Arresting Developments: The Post-Brexit Future of European Arrest Warrants

Date01 April 2020
AuthorCathál MacPartholán
Published date01 April 2020
Subject MatterArticles
Arresting Developments:
The Post-Brexit Future
of European Arrest Warrants
al MacParthol´
Independent Author, UK
This article focuses on European Arrest Warrants (EAWs) and solutions for effective assis-
tance in judicial cases and evidence-sharing between the EU27 and the UK. The article sets out
the context of how the theme of EU Member States’ mutual legal assistance specifically gave
rise to the development of EAWs, which permit EU members to request the arrest and
detention of suspects in other EU countries, without extradition negotiations between them.
This article critically evaluates the potential post-Brexit future and advances alternative
suggestions for the way ahead.
Brexit, European Arrest Warrants, Policing and Crime Act 2017, extradition, European Court
of Justice
risks expediting not only the extinction of extradition in its present form but also the extinguish-
ing of European Arrest Warrants (EAWs). Thus, if effected, Brexit could signify a requirement to rewrite
the UK’s approach to the application of domestic criminal jurisdiction in a European context. The most
obvious post-Brexit implication for UK Police forces and Europol is the potential need for the ratifica-
tion of a suitable substitute for the EAW—particularly considering the possible future of models of
border protection, and their legal implications for security and justice. There remains a question mark
over whether the present repeal agenda can, or will, provide a comprehensive and coh erent policy
framework for cooperation in criminal law enforcement with the EU Member States. The continuing
factionalism of the recent Brexit negotiations between the UK government and European Union (EU)
offers a timely opportunity to examine the conceptual distinction between primacy and supremacy of EU
law in the context of the application of criminal procedure across borders. However, despite recent
events, it must be noted that the UK’s selective implementation of EU criminal justice measures is
Corresponding author:
al MacParthol´
an, Menai Bridge, LL59 5HF, UK.
1. Should it be eventually effected, in whatever form it is taken.
The Journal of Criminal Law
2020, Vol. 84(2) 124–141
ªThe Author(s) 2019
Article reuse guidelines:
DOI: 10.1177/0022018319897144
arguably not a new phenomenon, as the UK ‘decides on its participation in post-Lisbon measures on a
case-by-case basis’.
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
States, without the need for extradition. The Policing and Crime Act 2017
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
43 European
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
2018 ¼QWXGC5kx>.
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’.
9. The UK joined the EEC in 1973, after the European Communities Act 1972 was approved in Parliament. Two of its key
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).
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