Prior to its departure from the EU, the UK was a party to a substantial and complex body of EU measures aimed at delivering a high level of cross-border cooperation in policing and criminal law enforcement. The most well-known of these is probably the European Arrest Warrant (EAW) which replaced cumbersome extradition procedures with a more streamlined surrender procedure. Inevitably, Brexit meant the UK exiting these cooperation arrangements to the detriment of all the parties. A vital aspect of the post-Brexit negotiations, therefore, was how to construct effective replacements given that the UK would have the status of a non-EU Member State.
Understandably, perhaps, the media coverage of the tortuous negotiations focused on whether a ‘free trade’ agreement could be secured. Nevertheless, the resultant “Trade and Cooperation” Agreement between the UK and the EU actually includes a substantial body of criminal justice provisions. These account for more than 17 percent (70 of the 409 pages) of the main text of the Agreement; supplemented by a further 150 pages in the Annexes. While they may not make for the most riveting of reading, they do have some interesting features.
There has been a clear attempt to replicate existing arrangements in some limited areas. Indeed, it is easy to spot much cutting and pasting from existing EU instruments. Surprisingly, perhaps, there is a sense that the parties have not quite managed to sort out fully how their new relationships will function, even though they have known for some years that they would have to address these very issues. All too frequently in the Agreement, working arrangements are expressly left to be agreed by the parties. There are even some typographical errors which convey a sense that the provisions have been hastily assembled and published.
In this note, I will focus primarily on aspects of the arrangements that have been adopted to substitute for the EAW. I will follow that with a few brief observations on the new cooperation arrangements on policing and prosecution.
The Arrest Warrant
The EAW is undoubtedly the most high-profile and successful of the EU’s instruments on judicial cooperation in criminal matters. Several EU Member States are heavy users of it in seeking the surrender of persons from the UK for prosecution, or to serve sentences already imposed, in their domestic criminal justice processes. While the UK is not such a heavy user in reverse, it does use it frequently in seeking surrender from some other Member States; most notably Ireland and Spain.
For the purposes of extradition or surrender between the UK and EU Member States, the EAW is replaced by a surrender arrangement based on an “Arrest Warrant” (AW). In some important respects, this AW is a parallel of the EAW. Indeed, it seems to have been constructed in large part by cutting and pasting from the legislation establishing the EAW.
Like the EAW, the AW is an exercise in direct cooperation between judicial authorities in the issuing and executing States. So, for example, when the UK wishes to secure the surrender of a person from a Member State for the purposes of prosecution or to serve a custodial sentence already imposed, a judicial authority (which could be a public prosecutor) in the UK will issue an AW for his surrender. The AW will be transmitted to a judicial authority in the appropriate Member State for execution and ultimate surrender of the person concerned to the UK.
The very wide range of offences covered by the AW, together with the mandatory and optional grounds for non-execution, the execution and surrender procedures (including the time limits) and the rights of the person concerned, are all very similar to their counterparts in the EAW. The actual format of an AW is almost identical to that of an EAW. Nevertheless, there are several important differences between the two instruments.
Critically, the AW is not designed to function as a core instrument in the operation of the area of freedom, security and justice that had incorporated the UK as a member of the EU. Instead it is envisaged as having a purely functional purpose of securing the arrest and surrender of a person for the purposes of prosecuting him for an offence or having him serve an outstanding sentence. This difference is reflected in several key features that distinguish the scope of the AW, and the manner in which it will operate, relative to the EAW.
Reintroducing extradition restrictions
Although the AW generally retains the same broad scope of the EAW, it does leave room for reintroducing some limitations traditionally associated with international extradition law. These include a possible exclusion for some ‘political offences’. The UK (or the EU on behalf of any of its Member States) may lodge notification that it will not surrender for a political offence, apart from certain terrorist offences.
The parties also expressly retain the right not to surrender their own nationals, or to do so only under certain conditions. While the UK has not normally applied a restriction on the extradition of its own nationals, several Member States do so (outside of the EAW). Where surrender is refused on grounds of nationality, the executing State concerned shall consider instituting proceedings against its own national for the offence in question.
Interestingly, the Agreement does not fully retain the automatic waiver in respect of the ‘double criminality’ rule that the EAW imposed on a long list of criminal offences. The ‘double criminality’ rule refers to the traditional requirement in international extradition law that the conduct in the extradition request should be recognised as a criminal offence in the laws of both the requesting and requested States. Controversially, the EAW drops that requirement for a wide range of criminal offences, some of which are framed very loosely. The net effect is that if an issuing State designates the conduct in question as one of the offences on the list, the executing State must accept that at face value even though the conduct would not have been so designated in its law.
By dropping the automatic waiver requirement for the prescribed list of offences, the Agreement opens the possibility of a requested person challenging his surrender on the basis of a material difference in the criminal laws of the States with respect to the conduct in question. Having said that, it should be noted that the Agreement makes provision for the parties to drop the double criminality requirement for a long list of offences which are virtually identical to the automatic waiver list in the EAW. There are only a small number of material differences in the substance of the two lists: fraud against the financial interests of the EC (as they were at that time) has been revised to include the UK, a Member State and the EU; counterfeiting the Euro has been changed to counterfeiting currency; and unlawful seizure of aircraft/ships has been extended to include spacecraft!
Obligation to surrender
Unlike the EAW, the new arrangements do not expressly impose a general obligation on the executing judicial authority to execute an AW that satisfies the formal requirements. The only exceptions are where the AW concerns terrorism (as defined in the Agreement), certain terrorist or drug-trafficking offences and certain serious offences against the person associated with a terrorist or organised crime gang.
Mutual recognition and trust
De-coupling the AW from the area of freedom, security and justice is further reflected in the dropping of the principle of mutual recognition and trust which is a defining feature of the EAW. Generally, this principle means that the executing judicial authority should not seek to go behind an EAW to check that it has been properly issued in compliance with the domestic legal requirements of the issuing State. It should accept the EAW at face value and as the equivalent of a comparable judicial decision in its own State. Equally, in the absence of clear evidence to the contrary, the executing judicial authority should normally proceed on the basis that the fundamental rights of the requested person have been, and will be, respected in the issuing State.
Since the AW is not expressly based on the principle of mutual recognition and trust, it would appear that a requested person will be able to use the surrender hearing as a forum in which to open up the manner in which the warrant was issued in the issuing State. Arguably, he will even be able to challenge the AW on the basis that it did not disclose a sufficient evidential basis, or a prima facie case, against him in respect of the offence concerned. He will also be able to bring the human rights standards in the issuing State into play as there is no express legal obligation on the executing judicial authority to assume that they will be respected.
Interestingly, some of the Agreement provisions on the AW reflect divergences from the EAW which had been introduced in UK law as early as 2014. The most notable of these is the application of the principle of proportionality. It is stated in the Agreement that cooperation through the AW shall be necessary and proportionate, “taking into account the rights of the requested person and the interests of the victims, and having regard to the seriousness of the act, the likely penalty that would be imposed and the possibility of a State taking measures less coercive than the surrender of the requested person particularly with a view to avoiding unnecessarily long periods of pre-trial detention.”
This is a welcome development as it seeks to avoid a serious flaw in the EAW. Executing judicial authorities in Member States, especially in the common law jurisdictions in Ireland and the UK, often find themselves having to order the surrender of a requested person for offences such as shop-lifting of low value items, fraud in respect of small sums of money, possession of small amounts of proscribed drugs etc. The consequences for the requested person, his family and the domestic criminal justice system can be out of all proportion to the harm associated with the alleged criminal offence.
Frequently, the requested person will be taken away from his home, family, job and the life that he has established over a period of years, and he will be transported speedily to another jurisdiction. He will be held there in custody (often in very poor conditions) for many months or years to await trial and a possible custodial sentence. Ultimately, he will return to the executing State, perhaps several years later, and seek to piece his life back together again.
Of course, it is important that there should be no hiding place from the criminal law in an area of freedom, security and justice. Equally, however, the criminal law needs to be applied in a sensible and proportionate manner. The blind application of an inter-jurisdictional surrender procedure to enforce the criminal law across large distances in time and space in respect of the stealing of a chicken or a bottle of wine from a supermarket, for example, seems like overkill; even in a single area of freedom, security and justice. The UK recognised and acted upon that reality back in 2014 in the face of the strict requirements of the EAW. It has held to that position in the AW. Hopefully, the EU will follow this lead by introducing an express proportionality requirement into its EAW.
Other aspects of the AW
There are a couple of other disparate points worth noting about the AW. The new arrangements will also apply to EAWs issued before the end of 31st December 2020 (the end of the transition period) where the requested person has not been arrested pursuant to the EAW before that date. Although it is not entirely clear, it would appear that the issuing State does not have to expressly substitute an existing EAW with an AW (where the requested person has not already been arrested under the EAW). The EAW already issued will simply convert to an AW. That, however, would be a recipe for confusion and conflict. A person arrested pursuant to such a virtual AW will argue that it has no legal effect.
It is possible, of course, that the parties will interpret this provision as enabling them to withdraw an extant EAW and issue an AW in the same matter. It would be better if that was made clear in the provision itself.
The position with respect to Gibraltar would also seem to invite confusion and conflict. Gibraltar was subject to the EAW. The Agreement, however, expressly states that the Agreement itself has no effect with respect to Gibraltar. It should follow that the AW does not apply with respect to Gibraltar, even though it has been announced that free movement of persons between Gibraltar and Spain will continue. The net effect would appear to be that the basis for extradition arrangements between Gibraltar and Member States has reverted to the more restrictive provisions of the Council of Europe’s Convention on Extradition 1957.
Further uncertainty in the AW provisions flows from the absence of clear provision on the authoritative resolution of conflicts of interpretation. Given that the provisions have the coercive capacity to deprive individuals of fundamental rights and freedoms, it might be expected that they would be accompanied by clear provision for a supreme judicial body to hand down authoritative interpretations.
Presumably, the terms of the Agreement will be incorporated into national legal orders through domestic law. Such laws will, of course, be subject to interpretation in the normal manner through the domestic courts’ systems. Problems will rise, however, where courts within a domestic legal order are uncertain on the correct interpretation of the domestic law in conformity with the terms of the Agreement. Equally, problems will arise where courts in several States are interpreting the Agreement differently within their own legal orders.
Under the EAW, these situations are resolved by recourse to the Court of Justice of the EU (CJEU) which will hand down authoritative interpretations. That facility is patently absent from the AW. Instead it would appear that conflicts of interpretation in respect of AW provisions will be subject to what is effectively an executive dispute resolution process. This approach is entirely inappropriate for resolving conflicts and uncertainties over the interpretation of the AW provisions which encroach directly on fundamental rights such as the right to liberty and the right to a fair trial. What is needed is provision for a judicial body, such as the CJEU, to hand down binding authoritative interpretations in individual cases.
The Agreement makes provision for future cooperation between the UK and Europol. The effect would appear to be to situate the UK alongside States, such as the USA, which have close cooperation arrangements with Europol. This includes the exchange of data and liaison officers, as well as scope for the UK to be consulted on policy issues, to participate as an observer at Europol Heads of Unit meetings and to have access to some operational analysis projects.
Ultimately, of course, the UK is no longer a member of Europol, does not have a seat and vote at Europol meetings and does not have full access to the vitally important Europol database. Moreover, in order to participate in data exchange, the UK will have to maintain a high standard of data protection and data privacy rights.
It seems clear that the relationship between the UK and Europol has yet to be fully worked out. Much is left expressly to be prescribed in the form of administrative arrangements. It remains to be seen what form and substance these will take and how much transparency will be applied to them.
Eurojust and EPPO
Eurojust is the forum for judicial cooperation between public prosecution services in the EU. As with Europol, the UK has now lost its status as an important member of this body, and the benefits and influences that went with that. The substitute arrangements seem consistent with moving the UK to the status of those third States that enjoy close cooperation with Eurojust. This includes the designation of Eurojust contact points in the UK, the posting of UK liaison prosecutors to Eurojust and the posting of a Eurojust liaison magistrate to the UK. There is also provision for limited exchange of personal data. Even more than with Europol, it is clear that much of the arrangements for the future relationship between the UK and Eurojust have yet to be worked out.
Surprisingly, perhaps, there is no express provision on the future relationship between the UK and the new European Public Prosecutor’s Office (EPPO). The UK, of course, had opted not to sign up to the EPPO when it was a member of the EU. That, however, is no reason why the Agreement should not include provision for their future working relationship. It is likely that the EPPO and the UK authorities will be involved separately in the investigation of frauds that will require or benefit from their mutual cooperation. It is strange, therefore, that the Agreement is silent on their future relationship.
The Agreement contains a range of other provisions on security and criminal law enforcement cooperation. Replicating much of the Treaty of Prüm, for example, these include provision for: exchanges of DNA (profiles), fingerprints and vehicle registration data, acquiring DNA profiles, searching DNA databases and cooperation on automated transfer of data. Separately, there is provision for searching in domestic vehicle registration data, and for the transfer of passenger name record data in line with the obligations that the UK would have been subject to as an EU Member State.
Although the UK was a regular participant in (and source of) joint police investigation teams under EU law, there is no express provision for future arrangements of that type. Similarly, the UK has now lost access to the vitally important Schengen Information System, and there is no express provision in the Agreement for a substitute arrangement.
Fundamental rights and data protection
The Agreement would appear to tie the UK tightly to continued enforcement of the ECHR in its domestic law. It stipulates that cooperation in the matters covered shall be based on respect for democracy, the rule of law and the protection of fundamental rights and freedoms (expressly including the UN Declaration of Human Rights and the ECHR). It also emphasises the importance of giving effect to the rights and freedoms in the ECHR domestically. In addition, the Agreement expressly refers to the need for personal data-processing to be accompanied by a high level of personal data protection in the parties’ respective data protection regimes.
As noted above, neither the AW nor the other policing and criminal law enforcement provisions in the Agreement are intended as constituent elements of a single area of freedom security and justice incorporating the UK and the EU. Instead, they are envisaged as having a purely functional purpose of international cooperation in preventing, investigating, detecting and prosecuting criminal offences, including money-laundering and the financing of terrorism.
Nevertheless, it seems clear that the UK and the EU will continue to have a close working relationship with each other in these areas. There can be little doubt, however, that the UK’s status, benefits and contributions will be diminished relative to its past as an EU member. Many gaps and uncertainties remain. Indeed, it would appear that the substance and drafting of these provisions in the Agreement have been cobbled together in something of a rush. Even the proof-reading has not been as fastidious as one would expect in matters of such importance.
Among the typographical errors, there is one which (if it is a typo) results in the text having a meaning which would appear to be the opposite of what was presumably intended by the parties. The provision states that where an AW is issued for the prosecution of the arrested person, the person should be heard before a judicial authority in accordance with the law of the executing State prior to a decision on his surrender. It also says that the person shall be assisted by a lawyer designated in accordance with the law of the issuing State. Presumably that should read ‘designated in accordance with the law of the executing State.’ If it is not a typographical error, the substantive provision is framed so poorly that it is difficult to decipher.
Inevitably gaps and uncertainties in these policing and criminal law measures bring with them the risk that they will be filled by the more powerful players, namely the police, prosecution and executive authorities, to the detriment of the rights and freedoms of the vulnerable individual. This risk is fuelled by the apparent absence of a common authoritative judicial source for resolving conflicts of interpretation. An additional concern is that the gaps and uncertainties will be filled by the sovereign executive authorities secluded from the restraining effects of transparency and close democratic scrutiny. Rather than laying a firm and considered framework for future cooperation based on law, human rights and transparency, these provisions may prove to be a source of conflict, confusion and concealment.