Extradition after Brexit: Common issues and concerns

Before discussing in more detail, the future options for extradition, it is appropriate to zoom in on some common issues that are likely to arise if the UK exits the EAW system:

i) Any alternative to the EAW is likely to be costlier and less effective.

Several interviewees claimed that, without the EAW, there are serious concerns for the effectiveness of future EU and UK investigations in which extradition will have to be sought from and to the UK. Likewise, in her oral evidence to the House of Lords, the director of public prosecutions declared that, in comparison with the other potential alternatives, “it is three times faster to use an EAW and four times less expensive”.214 _{This was echoed by} the prime minister in her speech at the Munich Security Conference in February 2018. From the prosecution side, there is unanimous agreement that the loss of the EAW will have a tremendous – perhaps “catastrophic”215 – impact on UK cross-border investigations and prosecutions, as none of the currently available options would be an effective replacement.

Independent of which, if any, of the current models of cooperation is adopted for the future EU–UK relationship, one of the main concerns of UK prosecuting authorities is that UK extradition requests to other EU Member States, after Brexit and outside the EAW framework, could fall ‘to the bottom of the pile’. Exiting the EAW system means giving away the above-mentioned improvements that the EU surrender procedure has brought about. Some interviewees pointed out that, whereas an EAW-like form may be drafted and used in future EU–UK extradition procedures,

214 _{Oral evidence of A. Saunders, Director of Public Prosecutions, Crown Prosecution Service,}

to the House of Lords’ European Union Committee, “Brexit: Future UK–EU security and police cooperation”, 12 November 2016, Q55.

what is to be missed is the automaticity and speediness of the surrender procedure envisaged by the EAW Framework Decision. A minority of experts have been slightly more positive in that regard, claiming that it is unlikely that Brexit will have such an impact on the way EU authorities will deal with UK extradition requests.

Another concern that has been voiced in the literature and by our interviewees relates to the fact that the UK may lose access to SIS II, which is deemed by authorities to be ‘helpful’ when the location of the person whose extradition is sought is not known to the investigating authorities.216

ii) It is unlikely that the UK will introduce a bar on the extradition of UK nationals (unless perhaps under reciprocity).

The UK criminal justice system does not provide for a bar on the extradition of UK nationals. However, this may turn out to be a serious obstacle for the extradition from some EU Member States to the UK, since a number of EU countries do not extradite their own nationals.217 _{In many of these systems,} such a prohibition has been lifted with regard to the EAW system only, but there are no guarantees that such an exemption will be extended to future EU (or Member States’) agreements with the UK. The sensitivity of the issue is significantly mirrored in the draft Withdrawal Agreement, where it is provided that – already during the transition period – EU Member States may decide not to extradite their own nationals to the UK.218 _{If this is the} case, according to the same provision the UK may declare that it will not extradite its own nationals to those Member States either,219 _{although one} interviewee noted that this is unlikely, as previously the UK has not generally had a nationality bar.220

iii) Extradition to the UK might be refused if there is a serious risk that the extradited person would be subjected to inhuman or degrading treatment or punishment.

216 _{See section 5.1, part II below.}

217 _{See also Alegre et al. (2017), pp. 34–35.}

218 _{Art. 168 of the draft Withdrawal Agreement. At the time of writing, the policy objective of}

this provision has been agreed, yet the text requires drafting changes or clarifications.

219 _Ibid.

220 _{See also Baker et al. (2011), pp. 59–60 on the historical reasons behind the lack of a}

After Brexit, EU Member States may claim that extradited persons may be subjected to inhuman or degrading treatment in the UK, and therefore refuse extradition to the UK. In Petruhhin, the CJEU has indeed submitted that, when a Member State receives a request from a third state seeking the extradition of a national of another Member State, that first Member State must verify that the extradition will not prejudice the rights referred to in Article 19 of the Charter. This provision prohibits the extradition to a state where there is a serious risk that the extradited person would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.221

Petruhhin concerns an extradition request from Russia, i.e. a third country with which the EU has not signed an extradition agreement. Thus, the Court reached its conclusion by noting that the case came within the scope of EU law because Mr Petruhhin had exercised his freedom of movement within the EU, given that he was an Estonian national who had been arrested in Latvia. Nevertheless, if the UK were to conclude an extradition agreement with the EU, there is no doubt that extradition proceedings with the UK would a fortiori fall within the scope of EU law – even without any issue related to the freedom of movement – because of that same agreement;222 _{as a consequence, Article 19 of the Charter would apply} to the extradition requests that the UK sends to EU countries.

It is perhaps unlikely that extradited persons would be subjected to inhuman or degrading treatment or punishment in the UK. Nonetheless, some commentators and interviewees have not entirely ruled out this possibility, in light of the current prison conditions in the UK.223 _Other interviewees rebutted that, as after Aranyosi and Căldăraru there is already an avenue to scrutinise prison conditions in the UK, the absence of any proceedings concerning such conditions means that, for the time being, the issue is more theoretical than practical.

iv) Extradition to the UK might be refused if EU Member States wish to prosecute their own nationals who live in another Member State and whose extradition is requested by the UK.

221 _{Case C-182/15, Petruhhin, Judgment of 6 September 2016, para. 60.}

222 _{See, to that effect, Case C-191/16, Pisciotti, Judgment of 10 April 2018, paras 31 and 35.} 223 _{See, for instance, Bárd (2018), pp. 8–9.}

In the Petruhhin judgment, the CJEU also ruled that, in order to prevent the risk of impunity, a Member State is not required to grant every EU citizen who has moved within its territory the same protection against extradition as that granted to its own nationals. Nevertheless, before extraditing the citizen, the Member State concerned must prioritise the exchange of information with the Member State of origin and allow that state to request the citizen’s surrender for the purpose of prosecution. In Pisciotti, which concerned the case of an Italian citizen living in Germany and whose extradition had been requested by the US, this principle has been extended to third countries having an extradition agreement with the EU. The requested Member State should put the competent authorities of the Member State of which the citizen is a national in a position to seek the surrender of that citizen pursuant to an EAW.224_{Therefore, as noted by Peers,} “the Court’s approach – give a Member State the possibility of prosecuting its own nationals first, where it has jurisdiction – will necessarily limit extradition to the UK after the end of the transition period”.225

v) Relinquishing the presumption of mutual trust might have a positive impact on the protection of human rights.

According to some leading experts in the field of extradition interviewed for this study, if Brexit leads to a departure from the system of mutual recognition and mutual trust, this might have positive effects on the protection of human rights of individuals whose extradition is requested by EU countries. Presently, the overarching – albeit not absolute – principle of mutual trust makes it challenging to engage UK courts in terms of human rights and fair trial. A presumption of good faith applies to any extradition request,226 _{and state parties to the ECHR are presumed to be compliant with} the European Convention’s rights.227 _{Some interviewees argued that, on} average, UK courts are more willing to go beyond these presumptions when non-EU countries are concerned. Hence, after Brexit, domestic courts could even have “greater opportunity to scrutinise human rights issues in relation

224 _{Case C-191/16, Pisciotti, Judgment of 10 April 2018, para. 56.} 225 _{Peers (2018b).}

226 _{Baker et al. (2011), pp. 123–24.}

to EU extradition requests than was previously the case”.228 _Other interviewees and experts are instead more sceptical about this alleged improvement in the protection of human rights, as UK courts have long been considering human rights issues, and especially prison conditions of other EU Member States (e.g. Romania and Bulgaria), as potential obstacles to surrender. As a consequence, “Brexit will have little impact, at least on this very specific point”.229 _{There nonetheless seems to be agreement that in} principle the defence will have far more opportunities to raise human rights issues that the UK courts will have to deal with. This could substantially prolong the duration of future extradition proceedings.

vi) Future extradition requests to the UK might concern only the most serious cases.

According to some of our interviewees, the UK – without the EAW – could receive fewer extradition requests, and those requests would realistically concern the most serious cases. In that regard, some have also noted that the current extradition requests received from outside the EU usually do not concern trivial cases. If this prediction turns out to be true, UK courts would no longer be engulfed by extradition requests for petty offences. Other interviewees, however, did not share this view, for two main reasons. First, those countries – like Poland – that adopt the principle of legality (mandatory prosecution) are likely to continue to send extradition requests to the UK even for minor cases. Second, the increasing familiarity that EU judicial authorities have acquired with the extradition process over the years, thanks to the EAW and its success, may represent a further reason why the number of future extradition requests to the UK might not substantially decrease.

228 _{Davidson et al. (2016), p. 762.}