Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
After months of relative quiet regarding the government’s plans for post-Brexit extradition arrangements, there have been several comments over the past day or so by senior figures which will be of interest to those watching this issue. This blog looks at what we know now, following these comments.
This morning, Tory MP and Brexiteer Owen Paterson was interviewed on Radio 4’s Today programme and made it clear that the UK would not remain subject to CJEU jurisdiction in relation to EAWs. Mr Paterson, asked whether that might damage relations with the EU in criminal matters responded by saying: “I don’t see why it should – the EU has very good relations with neighbouring countries with whom it does not have EAW arrangements and I think that can continue.”
In light of current uncertainty, Lord Neuberger, the outgoing President of the Supreme Court, pointed to the importance of ensuring clarity for judges regarding CJEU decisions in an interview with the BBC. Meanwhile David Davis, in an apparent attempt to stave off the Rees-Mogg wing of his party, has said that the Supreme Court will be the ultimate arbiter in relation to European Arrest Warrants (“EAWs”). It is anticipated that a position paper will be published on this imminently.
Looking at these statements in conjunction with each other, it is clear that the government has moved no further forward on the issue of EU extradition arrangements post-Brexit and is still some way off recognising the dissonance between a departure from the jurisdiction of the CJEU and maintaining the UK’s position at the forefront of security co-operation.
Whilst the comments of David Davis and Owen Paterson purport to shed some light, in fact it will come as no surprise that the political imperative for the hard-Brexit Tories is for the UK to avoid the jurisdiction of the CJEU in any form. What remains unclear is how this might work in practice.
It is worth considering the conclusions drawn by the House of Lords EU Home Affairs sub-committee in their report on “Brexit: judicial oversight of the European Arrest Warrant”. Noting that the Government plans to bring an end to the jurisdiction in the UK of the Court of Justice of the European Union (and the fact that jurisdiction will cease to exist upon exit) the Lords highlighted how this change “leaves open the question” of how the role of the CJEU in providing a level playing field between the UK and EU in criminal justice matters is to be provided for in any future agreement between the two parties. They also pointed out that the CJEU will have at least an “indirect role” in the interpretation of any agreement between the UK and the EU. In any agreement, on any subject between the UK and the EU, the terms of the agreement will—on the EU side—be subject to the jurisdiction of the CJEU, whose interpretation will be binding on the EU and its member states.
Whilst Mr Paterson (citing the EU’s relations with other non-member states) is confident that the UK’s relations with the EU in criminal matters will not be damaged by Brexit, the closest relationship that the EU has with non-member states is with those who are full members of the Schengen agreement (see our blog here). If remaining within the jurisdiction of the CJEU is not palatable, signing up for full membership of Schengen (with free movement across borders) would be politically perverse.
Although the UK’s political realities draw a red line for the government, neither Owen Paterson nor David Davis appear to have recognised the political realities in Europe. Specifically, without the assurance that the member states derive from the CJEU regarding common standards across the EU, and in particular data protection, information sharing (of vital importance in the European fight against crime) cannot take place to the same degree that it does now. See our blog here.
Moreover, although it would come as a great surprise to those who believe the UK to be the guardian and protector of justice, there are member states who have already expressed concerns about the ability of the UK to protect the rights of those extradited to the UK. Lawyers in Germany, for example, recently argued that given that those arrested in the UK do not have an unfettered right to silence when interviewed as a suspect, those sought for extradition to the UK face a return to an unfair trial. There is also fertile ground for a challenge to a UK EAW given the failure to amend legislation in relation to the blanket ban on prisoners’ voting rights following a decision of the European Court of Human Right in 2010. Even now, other EU member states do not have blind trust in the UK’s justice system. More so when the UK leaves the EU: there will unquestionably be a detrimental impact on the trust and confidence which member states place in the UK. The effect of this, at a minimum, will be refusals of UK requests for suspected criminals to return to face trial here. Perhaps more significantly, it will also mean that the UK does not have the same kind of access to information used to detect and prevent crime across Europe.
Today’s bold announcements regarding the future for security cooperation in the UK fail to acknowledge the foreseeable dangers which have been highlighted by, for example, the head of Europol, Rob Wainwright, the Director of Public Prosecutions, Alison Saunders, or the former head of MI6, Sir John Sawers. Of the three comments outlined above, the most important is undoubtedly Lord Neuberger’s plea for clarity for those who will be at the sharp end of interpreting the law.
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