Peers have warned of an ‘unacceptable risk’ to the UK if the European Arrest Warrant (EAW) is not immediately replaced post-Brexit.
A report published this week by the EU Home Affairs Sub-Committee stresses the dangers of there being an operational gap between the EAW ceasing to apply post-Brexit and a suitable replacement coming into force (in the report, Brexit: judicial oversight of the European Arrest Warrant).
The government currently intends to remove the UK from the jurisdiction of the European Court of Justice (ECJ), which performs oversight of the EAW. The committee heard evidence that a ‘phased process of implementation’, which the government says it wants, is likely to mean accepting, at least in part, the jurisdiction of the ECJ.
However, it heard that a transitional arrangement might be difficult to secure if the UK has left the EU and withdrawn from other EU related arrangements such as the Charter of Fundamental Rights, EU data protection laws, and laws on EU citizenship, leaving the prospect of ‘a cliff-edge scenario’.
Lord Jay, chairman of the committee, said: ‘Since its introduction, the UK has used the EAW to achieve the extradition of 1,000 individuals back to this country, including several high-profile criminals like Hussain Osman, who attempted to carry out a terror attack on the London Underground in 2005.’
George Hepburne Scott, of Church Court Chambers, whose practice specialises in extradition, said: ‘When the UK leaves the EU our rights and obligations under the European Council Framework Decision (2002/584/JHA) and the jurisdiction of the ECJ will cease.
‘The UK’s obligations to extradite within the EAW scheme will persist due to Part 1 of the Extradition Act 2003. However, the UK’s ability (as a non-member) to achieve extradition from other EU members (import extraditions) may be diminished depending on individual member states’ domestic legislation. ‘An answer would be to agree a bilateral treaty (or transitional agreement) with the EU that mirrors the EAW scheme. The ECJ could have a role in same the way that it does under Article 37 of the Norway/Iceland EU Extradition Agreement whereby it does not have jurisdiction over disputes but instead a harmonisation of approach is provided through the “constant review” of case-law.’
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