The draft Agreement presented to the House of Commons on 14 November 2018 includes, under Title V, provisions for on-going police and judicial co-operation. It confirms that the Convention (and Protocol) on Mutual Legal Assistance in Criminal Matters will continue to apply to mutual legal assistance requests received before the end of the transition period. It then goes on to cite the Framework Decisions and Directives that will continue to apply, commencing with the Framework Decision on the European Arrest Warrant (EAW).
The draft Agreement states that that the Framework Decision governing the European Arrest Warrant (EAW) shall apply where the requested person was arrested before the end of the transition period irrespective of whether the requested person is to remain in detention or be provisionally released. Where there are doubts as to whether the requested person was arrested before the end of the transition period, the issuing judicial authority may request from the executing judicial authority a confirmation of the arrest within 10 days after the end of the transition period. The transition period is currently set to end on the 31 December 2020.
It is worth noting that in article 185 (formerly 168 in draft) of the draft Agreement states that:
a Member State which has raised reasons related to fundamental principles of national law ….may declare that, during the transition period, in addition to the grounds for non-execution of a European arrest warrant … 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… that its executing judicial authorities may refuse to surrender its nationals to that Member State.”
The reality is that, whilst a refusal to extradite UK nationals simply on the grounds of nationality is not a current feature of extradition law, this provision for reciprocity has the potential to lead to a sea change in practice.
If this draft Agreement is adopted by EU leaders at the “emergency summit” on 25 November, it may result in some short term certainty in this area. However, we are no further on as to what would happen after the transition period which in any event, could, according to media reports, be a moveable feast.