Brexit and the European Arrest Warrant scheme
Safer Borders? The impact of Brexit on the European Arrest Warrant scheme
One of the themes of the Brexit campaign was that Brexit would give the UK control over its borders and help in the fight against crime and terrorism. Yet, no alternatives to the current extradition arrangements were considered. With Brexit and recent controversial cases of extradition requests made by Romania, the future of the European Arrest Warrant (EAW) is re-emerging as an issue of particular concern.
The UK and International Law
The EAW is a tool used by Governments within the European Union (EU) to secure the arrest and extradition of people who have committed or are accused of committing crimes in their own country. Since 2004, EU Member States are required under the EAW to transfer suspects or prisoners to other states to face trial or complete a sentence.
The UK’s extradition obligations are derived from the bi-lateral and multilateral extradition treaties and agreements to which the UK is a party. These obligations were implemented into domestic law through the Extradition Act 2003. This particular piece of legislation was drafted to bring into force the EAW and to regulate extradition requests by and to the UK.
What would the impact of ‘Brexit’ be?
While the EAW has proven to be an effective instrument in the cross-border fight against crime and terrorism, its future is likely to be in jeopardy after the UK leaves the EU. As the PM Theresa May revealed the full terms of her proposal for EU citizens’ rights, the policy indicated that the government will “apply rules to exclude those who are serious or persistent criminals and those whom we consider a threat to the UK”. The message was subsequently spread across the media that thousands of ‘European criminals’ could face deportation from Britain following Brexit.
In fact, it will be far more difficult to remove accused or convicted persons following Brexit than it is now under the current law. This is largely due to the information sharing system across the EU that UK may no longer be part of. Through its membership of the EU, the Schengen Information System, and the Europol, the UK has access to information about previous convictions of all EU citizens. This means that it is only through the UK’s membership of the EU that the UK has access to information about those offences. It is also through the UK’s membership of the EAW scheme that the UK has an ability to extradite those individuals.
While the UK remains a member of the EU there will be no change to the way extradition law operates under the Extradition Act 2003. However, the inevitable consequence of the completion of the Article 50 process will mean that the UK’s rights and obligations under the EU law will cease. Brexit secretary David Davis has said that arrangements for EAW, Europol and exchanging information will need to be replaced “because that will go when we leave the European Union”.
Consequently, there will need to be amendments to the relevant provisions of domestic law. More importantly, the UK will need to reach some important agreements on its extradition relationship with the EU and the individual Member States. The task would be simplified if the UK could reach an agreement with the EU as a whole. In our recent article entitled ‘The EAW after Brexit’, we indicated that if the UK is not part of the EAW, then any requests for an extradition to and from the UK will most likely follow the system we currently have for non-EU countries. This could become the legal basis for doing business with the remaining EU members, although it is a more onerous and costly route than the EAW.
If the UK is not able to negotiate a similar deal, in all likelihood, it could have a big impact on the government’s ability to bring criminals to justice. There are of course question marks about what will actually happen after Brexit but the probability that cooperation between the UK and the remaining EU countries will be reduced is very high. It is, therefore, a matter for the UK government to make sure that when it comes to the EAW, Brexit does not mean Brexit.