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Comment: Attorney General’s rule of law record could hinder EU extradition deal

Comment: Attorney General’s rule of law record could hinder EU extradition deal

Yesterday’s government announcement on The Future Relationship with the EU made it clear that the United Kingdom would not seek to participate in the European Arrest Warrant (EAW) scheme.

This will not come as a surprise to those who have been watching this issue since the referendum: the prospects of the EU contemplating a non-member state taking part were vanishingly small.

What will be of interest will be the willingness of the EU to consider a Norway-Iceland style extradition agreement for the UK instead. The Norway-Iceland agreement was made in 2006, but took a further 13 years to be implemented, finally coming into force on 1 November 2019. That gives an indication of the complexities such an arrangement entails.

In addition, both Norway and Iceland are part of the Schengen Area. This is important because membership of Schengen anticipates police and judicial co-operation, to compensate for the effect of the loss of border control on potential cross-border crime. There was an incentive for all parties to come to such an agreement.

In terms of the UK’s future arrangements, it is notable that the document setting out the government’s approach to the EU negotiations anticipates “appropriate further safeguards for individuals beyond those in the European Arrest Warrant.” What might these further safeguards be?

There are legitimate concerns that the EAW scheme places an excessive emphasis on mutual trust between member states’ judicial systems and it may be that further safeguards are sought to remedy this problem. Can we really put our trust in countries such as Poland and Hungary, currently in the grip of populist governments with a disregard for the rule of law and a record of undermining the independence of the judiciary?

But there is a reason why “mutual trust and recognition” is an explicit cornerstone of the EAW: to be a member of a fast-track extradition arrangement, we must have some level of trust in the criminal justice systems of other participants. Without this trust, one returns to the more lengthy extradition arrangements of the past, which involve greater scrutiny of the criminal justice system in the requesting state.

One factor the government should have in mind in approaching negotiations on an extradition scheme is that trust must be reciprocal. If the UK wishes to participate in a Norway-Iceland style scheme, the safeguards for individuals will necessarily protect those returning to the UK from the EU as well as those being extradited.

That will require extraditing EU member states to decide how much they can trust the UK’s criminal justice system. The appointment of an Attorney General who believes that politicians should “take back control” from judges does not bode well.

Rebecca Niblock

Rebecca Niblock is a partner in the criminal litigation team at Kingsley Napley LLP.

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