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The UK will not be remaining in the European Arrest Warrant (EAW) system preferring to replicate similar arrangements to Norway and Iceland in its negotiations with the EU. But what does this mean?

Date - 3rd March 2020
By - Gary Mason

The Government set out its negotiation position on law enforcement and judicial matters in a document published last week covering the whole of the process.

Future arrangements in relation to continued access to European police databases are more opaque. But it makes clear that the UK is not seeking to participate in the European Arrest Warrant or Europol as part of the future relationship.

The Norwegian model

Instead it is looking to provide for ‘fast-track’ extradition arrangements, based on the EU’s Surrender Agreement with Norway and Iceland which came into force in 2019, “but with appropriate further safeguards for individuals beyond those in the European Arrest Warrant.”

Norway and Iceland are the only non-EU countries to have negotiated a surrender arrangement with the EU that shares many of the benefits of the EAW, such as simplified procedures.

According to the Surrender Agreement, the states must execute the European Arrest Warrant without judging the accusation, the time limits on execution of the warrant are strict, and the grounds for refusal are limited.

The only significant differences between the two arrangements are that the Norway/Iceland model enables all parties to refuse to extradite their own nationals, and it includes a “political offence” exception in relation to terrorism offences.

Such an exclusion, if applied to a UK-EU agreement, would mean that EU countries could refuse to extradite suspected terrorists to the UK if their crimes are regarded as political in nature.

The Surrender Agreement is also founded on trust and direct contact among judicial authorities.

The EU’s negotiations with Norway and Iceland took nearly 13 years and the agreement only came into force in 2019. As such no figures have been published yet on how the arrangements are working in terms of numbers or effectiveness. 

Under the EAW system warrants are subject to strict time limits: final decisions in the extraditing country must be made within 60 days of arrest, or within 10 days if the defendant consents to the surrender.

Other advantages of the EAW over standard extradition arrangements include Member States’ inability to refuse to surrender their own nationals; much more limited grounds for refusal; and the absence of “double criminality”, which means that the offence does not have to be an offence in both countries for the extradition to take place, provided it is sufficiently serious.

The issue of double or duel criminality was discussed in the negotiations with Norway and Iceland and whether it should be a condition of extradition for European Arrest Warrant offences unless Parties agree on a reciprocal basis to waive it.

The list of offences covered includes terrorism, drug trafficking, sexual exploitation of children, fraud, money-laundering, environmental crime, counterfeiting and piracy of products, rape, arson, and crimes within the jurisdiction of the International Criminal Court, namely war crimes, crimes against humanity, and genocide.

It also includes such concepts as "computer related crime", "racism and xenophobia", "swindling" (as opposed to "fraud"), "racketeering and extortion" and "sabotage".

In a paper published before the EU referendum, the then Government said that there is “no guarantee that the UK could secure a similar agreement [to Norway and Iceland] outside the EU given that we are not a member of the Schengen border-free area”.

Legal experts have also highlighted that the Norway/Iceland agreement requires both countries to keep under constant review the case law of the Court of Justice for the European Union (CJEU), which is “not a very binding kind of provision on the jurisdiction of the court but it is something that leaves the door open for courts to look at what each other is doing”. 

The EAW has enabled the extradition of over 12,000 individuals from the UK to the EU in the last nine years.

As Home Secretary in 2014, Theresa May said that losing access to it would make the UK “a honeypot for all of Europe’s criminals on the run from justice”.

Before the EAW entered into force in 2004, the UK extradited fewer than 60 people per year to any country, and Spain was the “destination of choice” for British criminals seeking to avoid arrest.

Home front law

But regardless of the outcomes of its negotiations with the EU on replicating the Norway and Iceland arrangements, the UK government is in the process of strengthening its own laws in relation to dealing with foreign offenders.

The Extradition (Provisional Arrest) Bill, which would give police the power to arrest a person wanted for extradition without the need to secure court approval, has completed its second reading through Parliament.

The new power of arrest would enable officers to immediately detain potentially dangerous individuals and take them into custody.

Under the existing system, officers who come across a suspect wanted by a non-EU country are required to get a warrant from a judge.

This would only apply to serious offences and where a valid extradition request has been made by approved "trusted" countries, which currently includes Australia, Canada, New Zealand and the US.

Sticking points

The main issue that the UK Government had with the European Arrest Warrant system is that its operation was likely to impinge on or constrain the UK's legal system.

The Government’s negotiation paper states that any agreement on policing and judicial arrangements “should not provide any role for the Court of Justice for the European Union (CJEU) in resolving UK-EU disputes, which is consistent with the EU’s approach to cooperation with third countries on law enforcement and judicial cooperation in criminal matters, including between the EU and neighbouring non-EU countries on tools such as the Second Generation Schengen Information System (SIS II) and Prüm.”

Again it says that the agreement should provide “similar capabilities” to those currently delivered through the Prüm system for exchange of DNA, fingerprints and other material held on police databases, drawing on the precedent for such cooperation between the EU, Norway and Iceland as well as between the EU and Switzerland and Liechtenstein.

The document makes it clear that any agreement should also provide a mechanism for the UK and EU Member States to share and act on real-time data on persons and objects of interest including wanted persons and missing persons.

This capability is currently provided by SIS II, making alerts accessible to officers on the border as well as to front-line police officers in the UK.

It merely confirms that the UK will continue to have access to SIS II until the end of 2020 but what happens beyond that date is not clear.

It simply says any agreement should provide “capabilities similar to those delivered by SIS II”, recognising the arrangements established between the EU and non-EU Schengen countries  such as Switzerland, Norway, Iceland and Liechtenstein.

Europol lite?

The Government document makes is clear that the UK is not seeking membership of Europol but it says the agreement should provide for cooperation between the UK and Europol to “facilitate multilateral cooperation to tackle serious and organised crime and terrorism.”

It points out that Europol already works closely with a number of non-EU countries, including the US, through dedicated third country arrangements.

With this in mind the agreement “could go beyond existing precedents given the scale and nature of cooperation between the UK and Europol,” it states. “For example, the UK was the highest contributor of data to Europol for strategic, thematic and operational analysis in 2018.”

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