Extradition post-Brexit: the TCA at a glance

The potential fallout from Brexit for extradition and cross-border criminal justice security had been forewarned even before the first vote was cast in the Referendum. The risks to the UK of losing access to SIS II and complicating a relatively simple (albeit not perfect) EAW process were highlighted by many practitioners, law enforcement agencies and politicians.

Where are we now?

On 31 December 2020 the Transition Period ended. The UK-EU Trade and Cooperation Agreement (the TCA) was agreed at the final hour on 24 December 2020 with Part III of the TCA dealing with law enforcement and judicial cooperation. Provisions of Part III are incorporated into the Extradition Act 2003 by the European Union (Future Relationship) Act 2020 (EUFRA) and are, for the most part, consistent with the system that operated under the EAW scheme with some notable differences.

What are the key differences?

• The TCA refers to “Arrest Warrants” (AWs) rather than EAWs;
• Any EAWs issued prior to 31 December 2020 will be treated as AWs;
• The TCA does not apply to EAW cases where an individual was arrested or extradited prior to 31 December 2020. The 2003 Act will continue to apply to those cases, in its unamended form (Polakowski v Westminster Magistrates’ Court [2021] EWHC Civ 53 (Admin);
• The EU 27 and Gibraltar remain Part 1 territories;
• Norway and Iceland are now Part 2 territories and will require the additional processes that this designation brings;
• There is an inconsistency between the TCA and the Extradition Act 2003. In that the TCA appears to apply the principle of proportionality to both accusation and conviction warrants. The amended section 21A Extradition Act 2003 does not specify that it applies to conviction warrants.
• Diplomatic assurances are enshrined (Art. 84);
• The CJEU jurisprudence will no longer apply to the UK in respect of AWs under the TCA (although Member States will remain bound by its jurisprudence and this will likely have some impact on the UK). The TCA specifically confirms that UK and CJEU interpretation of the TCA will not be binding on the other (Art. 13(3));
• The Specialised Committee on Law Enforcement and Judicial Cooperation (SC-LEJC), made up of UK and EU officials, will oversee the operation and implementation of the Part III measures;
• If the UK should denounce the ECHR or Protocols 1, 3 or 16 thereto, all criminal cooperation under the TCA will halt (Art. 136(2)).

Bars to extradition?

• The UK will require dual criminality in all cases (save for group terrorism, drug trafficking and serious violence – Art. 79(3));
• Nationality bar (Art. 83) – this is an opt-in bar. Germany, Austria and Slovenia exercised this during the transitional period and are expected to continue this under the TCA;
• Political offences – there is no bar for political offences save for specific terrorism related offences where the UK or a Member State notifies the Specialised Committee of an intention to rely on this bar.

What have we lost?

• Mutual trust and confidence: there is no reference to the principle of mutual trust or mutual confidence in each other’s legal systems which was such a core principle under the EAW scheme;
• CJEU jurisprudence. It is a difficult time for practitioners who were admiring of the CJEU jurisprudence; happier times of course for its critics. We anticipate many arguments pointing to its continued relevance and significance notwithstanding that it is no longer binding;
• One of the biggest practical losses is access to SIS II. We have written about SIS II here. This is the information sharing system amongst all EU 27, Norway, Iceland, Switzerland and Lichtenstein which provides for real time information sharing from police databases. Requested persons were routinely identified during traffic stops. It was used an estimated 600 million times per year by the UK. The use of Interpol red notices and information systems as a replacement is less efficient and more cumbersome;
• The UK is no longer a member of Europol and Eurojust;
• Now the UK is outside the EU its requests will not be prioritised as they would under the EAW scheme and this may result in delays in incoming transfers;
• The TCA does not provide a mechanism to replace the Framework Decision in respect of custody transfer between Member States;
• There is no mechanism for pre-trial bail conditions to be enforced in another territory. Whilst European Supervision Orders were rarely used in practice pre-Brexit, they offered a useful mechanism to protect fundamental freedoms, particularly in the case of less serious offences where Member States might have been more willing to use them.

The incorporation of the surrender provisions of the TCA by way of EUFRA into the Extradition Act 2003 offers some clarity to practitioners as to the process to be followed and is certainly preferable to a no deal scenario but it is too early to see what the practical impact of the changes will be. We expect interesting legal challenges at each stage of extradition proceedings under the new arrangements as practitioners, the courts and criminal justice agencies grapple with the changed regime.

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

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.