arguably not a new phenomenon, as the UK ‘decides on its participation in post-Lisbon measures on a
The repercussions of Brexit remain omnipresent in the headlines—but, in many
cases, the public has yet to see a tangible indicator of reality as to how the domestic criminal law and
procedure may thus be affected.
One area in which the ramifications of Brexit may be most keenly felt is that of ‘EAWs’—which
presently permit EU Member States to request the arrest and detention of suspects in other Member
may well provide an avenue
to effectively bridge the lacuna in the UK cross-border and maritime security and suspect apprehension.
However, following the initial early steps of securing the suspect, the law of extradition between the EU
and non-EU countries is governed by a combin ation of national law and bilateral and mul tilateral
treaties—most notably the Council of Europe Convention on Extradition,
which has been ratified by
plus three non-European countries.
In June 2018, at the European Union Agency for Fundamental Rights in Vienna, Mr Michel Barnier
delivered a clear speech outlining the consequences for the UK
regarding EAWs, announcing:
The European Arrest Warrant is linked to the free movement of people. It works well because it is based on
mutual trust between Member States. This trust is underpinned by: 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. Yet today we know that the UK is not ready to accept the free movement of people, the jurisdiction
of the Court and the Charter of Fundamental Rights—for the Charter, this was confirmed last week by the
House of Commons. This means that the UK cannot take part in the European Arrest Warrant.
Despite the unintended irony of such an arrest warrant to curtail an individual’s liberty being con-
tingent upon the concept of ‘free movement’, it is clear that a potent problem is now presented. The
problem presented is the question of what, if anything, will take the place of EAWs following the
2. David Ormerod and David Perry, Blackstone’s Criminal Practice 2019 (29
edn, Oxford, OUP, 2019) 189 [A9.11]. See also
the Lisbon Treaty
, the Protocol on Transitional Provisions (Protocol 36, Article 10(4)) and European Council doc. 12750/13)
for the direct source of these powers. Nevertheless, the UK did choose to opt for EAWs.
3. ss 84–106 and 116–119.
4. On 8 December 1951, during its 37th Session, the Consultative Assembly of the Council of Europe adopted Recommendation
(51) 16, ‘on the preparatory measures to be taken to achieve the conclusion of a European Convention on Extradition’ (Paris,
13 December 1957). This Treaty is open for signature by the Member States—and, crucially, for accession by non-Member
States. See the Chart of signatures and ratifications of Treaty 024, European Convention on Extradition Status, as of 20 August
5. With ‘European’ here not necessarily signifying ‘EU’—signatories are from EU and non-EU European States.
6. With two further signatories to follow from Serbia and Montenegro.
7. Israel, South Africa and South Korea.
8. Chief Negotiator for the ‘Task Force for the Preparation and Conduct of the Negotiations with the United Kingdom under
Article 50 TEU’.
provisions gave effect within the United Kingdom to the so-called ‘direct effect’ of Community law, and the doctrine that that
law has primacy over other laws. Section 2(1)
of the 1972 Act
states that rights arising from the EU treaties and under the
system of law under the treaties are to be enforced and followed in UK courts:s. 2 (1):
All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties,
and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the
Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and
available in law, and be enforced, allowed and followed accordingly.
10. M Barnier, European Commission Speech (Vienna 19 June 2018) 3.
en.htm> (accessed 31 October 2019).