly intended to deal with an issue that arose in extradition to states outside the EU; however, many commentators (and some legislators) recognised that the introduction of the Bill in the year leading up to Brexit day was no coincidence.

Surrender provisions of the TCA
The structure of the surrender provisions of the TCA follows essentially the same sequence as the framework decision on the EAW of 13 June 2002 (2002/584/JHA), starting off by dealing with scope, moving on to grounds for non-execution, through the issue of guarantees and on to the content, form and transmission of the arrest warrant. The format of the arrest warrant remains the same in key respects.

The areas which are significantly different are: the lack of access of the UK to the Schengen Information System II (SIS II) database; removal of the framework list of offences which obviated the requirement for dual criminality; the lack of reference to the principle of mutual recognition, with a new foregrounding of the principle of proportionality effectively replacing it; and the introduction of the possibility of both a nationality bar and political offence exception. There are interesting public law issues that arise from the way in which the TCA is implemented by way of s 29 of the European Union (Future Relationship) Act 2020 which it remains for the court to resolve. As yet however, while it is anecdotally apparent that the termination of UK access to the SIS II database has led to an immediate drop-off in numbers for extradition arrests from EU countries, it is too early to assess the impact of most of these changes.

Cases involving TCA arrest warrants will soon start to trickle through to the High Court. In the meantime, we can look to recently decided cases that point in different directions with regard to the court’s future stance towards the removal of the principle of mutual recognition from requests for surrender from EU countries.

In the case of Popoviciu v Curtea de Apel Bucharest (Romania) [2021] EWHC 1584 (Admin), the Divisional Court found a real risk that the requested person’s rights under Arts 5 and 6 of the European Convention on Human Rights (ECHR) would be breached. In order to succeed in persuading a court to discharge on this ground, requested persons must meet a very high bar: they must show that there are substantial grounds for believing that there is a real risk of a flagrant denial of their rights. There have been very few cases in which a requested person has been able to meet this bar, and examples of such cases are almost exclusively found in relation to requests from countries outside the EU. While the court stressed the sui generis character of the case (at para [132]), the fact that, six months after Brexit, a Divisional Court was able to find that there was a real risk of a flagrant denial of a person’s right to a fair trial and right to liberty and security in an EU country is of note.

Popoviciu points to a more sceptical attitude to mutual recognition. Conversely, Tabuncic and another v Government of Moldova [2021] EWHC 1269 (Admin), [2021] All ER (D) 91 (May), another Divisional Court judgment, stressed the concept of mutual trust within the framework of non-EU requests. While the application of the concept of mutual trust to requests from outside the EU is not new (cited by the House of Lords in Gomes v Government of Trinidad & Tobago [2009] UKHL 21 at para [36] as the basis upon which extradition treaties are founded), it is not uncontroversial: in Sanchez v Government Of The United States Of America (CPS) [2020] EWHC 508 (Admin), [2020] All ER (D) 191 (Feb), for example, the Divisional Court explicitly excluded the application of the principle of mutual trust and confidence underpinning the EAW system from Part 2 cases (at para [72]). Certainly, prior to Brexit there was a distinction between the high level of mutual trust afforded to EU member states (ultimately facilitating the mutual recognition of decisions made by judicial authorities across the EU), and those states outside the EU. The Divisional Court in Tabuncic ultimately decided that assurances provided by the Moldovan authorities were not reliable, and refused to extradite on the grounds of a breach risk of the requested persons’ Article 3 ECHR rights, but the use of the phrase in that judgment is an indication of the entrenchment of the concept as a fundamental principle in extradition cases generally.

Provisional arrest without warrant
Like the changes brought about as a result of Brexit, on its face, E(PA)A 2020 appears to bring about a significant change to the functioning of the extradition system in the UK. Despite appearances, however, allowing a power of arrest without warrant for those wanted by ‘specified countries’ for ‘serious’ extradition offences may not have such a substantial impact as it may seem at first blush.

Unlike in many other jurisdictions, prior to E(PA)A 2020, an INTERPOL red notice had no direct effect in the UK. An individual who was the subject of an INTERPOL red notice could not be detained in the UK without a provisional warrant of arrest issued by an appropriate judge. With the implementation of E(PA)A 2020, provisional arrest pursuant to a request from certain specified countries listed in the Extradition Act 2003 (EA 2003) can take place without a warrant, where that request is certified by the National Crime Agency (NCA). The effect of this is that it will be possible for a person to be arrested on the basis of an INTERPOL red notice, provided it has been certified by the NCA. In addition to the restricted number of countries this currently applies to (Australia; Canada; Iceland; Liechtenstein; New Zealand; Norway; Switzerland; and the USA), there is another provision, which limits the power to ‘serious extradition offences’, defined as an offence which carries a sentence of at least three years’ imprisonment in the UK. That is easily met by most criminal offences for which extradition is sought by Part 2 countries (summary-only offences were never extradition offences under Pt 2, EA 2003).

The stated justification for these changes was to speed up arrests in respect of requested persons wanted by trusted extradition partners: in cases where an appropriate judge is required to issue a warrant, this may take some hours. It is undoubtedly the case that the NCA would be able to certify a warrant in less time than it would take for an appropriate judge to issue a provisional arrest warrant. The certification process is, however, dependent on the resourcing of the NCA, which must carry out an assessment of whether, among other things, the seriousness of the conduct makes it appropriate to issue a certificate. According to the Home Office impact assessment of E(PA)A 2020, the amendments to EA 2003 will result in six people a year entering the criminal justice system more quickly than would otherwise have been the case: looked at in this context, the changes brought about by the new Act may do very little to change the daily work of extradition practitioners, save in very specific circumstances.

The High Court has yet to consider the new provisions inserted by virtue of E(PA)A 2020 and the impact of the TCA; thus practitioners should keep an eye on any cases emerging that seek to clarify how the new provisions are to be applied. Given that provisional arrest without warrant is likely to only result in six cases before the court per year, such cases may be few and far between. Practitioners should also look out for countries being added to the list of specified countries, particularly if such countries have ‘form’ for INTERPOL misuse. Despite years of uncertainty, extradition law will undoubtedly continue to evolve and as with any new legislative changes, fertile challenges lie ahead for practitioners.

This article was first published in full on the New Law Journal website on 1 October 2021.

FURTHER INFORMATION

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

 

ABOUT THE AUTHOR

Rebecca Niblock is a partner in our criminal litigation team. She has significant experience in both domestic criminal litigation and extradition, having acted for defendants in a wide range of criminal matters from serious fraud, money laundering and corruption, to sexual offences and offences involving violence or drugs. Rebecca specialises in cases involving cross-jurisdictional elements. She has successfully defended a large number of persons requested by other states, both inside and outside the EU in extradition proceedings at all levels from the magistrates’ court to the Supreme Court. She also has experience in advising in sanctions cases, and in providing advice to those subject to Interpol red notices and mutual legal assistance requests.

 

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