International Insights In Criminal Law - Episode 1 Interpol and Red Notices

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.

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.

This is the final blog in our four-part series looking at some of the key points arising from the published decisions of the Commission for the Control of INTERPOL’s Files (“CCF”). In the first blog, we discussed INTERPOL’s consideration of the merits of the underlying case, in the second claims of political motivation, and in the third the relevance of failed extradition requests. In this blog, we look at requests for deletion of Red Notices in cases arising from unfunded or bounced cheques.

This is the third in our series of blogs looking at some of the key points arising from the published decisions of the Commission for the Control of INTERPOL’s Files (“CCF”).  In the first blog, we discussed INTERPOL’s consideration of the merits of the underlying case, and in the second, claims of political motivation. In this blog, we consider the impact of a decision to refuse extradition on the continued publication of a Red Notice.

This is the second in our series of blogs looking at some of the key points arising from the published decisions of the Commission for the Control of INTERPOL’s Files (“CCF”). In the first blog we discussed INTERPOL’s consideration of the merits of the underlying case. In this blog, we look at the approach taken to requests for deletion of Red Notices in politically motivated cases.

A Red Notice (sometimes referred to as a “Red Corner Notice”) is essentially a request by INTERPOL on behalf of one member state to all other member states to locate a suspect or convicted person and take steps to facilitate their surrender to the requesting state, usually through extradition proceedings. It is possible for the subject of a Red Notice to make a request for deletion to INTERPOL.

Deal or no deal, when the UK’s transition agreement expires at 11pm on 31 December 2020 the country will no longer participate in EU sanctions arrangements or otherwise give effect to EU sanctions regimes. Instead, it will operate a two tier system, devising its own sanctions policies and measures which will be supplemented by sanctions measures imposed as a result of United Nations Security Council Resolutions. 

The Extradition (Provisional Arrest) Bill received Royal Assent on 22 October 2020. See here for previous blogs charting its passage: Extradition (Provisional) Arrest Bill: a sticking plaster & Extradition (Provisional) Arrest Bill: Second Reading.

On Monday 20 July 2020 the UK suspended it's extradition treaty with its former colony Hong Kong, citing the imposition of controversial new security laws on the territory by China. The new law is seen to have changed the very foundation of the agreement between the two states and the treaty has been suspended "immediately and indefinitely". No consideration will be given to reactivating the treaty unless and until there are clear and robust safeguards preventing the misuse of extradition from the UK.

On 22 June 2020 the Extradition (Provisional Arrest) Bill (the Bill) had its second reading in the House of Commons. The contents of the Bill relate to a gap within the current extradition process and are designed to allow police officers, customs officers or service police officers to arrest suspects without a warrant where they are wanted for serious offences in certain trusted countries (currently designated as Australia, Canada, Liechtenstein, New Zealand, Switzerland and the United States of America). 

Over four years of negotiations later and the UK-US Bilateral Data Access Agreement (the Agreement) is expected to come into effect next month. The Agreement will enable law enforcement authorities on both sides of the Atlantic to obtain electronic data directly from communication service providers (CSPs) in the other country for the purposes of criminal investigations and prosecutions for serious crime.

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.

On 14 May 2020 Metropolitan Police officers carried out two search and seizure warrants on behalf of Brazilian prosecutors investigating $5 million in alleged bribes paid to politicians in the state of Amapá in connection with a railroad contract.

In a surprising development, Interpol has reportedly issued a Red Notice for Anne Sacoolas in relation to her alleged involvement in the death of 19 year old Harry Dunn last year.  

The Supreme Court’s recent judgment addresses fundamental legal principles and underscores the UK’s longstanding opposition to the death penalty. It does not go as far as it might but it has brought us a great deal closer to protecting the absolute right to life and underscores the serious and extraordinary scrutiny which must be applied in all cases involving the provision of assistance where there is a risk of the imposition of the death penalty.

Over 13,000 INTERPOL Red Notices were issued last year. Even if a person is not arrested pursuant to a Red Notice, the notice itself will cause considerable difficulties, preventing them from travelling and causing significant reputational damage. This blog looks at how you can challenge an Interpol Red Notice and get it deleted.

On 9^th December 2019 Chief Magistrate Emma Arbuthnot gave her judgment in the cases of Olga Egorova, Dmitry Smychkovsky, Ion Tsurcan and Fryodor Kindrachuk. The Russian Federation had issued separate requests for the extradition of these four requested persons who stand accused of various unrelated offences.

While the agreement between the European Union and Norway and Iceland took some 13 years to negotiate and come into force, the UK Government appears to have managed to act much more efficiently. On 10 March 2020, The Secretary of State made Statutory Instrument No. 265 of 2020 titled “The Extradition Act 2003 Amendment to Designations) Order 2020”.

Following on from a reference in the Queen’s Speech last year – the Government has introduced the Extradition (Provisional) Arrest Bill. This Bill amends Part 2 of the Extradition Act 2003 (“the 2003 Act”) to create a new power of arrest without a domestic warrant for extradition purposes where a person has been requested by one of 6 “trusted” countries for a serious offence.

Extradition lawyers have, for the past three and a half years, been baffled by their very own Brexit
conundrum. How is it that the Conservatives, historically the party of law and order, could (broadly)
support leaving the EU when, since 2003, the European Arrest Warrant (EAW) scheme has led to
the removal of thousands of suspected or convicted offenders from these shores?