Abstract
The Republic of Ireland and the United Kingdom have a long, close and difficult history. The most recent phase of which dates from 1998 and the conclusion of the Good Friday Agreement. Since 1921, however, there has been unique practice between Ireland and the UK as regards the transfer of accused and convicted persons from one to the other. Indeed, there has been a special and close relationship between the two in that regard; albeit one not without difficulties. In recent times EU Justice and Home Affairs measures and the Good Friday Agreement have supplemented and strengthened the relationship. These include, since January 2004, the European Arrest Warrant (EAW). The EAW has been particularly important in streamlining the extradition process between the Ireland and the UK. This phase of history and co-operation is coming to an end. The UK’s membership of the EU has now ceased, and a transition period during which the UK remains part of the EAW will end on 31st December 2020. The extradition relationship between the two is therefore facing a considerable challenge. There are several options open to Ireland, the UK and the EU as a replacement. Time, political will and the interests of third states, however, may well stand in the way of the conclusion of an agreement that optimally serves the interests of all parties and criminal justice. This paper considers the origins of extradition between the UK and Ireland and the alternative methods of extradition open to the UK and Ireland after Brexit. Consideration is given to the likely operation of a Norway-Iceland style agreement and whether such an agreement will be in place by the end of the transition and, if it was, whether its terms are likely to be sufficient for the needs of Ireland and the UK. The possibility of a bilateral arrangement on extradition between Ireland and the UK is also explored. Underlying the discussion is the critical point that the future extradition relationship must retain its ‘special’ characteristics, and therefore maintain the trust and good will that has developed over the years and given rise to an effective extradition relationship between the two countries. In other words, the lessons of history must be remembered.
Introduction
The United Kingdom’s departure from the European Union will inevitably change the Ireland-UK extradition relationship. As both countries were European Union members extradition between them was governed by the European Arrest Warrant Framework Decision. This was implemented in Ireland by the European Arrest Warrant Act 2003 and in the UK by the Extradition Act 2003. The UK’s departure from the EU will almost certainly have a negative impact on the ability of Ireland and the UK to secure accused and convicted persons from each other efficiently and effectively. This regrettable position will most likely subsist regardless of the model of extradition that is adopted to govern the process. It is regrettable simply because the process has been a vital criminal justice tool in the fight against crime, be it national or transnational. ‘Ireland’s largest “trading partner” for European Arrest Warrants (EAWs) is Britain’. 1 The importance of continued close co-operation is universally recognised. Ireland’s Department of Justice and Equality 2017 Annual Report on the operation of the European Arrest Warrant Act 2003 stated ‘[t]he departure of the UK is particularly significant for Ireland on a range of issues. However, in the context of combatting crime and terrorism, the necessity to maintain a functioning system of extradition between the two States has been identified as the key priority’. 2 The shared land border and geographic proximity, the free movement of persons under the Common Travel Area and the history of politically-related violence between and within Great Britain and the island of Ireland all contribute to the priority. This paper considers the origins of extradition between the UK and Ireland and the alternative methods of extradition open to the UK and Ireland after Brexit. Consideration is given to the possible conclusion and terms of a Norway-Iceland style agreement and whether such an agreement might be sufficient for the needs of Ireland and the UK. The possibility of a bilateral arrangement on extradition between Ireland and the UK is also explored. Underlying the discussion is the critical point that the future extradition relationship must retain its ‘special’ characteristics, and therefore maintain the trust and good will that has developed over the years and given rise to an effective extradition relationship between the two. In other words, the lessons of history must be remembered.
Part 1—The Past, 1921–1998
The Context of Ireland-UK extradition
The context of Ireland-UK extradition is found in the common history between the nations. Indeed, the development of their extradition relationship is imperfectly shadowed by changes in the political position of both. In an extradition context the stages of that history are usefully given as 1800–1921, 1921–1965, 1965–1998, and 1998–2020. Two features of Irish and UK history transcend all these stages; the close and inter-twined political and personal relationships between the countries and their populations on the one hand, and the tensions, conflicts, violence and criminality that has sporadically come to the fore between them on the other. This fact has led to a close yet sporadically dysfunctional extradition relationship. Illustrating the closeness of the relationship is the fact that the backing of warrants system had subsisted between Ireland and the UK for a considerable period. The procedure has been described as where: …the authorities of the jurisdiction where the person is wanted issue their normal warrant of arrest, which is sent directly to the authorities of the jurisdiction where he is, who endorse it if it appears to be in order, and give it to their policemen to execute as if it were their own. The suspect is then ‘lifted’, and handed over to the authorities of the country where he is wanted with the minimum of fuss—the unspoken premise being that the authorities of the requesting jurisdiction normally act lawfully and reasonably….
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…to authorise removal from the jurisdiction instanter without any opportunity, reasonable or otherwise, to invoke the Courts. There can be little doubt that this was the purpose of the Act when it was enacted. Ireland was then part of the entity known as the United Kingdom of Great Britain and Ireland and was in enjoyment of the benefits of the Act of Union. One of these benefits was the free interchange of alleged offenders subject to the formality of local backing of warrants. However unreal, the theory was that an Irishman, as a subject of the Queen, should have been as happy, safe and as much at home in Britain as in Ireland.
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The Origins of the Process 1921–1965
The history of extradition between Ireland and the UK in a formal sense is relatively short.
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As ‘extradition’ generally denotes rendition between sovereign states Irish-UK practice began in 1921 with the declaration of the Irish Free State. In large part reflecting the close and inter-twined relationship between the two jurisdictions the pre-1921 process of rendition subsisted for over four decades after the creation of the Irish Free State. The system was one of backing of warrants.
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Unlike standard extradition practice no prima facie evidence was required,
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nor did a hearing in the requested territory take place. Governing these arrangements were generally the Indictable Offences Act 1848 and the Petty Sessions (Ireland) Act 1851. These rules were extended to the Irish Free State by provision in both jurisdictions.
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Any arrest warrant issued by a court in Britain or Ireland was immediately effective throughout those jurisdictions. The basis for this included s 29 of the Petty Sessions (Ireland) Act 1851 which inter alia provided: Whenever any person against whom any warrant shall be issued by any justice or other such officer as aforesaid in England or Scotland…for any crime or offence, shall reside or be, or be suspected to reside or be, in any place in Ireland, it shall be lawful for the said inspector general…to indorse the same in like manner and upon like proof as aforesaid, authorizing the execution of the same within his jurisdiction.
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The rendition practice between the Republic and Northern Ireland stands in contrast to that with Great Britain. This was in spite of the Free State’s Customs and Excise (Adaptation of Enactments) Order 1924 17 and the UK’s Irish Free State (Consequential Adaptation of Enactments) Order 1923 18 providing that warrants issued in each were to be executed in the other. Frustrating practice firstly was the 1928 Dublin High Court case of O’Boyle and Rodgers v Attorney General and Duffy. 19 It held that since Northern Ireland did not exist when the 1851 Act came into effect there was no authority for the Irish Government to extend it there. In response to the judgment the Northern Ireland authorities similarly refused to execute Free State warrants. Accordingly, there were no practically applicable arrangements between the Republic and Northern Ireland from 1928 to 1965. Extradition within Ireland had ceased operation within a decade of the founding of the Irish Republic. 20 Notably, however, informal co-operation between the police forces within Ireland took place whereby suspected criminals were taken into custody and ‘politely conducted to a convenient place on the Border and handed over to the corresponding authority’. 21 This practice, after coming under scrutiny in a case at the Irish Supreme Court 22 and in the House of Lords, 23 was part of the impetus within the Republic that led to the 1965 legislation that regularised Ireland-UK extradition practice. These cases, as well as the Irish desire to act in accordance with the relatively recently concluded European Convention on Extradition 1957, led to extradition relations between Ireland and the UK being put on a new legislative footing.
Extradition Hindered 1965–1998
From 1965 to 2004 extradition between Ireland and the UK was governed by, in Ireland, the Extradition Act 1965 (in particular in Part 3) and the UK, the Backing of Warrants (Republic of Ireland) Act 1965.
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This fact is notable in that extradition between almost all countries is governed by treaty not domestic legislation alone. In 1965 Ireland and the UK continued to eschew that practice, the two Acts being drafted following consultation. As the name of the latter suggests, the essence of the arrangement did not change. The reciprocal acceptance of arrest warrants remained at the heart of the system. That said, real amendments were made. As noted, Ireland’s desire to give effect to the Council of Europe’s European Convention on Extradition 1957 (ECE) conditioned the new law.
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B Lenihan speaking in the Dail Eireann said the Extradition Act 1965 is ‘…based almost entirely on the terms of the European Convention on Extradition’.
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The UK, for its part, wanted to regularise relations after Hammond.
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In support of the Backing of Warrants (Republic of Ireland) Bill Alice Bacon MP said in the House of Commons The two countries are close together, there are a great many cases and the laws of the two countries are very similar. Because it is quick, simple and cheap to get from the Republic to the United Kingdom, particularly across the border into Northern Ireland, there are as many as 100 offenders who have to be returned to the Republic each year.
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Of all the new features of the Ireland-UK extradition relationship after 1965 the political offence exception was the most notable and controversial. While the exception was also introduced into the law governing extradition between the UK and Commonwealth states the political situation was very different. 32 As is well known conflict over the constitutional status of Northern Ireland began to erupt into sectarian violence in the late 1960s. The three-decade conflict between nationalists (primarily identifying as Irish or Roman Catholic) and unionists (primarily identifying as British or Protestant) had a significant impact upon extradition between the Ireland and Northern Ireland. The most pronounced and controversial effect of the exception was the refusal of extradition on that basis of individuals from Ireland to the UK. Indeed, the extradition of politically motivated offenders from the Republic to the UK was in the early 1990s ‘…by far the most politically contentious issue to have troubled the relationship between these two countries over the last 20 years or so’. 33 This fact followed a series of cases beginning in the early 1970s where the Irish courts upheld the exception. 34 Among these well-known cases are Bourke v Attorney General, 35 The State (Magee) v O’Rourke 36 and Finucane v McMahon. 37 In the latter, the Irish Supreme Court upheld Finucane’s appeal against extradition to Northern Ireland on the basis of the political offence exception. A notable aspect of the exception in Irish law was the vacillating position taken to its interpretation. The Irish Supreme Court had been required to interpret its nature and limits on several occasions, and was not wholly consistent this task. 38 In contrast, UK courts were generally more constant in approach, and interpreted the exception more restrictively. A House of Lords example where an argument based on the exception was refused being Keane v Governor of Brixton Prison. 39 It is clear, then, that Ireland adopted a wider legislative articulation of the exception and a more liberal interpretation of it. This was a fact that gave rise to considerable disquiet.
The disparity in approach to the political offence exception by Ireland and the UK was gradually lessened. This began with the European Convention on the Suppression of Terrorism 1977. Reflecting a change in sentiment across Europe to politically motivated violence this treaty was designed to counter the operation of the exception. Article 1 lists offences not to be regarded as political offences for the purposes of extradition. The UK ratified the Convention in July 1978, and subsequently enacted the Suppression of Terrorism Act 1978. The Republic signed the Convention in 1986 and ratified it in May 1989. The approach taken in Ireland was subject to criticism on account of the legislation giving force to it failing to specify that certain offences, including murder, could not be regarded as political. Instead the Extradition (European Convention on the Suppression of Terrorism) Act 1987 created a judicial discretion on the point. It also failed to include the possession of firearms as an offence deemed not to be political and was unclear as to aspects of the use of explosives and automatic firearms. 40 That noted, the political offence exception under s 50 of the Extradition Act 1965 was ‘considerably circumscribed’ by ss 3 and 4 of the implementing legislation. 41
A final development to be noted that affected extradition relations in the period leading up to Good Friday Agreement and subsequently the application of the EAW between Ireland and the UK was the increasing relevance of human rights in Ireland’s extradition jurisprudence. The origins of which are found in Finucane v McMahon, mentioned above. In the case it was held by the Irish Supreme Court that Finucane had demonstrated that there was a probable risk of ill-treatment in the Maze Prison if he was returned and therefore in order to protect his constitutional rights he was released. This case can be seen to have spawned further litigation. The right to a fair trial, for example, was put forward in opposition to extradition successfully in McGee v O’Dea. 42 The consideration of human rights led Irish courts to adopt an ‘interventionist’ approach, whereby an ‘in-depth examination of the requesting State’s practices and procedures’ was undertaken. 43 Ironically, this development counters the efforts to curtail the political offence exception—with the trust implicit in foregoing the exception being undermined through human rights scrutiny. It was the Good Friday Agreement and the European Arrest Warrant that ultimately acted to rekindle that trust.
Part 2—The Present, 1998–2020
Peace and Prosperity as the European Union Expands
Marking the start of the modern context of Ireland-UK co-operation is the Good Friday Agreement (GFA), signed on 10 April 1998. It signified the end of most of the violence of the Troubles. The agreement accepted that the people of Northern Ireland wished to remain part of the United Kingdom but that a section of the population in Northern Ireland and the majority of the people of the island of Ireland wished for a united Ireland. Irrespective of Northern Ireland’s constitutional status the right of the people of Northern Ireland to identify and be accepted as Irish or British, or both was enshrined. A new period of ‘North/South’ cooperation began with the creation of new institutions designed to co-ordinate in 12 areas of mutual interest. Central to the Good Friday Agreement is the maintenance of the Common Travel Area. Under the CTA, British and Irish citizens can move freely and reside in either jurisdiction and enjoy associated rights and privileges, including the right to work, study and vote in certain elections, as well as to access social welfare benefits and health services.
Pre-dating the GFA by a quarter-century was Ireland and the UK’s membership of the EU. Initially integration in the field of police and criminal justice matters was a challenge for the organisation as ‘jurisdiction, criminal trials and criminal sentencing are seen as the last bastions of national state power’. 44 Early attempts at cooperation can be traced back to the creation of the TREVI group in 1975, with the first significant step to close cooperation being the opening of the EU’s internal borders through the establishment of the Schengen Area. While neither the UK nor Ireland participated in the open border aspects of the Schengen Protocol both requested participation in the police and judicial co-operation elements of the Schengen acquis. 45 This decision from Ireland’s perspective was made so as not to affect the existence of the Common Travel Area. 46 The then UK Prime Minister, Tony Blair, had made it clear that there was no question of the UK giving up border controls. 47
Even with retained border controls Ireland and the UK were affected by the freedom of movement of persons. A concomitant of which was an increased risk of crime. A common effort was needed in response throughout the EU. 48 While the Maastricht Treaty 1992 established Justice and Home Affairs as one of the EU’s three pillars on an intergovernmental basis the Amsterdam Treaty 1997 created an ‘Area of Freedom, Security and Justice’ (AFSJ), a collection of home affairs and justice policies designed to ensure security, rights and free movement within the European Union. Significantly it endorsed the principle of mutual trust, which would go on to become the cornerstone of judicial cooperation in criminal matters within the European Union. 49 Among the significant strides made during this period in enhancing cooperation in criminal matters was the creation of the European Arrest Warrant, discussed presently. It was adopted in 2002.
The final piece to the modern contextual puzzle to be noted is the step change in EU criminal justice cooperation in 2009 when the Treaty of Lisbon abolished the pillar structure and created Title V of the Treaty on the Functioning of the European Union which regulated the AFSJ. Importantly, the Court of Justice (CJEU) now had jurisdiction over the area, the Commission gained enforcement powers and the European Council changed to majority voting for police justice and criminal cooperation matters. Most of the new controls came into force on 01 December 2014 following the end of a five-year transitional period. The UK and Ireland were hesitant to embrace such close cooperation in criminal matters, primarily because their adversarial justice systems differ significantly from civil law jurisdictions found in most other European countries. What is important from our present perspective is that both Ireland and the UK remained part of the European Arrest Warrant scheme, which is subject to the jurisdiction of the CJEU. Clearly the importance of the EAW was recognised in the opt-out and opt-in machinations that followed the Treaty of Lisbon. The UK had until the end of the transitional period to decide whether to continue to be bound by measures adopted before the Treaty of Lisbon entered into force. It chose to block opt-out of 133 policing and judicial cooperation measures but simultaneously opted back in to 35 (including the EAW) stating, ‘where we believe it is in the national interest to participate we have pursued a policy of seeking “co-operation not control”’. 50 Both the UK and Ireland negotiated the ability to ‘opt in’ to new legislation on a case by case basis.
The European Arrest Warrant
The EAW is a simplified procedure which enables surrender decisions to be made by judicial authorities on the basis of mutual recognition. The impetus for the finalisation of the EAW Framework Decision was the terrorist attacks in the US on 11th September 2001. Its benefits have been well set out during the opt-in and out decision discussions of 2014 51 and throughout the Brexit debate. 52 As demonstrated above, the strength of those arguments are heightened in light of the political history and situation between Ireland and the UK. The benefits of the EAW include the inability of Member States to refuse surrender of their own nationals, limited grounds for refusal, the absence of a double criminality requirement and the removal of political involvement. These have led to a faster and cheaper system of extradition than was available under the 1957 European Convention on Extradition. 53 Indeed, in most cases surrender will occur within 60 days of arrest or 10 days with the defendant’s consent. Both Ireland and the UK implemented the Framework Decision on the European Arrest Warrant and the Surrender Procedures between Member States of 13 June 2002. 54
Statistics reveal that the EAW quickly became an essential tool in the area of judicial cooperation in criminal matters with 185,575 arrest warrants issued and 56,298 executed across the EU since 2005. 55 The UK has been an active user of the scheme and from 2009 to 2019, the UK issued a total of 2,678 requests to other Member States, securing the return of 1,625 individuals out of 1,894 arrested. 56 In the same time period, a total of 11,300 individuals were surrendered from the UK pursuant to EAWs. Ireland has surrendered 247 individuals to the UK since 2009, with 34 surrendered in 2019. The UK has surrendered 537 individuals to Ireland in the same time period including 58 people in 2019. While the numbers surrendered to the UK from Ireland are only a small proportion of those requested by the UK, the UK ‘remains the state with which Ireland has the greatest interaction’. 57 In 2017 60 out of 76 EAW requests transmitted by the Irish Central Authority were to the UK. 58 It was recognised by the Department of Justice that ‘in the context of combating crime and terrorism, the necessity to maintain a functioning system of extradition between the two States has been identified as a the key priority’. 59
There is no doubt that from the perspective of the UK and Ireland the EAW has transformed the scale of extradition.
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Non-EU extradition traffic is approximately one-tenth of EAW surrenders.
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Notable among these statistics is not just the number of surrenders, generally and between Ireland and the UK but also the volume of cases originating from Northern Ireland. In that regard from September 2018 to August 2019 the Police Service for Northern Ireland issued 38 EAWs, 26 of which related to the Republic of Ireland and 12 to all other EU states.
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Conversely, the PSNI received 5 requests from the Republic of Ireland during that period, out of a total of 44 EAWs.
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Clearly the EAW plays a crucial role in Ireland-UK criminal co-operation today. Its relevance is perhaps even wider than that. It has been described as …the most emblematic and most widely implemented EU criminal law instrument. It aims to compensate for the freedom of movement enabled by the abolition of internal borders by ensuring that Member States’ justice systems can reach extraterritorially in order to bring individuals who have taken advantage of the abolition of borders to flee the jurisdiction to face justice.
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The operation of the EAW has undoubtedly strengthened the mutual trust between Ireland and the UK. Previously, as discussed above, Irish jurisprudence had been favourable to the accused and ‘had an illustrious history of being acutely conscious of potential human rights violations’. 65 Ireland’s strict and sometimes sceptical attitude towards extradition during the 1980s and 1990s has been said to have arose from a mix of philosophical, psychological, legal and non-legal factors. 66 Again as noted, the period of the Troubles in Northern Ireland was particularly problematic. This reticence carried over to the early days of the EAW, O’Higgins has argued, where the High Court continued to apply an Ellis v O’Dea 67 type approach in the EAW context. 68 Notwithstanding the cautious start, there is clear evidence that over the last 17 years the EAW has smoothed the extradition waters between Ireland and the UK as both re-embraced the principle of mutual trust and recognition. In the 2005 case of Minister for Justice, Equality and Law Reform v Altaravicius, the Chief Justice, while accepting that the courts were not prevented from examining cases to ensure personal rights were guaranteed, stated they must ‘do so with a benefit of a presumption that the issuing State complies with its obligations’. 69 In Minister for Justice, Equality and Law Reform v McArdle the respondent opposed surrender to the UK on a number of grounds including abuse of process. 70 The Supreme Court dismissed those concerns ‘taking the view that they were all matters that were relevant only to the criminal trial and the weight to be attached to evidence tendered at the trial’. 71 It should be noted, however, that while the principle of mutual trust underpinning the EAW enjoyed almost unfettered application during the first 10 years of application in recent years the pendulum has swung back towards an approach emphasising human rights. 72 To-date, this appears to be limited in the jurisprudence of both the UK and Ireland to cases concerning requests from eastern European states. 73
The success of the EAW has not been without concerns on either side of the Irish sea. Criticisms have been made in relation to its disproportionate use, unsatisfactory standards, length of pre-trial detention and access to a fair trial. One result of which has been the agreement by the European Commission that a proportionality requirement was necessary to prevent warrants from being issued for offences which are not serious enough. Judicial authorities should use the European Arrest Warrant system only when a surrender request is proportionate in all the circumstances of the case. The Commission’s Handbook on How to Issue and Execute a European Arrest Warrant states that issuing judicial authorities should consider proportionality by weighing the usefulness of issuing a EAW in the specific case, with a list of suggested factors to be taken into account. 74 The EU has also embarked on a programme to strengthen procedural rights although the UK largely chose not to participate.
Brexit and the Northern Ireland Problem
There is no doubt that the UK and Ireland have become much closer and more intertwined as a result of common membership of the EU, particularly in the area of criminal justice cooperation. Hayward has demonstrated that membership of the EU was important for the Good Friday Agreement because it created the context within which such cross-border cooperation was normalised and depoliticised. The fact that nationalists felt themselves equal and protected as Irish citizens in Northern Ireland has been in no small part connected to the broader framework of common EU citizenship.
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Adding further complexity to the position of Northern Ireland is the devolution of criminal justice. Since 2010 policing and justice have fallen under the remit of the NI Department of Justice and the Justice Statutory Committee of the NI Assembly. For its part the Police Service of Northern Ireland (PSNI) has repeatedly stressed that continued cross-border cooperation is key to combating organised crime and a resurgence of paramilitary activity in Northern Ireland. 79 The Joint Ministerial Committee (EU negotiations) was established to facilitate engagement between the UK Government and devolved administrations but for much of the negotiations Northern Ireland had no functioning Executive and therefore no representation on the Committee. 80 Hayward, Phinnemore and Komarova argue ‘what the UK negotiates with the EU about criminal justice co-operation will uniquely impact Northern Ireland given the nature and challenges of cross-border cooperation on the island of Ireland’ and recommend that the remit of the British-Irish Council could be expanded to include areas previously coordinated at EU level such as criminal justice cooperation. 81 The difficulties that the PSNI and An Garda Síochána will face if no replacement for the EAW is found have been recognised. To date, however, no solution has been proposed. 82
Part 3—The Future
The EAW Not an Option
The first point to make in discussing the future extradition relationship between Ireland and the UK is that the EAW is not an option. At the beginning of the Brexit process the UK repeatedly stated that it wished to continue a close relationship with the EU in the field of criminal justice and this included access to the EAW. 83 Full participation in the EAW was always going to be problematic, however, as it is linked to the free movement of people and based on the concept of mutual trust between Member States. Michel Barnier set out the underpinnings of mutual trust as being, ‘shared respect for fundamental rights as set out in the Charter of Fundamental Rights; by certainty that other Member States enforce and apply the rules the same way, under the jurisdiction of the European Court of Justice; and by the concept of EU citizenship, which allows Member States to lift the constitutional ban on the extradition of their own nationals’. 84 The UK consistently has stated that Brexit meant the end of free movement of people, the jurisdiction of the CJEU and the Charter of Fundamental Rights. These red lines inevitably meant that the UK could not take part in the EAW. In March 2020 the UK acknowledged that participation was not possible stating that it was now seeking ‘fast-track extradition arrangements, based on the EU’s Surrender Agreement with Norway and Iceland…but with appropriate further safeguards for individuals beyond those in the European Arrest Warrant’. 85
An EU-UK Multilateral Treaty on the Horizon?
The preferable replacement of the EAW is an EU-UK multilateral treaty. This is simply because under such an arrangement the UK’s extradition relations would be the same with all its former partners. In response to the UK’s statement in March 2020 the EU published a draft agreement as the starting point for negotiations. 86 Surrender is set out in Chapter Seven. 87 The initial proposal closely mirrors the Norway-Iceland agreement, which in turn is very similar to the EAW. The minimum thresholds are identical 88 as are the mandatory grounds for refusal of a warrant 89 ; namely amnesty, double jeopardy and insufficient age of suspect. The optional grounds for refusal are again identical to those found in art 4 of the EAW 90 and the same territorial requirements are included. 91 Execution may not be refused on the ground that the offence may be regarded as a political offence, 92 although the UK and EU Member States would be able to make a declaration that this only applied to certain terrorism offences. 93 In contrast to this largely common ground are several areas of contention.
The position of nationals vis-a’-vis extradition is, of course, an issue with pedigree. The proposal provides that extradition will not be refused on the grounds that the person claimed is a national of the executing state. However, the UK and the EU on behalf of its Member States may make declaration that a state’s nationals will not be extradited. The other party would then be entitled to reciprocity. This allows those countries having constitutional bars on extradition of their own nationals to third countries outside of the EU, such as Germany and Latvia, to make such a declaration. Ireland does not have a constitutional bar on extraditing its citizens if an international agreement is in place providing for extradition. A similar provision on extradition of nationals exists under the Iceland-Norway agreement, and a number of Member States have chosen to make a declaration, under art 7(2), that they will not surrender their nationals, or will do so only under certain conditions. 94 This demonstrates the extent to which the surrender of nationals was dependent on the principle of mutual trust and recognition. It seems reasonable to suppose that similar derogations would be made in relation to any UK-EU agreement. The UK will therefore lose the ability to extradite citizens from up to 8 countries in some circumstances and 16 if it isn’t willing to return convicted nationals for the purpose of serving their sentence, a decision which would ultimately be in the hands of the courts, not politicians.
The relevance of nationality does not stop at the extradition, or not, of a state’s own citizens. Recent CJEU case law has extended a degree of protection to citizens of the Union as such. In the 2016 case of Criminal proceedings against Petruhhin 95 Latvia was prevented from extraditing an Estonian citizen to Russia under a bilateral agreement. It was successfully argued that this could be ‘contrary to the essence of the citizenship of the Union, that is to say, the right of the Union citizens to protection equivalent to that of a Member State’s own nationals’. 96 The case of Proceedings Related to Raugevicius 97 extended the ‘Petruhhin principle’ to extradition for the purpose of enforcing a sentence, not just accusation warrants. 98 In the case of Pisciotti v Germany 99 the CJEU reaffirmed that art 18 TFEU, the principle of non-discrimination on the grounds of nationality, applied to extradition to third countries. The effect of this jurisprudence is that Member States are obliged to inform the country of nationality of the Union citizen when applying a third party extradition agreement and to give priority to a possible EAW, provided that state has jurisdiction and wants to prosecute the same offence. When the UK becomes a ‘third country’ for the purposes of extradition with EU countries after 31 December 2020 its requests for extradition will be secondary to any request from the country of nationality for all EU citizens. If the UK requests extradition of a Polish citizen from Ireland, for example, Ireland will first contact Poland to make them aware of the request and will give precedence to a Polish EAW request. Also brought to the fore here is the fact that the UK’s leaving of the EU does not affect the jurisdiction of the CJEU in relation to remaining Member States when they apply any extradition agreement with the UK, whether it is a EU level agreement or not.
The rights of the requested person under art 11 of the EAW have been expanded to expressly include an array of further defence rights. 100 The UK published its response publicly in May 2020 and does not seek to include these further entitlements. 101 In contrast to the EAW but aligned to the Iceland-Norway agreement the EU proposal states that dual criminality is required as a condition for extradition except in defined circumstances. Importantly for Ireland and the UK this includes defined terrorism cases. 102 The Norway-Iceland agreement provides that the requirement may be waived, however. To date only Spain, Slovenia, Lithuania and Romania and, with a more limited scope, Poland have waived double criminality as set out in art 3(4).
The UK and the EU are on a collision course in relation to dispute resolution and if an agreement is to be reached one party will have to alter their position. In the Norway-Iceland agreement art 36 provides that disputes are to be referred to a ‘meeting of representatives of the governments of the Member States of the European Union and of Iceland and Norway, with a view to its settlement within six months’. Article 37 also provides that Norway and Iceland ‘shall keep under constant review the development of the case law of the Court of Justice of the European Communities’ relating to the Norway-Iceland agreement as well as to those of similar surrender instruments, such as the EAW. The EU is proposing a single future relationship with the UK which is overseen by two layers of institutions: a Partnership Council and specialised committees dedicated to distinct parts of the agreement. Disagreements would be dealt with by the Partnership Council at the first stage with the possibility of arbitration in the second stage. However, if a dispute raises a question of interpretation of EU law, the question will be referred to the CJEU for a ruling. This ruling will be binding on the arbitration tribunal. 103 The UK wants no role for the CJEU and has instead proposed that a Joint Committee is responsible for the implementation and application of the agreement. 104 The UK recognises that the agreement would be terminated or suspended if dispute settlement fails.
A proportionality test for incoming requests is sought by the UK. 105 The insertion of s 21A to the Extradition Act 2003 brought such a test, and a human rights bar, into UK law for EAW requests. This followed disquiet over the large number of extradition requests for minor offences, which frequently made the headlines in British papers and resulted in public criticism from organisations such as Fair Trials International as well as academics. 106 Indeed, some requested persons faced lengthy extradition proceedings for offences such as ‘cycling whilst drunk’ 107 and ‘theft of a chicken’. 108 Although it was possible to raise arguments akin to proportionality under art 8 of the ECHR the amendment provided for a two-stage proportionality test in the UK. 109 The EU has taken the view that proportionality is a matter for the issuing state and not the executing state and proportionality as a principle is mentioned in the Handbook but not enshrined in the Framework Decision itself. 110 The UK has proposed that ‘the United Kingdom and the Member States may require or permit the executing judicial authority to refuse to execute the arrest warrant on the basis that the surrender would be disproportionate’. This would take into account the seriousness of the offence, likely penalty and the possibility of taking measures less coercive than surrender. 111 Bonasera argues that the insertion of a proportionality test, in that it acts to protect requested persons, is a necessary mechanism for ensuring the human and financial cost do not outweigh the benefits of surrender in any future agreement. 112 Relevant here is the fact that the current recommendations in the EAW Handbook will no longer be applicable under the new arrangement (although a new handbook can be produced) and the list of ‘less coercive instruments of mutual legal assistance’, such as mutual recognition of financial penalties, may not be available between the UK and EU Member States. 113 This lends weight to the inclusion of a proportionality test in any final agreement. Related in a sense to a proportionality test in that it acts to protect requested persons is the amendment to the EA 2003 that barred surrender on the grounds that a prosecuting decision had not been made. This was designed to protect individuals from lengthy periods of custody after surrender. The UK proposals includes a trial readiness provision. 114
It is agreement on the substantive issues, of course, which is central to the conclusion of a multilateral agreement between the EU and the UK. Also of note, though, is the time it may take to conclude an agreement if one is reached and the time taken to approve it. As just discussed, the EU’s proposed text meets a number of the UK’s requirements. Accordingly relatively little amendment to the Extradition Act 2003 would be required. The UK is well-placed to benefit from the years of work Norway, Iceland and the EU put in to negotiating that agreement. The outstanding issues noted above, however, may provide considerable challenges. It should certainly not be presumed that the eventual agreement can be readily agreed and brought into force. From the EU’s perspective the signing of such an international agreement is governed by art 218 of the Treaty on the Functioning of the European Union (TFEU). The Council is required to obtain the consent of the European Parliament before adopting a Decision to conclude an international agreement. European Parliament ratification and the agreement and completion of formalities in all Member States is also required. This latter point led to the delay in the entry into force of the Iceland-Norway agreement. It should also be recalled that Norway and Iceland, although not EU Member States, are part of the Schengen Area. 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. While the decision was made not to link the EAW to Schengen, the Council believed that it would be useful to apply the surrender procedure model to the Schengen countries given their privileged partnership with the EU Member States. The UK, of course, is not part of the Schengen Area. While there may be willingness on the part of the EU negotiation team, agreement needs to be reached with each Member State and all need to implement the agreement, and decide which derogations to make, before it will come in to force. Considering this took 12 years to happen with the Norway-Iceland agreement this is very unlikely to happen by the end of 2020.
Alternative Models of Cooperation
European Convention on Extradition 1957—The Default Option
If an agreement between the EU and UK is not concluded and ratified by 31 December 2020 the UK and Ireland will have to fall back on the 1957 European Convention on Extradition, in the medium term at least. This is clearly a second-best option. Indeed, the House of Commons Home Affairs Committee has noted that being forced to fall back on it would be a ‘catastrophic outcome’. 115 There are a number of reasons for this. The 1957 Convention operates through diplomatic channels and therefore extradition would require political approval in the extraditing country. There are no strict time limits as there are with the EAW and it does not require states to extradite their own citizens. 116 The UK, therefore, would lose the ability to extradite nationals of a significant number of countries. Further, there will be no agreed exceptions to the dual criminality requirement. The act underlying the extradition request would need to be an offence in both the requesting and executing state. While states may be willing to be flexible it is likely that the courts will deal frequently with dual criminality arguments. Practitioners have argued that this could result in delay and an increase in the number of appeals to the higher courts. 117 Conversely there are some safeguards in pt 1 of the EA 2003 which will no longer be available such as the absence of a prosecutorial decision in the requesting country, issues relating to speciality and importantly, the proportionality bar. An important point affecting the efficiency of the extradition process is the loss of the Schengen Information System II. While distinct from the EAW, it operates alongside providing for real time warrants and alerts. Its loss means Interpol red notices relying on diplomatic channels will be relied upon. There is increased potential for missed opportunities to apprehend suspects. Most EU countries do not use Interpol, relying on the more effective SIS II. The UK could choose to give effect to red notices and will need to work diplomatically and practically with the EU 27 to try and amend usual practice to facilitate arrest in the UK. Overall, the 1957 Convention is now out of date and little used by most states. UK warrants may not be dealt with as a priority and UK prosecution authorities will have to rely on informal in-country relationships to a much greater extent.
It appears clear that reliance on the 1957 Convention could see a slow grinding of cooperation, previously lubricated by membership of the EU. This could negatively impact the security of both countries. While peace in Ireland can be traced to the Good Friday Agreement, this is fragile. 118 If sectarian violence were to resurface a possibility is that requests for extradition under the 1957 Convention of individuals wanted on IRA related terrorism charges could be refused on the basis of art 3 of the 1957 Convention, which prohibits extradition for offences ‘regarded by the requested Party as a political offence or as an offence connected with a political offence’. Of course both Ireland and the UK remain party to the European Convention on the Suppression of Terrorism 1977, which stands in the way of reliance on the exception. There is no doubt, however, EU membership and the Framework Decision on the European Arrest Warrant 2002 acted to build the trust to render the revival of the exception unthinkable. The proposed UK-EU agreement, in line with the Norway-Iceland agreement, bars refusal of cooperation on the grounds that the offence may be regarded by the executing state as a political offence, connected with a political offence or inspired by political motives. 119 While the proposed UK-EU agreement would protect the UK and Ireland from problems that could arise in relation to sectarian terrorism charges, the 1957 Convention per se does not.
The UK and Ireland’s Preparation for Operation of the 1957 Convention
Notwithstanding the manifest difficulties, falling back on the 1957 Convention is an outcome extradition practitioners have been preparing for both in the UK and Ireland for some time. From a practical perspective, in order to give effect to the Convention, the UK needs to designate all EU Member States as ‘Category 2’ territories for the purpose of the EA 2003. This will bring them within the remit of pt 2 of the EA 2003 containing the provisions for the UK’s extradition arrangements with countries with which it has a bilateral or multilateral treaty obligation. A sub-category of these Category 2 countries are those designated by the Home Secretary as exempt from the requirement to demonstrate a prima facie case against a requested person. Council of Europe countries who are not Member States (as well as Israel, Republic of Korea and South Africa) but who are signatories to the 1957 Convention are currently designated as not having to demonstrate a prima facie case. Article 62 of the Withdrawal Agreement provides that EAWs executed before the end of the transition period continue to operate under the Framework Decision. The effect of this would mean that provisional arrest warrants will not be required if a EAW has been executed before 31 December 2020. However the role of the CJEU in cases executed in the UK before 31 December 2020 but not yet concluded is unclear.
The UK has made certain legislative preparations for the event of a no-deal in relation to extradition and the application of the 1957 Convention. Amendments to the Extradition Act 2003 proposed in the Extradition (Provisional Arrest) (HL) Bill 2019 120 will create a power of arrest, without warrant, for the purpose of extraditing people for serious offences if a certificate has been issued by the designated authority and the extradition request comes from a ‘designated category 2 territory’. 121 The amendment has been made because the power already exists under pt 1 of the Act and this is preparatory to re-designating all EU countries as category 2 territories as requested by the police as part of its contingency planning for no deal. The Law Enforcement and Security (Amendment)(EU Exit) Regulations 2019 122 s 56 amends the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 123 by adding to the list the 27 EU states, including, of course, Ireland. The Explanatory Notes to the Regulations provide that they ‘…ensure that the UK has the correct legal underpinning to operate the ‘no deal’ contingency arrangement (the 1957 Council of Europe Convention on Extradition) that would be used in lieu of the European Arrest Warrant (EAW)’. 124 The sole remaining Part 1 territory is Gibraltar, by s 55.
Ireland has also been making legislative preparations for a no deal scenario. The Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act s 93 amended s 14 of the Extradition Act 1965 to provide: Extradition shall not be granted where a person claimed is a citizen of Ireland, unless—(a) the relevant extradition provisions or this Act otherwise provide, or (b) the law of the requesting country does not prohibit the surrender by the requesting country of a citizen of that country to the State for prosecution or punishment for an offence.
The Future Operation of the 1957 Convention
While both countries are legislatively prepared to fall back on the 1957 Convention the problems attendant to a slow, costly, ineffective system would almost certainly impact extradition between the UK and Ireland. Briscoe, says of the difference between the ECE and the EAW; it would be necessary in all cases to prove correspondence of offences between Ireland and Britain. Given the historical links, it is not anticipated that this would present a substantial issue. There would undoubtedly be delays encountered in using the convention as the basis of extradition, as it has more ‘moving parts’—with, for example, the diplomatic transmission of extradition documents being a requirement.
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What does appear inevitable are challenges to aspects of the system of extradition governing Ireland-UK relations subsequent to the EAW. Indeed, this has already started. The case of Minister for Justice and Equality v O’Connor highlights the simple fact that uncertainty and change bring litigation. 128 The appeal highlights potential for legal challenges where post-Brexit arrangements or cooperation is too piecemeal to the point that it undermines the mutual trust and recognition. The patchwork of EU instruments in this area cannot be easily disaggregated as many mechanisms support or underpin each other, as seen with the SIS II mentioned above. The efficacy of a particular measure often depends upon the availability of a range of further cooperation mechanisms. The EAW process is assisted, for example, by cooperation measures that ensure extradited individuals are treated fairly after conviction including the European Prisoner Transfer agreement which enables individuals to serve custodial sentences in their home country. Further, it is difficult to say how the courts will deal with the delay inevitably caused by the departure of the UK from the EAW. Individuals being processed at the point the UK formally leaves the EAW may well be released from custody. If an arrest warrant has been issued but the wanted person has not yet been arrested new proceedings would have to be started.
While the UK and Ireland have prepared for reliance on the 1957 Convention, it is not sustainable in the long term. The clear preference of both the UK and Ireland is for an EU wide agreement. As Mitsilegas has argued a UK-EU agreement is ‘the most desirable in terms of ensuring legal certainty, the establishment of an EU-wide level-playing field for the UK, and operational efficiency to the extent that they have the potential to maintain the United Kingdom’s position as close as possible to its current position as an EU member state’. 129 If such an agreement cannot be reached by 31 December 2020 it is argued that the UK and Ireland should be permitted to enter into a bilateral arrangement on extradition.
Is a Bilateral Agreement Between the UK and Ireland a Possibility?
The difficulties facing the conclusion of an EU-UK agreement and the deficiencies of the fall-back reliance on the 1957 Convention have been discussed. An option that might form a bridge between the EAW and a multilateral agreement and mitigate the failings of the 1957 Convention is a bilateral extradition treaty between Ireland and the UK. There is clear precedent for Member States entering into extradition arrangements with third countries outside of an EU wide agreement. Member States retain competence with respect to entering and performing such agreements, until such time as the EU has concluded a corresponding agreement. While extradition within the EU is of course governed by the EAW, extradition from EU Member States to third states is generally regulated by bilateral agreement. The EU per se has only concluded agreements with the USA and Norway and Iceland. It is also clear however, as Criminal Proceedings against Petruhhin 130 shows, EU law does provide for certain restrictions on the way that Member States can exercise their competence in cases where provisions of EU law may be involved. In the case the CJEU has confirmed that EU law still applies to issues that fall within the competence of Member States, such as extradition under a bilateral agreement but that the court does not question the competence of Member States to enter into such agreements unless the EU has already exercised its competence. Once an EU level agreement is reached there is precedent for the Commission enforcing exclusive competence. Infringement proceedings were launched against Austria, Bulgaria, Hungary and Romania for signing an agreement with 5 Western Balkan states akin to the Prüm framework, governing the exchange of biometric data. 131 The Commission considers the agreement is in breach of EU exclusive competence in the area, as the exchange of such data between Member States is covered by the Prüm Council Decisions. A reasoned opinion has yet to be given in the case. In the scenario suggested, the UK and Ireland would be seeking to enter into a bilateral agreement while EU wide negotiations are ongoing but not complete, and the agreement would cease to apply once an EU wide agreement is ratified. Such a scenario is provided for in art 4 of the Council Decision adopting the Withdrawal Agreement. This provides Ireland the opportunity to obtain permission to negotiate a bilateral agreement with the United Kingdom if it necessary for the proper functioning of the Northern Ireland protocol. 132 Interestingly, however, even in this scenario it is possible for EU countries to continue to be bound by a bilateral agreement where it is subsequently superseded by an EU wide agreement. Finland and Sweden, for example, continue to apply the Nordic Arrest Warrant as a pre-existing agreement despite the EU concluding the EAW.
Nordic Arrest Warrant—A Way Forward for Ireland and the UK?
For 50 years prior to the EAW the Nordic countries
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had a system of regional extradition. Historically this was not based on a multilateral treaty but based on direct cooperation regulated by national legislative processes, akin to the backing of warrants system between the UK and Ireland. A description from 1958 was in much the same terms: The Police in the country where the person in question is staying will, upon request from the police in another Nordic country, return the person to that country without particular formalities. Thus, the situation may now be said to be that, practically speaking, one does not go through extradition in relations between the Nordic countries but that, instead, one has put to use an informal procedure for return of such persons where the police alone handles the case.
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Interestingly, the intra-Nordic system based on the national law of the five countries has been overtaken by a convention. In 2005 the Nordic Arrest Warrant (NAW) was agreed, despite Norway and Iceland not being EU Member States. It was inspired by the EAW, which ironically was itself based upon the previous Nordic system. 137 The NAW mirrors the substantive provisions of the Framework Decision and mutual recognition is made explicit. The notable differences are that there are lower minimum penalties, double criminality is abolished (there is no list at all) and there are no territoriality restrictions while there are limits on the speciality rule. Further, there is considerable shortening of the procedural time limits as compared even to the EAW. Overall the NAW is aimed at establishing ‘an even more efficient extradition procedure between close neighbours’. 138 The point that can be drawn here is that it appears wholly possible for Ireland and the UK to conclude a bilateral extradition agreement, and with terms that provide for even closer co-operation than the EAW.
Conclusion
There are lessons to be learnt from Ireland-UK extradition history. It has been seen that prior to the EAW the long-standing extradition relationship eschewed international practice and was governed by domestic legislation. The reciprocal acceptance of warrants remained at the heart of the system for many years although this practice was subsequently shaped by the European Convention on Extradition 1957 and later the European Convention on the Suppression of Terrorism 1977. Casting a shadow over the relationship between Britain and Ireland was the break down in extradition between Northern Ireland and the Republic between 1928 and 1965. The insertion of a political offence exception into the 1965 legislation resulted in a series of high-profile refusals to extradite which in turn exacerbated tensions. In spite of those tensions underlying extradition between the UK and Ireland throughout its history has been geographic proximity, the Common Travel Area and a shared legal heritage.
Membership of the EU and the signing of the Good Friday Agreement in 1998 have marked a period of peace of prosperity for the island. The UK and Ireland have become much closer and intertwined, particularly in the area of criminal justice cooperation. Largely as a result of membership of the EU cross-border cooperation was depoliticised. Thirty years after Ireland and the UK joined the EU the EAW came into force. It quickly became an essential tool for both Ireland and the UK, and in particular between Northern Ireland and the Republic. As such maintaining a functioning system of extradition is a key priority for both parties. While the UK and the EU accept that continued membership of the EAW is not possible for the UK, its replacement remains unclear. The preference of the UK and the EU is for an EU-wide agreement which, in the short term at least, offers greater legal certainly and operational efficiency. The reality is that such an agreement will not be in place before the end of transition. Too many contentious hurdles need to be overcome. The default position is that as of 31 December 2020 the UK will fall back on the European Convention of Extradition 1957. Both the UK and Ireland have prepared as well as they can for this. It is, however, not a long-term solution.
The optimal solution for the UK and Ireland is a bilateral extradition arrangement. It could mirror the EAW, but with provision to improve upon it in light of the Ireland-UK setting. The justification of the EAW is that it compensates for freedom of movement. The existence of the Common Travel Area, in operation since the creation of the Irish Free State (albeit suspended during the height of the Troubles) is central among the reasons for the close extradition relationship between the two nations prior to the EAW. The UK leaving the EU does not alter the operation of the Common Travel Area. The arguments in favour of an EAW-style system subsist in the Ireland-UK context regardless of Brexit. It is a truism that the closer any two countries are geographically, economically and politically the greater the need for cooperation. The UK and Ireland have no closer neighbour.
EU Member States retain competence with respect to entering and performing bilateral extradition agreements with third countries until the EU has concluded such an agreement. If an EU wide agreement was reached Ireland and the UK could abandon the bilateral agreement although, as seen, there is precedence for continued operation of a bilateral agreement. Finland and Sweden continue to apply the Nordic Arrest Warrant despite the EU reaching a subsequent agreement with Norway and Iceland. The Nordic Arrest Warrant is a potential template for the UK and Ireland. The Nordic countries have many similarities akin to those between the UK and Ireland, including a shared history, languages, legal traditions and the abandoning of borders long before Schengen. This led to close Nordic extradition cooperation long predating the EAW. If Ireland and the UK were successfully to conclude a bilateral agreement it would likely be very influential in any later EU-UK agreement. Indeed given the legal and linguistic connections between the two states it is hard to see a wider agreement being made without the bilateral agreement being successful.
The principle of EU citizenship is at the heart of the EAW. When proposing the EAW the Commission argued for removal of the political offence exception stating that Since the European Arrest Warrant is based on the idea of citizenship of the Union…, the [political offence] exception provided for a country’s nationals, which existed under traditional extradition arrangements, should not apply within the Common Area of Freedom, Security and Justice. A Citizen of the Union should face being prosecuted and sentenced wherever he or she has committed an offence within the territory of the European Union, irrespective of his or her nationality.
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Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship and/or publication of this article: The authors received financial support for the research, authorship, and publication of this article from the Arts and Humanities Research Council for funding of the UK-Irish Criminal Justice Cooperation Network (AH/S002197/1).