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What will happen to prisoners held under European Arrest Warrants in a no-deal Brexit?

Instead of European Arrest Warrants, extradition orders will be issued, which are more “cumbersome”, “costly”, and more political.

Image: PA Images/Shutterstock

EUROPEAN ARREST WARRANTS are frequently used between Ireland and the UK to apprehend suspects quickly and allow them to be surrendered over in order to be put on trial – but after Brexit, this will become a longer, more expensive and more complicated process.

In the case of a no-deal Brexit, European Arrest Warrants sent to and from the UK would cease to have effect, and prisoners held under such warrants without having been put on trial would have no legal basis to be incarcerated. 

European Arrest Warrants, which were enacted in 2002 in the wake of the 9/11 terrorist attacks, are used to arrest suspects in different participating EU countries. It has been described as faster and more effective than the 1957 Council of Europe Convention on Extradition, and ends “political involvement” compared to those extradition orders.

In Ireland, European Arrest Warrants (EAWs) are issued frequently to the UK, and particularly across the border to apprehend suspects in Northern Ireland. 

It’s understood that around 75% of all of Ireland’s EAW requests are sent to the UK. In 2017, they made up 60 0f a total of 76 requests, which were issued for crimes including murder, sexual offences, drugs offences, assault, robbery and fraud.

But in the event of a no-deal Brexit, the European Arrest Warrant System would “no longer apply” if sent to or from the UK, and there would be no legal basis for retaining British citizens in EU member state prisons on foot of a European Arrest Warrant.

In response to a query from TheJournal.ie on whether British prisoners arrested under an EAW and held in an Irish prison would have grounds for release in a no-deal Brexit, the Department of Justice said:

What would happen in any particular case will depend on the individual circumstances of that case. However and in general, if an EAW request ceases to have effect, a new request under the Council of Europe Convention on Extradition would have to be issued before the matter could be considered further.

What will replace EAWs?

Extradition Source: Brexit Omnibus Bill 2019

The Justice Department also said that the Brexit Omnibus Act 2019 – a bill containing legislation in the case of a no-deal Brexit – would introduce new arrangements “immediately” to ensure “minimal disruption” to extradition procedures.

“In the small number of cases where the UK has requested arrest and surrender of a person under an EAW… the Act will:
(i) allow the extradition of Irish citizens without the need for a specific bilateral, and
(ii) facilitate the faster transmission of extradition requests by inter alia, allowing electronic methods of communications.

While extradition under this process will be more cumbersome than existing arrangements, it will ensure that there is a workable system in place even in the event that the UK leaves the EU without a deal.

‘Slow and costly’: The Convention on Extradition

The Omnibus Bill makes a number of changes, including the amendment to “section 14 of the Extradition Act 1965 to allow for the extradition of Irish citizens to another state where that state would extradite its own citizens to the State”.

In cases where a reciprocal arrangement isn’t in place, it’s not clear if the replacement system will be fast enough in order to keep a suspect incarcerated without legal basis. 

Where an extradition order is issued, it’s also unsure whether these will be responded to in time to keep prisoners in jail pending a trial date.

According to the ‘UK in a Changing Europe’ report, it took “an average of 18 months to extradite an individual under the Convention, compared with 15 days for uncontested EAW cases and 48 days [7 weeks] for contested ones – partly because it placed no time limits on each stage of the process”.

A joint report by the irish Human Rights and Equality Commission and the Northern Ireland Human Rights Commission entitled Evolving Justice Arrangements Post-Brexit said that extradition orders “would cause considerable disruption and delay” compared to the previous EAW system. 

“Given the necessity of maintaining a high-level of policing co-operation due to the 310-mile land border and the specific post-conflict realities on the island, any disruption to police co-operation could have serious consequences,” the report said. 

The Irish Council of Civil Liberties said that a return to the old extradition system is complicated by the history of extradition between the UK and Ireland.

“Extradition between Ireland and United Kingdom was a very complex, bilateral system and it wasn’t straightforward,” it said, adding that even before Brexit, the UK was pulling back from the European Arrest Warrant system. 

Numbers

The Department of Justice has said that “considerable planning and preparation” has been going on to prepare for Brexit, including “effective extradition arrangements” between Ireland and the UK.

It also said that for now, and for so long as the UK remains an EU member state, the Irish courts are continuing to deal with UK EAW cases as normal.

The Department of Justice couldn’t give figures on the number of persons in custody in Ireland pursuant to an EAW from the UK as well as and the number in custody in the UK on foot of an EAW from Ireland.

The Department said that this is because this number varies; “as cases are dealt with, new requests are received, or further arrests are made in Ireland on foot of existing or new UK EAWs”.

However, it’s understood that around 75% of all of Ireland’s EAW requests are sent to the UK, possibly slowing down future prosecution cases where a suspect has fled to Northern Ireland or the rest of the UK. 

The European Arrest Warrant annual report for 2017 showed that 207 EAW requests were received from the UK, with 60 sent by the Irish State. A total of 478 surrenders have been made to Ireland since the EAW legislation came into force in 2004. 

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