As Legal Action Group prepares to publish a new edition of Extradition law: a practitioner’s guide, authors Rebecca Niblock, Partner in our Criminal Litigation Team and Edward Grange (Partner at Corker Binning) examine two important changes since the last edition.

After six years, a third edition of Extradition law: a practitioner’s guide will be published on 9 September 2021. The first edition was published in 2013; a second followed in 2015. In terms of the practical arrangements at court, aside from an increased use of video link, little has changed. Momentous events have, however, taken place outside the courtroom. Here, we examine the two most noteworthy changes that have come about since the second edition. We begin by looking at how the UK's withdrawal from the EU has affected extradition and go on to look at a separate (but related) significant change to extradition arrangements in the form of the Extradition (Provisional Arrest) Act 2020.

Extradition and Brexit

The six-year gap since the second edition was, of course, as a consequence of the June 2016 UK vote to leave the EU. Had we known that the new extradition arrangements would not be announced until 31 December 2020, we would have contemplated an interim third edition. However, in the early days following the Brexit vote, we assumed (wrongly) that all would become clear by 29 March 2019. As it turned out, we had a further 21 months to speculate on what those arrangements would be, with much time and many words wasted along the way.

The final agreement in the form of the surrender provisions of the EU-UK Trade and Cooperation Agreement (TCA) came as a surprise to many (including the authors). Given the length of time taken to negotiate the Norway and Iceland extradition agreement with the EU (both Schengen Area countries, unlike the UK), it seemed highly unlikely that anything like the European arrest warrant (EAW) would remain. Documents preparing for a no-deal Brexit (specifically, the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 SI No 742) provided a framework for the future of cross-border cooperation for the UK in the form of a reversion to the 1957 European Convention on Extradition. Despite the predictions of many experts in the field, it appears that political pragmatism prevailed in the end: the current arrangements (at TCA Part 3, Title VII) replicate the features of the EAW to a very large extent.

There are, however, some important differences between the surrender provisions of the TCA and the Framework Decision that established the EAW in 2002. We will look at three of them. The first, and probably most important, is the fact that the UK no longer has access to the second-generation Schengen Information System (SIS II) database. A SIS II alert allows European member states to update each other, in real time, where a person is wanted in that territory. In 2015/16, when the UK gained access to SIS II, the number of surrenders on EAW cases jumped from 1,093 in 2014/15, to 1,271. The following year (2016/17) saw the highest number of surrenders on EAWs, 1,390 (see Wanted from the UK: European arrest warrant statistics, financial year 2020–21, National Crime Agency (NCA), 24 May 2021, summary). In spite of concerns expressed by UK law enforcement, the EU did not permit the UK to retain access to SIS II, given that the UK is not, and never has been, in the Schengen Area. Ultimately, this means that the UK must either use INTERPOL (a more cumbersome process) or revert to reliance on direct state-to-state requests (only possible if the requested person’s whereabouts is known), meaning, in turn, that there will inevitably be fewer people arrested pursuant to extradition requests from EU member states.

A second major difference is the removal of the principle of mutual trust and recognition (ie, that courts across the EU should consider other member states to be complying with EU law), a foundational principle of the EAW scheme. The operation of this principle had become controversial, with some UK critics of the EAW arguing that the standard of procedural rights in other member states did not meet those that a suspect might enjoy in the UK (1). Nevertheless, while removal of this ‘cornerstone’ may appear to be significant, the principles that support extradition more generally still require that international rules of comity be respected. It may be that a greater degree of scrutiny is applied in cases that raise issues of prospective breaches of procedural and human rights; whether this will make a discernible difference remains to be seen.

The third major difference is the foregrounding of the principle of proportionality. While the problem of EAWs being issued for ‘trivial’ offences had troubled a number of EU member states, there is an inherent difficulty in applying a proportionality assessment in the requested state when the system is founded on mutual trust. Replacing the foundation of mutual trust with that of proportionality, the TCA requires that cooperation through the arrest warrant be:

… necessary and proportionate, taking into account the rights of the requested person and the interests of the victims, and having regard to the seriousness of the act, the likely penalty that would be imposed and the possibility of a state taking measures less coercive than the surrender of the requested person particularly with a view to avoiding unnecessarily long periods of pre-trial detention (TCA article 597)."

It is still too early to measure the impact of this or the other changes brought about by Brexit. For now, we note that the UK’s departure from the EU has not brought about the seismic shifts that we, and most others, anticipated.

The Extradition (Provisional Arrest) Act 2020

Extradition Act (EA) 2003 Part 2 was subtly but significantly amended following the coming into force of the Extradition (Provisional Arrest) Act (E(PA)A) 2020 on 31 December 2020 (as brought into force by the Extradition (Provisional Arrest) Act 2020 (Commencement No 1) Regulations 2020 SI No 1652). As a result, provisional arrest under EA 2003 Part 2 can now take place without a warrant of arrest having been issued by an appropriate judge at Westminster Magistrates’ Court. Seen by some (but denied by the government) as a contingency plan in the event that the UK did not secure extradition arrangements with the EU after the end of the transition period, the E(PA)A 2020 could have allowed for provisional arrest without warrant to take place on the strength of an EAW alone, subject to certification by the NCA.

As it stands, provisional arrest without a warrant only applies to requests from certain specified countries listed in EA 2003 Sch A1, at present: Australia; Canada; Iceland; Liechtenstein; New Zealand; Norway; Switzerland; and the USA. Such jurisdictions were chosen, according to the Act’s explanatory notes, because they are ‘existing UK extradition partners, and the UK has confidence in their international arrest alerts and extradition processes’ (para 8). As such, an INTERPOL red notice issued at the request of one of these eight jurisdictions could form the basis of arrest without warrant, as could a diffusion notice or other request for extradition (subject to meeting certain requirements). The secretary of state can add to the list of ‘specified countries’ (EA 2003 s74B(8)(a)), although it seems politically unlikely that those countries that have a record of abusing the INTERPOL system(2)will be included in the future. It is of note that the UK did not give carte blanche for arrest to take place on the strength of an INTERPOL red notice alone (unlike in many other jurisdictions).

As a safeguard, provisional arrest without warrant can only take place if it has been certified by the NCA and only for extradition offences that are deemed to be ‘serious’. A serious extradition offence is defined as one that carries a sentence of at least three years’ imprisonment in the UK. That is easily met and therefore an additional safeguard provides that arrest without warrant can only occur if the NCA is satisfied that the ‘seriousness of the conduct constituting the offence makes it appropriate to issue the certificate’ (EA 2003 s74B(1)(d)). Para 45 of the explanatory notes to the E(PA)A 2020 states that it is this safeguard that makes it less likely that someone would be arrested for a low-level theft, despite theft being classified as a ‘serious’ extradition offence (given that it carries a maximum sentence of seven years). No further guidance is provided to the NCA as to the standard it is to use to determine the seriousness of the conduct and the criteria to be applied to determine appropriateness. The general guidance provided to the NCA (contained within Criminal Practice Directions 2015 (as amended) paras 50A.2–50A.5) when determining whether to certify an arrest warrant under EA 2003 Part 1 could be used for this purpose.

It is the authors’ view that these issues would be better dealt with through judicial scrutiny from the beginning of the process. As it is, it will be for the appropriate judge to consider, when the arrested person is first produced at court following provisional arrest without a warrant, whether they would have issued a provisional warrant of arrest. If they would not have done so, the requested person must be discharged. Practitioners representing those who have been provisionally arrested without warrant can seek to challenge the certification by the NCA on the following grounds:

  • the certificate does not contain the information specified in EA 2003 s74B(2)(a)–(e);
  • the request was not valid, within the meaning of s74C;
  • there were no reasonable grounds for believing the offence was a ‘serious extradition offence’; and
  • the seriousness (or otherwise) of the conduct means it was not ‘appropriate’ for the NCA to have issued a certificate.

Given the paucity of information that is often contained within an INTERPOL red notice, particular attention should be paid to whether the request upon which certification was based contained particulars of the circumstances in which the person is alleged to have committed the offence, the conduct alleged to constitute the offence, and the time and place at which the person is alleged to have committed it.

It is yet to be seen whether the new process that involves certification by the NCA will be any quicker than seeking a provisional warrant of arrest from the court. According to the Home Office impact assessment of the E(PA)A 2020, the changes will result in six people a year entering the criminal justice system more quickly than would otherwise have been the case. The data is not yet available to ascertain the veracity of this statement.

The High Court has yet to consider the new provisions inserted by virtue of the E(PA)A 2020 and the impact of the TCA, and practitioners should keep a close eye on developments in this area.

This article was originally published by Legal Action Group: Upheavals in extradition law