Brexit and the European Arrest Warrant: You Can’t Eat Your Cake and Have it

As the deadline for the withdrawal of the United Kingdom (UK) from the European Union (EU) draws close, analysts continue to assess the impact that the withdrawal will have on the lives and businesses of those in the UK, and of course, on the UK economy. Beyond the restriction on the free movement of people, goods and services, Brexit will certainly have an impact on justice delivery in the UK.

The European Arrest Warrant (EAW) was adopted by the EU in 2002, to ease the process of arrest and surrender of persons accused of criminal offences, from one EU member state to another. The EAW mechanism allows persons wanted for prosecution or to serve a prison sentence for a conviction to be extradited between member states with ease. In 2003, the UK enacted the Extradition Act implementing the EAW.

The co-operation among member states based on the EAW allows for an easier extradition process than what existed before. For instance, with the EAW, there are strict time limits within which a member state must take a decision on the execution of the EAW, and surrender the person requested by the EAW. In fact, an EAW is to be dealt with and executed as a matter of urgency. Where a wanted person consents to his surrender, a decision on the execution of the EAW must be given within ten days after the consent is given. Where there is no consent to surrender, the decision to execute the EAW must be taken within 60 days after the arrest of the wanted person. The executing authorities are compelled to give reasons for any refusal to execute an EAW. They are also obliged to give reasons for any delays outside the stipulated time limits.

Another advantage of the EAW for member states is that it does away with the verification of the double criminality of the act giving rise to the surrender pursuant to the EAW. In other words, for 32 categories of offences, ranging from terrorism, to arson, fraud, murder and armed robbery, there is no requirement to verify whether the act is a criminal offence in both countries, i.e., the requesting country and the executing country. Being outside of the EU will also mean that the UK will no longer have automatic access to EU-only police databases.

The fact that the UK wishes to continue to take advantage of the EAW after Brexit is an indication of the ease and convenience which it affords member states in the apprehension and prosecution of criminals. While the UK is keen to continue to benefit from the EAW, the EU, through its chief negotiator, Michel Barnier, has made it clear that the UK cannot continue to reap the benefits of the EAW deal after Brexit. This will certainly have an impact on crime-fighting in the UK. The fact that the UK will have to resort to older, less efficient extradition mechanisms must have the police a little jittery. It could mean prolonged times for bringing criminal offenders to justice.

The alternative for the UK, of course, is to try to negotiate a separate deal with the EU, or in the event that there is resistance to a bloc agreement, negotiate bilateral agreements with individual EU member states. Considering how contentious the negotiations have been between the EU and the UK, it is unlikely that an alternative negotiated agreement with the EU is around the corner. Bilateral agreements are not the sort of thing that can be settled in a day. There is not much time left to reach an agreement between the EU and the UK. The clock is ticking loudly. The difficulties in negotiating the terms of Brexit do not bode well for post-Brexit discussions to create an alternative extradition mechanism for the UK. On the other hand, the EU might be persuaded by global realities such as the fight against terrorism to quickly reach an alternative agreement with the UK. The EU needs the UK just as much as the UK needs it in this regard.

Figures from the National Crime Agency show that for the 2017/2018 fiscal year, the UK made 296 requests and got 183 arrests and 181 surrenders. What happens to pending EAW requests if no deal is reached between the EU and the UK? In the absence of judicial cooperation afforded by EU membership, the UK may find that it has to rely on more complex extradition procedures, which will slow down the apprehension of criminal suspects or convicts fleeing from justice in the UK.

As 29 March 2019 approaches, there is still so much uncertainty as to how Brexit will play out. Only time will reveal its full impact. Crime fighting without the benefit of the EAW and unrestricted access to EU crime databases is definitely one of those areas that will be impacted.

This article is the first part in our criminal law series. For more information on European Arrest Warrant, see Bloomsbury Professional's recent publication: A Practical Guide to INTERPOL and Red Notices.

Written by Kaine Agary

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