Extradition Between the UK and Ireland After Brexit—Understanding the Past and Present to Prepare for the Future

AuthorPaul Arnell,Gemma Davies
DOI10.1177/0022018320977531
Published date01 April 2021
Date01 April 2021
Subject MatterArticles
Article
Extradition Between
the UK and Ireland After
Brexit—Understanding
the Past and Present
to Prepare for the Future
Gemma Davies
Northumbria University, UK
Paul Arnell
Robert Gordon University, UK
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 Agree-
ment. 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 chal-
lenge. 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
Corresponding author:
Gemma Davies, Northumbria Law School, Northumbria University, Newcastle upon Tyne, NE1 8ST, UK.
E-mail: gemma.davies@northumbria.ac.uk
The Journal of Criminal Law
2021, Vol. 85(2) 98–120
ªThe Author(s) 2020
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DOI: 10.1177/0022018320977531
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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.
Keywords
Extradition, European Arrest Warrant, Brexit, Ireland, Common Travel Area
Introduction
The United Kingdom’s departure from th e European Union will inevitably chang e 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 2 003 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 recog-
nised. Ireland’s Department of Justice and Equality 2017 Annual Report on the operation of the Eur-
opean 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 posi-
tion 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
1. R Briscoe, ‘Brextradition’ (2017) January/February Law Society Gazette of Ireland 36.
2. Department of Justice and Equality, ‘Report on the Operation of the European Arrest Warrant Act 2003 (as Amended) for the
Year 2017’ 4 <http://www.justice.ie/en/JELR/European_Arrest_Warrant_Annual_Report_for_2017.pdf/Files/European_Arrest_
Warrant_Annual_Report_for_2017.pdf> accessed 29 August 2020.
Davies and Arnell 99

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