Brexit Secretary David Davis is reported to be drafting a new position paper to mean that the Supreme Court will act as the final body of appeal for British citizens facing extradition under the European Arrest Warrant instead of the European Court of Justice (ECJ).  This policy position belies a fundamental misunderstanding of the process or alternatively a wilful disregard for the reality of the situation. Why is that?  Well because that is already the position, British judges and courts are already the final arbiters of this process and regularly refuse to extradite requested persons to EU states.  There has incidentally not been one single extradition case taken from the UK to the ECJ. 

Speedy system

The UK has been member of the European Arrest Warrant (EAW) scheme since its inception and implemented it into UK law with the Extradition Act 2003. The UK courts deal with approximately 1500 new EAW requests every year. Extradition is the transfer of persons accused or convicted of criminal offences between jurisdictions. The EAW system is a speedy system built around the concept that those members of the EAW scheme, who are largely members of the European Union, can be trusted to adhere to basic human rights and international standards of fair trial and proper treatment in custody. 

ECJ has limited role

The very limited role of European Court of Justice is to provide guidance to EU member states about the interpretation of EU law, in this case the EAW scheme.  It deals with the boring technicalities such as “what is the meaning of the word prosecutor?” “What is the definition of a retrial?” Not whether a rapist, terrorist or Christmas tree rustler (a real offence) should be extradited.  It doesn’t even have that power. 

Potential vacuum of cooperation

More worrying is the impending potential vacuum of cooperation in criminal cases and extradition.  The House of Lords European Union Committee published its report last month.  They said that the Home Secretary, Amber Rudd’s statement that staying in the EAW was a priority was “…welcome, but it was not clear to the Committee how this objective will be compatible with the Government's plans to remove the jurisdiction of the Court of Justice, let alone other aspects of the UK's withdrawal from the European Union."

House of Lords worried

The House of Lords EU committee fears that the Government has given no thought to the impending abyss where cooperation ceases and there is no legal mechanism for removing alleged and convicted criminals to other states.There have been discussions of transitional agreements but without any plan as to what the transition is too or what form that might take.  

Well policed

The EAW is a successful mechanism, generally well policed by the UK courts. I remember one of its first major successes in 2005 was to extradite a Lithuanian accused of murder to the UK to face trial. It took a few months but he was collected by the Metropolitan police and put on trial at the Old Bailey and convicted of murder.  Or the case of Jason McKay who fled to Poland after killing his wife and was extradited within a month. 

UK courts

The system is not perfect but that is where the UK courts come in to protect the rights of individuals and balance those against the allegations. In the past few weeks I have had a client’s extradition to Poland discharged on the basis of total inaction by Poland. He was convicted 15 years ago for possession of three false bank notes and given a suspended sentence. Over a decade later, having run a successful business, purchased a house and never set a foot wrong, Poland decided to activate the sentence and request extradition.The British judge took a dim view of this case and discharged him.

No practical involvement

That is the way that many cases work, the ECJ has no practical involvement in the extradition of UK suspects. Its function remains to shape the definitions and provide clarification to the Law. Something that UK courts have done well. The problem is that to remain within the EAW system the ECJ must have jurisdiction.  At the moment no alternatives have been proposed, other than that we try and stay in the system whilst rejecting the jurisdiction of the ECJ, a position that is simply fantasy. The UK government is ill prepared for on many fronts but in criminal justice it wants to leave and keep what we have, a position that is going to be very difficult to achieve. 

Ben Keith is a barrister at 5 St Andrew’s Hill specialising in extradition law