Abstract
This article focuses on European Arrest Warrants (EAWs) and solutions for effective assistance in judicial cases and evidence-sharing between the EU27 and the UK. The article sets out the context of how the theme of EU Member States’ mutual legal assistance specifically gave rise to the development of EAWs, which permit EU members to request the arrest and detention of suspects in other EU countries, without extradition negotiations between them. This article critically evaluates the potential post-Brexit future and advances alternative suggestions for the way ahead.
Keywords
Brexit 1 risks expediting not only the extinction of extradition in its present form but also the extinguishing of European Arrest Warrants (EAWs). Thus, if effected, Brexit could signify a requirement to rewrite the UK’s approach to the application of domestic criminal jurisdiction in a European context. The most obvious post-Brexit implication for UK Police forces and Europol is the potential need for the ratification of a suitable substitute for the EAW—particularly considering the possible future of models of border protection, and their legal implications for security and justice. There remains a question mark over whether the present repeal agenda can, or will, provide a comprehensive and coherent policy framework for cooperation in criminal law enforcement with the EU Member States. The continuing factionalism of the recent Brexit negotiations between the UK government and European Union (EU) offers a timely opportunity to examine the conceptual distinction between primacy and supremacy of EU law in the context of the application of criminal procedure across borders. However, despite recent events, it must be noted that the UK’s selective implementation of EU criminal justice measures is arguably not a new phenomenon, as the UK ‘decides on its participation in post-Lisbon measures on a case-by-case basis’. 2 The repercussions of Brexit remain omnipresent in the headlines—but, in many cases, the public has yet to see a tangible indicator of reality as to how the domestic criminal law and procedure may thus be affected.
One area in which the ramifications of Brexit may be most keenly felt is that of ‘EAWs’—which presently permit EU Member States to request the arrest and detention of suspects in other Member States, without the need for extradition. The Policing and Crime Act 2017 3 may well provide an avenue to effectively bridge the lacuna in the UK cross-border and maritime security and suspect apprehension. However, following the initial early steps of securing the suspect, the law of extradition between the EU and non-EU countries is governed by a combination of national law and bilateral and multilateral treaties—most notably the Council of Europe Convention on Extradition, 4 which has been ratified by 43 European 5 countries, 6 plus three non-European countries. 7
In June 2018, at the European Union Agency for Fundamental Rights in Vienna, Mr Michel Barnier
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delivered a clear speech outlining the consequences for the UK
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regarding EAWs, announcing: The European Arrest Warrant is linked to the free movement of people. It works well because it is based on mutual trust between Member States. This trust is underpinned by: shared respect for fundamental rights as set out in the Charter of Fundamental Rights; by certainty that other Member States enforce and apply the rules the same way, under the jurisdiction of the European Court of Justice; and by the concept of EU citizenship, which allows Member States to lift the constitutional ban on the extradition of their own nationals. Yet today we know that the UK is not ready to accept the free movement of people, the jurisdiction of the Court and the Charter of Fundamental Rights—for the Charter, this was confirmed last week by the House of Commons. This means that the UK cannot take part in the European Arrest Warrant.
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Despite the unintended irony of such an arrest warrant to curtail an individual’s liberty being contingent upon the concept of ‘free movement’, it is clear that a potent problem is now presented. The problem presented is the question of what, if anything, will take the place of EAWs following the implementation of Brexit, in order to ensure that extradition arrangements are not, in future, required for the suspect who takes the cross-Channel ferry prior to arrest or trial. This article shall critically examine the problems presented by Brexit for EAWs and offer some original suggestions for their resolution.
EAWs first became an integral part of the arsenal available to domestic police forces in 2003. Part 1 of the Extradition Act 2003 11 implements the Framework Decision on EAWs. 12 The objective set for the Union to become an area of freedom, security and justice 13 led to the abolition of extradition between Member States and its replacement with a system of surrender between judicial authorities. 14 Under the Framework Decision, 15 certain listed offences (as defined by the domestic criminal law of the issuing Member State), give rise to surrender on the basis of an EAW, without verification of the double criminality 16 of the act, on condition that the offences in question are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years. 17 In Advocaten voor de Wereld, 18 it was contended that the removal of verification of double criminality for certain offences mentioned in the Framework Decision was contrary to the principle of legality in criminal matters. This principle implies that legislation must define clearly offences and the penalties which they attract. That condition is satisfied where the individual concerned is in a position to know which acts or omissions render him criminally liable. 19 The Court recognised that each European State’s domestic composition of criminal offences are engaged to their own particular national elements. Subsequently, the Framework Decision does not seek to harmonise each Member States’ criminal offences. Criminal statutes in one Member State can, in practice, be unique and different to those in another Member State—and thus the definition and penalties are determined by each State’s national laws accordingly. It was here that the EAW proved most useful—in the enforcement of effective cross-border criminal justice, regardless of national law, in order to seek to protect both States’ citizens.
Mutual Recognition: Trust or Bust?
The concept of EAWs form a piece of a larger puzzle—this being mutual recognition between EU Member States. On 29 November 2000, the Council, in accordance with the Tampere European Council Conclusions, 20 noted that the principle of mutual recognition of judgments and other decisions of judicial authorities should become the cornerstone of judicial cooperation in civil and criminal matters within the Union, because enhanced mutual recognition and the necessary approximation of legislation would facilitate cooperation between competent authorities and the judicial protection of individual rights. 21 Additionally, the measures to implement the principle of mutual recognition of criminal decisions envisaged in Point 37 of the Tampere European Council Conclusions and adopted by the Council 22 addressed the matter of mutual enforcement of arrest warrants.
Therefore, the principle of ‘mutual recognition’ formed a trust-based mechanism for judicial decisions in Member States to have been automatically recognised by all Member States. This principle of ‘mutual recognition’ accelerated the procedure of EAWs and reinforced the harmonisation of European criminal law. Nevertheless, Member States’ substantive and procedural rules may also set out that, if a judgment is rendered in full compliance with a Member State’s laws, it may be recognised by all other Member States as well. This is an illustration of the legal doctrine of supremacy of EU law—which, in practice, means that EU law takes precedence over domestic law. National constitutional courts of Member States have accepted the principles of supremacy of the EU law affirmed by the European Court of Justice 23 (most commonly known as ‘direct effect’).
The Framework Decision 24 on the EAW is arguably the most emblematic and widely implemented instrument of EU criminal law. It aimed to compensate for, and counterbalance, the freedom of movement enabled by the abolition of internal borders, by ensuring that Member States’ justice systems were able to reach extraterritorially, in order to bring individuals who have taken advantage of the abolition of borders to flee the jurisdiction to face justice. 25
Role of Eurojust and Europol: Legal Framework
On 1 July 2018, 26 Eurojust and Europol signed a Memorandum of Understanding on the joint establishment of rules and conditions for financial support to joint investigation team activities. This latest memorandum follows on from other Directives on the existing mutual recognition in criminal matters from Member States. 27 The scope of the new Memorandum of Understanding is prominent in strengthening the Area of Freedom, Security and Justice. The European Police Office (Europol) and the EU’s Judicial Cooperation Unit (Eurojust) can participate in Joint Investigation Teams (JITs) separately as well as jointly. In practical terms, they facilitate in the exchange of information and providing support to the EU Member States in coordinating operational activities. 28
The EU legal framework for setting up JITs between Member States can be found in Article 13 of the 2000 MLA Convention, as well as in the Council Framework Decision on joint investigation teams, 29 which was adopted in view of the slow progress towards ratification of the MLA Convention. The Framework Decision itself will cease to have effect after the 2000 MLA Convention has entered into force in all Member States. To date, all Member States have implemented either one or both of these legal bases 30 —and time is very much of the issue, in terms of finding a suitable alternative provision for EAWs following Brexit.
Implementation of the EAW in the UK
The issue of mutual recognition in criminal matters was raised at the Cardiff European Council in June 1998. Some forms of mutual recognition were already embodied, in various forms, in the instruments of judicial cooperation, adopted before the Maastricht Treaty, and subsequently in the EU framework. 31 Building on the achievements of judicial cooperation the Tampere and Hague Programmes, negotiations crafted significant progress, such as the removal of internal border controls in the Schengen area, and improved coherence in management of the external borders of the EU. Furthermore, since the Stockholm Programme 32 was agreed in 2010, there has been substantial growth in judicial cooperation in criminal matters across the EU, and a corresponding increase in EU-wide police and security cooperation. 33 For the UK’s part, its negotiations on EAWs gathered momentum after 11 September 2011. A draft Framework Decision, agreed in principle by the Justice and Home Affairs Council of the EU, was approved by the UK Parliament in December 2001 and then by the European Parliament in February 2002. 34 UK implementation was achieved by the Extradition Act 2003. 35 From 1 January 2004, the new suspects’ surrender regime had, with a few exceptions, replaced traditional extradition arrangements.
There can be little scope to argue that the Framework Decision on the EAW replaced the traditionally complex array of instruments 36 , criticised for the political and administrative delays they presented when an application for an Extradition Order was made. EAWs’ arguably most prominent feature is their mutual recognition—and indeed, the harmonisation of the effective administration of EU criminal justice. Subsequently, in practice, the Framework Decision created a compatible structure for Member States’ judiciaries to issue EAWs and thus vastly simplified the extradition process. EAWs can be executed for a wide variety of offences, without any requirement that the offence to which the warrant corresponds to an offence under the law of the State asked to execute the warrant. Furthermore, there is no exception for political, military or revenue offences—and there is no exception clause allowing a state to refuse to surrender their own nationals. 37 To this end, Mitsilegas described the principle of abolition of non-extradition of Member States’ own nationals as a key innovation. 38 Finally, the European Commission Handbook on the issuing and execution of EAWs outlines the presumption that there is no verification of double criminality as a ground for non-execution and non-surrender with regard to the 32 categories of offences listed in Article 2(2) of the Framework Decision on EAW. 39 The advantages of the EAW for an efficient European criminal justice system were clear.
Recent Developments: The UK Procedural View
In the 14 years since the Extradition Act 2003 (‘the EA 2003’) came into force, UK extradition law and practice has changed dramatically. For instance, in the recent High Court case of Strzepa v Poland, 40 the appellant’s extradition had been sought, pursuant to a conviction and a separate accusation—with an ensuing EAW. The issue was whether the appellant’s return was unjust or oppressive within the meaning of s14 of the EA 2003. Ouseley J reasoned that extradition to Poland in 2018 for low-level offending, committed years before, and a further such allegation, would be a disproportionate interference with the appellant’s right to private and family life. 41
It is arguable that the wheels to the concept of mutual recognition which underpin EAWs are stiffening. A similar refusal to Strzepa 42 occurred in Republic of Ireland, where the Irish High Court found the surrendering of the accused, Arthur Celmer, 43 to Poland, was not permissible, due to the rule of law in Poland. Reliance was mainly placed upon the European Commission’s ‘Reasoned proposal in accordance with Article 7(1) of the Treaty on European Union regarding the rule of law in Poland’, dated December 2017. The subheading of this reads ‘Proposal for a council decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law’. The Reasoned Proposal expressed ‘deep concern about the situation of the rule of law in Poland’, representing a ‘clear risk of a serious breach of the values referred to in Article 2 TEU’. 44
One must also keep in consideration the European Parliamentary Research Service’s European Added Value report, on revising EAWs, 45 which generally recognised the EAW as a successful criminal justice mechanism, based on mutual recognition. However, it is not without its critics—such as in the recent case law, as outlined above—and also from the reform group ‘Due Process’ expressing concerns as to the inherent overuse of EAW and arguing they had lack of fundamental safeguards and proportionality checks. Nevertheless, the report concluded that the current system works to the prescribed ethos of its original concept. Nevertheless, the report did acknowledge an inconsistent application by Member States—which is concerning, in that an efficient justice and security policy depends on effective cooperation in criminal cases, including an efficient extradition system. The general theme of the report endorsed the crux of the Framework Directive—but did accept the Directive had a distinct absence of an explicit ground for refusal based on the infringement or risk of infringement of human rights. 46
This conundrum has been confirmed by its contemporaneity in the jurisprudence of the European Court of Human Rights (ECtHR). Previous extradition proceedings, such as Soering v United Kingdom,
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applied the traditional standards developed by the ECtHR in that extradition was barred where there was a breach of ECtHR. In this case, it was held that the decision by a Contracting State to extradite a fugitive may give rise to an issue under A3: Article 3 (art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 (art. 3) of the Convention.
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Nevertheless, on 27 February 2014, the European Parliament requested the Commission submit, within a year, the adoption of the report findings—with specific concern focusing on lengthy pre-trial detention and other breaches of human rights—in order to prevent miscarriages of justice. The new legislation is based on Article 82 TFEU, and could be implemented by a Directive (Supervision Order and/or European Investigation Order), in order to enhance Member States’ legislative and operational responsibilities under the Framework Decision.
Following on from this, on 5 April 2016, judgment in joint cases
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made a reference for a preliminary ruling on police and judicial cooperation in criminal matters,
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in relation to the issuing of EAWs; grounds for refusal to execute them; breaches of the Charter of Fundamental Rights of the European Union (particularly Article 4—Prohibition of inhuman or degrading treatment
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); and conditions of detention in the issuing Member State.
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The European Court of Justice stated that: if there is evidence of deficiencies in detention conditions in the requesting Member State, the executing judicial authority must postpone its decision on the surrender until it obtains supplementary information allowing it to discount the existence of a risk of inhuman or degrading treatment. If such a risk cannot be discounted within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought to an end.
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Essentially, the position is that human rights cases will, if successful, necessarily trump EAWs—and a compelling case can be made that this must remain the case, regardless of the prospective steps to put in place any post-Brexit alternative or substitute. 54
Practical Problems: Use of EAWs in the UK
This section now turns to examine how extradition works, on a practical level, and provides a brief overview of the systems and agencies who may request the EAW. It will also provide an outline of the actual numbers of EAW requests made by the UK over a three-year period, from 2013 to 2016—and details of financial outlay. It should be noted that every country in the EAW system has a SIRENE 55 Bureau. In the UK, the National Crime Agency (NCA) provide, gather and assess the proportionality and legal legitimacy of EAW applications. The threshold applications must meet are set out in the criteria in the Extradition Act 2003. 56 Furthermore, SIRENE Bureaux are the legal gateways liaising between authorities requesting an arrest and those carrying out the arrest. In June 2018, Heads of the national SIRENE Bureaux gathered in Sofia, under the framework of the Bulgarian Presidency of the Council of the European Union. Representatives of all EU Member States and all Schengen-associated countries, Europol, EU-LISA, the Commission and the General Secretariat of the Council took part in the meeting, hosted by the Bulgarian Ministry of the Interior. 57 Here, it was emphasised that the Justice and Home Affairs (JHA) Council has recognised the SIS and SIRENE Bureaux’ cooperation as one of the most successful tools for effective collaboration between police, customs, other law enforcement and judicial authorities in the EU and the Schengen associated countries. 58
However, not all share this view, with campaign group ‘Due Process’ 59 having, for a number of years, been advocating for reform of the EAW, pointing out its inherent unfair process. Their recent report 60 brought together, for the first time, data and contextual analyses concerning key aspects of the performance of the EAW over recent years. Sourcing data from the National Crime Agency (NCA), ‘Due Process’ produced statistics from 2013 to 2016 showing that the UK arrested 7,178 people and surrendered 4,803 people, subject to EAWs issued by EU Member States. Since 2014, figures for EAW requests have included warrants without a UK connection. Therefore, it is impossible to assess how many requests actually affected people in the UK 61 —and further data on this would be helpful in evaluating the way in which EAWs affect the domestic context. Additionally, to some extent, the scope for appeals under the auspices of EAWs are limited 62 —a point which augments the credibility of criticisms levelled towards them, for they lack the checks and balances they might be expected to have.
Another controversial aspect of EAWs is their cost. The UK Government estimates that the unit cost of executing an incoming EAW in the UK is approximately £20,000. 63 This includes costs to the police, the Crown Prosecution Service and court and legal aid costs—as well as detention before extradition. 64 If this is the case, then the estimated cost of implementing the 999 incoming EAWs in 2011 was just under £20 million. In addition to this would have been the cost of the 5,761 EAWs that did not lead to a surrender, but would nevertheless have incurred costs to the justice system. 65 The costs for the Member State are considerable—and the economic and emotional cost of an EAW for the accused is also considerable. The European Parliamentary Research Service report, Revising the European Arrest Warrant, 66 suggested an interesting proposition—this being that the application of EAWs was flawed, either wholly or partly, due to a lack of appropriate training for defence lawyers. The evidence for this theory was minimal at best. However, it could also be said that to blame a system’s flaws upon those merely representing the suspects brought in by the system is, in itself, a potential inadvertent indictment of the EAW system—for no single system should rest its efficacy on the collective conduct of representation for one party to its proceedings—especially when this party is the system’s suspect. Reserving judgment on the culpability of defence lawyers would also be prudent, considering the current legal climate’s cuts to legal aid, with concurrently climbing court costs.
Convergence of Crises? The Impact of Legal Aid Cuts on EAWs
On the subject of legal aid, it should be noted that there is some degree of overlap between legal aid provision and EAWs. In 2016, a study was requested by the European Parliament’s Committee for Civil Liberties, Justice and Home Affairs (LIBE) as part of the Parliament’s general commitment to improving the quality of EU legislation, and, in particular, its undertaking to carry out impact assessments 67 of its own substantial amendments when it considers it appropriate and necessary for the legislative process. 68 On this point, Impact Assessments examine whether there is a need for EU action, and analyse the possible impacts of available solutions. These are carried out during the preparation phase, before the Commission finalises a proposal for a new law. They provide evidence to inform and support the decision-making process.
Part of the assessment’s study in this area reflected on Article 3(1) and the European Commission’s proposal for a Directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in EAW proceedings (a proposed Directive on legal aid). 69 The aim of this ex-ante impact assessment was to evaluate seven substantial amendments to the Commission’s proposal for a Directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in EAW proceedings (adopted by the LIBE Committee in its report of May 2015). A 2016 study by the European Parliament, Legal Aid: Impact Assessments of Substantial Amendments, 70 suggested, in its Executive Summary, that the legal aid burden was due to defence lawyers’ appeals creating additional costs. 71 It went further to point out that this alleged poor quality of service by legal aid lawyers affected many Member States. 72
However, the Council of Bars and Law Societies of Europe responded to the suggestions in the Study and had already begun its own fact finding project on EAW rights—with their objective being to contribute to the correct and consistent implementation of EAW. 73 In particular, their project focused on objectives including the identification of the implementation at national level of the Framework Decision (2002/584/JHA on the European Arrest Warrant in all EU Member States) and the identification of good practices carried out in the 28 Member States in order to ensure defence rights. 74 To this end, it should also be noted that the cost of legal representation may correlate positively with the complexity of the case—with EAW cases proving to be particularly legally complex, and often requiring specialist representation. 75
This ‘EAW-Rights’ Project then produced a final report, 76 in order to provide an assessment, by defence practitioners in the EU, of the implementation of the Framework Decision (2002/584/JHA of 13 June 2002) on the EAW and the surrender procedures between Member States. 77 The summary of their report drew notice to the horizontal recommendations covering EAWs. However, there were three main areas to which the report paid particular attention—these being dual representation, training and legal aid. Although legal aid has a bearing upon the issue of dual representation, the scope of this article shall refrain on such matters, as it is only on the legal aid aspects which fall within its remit.
In terms of legal aid, the level of remuneration for lawyers undertaking criminal legal aid cases varies widely. It can be a great disincentive to good quality lawyers, who can earn better fees elsewhere, to devote themselves to this very necessary work—which, in turn, undermines the quality of the criminal justice system as a whole. 78 The report made a recommendation to consider a European aid fund for EAWs. 79 The varying fees paid by Member States for legal aid are evidently an issue here. A comparative example of the variability of rates can be made by means of a simple and direct comparison between Belgium and Germany. Belgium is around €25 per hour (taxes not deducted), paid to the lawyers one or two years after filing their invoices. In Germany, however, the remuneration for legal aid ranges between around €515 and €1,030 per case—but, in absolutely extraordinary cases (difficulty, length, necessary frequency and number of visits in detention), there is a chance for additional legal aid remuneration of €2,000. 80 The report did exemplary work in engaging with all stakeholders to raise the important issues confronting legal aid, containing comprehensive considerations of the malaise which legal aid is operated and implemented throughout the Member States. Having considered legal aid, and its lawyers, in the context of EAWs, it is now necessary to turn to further evaluate the operant procedures with which the latter may find themselves faced.
European Evidence Warrants: Another Fragment of Post-Brexit Criminal Justice?
The principle of mutuality also extends beyond recognition to cover the practical concept of mutual legal assistance. With this in mind, this article shall now turn to briefly discuss a concurrent aspect to the EAW—its partner concept, the European Evidence Warrant (EEW)—examining the procedural elements required to investigate an offence—such as obtaining evidence and the principle of a competent judicial authority when requesting and executing an ‘EEW’. An EEW is an order, issued by a competent authority in one Member State, which, under the principal of mutual recognition, must be executed in another Member State. The EEW may be deployed for the purposes of ‘obtaining objects, documents and data for use in criminal proceedings’. 81 In practical terms, this means obtaining evidence in criminal offences from one Member State to another, for the purpose of securing its admissibility. The Council Framework Decision 82 adopts the same approach to mutual recognition as the EAW. Therefore, an EEW will be executed as if it had been issued according to UK domestic procedure.
The rules on gathering evidence in criminal matters in the EU are based on ‘mutual assistance’ agreements. These include, in particular: the European Convention on Mutual Assistance in Criminal Matters of the Council of Europe of 20 April 1959 and its additional protocols, plus bilateral agreements concluded under Article 26; the Convention implementing the Schengen Agreement and its additional Protocol; and the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 2000 83 and its Protocol. 84
The requesting authority can contact the issuing authority directly. Unless the executing authority has grounds to refuse a request, the request should be executed as soon as possible—and by the deadline given by the requesting authority, if feasible. The purpose is to ensure that the evidence obtained is admissible, the authorities of the executing country must comply with any procedures specified by the authorities in the requesting country—provided they are not contrary to fundamental principles of law in the executing country. 85 However, one size cannot fit all, and each Member State’s internal criminal judiciary and procedural administration emanates its unique domestic realities. It is a certainty that the harmonisation of EAWs has not been achieved to the standard initially envisaged by ‘mutual recognition’. Hence, mutual legal recognition should similarly require a certain degree of pragmatism and flexibility regarding EEW. The UK’s Crime (International Co-operation) Act 2003 is notable in this respect.
The Directive on the European Investigation Order
Under the European Directive, 86 the European Investigation Order (‘EIO’) scheme came into force in the UK on 31 July 2017 and was implemented through secondary legislation instruments. 87 The UK was also a signatory to a number of international agreements that provide for international cooperation in obtaining evidence for the use in criminal evidence. 88 The objective of the Directive was to create a single, efficient and flexible instrument for obtaining evidence located in another Member State, in the framework of criminal proceedings. 89
After the adoption of the Framework Decision on the ‘EEW’ in 2008, the EU commissioned a report on the effects of securing admissibility and evidence gathering from one Member State to another. The outcome was the European Commission’s Green Paper on Evidence Gathering. 90 The report highlighted the numerous instruments applicable to mutual legal assistance (‘MLA’) and that the coexistence of mutual legal assistance in parallel with mutual recognition created a fragmented approach. 91 The evidence obtained is currently gathered and shared between Member States under a variety of MLA instruments, such as the two Conventions on Mutual Assistance in Criminal Matters of 1959 and 2000 and their accompanying Protocols. 92
However, yet again, the new approach taken in EIOs was not without its critics, for many reasons. The European Council became aware that the fragmented system of obtaining evidence indicated a new approach was needed, based on the principle of mutual recognition—especially when obtaining evidence in cases with a cross-border dimension. In the Stockholm programme, 93 the European Council decided on a comprehensive system to replace all existing instruments in this area. Based on the principle of mutual recognition, but taking into account mutual legal assistance flexible system for sharing evidence between countries, it provided a broad discretion to the requested State as to whether, and how, it would respond to a request for evidence. 94 However, implementation was slow, as a direct result of the European Investigation Order (EIO) scheme. Many advocates of the EIO scheme propose doing away with this discretion, and moving to a mutual recognition ‘demand-based’ system, with tight deadlines and few refusal grounds—effectively signifying an expansion of the scope for gathering of evidence. This standardised approach would limit grounds for refusal. However, a potential pitfall of this could be that it may end up similar to EAWs, with the stakeholders potentially becoming overwhelmed, and their tasks being potentially arduous, expensive and time-consuming.
The European Data Protection Supervisor (EDPS) has also taken a view on EIOs. 95 The opinion of the EDPS, having regard to the need for improved judicial cooperation in criminal matters, observed that it is the objective of the EIO initiative to create a single, efficient and flexible instrument for obtaining evidence located in another Member State in the framework of criminal proceedings, instead of the more complex current legal instrument used by judicial authorities—which is based on mutual legal assistance, on the one hand, and mutual recognition, on the other. 96 However, as they noted, it has risks of sensitivity and of personal information being released—or the potential for this to occur. From this point of view, a clash is inevitable between the two competing priorities, of safeguards for the protection of personal information, and the ability to ascertain evidence (such as witness statements, interview transcripts, and bank transactions). There could also be General Data Protection Regulations (GDPR) implications arising from the use (or misuse) of this personal data, by relevant data controllers, or those to whom it is made available.
While issuing authorities can only use EIOs if the investigative measure is ‘necessary and proportionate’, the extent to which this mechanism can protect those individuals who are subsequently found to be innocent remains questionable. If an EAW and EEW are issued, suspicion (with all the inherent vigorous weakness implied to the word), then this means that the absolute power and resources of investigating authorities can be invested in executing their duties in a ‘necessary and proportionate manner’. Consider the position of a non-UK citizen, unfamiliar 97 with domestic application of arrest, detention and bail, under PACE 1984 and its associated Codes of Practice. It is not difficult to foresee the diminished safeguards under EIOs being eroded—for expediency purposes alone. 98 It is, however, noteworthy that an execution of an EIO could be challenged in accordance with the usual reasons and circumstances for challenge, such as that of national security.
A further concern is that EIOs (or indeed, EEWs) may even lead to a situation where an investigation is physically undertaken by one State, for prosecutorial use by another—but not carried out in a manner compliant with the legal evidential requirements of the latter State. This could then create significant hurdles for the subsequent prosecution of the case and/or give significant scope for the defence to challenge the integrity and admissibility of evidence so gained. 99 A similar point could be made with regard to human rights breaches (e.g. oppressive interviewing 100 )—and human rights were successfully raised in the EAW context in Soering. 101
The need for consistency in this respect (when a crime likely to be prosecuted in a domestic court has evidence resting outside of the jurisdiction, or in multiple jurisdictions) can be substantiated by the existence of a need for the International Maritime Organisation to have passed a Resolution on the preservation and collection of evidence at sea, 102 in order to ensure consistency in the same, and thus its integrity, and associated investigative and prosecutorial probative value. Also, a defendant in criminal proceedings is entitled to apply to a judicial authority (any Judge or Magistrate) for a EIO to be made—and so the benefits of avoiding the problems with the MLA regime (the lack of transparency and the usually slow pace of the process) are not reserved to State agencies but also remain open to the suspect—whether or not they realise this at the time.
Brexit: Arresting Developments?
This article will now turn to make a critical examination of how the aforementioned initiatives (EAWs, EEWs, EIOs, and Member State cooperation) fit within the post-Brexit environment. Consideration must also be made of the effects of the Brexit-induced parting from the ‘Area of Freedom, Security, and Justice’ (‘AFSJ’)—and, in future years, cooperation, where this once would have stood.
This section shall not postulate the discussion of why the Brexit referendum occurred, but rather, its result, and resultant effects. It will then turn to consider one of the central questions of Brexit—the potential options available for the future cooperation between the EU and the UK in the field of police and judicial cooperation in criminal matters. 103
It is well recognised that the UK government attaches great importance to assisting investigative, prosecutorial and judicial authorities in combatting international crime—and, therefore, the UK provides a full range of legal assistance in criminal matters 104 on a European scale and international. The UK is currently governed by the European Extradition Convention of 13 December 1957 (‘the 1957 Convention’), the Additional Protocol to that Convention of 15 October 1975 (‘the 1975 Protocol’), the second Additional Protocol of 17 March 1978 (‘the 1978 Protocol’) and the European Convention of 27 January 1977 on the suppression of terrorism (‘the Terrorism Convention’). 105
The referendum on the United Kingdom’s membership of the European Union was held on 23 June 2016, and the ‘Leave’ result triggered Article 50 TEU—proving to be a pivotal point in the British and European relationship. The negotiations on the framework for, and content of, the future relationship between the UK and the EU formally started in 2018. Today, the legislative train schedule is up and running, and virtuous voices have endeavoured to expose the effects of the withdrawal from the AFSJ and the safeguards this no longer affords us.
EAW Equivalency Post-Brexit: Proposals for the Path Ahead
Lurking in the mists of a tumultuous sea of spells and security is an island of cooperation between Member States and further afield. To read some headlines or listening to the prominent actors, many have been lead to believe that there is no alternative to EAWs, EEWs and EIOs.
Negotiating documents on the extrication attempts, and Article 50 with the United Kingdom, are numerous in their aims and methods—and, generally speaking, appear to assure a cooperation on criminal matters pertaining to AFSJ. In any case, international commitments arguably underwrite any slump.
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Nevertheless, the introduction of the Framework for the future relationship on Police and judicial cooperation in criminal matters
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stripped out both sides of the debate over AFSJ, EAW, EEW and EIO, stating: Law enforcement and judicial cooperation in criminal matters should constitute an important element of the future EU-UK relationship in the light of the geographic proximity and shared threats faced by the Union and the UK, taking into account that the UK will be a third country outside Schengen. The future partnership should cover effective exchanges of information, support for operational cooperation between law enforcement authorities and judicial cooperation in criminal matters. Strong safeguards will need to be established that ensure full respect of fundamental rights and effective enforcement and dispute settlement Mechanisms.
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There is currently no form of participation by non-EU third-party countries in the EAW. Extradition between the EU and the non-EU countries is not governed by EU law, except where the EU has agreed specific Treaties on this issue. This is instead ‘governed by a combination of national law and bilateral and multilateral treaties’, 109 including the Council of Europe’s 1957 European Convention on Extradition (‘the 1957 Convention’). 110 There are four further Protocols to this Convention, which have been ratified by fewer States. 111
Bureaucratic absolutism, representing the great UK border chaos contingent, would have the public believe it is impossible to reach the height of mysticism the current EAW affords. In fact, the arguments for and against the UK retaining the EAW were rehearsed, in detail, at the time of the 2014 decision, including in reports from House Committees and in the Impact Assessments published in the Government’s July 2013 and July 2014 Command Papers. 112
However, the Crown Prosecution Service still regarded the EAW as ‘absolutely vital’. The National Crime Agency also listed the EAW among their top three priorities for the forthcoming negotiations on UK withdrawal from the EU. Helen Ball, the Metropolitan Police Service’s Senior National Coordinator for Counter-Terrorism Policing, stated that on a scale of 1 to 10, she would currently rate the EAW at ‘about an 8’ in terms of its importance to CT policing, adding: ‘it is an extremely valuable power to have’. 113
For the Brexit outcome to have challenged this could be considered an outright attack by a large proportion of the public on their institutional patronage—an act that could adeptly bring pressure to lessen the public confidence and trust in those who demonstrate a different narrative. Hence, any programme or future negotiation asserted other than the official narrative are implored by National Crime Agency, CPS and Europol. However, under closer scrutiny, the alternative avenues are currently capable of being explored. While often maligned as a low-priority expedient, they may present a solution for the post-Brexit path ahead.
This article makes the original proposal that the existing international and UK legislation can, with new fleshed-out agreements with respect to judicial co-operation in criminal matters with the EU, plug the gap of Brexit—and it is to these matters which its focus will now turn.
The EU has agreed Extradition Treaties with the US, and with Iceland and Norway. However, Norway and Iceland are the only non-EU countries to have negotiated a specific surrender arrangement that shares a number of provisions with the EAW, 114 governing the strict time limits and procedures for the decision to execute the arrest warrant. This is important, as the latter forms a key added benefit of the EAW over the Council of Europe Convention on Extradition. 115 Nevertheless, in terms of the path ahead, all is not lost—as, unlike the UK’s EU membership, the 1957 Convention remains.
Furthermore, the Law Society of Scotland have drawn attention to three main differences between the EAW and the Council of Europe Convention on Extradition (the 1957 Convention), which predates the EAW—and on which the UK could potentially fall back:
– The EAW can be described as a transaction between judicial authorities where the role of the executive is removed. By contrast, applications under the 1957 Convention would need to be made via diplomatic channels, with Secretary of State approval required at a number of points in the process; – The EAW framework imposes strict time limits at each stage of the process. The 1957 Convention does not impose the same time limits; – Article 6 of the 1957 Convention provides that states can refuse an extradition request for one of their own nationals. The EAW framework abolished the own nationals exception based on the concept of EU citizenship.
116
There is arguably always constant dissatisfaction embodied when a particular popular belief in one Treaty legally prevails over another. It is with this that this section is chiefly concerned, endeavour to repudiate a flurry of opposing solutions governing the discourse. However, in such highbrow scoffing at the existence of the current legal statutes and the possible outcomes of future negotiations, the great paroxysm of ridicule is the sleep of ignorance, found within its intoxicating gases, as to what possible solutions may lie within what exists. As the preliminary preparations of Brexit scamper on, strategic dialogue on development of new polices is well under way, with the ping-pong of operational cooperation versus asymmetry of rights and obligations, and risk analysis, prophesying between both the UK and the EU.
Crucially, the 1957 Convention permits the accession of non-EU States
117
to partake in Convention accession, should they so wish.
118
Accordingly, there is a possibility—the UK, post-Brexit, could so accede, and thus become a non-EU Contracting Party. The UK could then make a Proposal of Co-operation, based on the pre-existing provisions of the EAW, and, through a bespoke agreement with other Contracting Party States. Any such agreement would consequently be aligned with the bridge afforded by Article 28(3) of the Council of Europe 1957 Convention on Extradition: Where, as between two or more Contracting Parties, extradition takes place on the basis of a uniform law, the Parties shall be free to regulate their mutual relations in respect of extradition exclusively in accordance with such a system notwithstanding the provisions of this Convention.
119
The mechanism of individual Member States who require their own internal criminal procedure frameworks to be ratified could continue to participate in EU extradition, under Article 28(3). Furthermore, the summoning of Article 9 of the 1977 European Convention on the Suppression of Terrorism, as introduced by the second additional Protocol, states that: ‘The Contracting States may conclude between themselves bilateral or multilateral agreements in order to supplement the provisions of this Convention or to facilitate the application of the principles contained therein’. 120 In addition, it should also be noted that, in the UK, the Policing and Crime Act 2017 created new provisions for ‘law enforcement officers’ to board, divert and detain 121 ships, 122 search and obtain information, 123 arrest individuals and seize evidence, 124 in the event of having reasonable grounds to suspect that an offence under the law of England and Wales has been, or is being, committed on a ship in relation to which their powers so conferred are exercisable. 125
Overall, the existing international and domestic law affords ample opportunity for bespoke agreement and application between the UK and the EU Member States—and presents a further example of ways in which the potential panic of Brexit may be prevented from having problematic effects upon the practical operation of the criminal justice system. Whether the executive and legislature seek such solutions remains for them to decide.
Overall, in essence, it is quite likely that, from the Brexit meeting rooms, and the negotiating documents on Article 50, a familiar policy of continued cooperation and mutual assistance between the UK and the EU shall emerge. The prime value of a truce in disruptive negotiations, and proceeding on a path of progressive discussion, is to have clear vision—rather than incomplete solutions. It is well, moreover, to remember each sequential threshing of negotiations under withdrawal, or each new signature, even under exalted shrines of principle, soon falls to pragmatism. However, as history has shown throughout, the compass always assembles at mutual understanding of allies than the interlude of minor insurrections.
As Arthur Miller once noted: ‘Maybe all one can do is hope to end up with the right regrets’. 126
Footnotes
Author’s Note
The author is a Law Lecturer and Tutor with a number of institutions. He is also a member of Middle Temple, London.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.