Is the two-step test set out in LM and L and P English Supreme Court’s best option in post-Brexit Britain for EAW requests made by States with structural deficiencies?

Abstract

This article briefly introduces the European arrest warrant (‘EAW’) system, analysing the context in which it develops and how this procedure interacts with both the intricate post-Brexit universe and the current instability of the Polish judiciary. Paragraph 2 assesses the relevant case law of the European Court of Justice (‘CJEU’) in cases of EAW requested by States with generalised deficiencies and asserts that the legal approach developed in LM and L and P proves correct in the abstract. Though it argues that the safeguarding mechanisms set out in the EAW Framework Decision can be paralysed by instruments that are ontologically political in nature, it thus proposes a new legal approach that consists of a three-step test which would effectively guarantee the protection of fundamental rights. The article concludes by arguing that if English Courts were to follow this new approach, departing from LM and L and P, they would effectively implement the protection of fundamental rights in EAW procedures.