Surrender Provisions – Refusal to Surrender under the EU-UK TCA

Dual/Double Criminality

The new surrender mechanism within the TCA has ‘revived the dual criminality requirement, meaning that an offence must exist in both jurisdictions before an extradition request can be granted’.[1] Article LAW.SURR.81 of the TCA states that the execution of the arrest warrant may be refused if … the act on which the arrest warrant is based does not constitute an offence under the law of the executing state (but not in relation to taxes, duties, customs and exchange). However, this can be waived if the UK and Member State notify the Specialised Committee on Law Enforcement and Judicial Cooperation that the condition of double criminality will not be applied provided the offence is listed within Article Law.SURR.79 (5) (which is the same as the EAW Framework Decision) and the offence is punishable in the issuing state by a custodial sentence or detention order for a maximum period of at least three years. It has been noted that ‘in terms of UK law, s12 European Union (Future Relations) Act 2020 amended the Extradition Act 2003 to delete references to the assumptions of dual criminality established in the European Framework … as such the starting point will be to assume that dual criminality must be proved in every case’.[2]

As of the 5 March 2021, 15 Member States have indicated their willingness to waive the requirement to establish dual criminality in respect of the Framework List of offences – these countries being Belgium, Ireland, Greece, Spain, France, Italy, Cyprus, Lithuania, Luxembourg, Hungary, the Netherlands, Austria, Poland, Portugal and Romania.[3] In oral evidence, given to the Committee Kevin Foster MP, Minister for Future Borders and Immigration, stated ‘Our general position is that we would not look to extradite someone from this jurisdiction for a matter that is not an offence in this jurisdiction’. Mr. Chris Jones, Home Office Europe Director, in oral evidence to the Committee stated ‘the UK intends to apply the principle of dual criminality … in general terms those offences [in the Framework List] will pass the dual-criminality test anyway … simply because the UK or a Member State has not exercised the ability to waive dual criminality in respect of those offences does not mean that extradition cannot take place’. The UK has to date given no such notification of waiving these provisions and it remains to be seen whether it could ‘affect the good faith that previously existed between the UK and other EU Member States in this area’.[4]

Political Offence Exemption

Under Article Law.SURR.82 of the TCA, the execution of an arrest warrant may not be refused on the grounds that the offence may be regarded by the executing state as a political offence, as an offence connected with a political offence or as an offence inspired by political motives. However, the UK and EU Member States can notify the Specialised Committee on Law Enforcement and Judicial Cooperation that this will only be applied to offences, conspiracy or association to commit one or more of the offences within Articles 1 and 2 of the European Convention on the Suppression of Terrorism or terrorism as defined in ANNEX Law-7 in the TCA[5]. Where the issuing state of the arrest warrant has made a notification as described above, the State executing the arrest warrant may apply reciprocity (ART.LAW.SURR.82 (2) of the TCA).

The EAW Framework Decision had no specific political offence exception that would allow extradition to be barred in cases where the conduct amounted to a political offence[6]. However, the EAW Framework Decision at Point 12 identifies ‘political opinions’ as one of the protected characteristics that can be a bar to extradition where there are reasons to believe that the extradition request is motivated to prosecute or punish the person for their political beliefs[7]. It has been noted that this exception ‘is an important new safeguard, albeit one that will be relied upon in very few cases’.[8] This is defined as offences that are ‘political in character’ and a possible scenario where this would have applied is the request for surrender of some leading Catalan nationalists that would likely have fallen under this ground.[9]

Mr. Foster MP in oral evidence to the House of Lords stated that ‘traditionally an important part of our extradition process has certainly always been that we will not remove people from this jurisdiction if we are satisfied it is a political charge that has been brought’.[10] Reassurances were also made that this is not usually an issue with the EU Member States due to the ‘very strong independence of their criminal justice systems and the quality of jurisprudence they have’.[11] This was confirmed in oral evidence from Mr. Jones that there is an exception for terrorism, otherwise they would have the ability … to refuse to extradite where the courts considered it to be a political offence. That is a position the UK is taking under this agreement’.[12]

The Beyond Brexit Report states that Prof. Mitsilegas thought the political offence exemption was an area where the UK will lose out, however, in his oral evidence this is in fact linked to the nationality exemption. He does note that within the provisions on political offence exceptions, ‘there was an effort to link political offence exceptions to extradition as much as possible in order to make extradition easier in terrorism cases, for instance’.[13] On the 5 March 2021 it was noted that 12 EU Member States have notified their use of the political offence exemption namely Belgium, Czech Republic, Denmark, France, Croatia, Italy, Cyprus, Poland, Portugal, Slovakia, Finland and Sweden.[14]

Nationality Exemption

Under Article LAW.SURR.83 of the TCA, the starting point is that the execution of an arrest warrant may not be refused on the grounds that the requested person is a national of the executing state. However, the UK or the Member State may notify the Specialised Committee on Law Enforcement and Judicial Cooperation that the State’s own nationals will not be surrendered or that the surrender of their own nationals will be authorised under certain specified conditions. The notification shall be based on reasons related to the fundamental principles or practice of the domestic legal order of the UK or the Member State. If such a notification is made, the UK or Member State may notify the Specialised Committee on Law Enforcement and Judicial Cooperation that the executing judicial authorities of the UK or Member State may refuse to surrender its nationals to that State or that surrender shall be authorised only under certain specified conditions. The Framework Decision previously only gave special status to nationals and residents of the executing state where the executing state took it upon itself to allow the subject to serve their sentence in the home country[15]. This has been retained alongside the Nationality Exemption.

It has been confirmed that 10 EU Member States have notified that they will be invoking constitutional rules as reason not to extradite their own nationals to the UK. These countries are Croatia, Finland, France, Germany, Greece, Latvia, Poland, Slovakia, Slovenia, and Sweden. Austria and the Czech Republic will only extradite their own nationals to the UK with the requested person’s consent.[16] It has been noted that this may undermine the culture of mutual cooperation and trust between the UK and other EU Member States.[17] As mentioned above, Prof. Mitsilegas in fact indicated it was regarding the nationality exemption that the UK will ‘lose out’ due to the Member States being allowed under their own constitutional arrangements to stop extraditing their own nationals.[18] The Beyond Brexit Report confirms that the UK does not intend to apply a bar on extraditing UK nationals other than where dual criminality is not met or where it is satisfied there was a political motivation. This would apply to anyone in the UK, not just UK nationals.

What can be considered as a means of combating the disruption from this exemption is that under Article.LAW.SURR 83(3) where a State has refused to execute an arrest warrant under the nationality exemption, the state shall consider instituting proceedings against its own national which are commensurate with the subject matter of the arrest warrant, having taken into account the views of the issuing state. In circumstances where a judicial authority decides not to institute such proceedings, the victim of the offence on which the arrest warrant is based shall be able to receive information on the decision in accordance with the applicable domestic law. Mr. Foster MP stated to the Committee that they are ‘satisfied that we have looked to secure a path to justice’[19]. Mr. Jones stated to the Committee that ‘this agreement goes beyond the surrender agreements between the EU and Norway or Iceland. It puts the onus on the Member State to refer the case to its own prosecuting authorities and provides for conditional surrender to enable a country to extradite its own nationals to the UK to stand trial and then be returned to that country to serve their sentence’. This is also seen as obligating the executing state to apply the ‘aut dedere aut judicare’ principle (either extradite or prosecute) if it rejects the surrender of its own nationals. It will be seen whether this will work in practice or is ‘likely to stall the objectives of the TCA’.[20]

It should be noted that all of the exemptions limiting surrender are subject to review and evaluation. The notification referring to the nationality exception must be renewed every five years in order to remain applicable (Art. LAW.SURR.110).[21] This may only be renewed or newly made during the three months prior to the fifth anniversary of the entry force of the TCA and, subsequently, every five years thereafter, provided that the conditions set out in the nationality exemption clauses are met at that time.

 

 

[1] Pinsent Masons LLP, 10 February 2021, EU-UK trade agreement to impact on cross-border law enforcement, <https://www.pinsentmasons.com/out-law/analysis/eu-uk-trade-agreement-to-impact-on-cross-border-law-enforcement

[2] Keith B, Kerridge S and Grange E, 10 March 2021, Extradition under the EU-UK Trade and Cooperation Agreement, <https://www.5sah.co.uk/knowledge-hub/articles/2021-03-10/extradition-under-the-euuk-trade-and-cooperation-agreement>

[3] House of Lords European Union Committee, Written Evidence: EU Member State Notifications under the Law Enforcement and Criminal Justice Title of the Trade and Cooperation Agreement Including Extradition of Own Nationals, 5 March 2021 <https://committees.parliament.uk/writtenevidence/23544/pdf/>

[4] Ibid.

[5] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:22020A1231(01)&from=EN (pg. 1057)

[6] Keith B, Kerridge S and Grange E, 10 March 2021, Extradition under the EU-UK Trade and Cooperation Agreement, <https://www.5sah.co.uk/knowledge-hub/articles/2021-03-10/extradition-under-the-euuk-trade-and-cooperation-agreement>

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10]House of Lords European Union Committee, Beyond Brexit: Policing, Law Enforcement and Security, 26 March 2021, HL Paper 250 – Para 136

[11] Ibid.

[12] House of Lords European Union Committee, Corrected Oral Evidence: Post-Brexit UK-EU Security and Cooperation, 16 February 2021, Q43, pg. 11 <https://committees.parliament.uk/oralevidence/1723/pdf/>

[13] House of Lords European Union Committee, Corrected Oral Evidence: Post-Brexit UK-EU Security and Cooperation, 12 January 2021, Q14, pg. 7 < https://committees.parliament.uk/oralevidence/1536/pdf/>

[14] House of Lords European Union Committee, Written Evidence: EU Member State Notifications under the Law Enforcement and Criminal Justice Title of the Trade and Cooperation Agreement Including Extradition of Own Nationals, 5 March 2021 <https://committees.parliament.uk/writtenevidence/23544/pdf/>

[15] Keith B, Kerridge S and Grange E, 10 March 2021, Extradition under the EU-UK Trade and Cooperation Agreement, <https://www.5sah.co.uk/knowledge-hub/articles/2021-03-10/extradition-under-the-euuk-trade-and-cooperation-agreement>

[16] House of Lords European Union Committee, Written Evidence: EU Member State Notifications under the Law Enforcement and Criminal Justice Title of the Trade and Cooperation Agreement Including Extradition of Own Nationals, 5 March 2021 <https://committees.parliament.uk/writtenevidence/23544/pdf/>

[17] Ibid.

[18] House of Lords European Union Committee, Corrected Oral Evidence: Post-Brexit UK-EU Security and Cooperation, 12 January 2021, Q14, pg. 6 < https://committees.parliament.uk/oralevidence/1536/pdf/>

[19] Oral Evidence – Q43

[20] https://www.lawgazette.co.uk/practice-points/a-need-for-pragmatism-post-brexit/5107570.article

[21] Wahl T, 3 March 2021, Brexit: EU-UL Trade and Cooperation Agreement – Impacts on PIF and JHA in a Nutshell, <https://eucrim.eu/news/brexit-eu-uk-trade-and-cooperation-agreement-impacts-on-pif-and-jha-in-nutshell/>