In our previous blogs, we looked at the history of the UK’s involvement in EU criminal justice measures, and the way in which our involvement in key EU bodies and databases may be affected by withdrawal from the EU. Today, we look at what all of this may mean for the future of the European Arrest Warrant (“the EAW”).

What are the options?

As discussed previously, the options for the EAW post-Brexit are uncertain. One possibility would be to revert back to the 1957 Council of Europe Convention on Extradition, but this would be slow (as there are no time limits and it has to be dealt with through diplomatic channels). Alternatively, as the House of Commons Library Briefing Paper of 24 February 2017 states, the UK could develop a surrender agreement akin to that between Norway and the EU, particularly given that the UK is currently operating the EAW system (albeit via the Extradition Act 2003 which carries its own quirks of implementation).

Unlike Norway however, the UK is outside the Schengen zone, something the government recognises may hinder its negotiating position. The importance placed on Schengen membership in this regard can be seen by the words of the Council of the European Union upon signing its surrender agreement with Norway and Iceland. This stated that such agreements would be suited to other Schengen countries “given their privileged partnership with the EU Member States”. Nonetheless Britain could still forge a new ‘privileged partnership’ outside of Schengen by re-joining the European Free Trade Association (“EFTA”) (as recommended this week by the House of Commons International Trade Committee).

Being one of EFTA’s original founding members (although withdrawing on 1 January 1973 to join the EC, as it then was) the UK would join Norway, Switzerland, Iceland and Liechtenstein.

A mutually agreeable position would undoubtedly take many months if not years to be reached. This is evidenced by Norway where, despite negotiations on-going for 13 years, agreement is still yet to come into force. There are a number of sticking points that could impede negotiations. One obvious potential concern for the EU will be the way that the UK continues in its relationship with the European Court of Human Rights. Whilst the ECtHR is not an EU institution, Theresa May has strongly signalled her intention to take Britain out of its jurisdiction.

Other EU states may not wish to retain the UK as a privileged extradition partner if the human rights of requested persons cannot be guaranteed. Another point which may cause difficulty is the right, jealously guarded by some countries, to refuse to extradite their own nationals, as Germany did in its agreement with Norway and Iceland.

How will a refusal to apply CJEU judgments affect this?

Unlike the ECtHR, the Court of Justice of the European Union (“CJEU”) is an EU institution. Whilst the Prime Minister has stated “…we are not leaving only to return to the jurisdiction of the European Court of Justice”, if the UK wishes to participate in the EAW in whatever form, it is likely that the court will continue to maintain a significant influence over our own law, in order to ensure consistency in the way standards are applied. This may involve an agreement to keep under review any treaty partner’s legislation, as already occurs with Norway and Iceland.

In respect of surveillance and data protection this will be a real challenge. The EU has been shown to be at odds with the UK government, demonstrated by the CJEU’s judgment of 21 December 2016 in relation to the UK’s ‘Snoopers’ Charter’, in which it held that the ‘general and indiscriminate retention of electronic data and emails’ was illegal. Since then, Liberty has issued a motion to judicially review the Investigatory Powers Act.

Despite the Prime Minister’s words, it will be in the UK’s interests to ensure the CJEU is not ignored. If our laws are not reflective of CJEU judgments then (as set out in yesterday's blog), requests for continued access to key information sharing databases and mutual recognition measures (including the EAW) are likely to fall on deaf ears.

Conclusion

It is clear that access to information and engagement with key EU criminal justice bodies, particularly in relation to security, is something the UK wishes to retain. Likewise, the ability to circumvent long-winded extradition processes is of real value to UK prosecutors (see DPP Alison Saunder’s comments here). The historic position of the EU towards non-Member States and those outside, and inside, the Schengen Zone and EFTA is one indicator of the likelihood that this goal will be achieved.

Whatever is negotiated, it is clear that the UK will lose its power to influence through positions on EU bodies, management boards and data sharing. Co-operation in the field of justice and home affairs is likely to be slow and far less comprehensive than it currently is. For those seeking greater security, the UK will therefore be in a worse position. As David Armond (Deputy Director General of the National Crime Agency) said in his evidence to the 28 February House of Commons Committee on Exiting the European Union “…unless we could replicable the current set of arrangements, any lessening of our access to intelligence and to those tools would be suboptimal…we should be seeking to replicate these arrangements or have alternative arrangements to ensure that we continue to keep our people safe”.