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There is still a great deal of uncertainty surrounding the UK’s departure from the European Union. We continue to await clarity on a considerable number of details – not least any plans for the enforcement of international law following our yet-to-be-established departure date.

One particularly pressing aspect is the question of what Brexit means for extradition to the UK – or from the UK to European member states. It is vital to establish how the UK will effectively apprehend offenders from Europe who seek refuge in the UK, or criminals originally from the UK who abscond from custody or evade an investigation by fleeing to an EU member state. Our authorities will need to establish a resolution in any case, but a no-deal Brexit’s effect on extradition is of particular concern.

In this article, we will explore the issues mentioned above. We’ll also touch on what Brexit means in the UK regarding the general enforcement of international law.

How Will A No-Deal Brexit Impact Extradition?

“If any UK court makes an order after Brexit, that cannot be enforced in the EU. The UK will have to rely on older extradition legislation that is still in force.” – Shahid Miah, DPP Law.

One thing that we do know is that, in all likelihood, new EU regulations that make it easier for member states to pursue extradition will not apply to the UK following Brexit. It is highly likely that our authorities will be required to rely on older legislation, which will make the process lengthier and more complex.

Currently, European Union member states have full disposal of the European Arrest Warrant scheme. The EAW is a tool that allows territories within the EU to circumvent any delays caused by lengthy extradition talks and political and administrative decision-making. Chief EU negotiators have officially stated that the UK would no longer be able to make use of the EU Arrest Warrant after its departure from Europe. However, Michael Barnier has previously suggested that the creation of an alternative “streamlined extradition process” may be possible.

Europol, the European law enforcement agency that supports EU member states in preventing and combating all forms of serious international and organised crime, will also have no jurisdiction over UK extradition following Brexit. As a result, extradition may need to be managed by a separate UK-based authority.

The unclear question of what Brexit means for extradition to the UK or between the UK and EU member states, is already having an impact on high profile cases involving serious crime. Next, we’ll look at a few instances where a lack of clarity regarding what Brexit means in the UK currently – or will mean as a result of a no-deal outcome – has led to unprecedented legal outcomes.

Notable Cases

Thomas Joseph O’Connor

The Supreme Court of Ireland declined the extradition of a convicted tax fraudster, Mr Thomas Joseph O’Connor in February 2018. Mr O’Connor, previously a construction company director, had fled to Ireland in 2007 while on bail, but was arrested in 2009 through the use of a European Arrest Warrant.

His extradition to the UK was ordered in 2014, but instead of proceedings continuing under the jurisdiction of the Irish courts, it was ruled that his case should be referred to the European Court of Justice.

This refusal by the Irish Supreme Court was decided on the basis of a claim made by Mr O’Connor’s defence that, should he be extradited to the UK, his rights as a European citizen could be violated as a result of Brexit. The UK was scheduled to leave the EU on the 29th of March 2019 at the time Mr O’Connor’s case was heard, and it was noted that, should he be extradited to the UK, his prison term would extend beyond that date, and thus those rights were likely to be denied to him.

While it has been stated that our permission to utilise the European Arrest Warrant will continue throughout any transitional period as we prepare to leave, Article 185 of the UK’s current Withdrawal Agreement states that:

“…the Union, in respect of any Member State which has raised reasons related to fundamental principles of national law of that Member State, may declare that, during the transition period, in addition to the grounds for non-execution of a European arrest warrant referred to in the Framework Decision 2002/584/JHA, the executing judicial authorities of that Member State may refuse to surrender its nationals to the United Kingdom pursuant to a European Arrest Warrant. In such a case, the United Kingdom may declare, no later than 1 month after the receipt of the Union’s declaration, that its executing judicial authorities may refuse to surrender its nationals to that Member State.”

As a result, even before Brexit is complete, the future relationship between Brexit and extradition proceedings is likely to be heavily impacted as a result – leaving heightened potential for similar outcomes to that of Mr O’Connor’s case. According to the Guardian, at the time that Mr O’Connor’s extradition was refused, there were approximately twenty more individuals utilising the same defence regarding their extradition to Britain.

Because the EU charter of fundamental rights is unlikely to apply to the UK after Brexit, there will continue to be a greater likelihood of member states refusing to honour EAW-based extradition requests that are likely to result in prison sentences extending beyond the date of the UK’s withdrawal.

Brexit and Extradition: The Future

A no-deal Brexit’s effect on extradition is likely to mean that the UK government will have to negotiate new official extradition agreements, either with the EU as a whole or with individual EU member states.

EU member states are currently known as Category 1 territories, meaning that the UK government have a set procedure in place – centering around the EAW – to enable the extradition of those convicted or accused of serious crime. There are also Category 2 territories, including Switzerland, Norway, US, Canada and Australia, with whom the UK has a separate official extradition arrangement in place.

The UK government has no set agreements with territories that do not fall into either Category 1 or 2, and must negotiate on a case-by-case basis. It is currently unclear which category EU member states would fall into following Brexit.

The matter is currently one of many being debated by the UK government and the European Court of Justice prior to the UK’s withdrawal from the EU. At the present time, our future relationship with the EU regarding the extradition of individuals accused of serious and organised international crime remains unclear. This matter is currently being effectively exploited by international offenders and suspects of serious or organised crime across the continent, as is illustrated by Mr Thomas Joseph O’Connor’s case.