On 29 March 2017, the European Council received notification from the United Kingdom (UK) of its intention to withdraw from the European Union (EU). This allows for the opening of negotiations, with the overall objective to preserve the interests of the EU’s citizens and Member States. The process creates significant uncertainties around the UK’s access to the European Arrest Warrant (EAW) system after the UK leaves the EU.
In a recent Supreme Court judgment, the Court in Dublin considered the case of Thomas Joseph O’Connor, a construction company director from Ireland, who had been convicted of tax fraud in London but absconded on bail and left for Ireland before sentence was passed. The EAW was issued by the UK authorities resulting in Mr O’Connor being arrested by the state police force of Ireland.
The issue was whether an EU Member State is required to refuse to surrender an EU citizen to the UK if that citizen will remain imprisoned there after the UK leaves the EU in March 2019.
The Supreme Court declined to extradite Mr O’Connor at this stage, and instead ruled that the case should be referred to the European Court of Justice in Luxembourg to resolve the issue.
The Court noted that the precise consequences for Mr O’Connor were very unclear. If returned to the UK, by the time Mr O’Connor finishes his prison sentence the UK will have withdrawn from the EU, and the legal regime which would apply to him in those circumstances is not clear at this stage, and is unlikely to become clear for some period of time (para 5.6):
(…) “if surrendered, Mr. O’Connor will continue to be imprisoned in the United Kingdom beyond the 29th March, 2019, when the United Kingdom will withdraw from the European Union. It is also probable that he will be tried on the absconding charge and it is possible that those proceedings may have legal consequences, whether relating to the issues involved or any possible sentence if convicted, which extend beyond the 29th March, 2019.” (para 5.8).
In this context, Mr O’Connor’s defence argued that Ireland was being asked to surrender an EU citizen in circumstances where the legal framework within which that citizen may come to be governed in the UK is at least at significant risk of being no longer subject to EU law, but will instead depend on the law of the UK. In other words, any rights which might accrue to Mr O’Connor under the EU Charter of Fundamental Rights might no longer be capable of enforcement (para 5.9), and his rights under the EAW regime as a matter of European law would not necessarily be guaranteed after the departure of the UK (para 5.20).
Hypothetical questions about what may or may not happen, in the context of Brexit remain unanswered at this stage and will not be clear until appropriate negotiations have reached a conclusion.
The judgment offers a great deal of assertion that the departure of the UK changes everything about the European Arrest Warrant scheme. There is, however, very little clarity about what precise measures of European law are engaged, so that the Court of Justice could hold that as a matter of European law, an EAW could no longer be deployed in respect of requests from the UK, either generally or in the circumstances of this case (para 5.1).
The point is novel and not the subject of any jurisprudence of the Court of Justice, which is hardly surprising as there has never been a case before of a country leaving the EU. About 20 others are now fighting extradition from Ireland to the UK on the grounds that the UK is leaving the EU. The general principles arising in the Court of Justice’s judgment will may well have implications for all present High Court cases. However, this specific case is only likely to affect extradition to the UK. Those extradited from the UK to other EU countries will of course continue to receive the protection of existing European law.Read More
The recent Brexit negotiations brought further attention to the role of the Court of Justice of the European Union (more commonly referred to in the UK as the ECJ). The negotiations have also emphasised a level of misunderstanding about the role of the ECJ and the European Court of Human Rights (ECHR).
The Court of Justice of the European Union and the ECHR are not the same thing. The ECHR was set up in 1959. Its function is to rule on alleged breaches of the European Convention on Human Rights. All 47 Council of Europe members have signed up to the Convention, and agree to be bound by the decisions of the ECHR.
The ECHR has previously ruled on this country’s ability to set whole-life prison terms; the rights of prisoners to vote and whether Abu Qatada could be deported.
The Court of Justice of the European Union was established in 1952. It is the highest court of the European Union, and rules on matters of European Law. Individuals cannot apply to the ECJ. Instead, national courts refer cases to the ECJ. It is then up to the national court to interpret its own laws in accordance with the decisions of the ECJ.
One of the most well-known ECJ decisions was the case of Jean-Marc Bosman, (the Bosman ruling) which was a freedom of movement decision. This resulted in professional footballers being able to join another club at the end of their contract without a transfer fee being paid. The Court has also ruled in issues relating to religious clothing and symbols at work, such as head-scarfs.
Whatever the terms of the Brexit deal, the UK will not be leaving the ECHR. Our relationship with the ECJ is likely to be much more complicated, but the court is likely to continue to have an influence even after the UK leaves the EU.
John Howey, Senior Solicitor
Image attribution: Adrian Grycuk (Own work) [CC BY-SA 3.0 pl (https://creativecommons.org/licenses/by-sa/3.0/pl/deed.en)], via Wikimedia CommonsRead More
What lies ahead for the EAW after Brexit?
The European Arrest Warrant is a tool used very often by Governments within the EU to secure the arrest and extradition of people who have committed or are accused of committing crimes in their own country.
Some countries confine their use of the EAW to very serious offences such as people trafficking or murder. Others adopt a hard-line approach and will issue an EAW for what may seem trivial such as shoplifting or a simple possession of cannabis.
Notwithstanding the difference in approaches, the UK government accepts that the EAW is instrumental in fighting cross-border crime and presently at least, is keen to remain part of the EAW post-Brexit.
If the UK is not part of the EAW, then any requests for a extradition to and from the UK will most likely follow the system we currently have for non-EU countries; this is a more onerous and costly route than the EAW.
If the UK continues to be part of the EAW, in all likelihood, they will have to submit to the jurisdiction of the European Court of Justice (“ECJ”). This will no doubt prove unpopular with those seeking a clean break from the EU, or ‘hard-Brexit’.
Some interpretations of the EAW
The ECJ has made important interpretations on the framework decision relating to the EAW. Kovalkovas [C-477/16 PPU] is a case brought by the Government of the Netherlands and decided by the ECJ in November 2016. The ECJ concluded that a Ministry of Justice was not a Judicial Authority for the purposes of an EAW and therefore cannot issue a valid EAW. This contradicted the UK Supreme Court’s decision in 2013 (case of Bucnys v Ministry of Justice Lithuania  UKSC 71. As a result of the ECJ’s decision, it was binding on all EU countries including the UK. The UK Courts and the CPS had to disregard Bucnys.
It is unworkable for the UK to remain part of the EAW after Brexit, yet be excluded from the jurisdiction of the ECJ. The UK will have to choose.Read More