News & Insights
With the arrival of a new Prime Minister, the prospect of the UK leaving the European Union without a deal has returned. James Lloyd looks at some of the concerns around arrangements for the continuation and efficacy of the UK’s extradition regime.
Where are we now?
At least for the time being, extradition proceedings in the UK remain governed by the Extradition Act 2003, under which foreign territories are designated either Part 1 (European Arrest Warrant territories) or Part 2 (other territories).
In January of this year the UK Government published a draft statutory instrument which was subsequently laid before both Houses, The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (‘the Regulations’). The Regulations, which remain the only such provisions put in place to date, sought to set out the UK’s post-exit position in respect of EU (Part 1) extradition proceedings, currently reliant upon the European Arrest Warrant system, in the run-up to an envisaged 29th March exit day.
Whilst that exit day never came, the Regulations remain.
Where are we heading?
The UK Government has now confirmed that the UK will leave the European Arrest Warrant regime on exit day.
The Regulations, premised on there being no superseding agreement with the EU, provide that all EAW territories will, from exit day, lose their Part 1 designation (regulation 55) and be re-categorised as Part 2 territories (regulation 56).
Thus, whilst (under the transitional provision of regulation 57) Part 1 requests made before exit day will continue to be processed as such, all new extradition requests made to the UK on or after exit day will be treated at Part 2 requests. EU extradition requests will therefore revert to being governed under the Council of Europe’s 1957 European Convention on Extradition (‘the ECE’).
The reversion to ECE treatment seeks to prevent a cliff-edge in regulation and imports a degree of familiarity to the treatment of EU extradition requests. It is by no means a perfect solution; the ECE has flaws and limitations which the EAW regime was designed to alleviate.
Difficulties in returning to the ECE
Leaving the EAW
Difficulties begin not with the provisions of the ECE itself, but with the very fact that the UK will exit the EAW regime – a regime which enjoys exceptional constitutional treatment in many EU member states.
Less than a month after the draft Regulations were published, Germany submitted a decision to the European Commission in which it was made clear that Germany will not extradite its citizens to the UK following exit day.
German constitutional law imposes strict limitations on the (outwards) extradition of German nationals. The exceptions are requests from other EU countries made via the EAW regime, and rulings of an international court. In leaving the EAW regime, and the supervisory jurisdiction of the ECJ, and absent specific constitutional amendment in Germany (which appears as yet unlikely), the UK will be left on exit day with no effective mechanism by which to request the extradition of German nationals from Germany.
Similar problems appear to exist at least in respect of France, the Netherlands, Slovenia and the Czech Republic, which would all be required to implement constitutional amendments in order for any ECE relationship with the UK to permit the extradition of their own nationals to the UK. While France, for example, historically has made such constitutional changes with relative frequency, no such changes have yet been proposed. It remains to be seen whether EU member states will have an accommodating appetite. Other states such as Greece, Poland and Sweden historically have refused to extradite their own nationals outside of the EAW regime.
Even where member states might be receptive to dealing with the UK under the ECE, some EU member state laws in respect of the ECE have been long-since repealed; positive legislative efforts will be necessary to accommodate a new arrangement.
In the Republic of Ireland, for example, the Oireachtas has recently passed the Brexit Omnibus Bill – amending the extradition regime to cater for a re-introduction of the ECE in respect of the UK. Such changes cannot be expected without some hesitation or reluctance, however. As Irish Justice Minister Charles Flanagan was recently reported to have remarked, the ECE “is not as effective or efficient as the European Arrest Warrant”.
Extraditing ‘own nationals’ under the ECE
The constitutional and legislative barriers imposed by a reversion to the ECE, even if surmounted, are unlikely to provide the same efficacy as the EAW in respect of requested persons who are nationals of the requested state.
Article 6 of the ECE permits a requested state to refuse the extradition of its own nationals. Whilst the UK was previously slow to invoke Article 6 in response to extradition requests received, there is no guarantee: (a) that this approach would be resumed by the UK; nor (b) that such an approach, if adopted, would solicit reciprocity. Given the attitude to out-of-the-EU extradition taken by states such as Greece, Poland and Sweden, there is every possibility that any attempt to extradite own nationals under the ECE would fail, absent some additional political agreement.
The ECE has its roots in international diplomacy and is a more political entity than its judicial-authority-led cousin the EAW. Whilst Part 1 requests are traditionally received by the National Crime Agency, Part 2 requests are directed to the Home Office. Many responsibilities conferred on the UK’s judiciary in respect of Part 1 requests fall to the Secretary of State for the Home Department in respect of Part 2 requests.
Part 2 requests, being dealt with through diplomatic processes, tend to be more susceptible to resolution by agreement between the governments of the respective requesting and requested states. Such a difference in approach to the EAW system with which practitioners are now so familiar is likely to cause difficulty and concern. It remains to be seen how any ECE-based system may come to be modified: to mitigate the risk of excessive diplomatic pressure on proceedings; to import the now-preferred procedural safeguards of the Part 1 procedure; and to increase the purview of the Courts’ involvement in the process.
Time and cost
With diplomatic back-and-forth being more prevalent in Part 2 cases, as extradition practitioners are well aware, the resolution of Part 2 requests typically takes significantly longer than EAW cases. Switzerland, for example, operates under the ECE. In September 2018 the Financial Times reported that extradition under the Swiss ECE system “takes almost 20 times longer than it does with the EAW.” Other recent analysis tends to suggest that an ECE-based system would result in requests taking at least three times as long as their EAW cousins.
With an increase in time comes an increase in cost. In the current climate, any increase in the cost of publicly-funded cases is a cause for concern. Whether and to what extent efforts might be made to curtail such expense remains to be seen.
States making a Part 2 request face two significant requirements which the EAW all but abrogated. First, the requesting state must demonstrate a prima facie case against the requested person. Second, the requesting state must show dual criminality – that the offence for which the request is made is contrary to law in both the requesting and requested states.
Signatories to the ECE are not required to make out a prima facie case. As such, there is likely to be little new room for challenging Part 2 requests on that basis. However, the requirement of dual criminality appears to survive.
With the departure from the Framework Decision list of the EAW, requesting states will have to show dual criminality under any ECE-based system; a ticked box on a Part 1 request will no longer suffice. With that significant change, those representing requested persons in the UK under new Part 2 requests are likely to benefit from an increased focus on the particulars and nuances of non-UK law. Increased co-operation and consultation with overseas lawyers and detailed analysis of the law of the requesting state is likely to ensue – potentially fertile ground for the challenging of Part 2 requests.
Similarly, whilst ECHR arguments seeking to bar extradition under the current EAW regime have often been limited in their success, with what are effectively presumptions of ECHR compliance arising in respect of EU member states, a shift in system may afford further opportunities for challenge. The Regulations do not seek to import any favourable assumptions as to the ECHR-compliance of EAW territories, which will be treated as any other Part 2 territory. Thus, extradition practitioners may discover a more entertaining approach being taken to ECHR-based challenges. Whilst existing case law will survive the change in regime, for the enterprising advocate there may yet prove to be room for manoeuvre.
ECE – a permanent fix?
It is widely agreed that reversion to the ECE is an unsavoury option. The length of time required to resolve requests and comparatively diplomacy-based approach under the ECE would mark a significant retrograde step in efficiency and judicial oversight. However, the EU and UK have made clear that the UK’s continued presence in the EAW is not (presently, at least) an option.
In time, we may see a transition away from an ECE-based system towards a collection of bilateral agreements with individual EU member states which reintroduce the efficiencies of the EAW, or to a Norway-style surrender agreement with the EU. However, such agreements cannot be expected any time soon – Norway’s non-EAW agreement has taken over twelve years to negotiate – and such agreements are likely to be entered into in a piecemeal fashion.
For the time being, absent any supervening transition agreement or shift in course, dusting off the ECE appears to be the way forward in the near future. Inefficient and costly though it may be, it may come with fertile ground for challenge.
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