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A Brexit bonanza for fugitives from justice

by Camino Mortera-Martinez | 11.07.2017

The European Arrest Warrant (EAW) has made it much easier for the UK to extradite criminals from other EU member states. But after Brexit, it may be impossible to negotiate as good an arrangement.

When the EAW came into force in 2004, it allowed EU countries to issue warrants requesting another member state to surrender a suspect within 90 days. The UK, a net exporter of criminals, has benefitted enormously. It has also helped in fighting terrorism, by preventing suspected terrorists from stopping extradition by arguing that their crime was political.

After Brexit, EU member-states may agree to replicate some features of the EAW for the UK, but others will be almost impossible to maintain, no matter how keen both parties are to do so.

The EAW is open only to EU member states. It is exceptional in three ways. First, member states should surrender suspects, regardless of whether the offence is considered a crime in the country where they are located. Second, the EAW forced some countries to lift constitutional bans on extraditing their own nationals. Finally, the arrest warrant does not allow countries to use a “political exception” as grounds to refuse extradition.

The biggest problem post-Brexit would be in getting countries to lift constitutional bans on extraditing their own nationals to the UK. Before the EAW existed, 13 of the (then) 25 member states, including Austria, Germany, Italy and Poland, had such restrictions. They had to amend their constitutions to be in line with the arrest warrant. Some restricted the change to other EU member states. If these countries were to allow extradition of their own nationals to the UK after Brexit, they would need to change their constitutions again, just to accommodate the British.

The EU and UK want to co-operate closely on crime and security. But no matter how willing both parties are to make concessions, technical obstacles like constitutional changes will not disappear. There are three possible alternative scenarios.

First, Britain could seek bilateral extradition agreements with other European countries. But a system of 27 bilateral treaties will necessarily be less efficient than a single, pan-European treaty. Negotiating 27 agreements will also be long and painful.
Second, the UK could fall back on the 1957 European Convention on Extradition, a non-EU treaty which governed extradition in Europe before the EAW entered into force. In those days it took on average 18 months to extradite a suspect. The average extradition time under the EAW is 15 days for uncontested cases, and 48 for contested ones.

The third and least damaging option for Britain would be to seek a “surrender agreement” similar to the one Norway and Iceland have. Their system is similar to the EAW, but it allows any party to choose whether or not to extradite their own nationals, or to trigger the political exception clause.

Apart from time pressure, the biggest problem with a surrender agreement would be the issue of judicial oversight, given that the UK wants to end the jurisdiction of the European Court of Justice (ECJ) once it leaves the EU.

The ECJ has an important role in reviewing the application of the agreement. A UK-EU extradition deal would need to be subject to judicial oversight. That might mean either a totally new EU-UK court with jurisdiction over matters of justice and home affairs, or using the ECJ as an advisory rather than a binding court.

In any case, Theresa May and her government accept that some sort of international court will be needed after Brexit. Moreover, the ECJ will influence how any future EU-UK surrender agreement operates. It will in practice be impossible to maintain the red line that after Brexit the ECJ should have no oversight of the UK at all.

After being a champion of European co-operation on extradition for so long, Britain is about to lose automatic access to one of the EU’s most effective tools. The government may have to accept that there is a trade-off between absolute sovereignty and effective justice. Even eurosceptics might agree that fugitives from the law should not be the main beneficiaries from Brexit.

Camino Mortera-Martinez is a research fellow and Brussels representative at the Centre for European Reform. The full version of this piece is available on their website.

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Edited by Quentin Peel