Tension between the UK Supreme Court vs ECJ jurisdiction post-Brexit, from a EAW perspective
Earlier this week it was reported that the Brexit Secretary, David Davis, plans to give the UK Supreme Court the final say in deciding extradition requests for British citizens under any post-Brexit European Arrest Warrant (EAW) system.
We do not know whether this proposal means that the UK courts, when dealing with non-British citizens, will continue to have the benefit of referring questions to the European Court of Justice (ECJ), but it is difficult to see how this would work in practice. It is unlikely to be the case, and perhaps David Davis meant that the UK should remain in the EAW system but have an arrangement similar to Iceland and Norway.
Surrender procedure agreement between the EU and Iceland and Norway
Iceland and Norway signed an agreement with the EU on 21 October 2006 to implement the EAW. The agreement is largely based on the same the framework decision that all EU states are operating on with two important distinctions.
Norway and Iceland were granted a ‘nationality exception’ whereby both countries and EU Member States may declare that their own nationals will not be extradited unless authorised in certain specified conditions. There is also a provision for reciprocity if one country makes such a declaration. This means that if the UK declares that they will not extradite any British citizens, then the other EU Member States may reciprocate and will not extradite their own citizens to the UK. We query whether this conflicts with the principle of mutual trust and respect that underpins the EAW system.
The agreement with Iceland and Norway is not yet in force and there is no indication when it will be. It is uncertain how this agreement will work in practice. In any event, the Icelandic government has decided not to avail themselves of the nationality exception opt-out.
Although Iceland and Norway are not subjected to the ECJ’s jurisdiction (except for EEA matters), they have agreed to periodically review and take into account the ECJ’s decisions on the EAW. If the UK adopts the same agreement as Iceland and Norway post-Brexit, then ECJ’s decisions may be persuasive, albeit not binding authorities. This brings about its own host of uncertainty. Lord Neuberger has foreseen this and on 8 August 2017, he publicly sought for clarity from the government on how the UK Judges should approach ECJ’s Judgements post-Brexit (BBC News report here).
We have previously discussed -in our article The EAW after Brexit– why we feel that it is unworkable for the UK to retain the EAW and exclude itself from the jurisdiction of the ECJ. The latest proposals simply underline the uncertainty that Brexit will bring to the EAW scheme and the UK’s place within in it.
Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.
Cheryl Low, Solicitor
