Extradition after Brexit

Since 2004, the European Arrest Warrant (EAW) has been used as a tool to help EU Member States return fugitives for trial and enforce custodial sentences or detention orders against individuals found to be in another Member State. An EAW issued in one Member State is valid and directly enforceable in and by all other Member States. The introduction of the EAW created a new, more responsive regime which imposed strict time limits for responding to warrants, expanded the range of crimes for which a warrant could be issued, removed limitations against the extradition of a Member State’s own citizens and provided limited grounds for the refusal of a warrant. The EAW system was given effect in the UK by Part 1 of the Extradition Act 2003 (EA 2003).

Under the UK’s Brexit deal, the UK will continue to operate the EAW system in respect of individuals arrested before the end of the transition period (currently 31 December 2020). After this date, the UK will no longer be part of the EAW system. As such, the Government has drawn up plans for a replacement.

The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (the Regulations) have re-designated all EU Member States, formerly listed under Part 1 of the EA 2003, as Part 2 countries. Extradition with Part 2 countries relies on the framework of the European Convention on Extradition 1957 (the “ECE”), which has been ratified by all EU Member States.

Under the ECE, extradition is only possible in respect of offences which are criminal in both the requesting and requested states and are punishable by at least one year’s imprisonment, or where a conviction of at least four months’ imprisonment has been imposed. There are also a number of grounds for refusal of an extradition request. For outgoing requests, it is worth noting that some EU states, for example Portugal, with which the UK currently has extradition arrangements, withdrew from elements of the ECE when they implemented the EAW Framework Decision. These states will no longer extradite their own nationals to non-EU states – such as the UK.

In the UK, a reversion to the ECE framework will increase the costs, time frames and complexity of the extradition process.

Although over time, new bilateral and indeed multilateral arrangements may be agreed with EU states, until that happens, leaving the framework of the EAW is likely to undermine international efforts to apprehend suspects and convicted persons – including those who have, or may have, committed serious crimes in the UK.

To read other articles in our series of client insights on Brexit - People issues, please see useful articles on our Brexit Feature page.