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Would Brexit make the UK a Safe-Haven for European fugitives?

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About The Author

Alexander Barbour (Former Criminal & Environmental Law Editor)

Alex has recently graduated from the University of Birmingham, achieving a First Class Honours degree in Law. His main interests lie in issues concerning human rights, criminal justice and the environment. Alex recently received the Albion Richardson Award from Gray’s Inn to fund the BPTC, which he is currently undertaking at the University of Law, Birmingham.

Connor Tarter

This article is part of the 'Brexit' series, edited by Matt Bogdan.

With the upcoming referendum on the UK's membership of the European Union, the Brexit series intends to explore key issues surrounding Brexit, particularly what effect EU law currently has on the UK, and what would be left with it gone.

Other articles from this series are listed at the end of this article.

The potential exit of the EU by Britain, the ‘Brexit’, is arguably one of the hottest topics of debate in the UK at present. The UK has been a member of the EU since 1973, playing an active role in European affairs. With recent economic issues across the European Union, and a refugee crisis adding fuel to the flames of the anti-immigrant sentiment, many British citizens and politicians alike have become overwhelmed by a desire to leave the EU.

Debate as to the benefits and disadvantages of this move has, up to now, focused on issues relating to the economy. Pro- and anti-EU business lobby groups have, along with their political support, provided the sound-bites for the tabloid press, and influenced public debate on a potential Brexit. With the Conservative government promising an in/out referendum by 2017, the debate stands to only grow in ferocity.

Comments from Sir Hugh Orde, the former head of the Association of Chief Police Officers (‘ACPO’), this month have the potential to shift the debate away from economic issues toward issues of European criminal justice. Speaking at the launch of the pro-EU campaign ‘Britain Stronger in Europe’, Sir Hugh Orde warned that the UK could become a safe-haven for European criminals, should the UK leave the EU. This is, he argues, due to the fact that the current European extradition agreements would essentially be ripped up: ‘They are going to have to start from scratch and negotiate with 27 different countries.’

What are the current UK-EU extradition arrangements?

The mechanism currently used in relation to European fugitives is the European Arrest Warrant (‘EAW’). The EAW is an arrest warrant that, once issued, requires another member state to arrest the criminal suspect or sentenced person and transfer them to the issuing state so that they can be put on trial or complete a detention period.

The EAW was introduced to increase the speed and ease with which fugitives could be transferred between EU member states by removing the protracted political and administrative negotiations that previously characterised cases of intra-European extradition. For a comprehensive assessment of the EAW and the controversial vote in the Commons vote that led to its adoption, see the article for Keep Calm Talk Law by Ivonna Beches. For greater detail on the workings of the EAW, see ‘Part 1 of the Extradition Act 2003: The Role of the ECHR’.

The key success of the EAW has been the notable reduction in the length of time taken to extradite a fugitive. At present, extradition under the EAW takes on average three months, while extradition to non-EU countries takes ten months.

What is likely to change?

With the EU comprising 28 member states, the UK would have to renegotiate 27 extradition agreements, should the public vote ‘yes’ to an EU exit. This potentially gives rise to a number of significant challenges. The time to negotiate the new agreements could lead to a situation where there would be insufficient arrangements to extradite European criminals to their native countries. In this situation, it is certainly possible that the situation envisaged by Sir Hugh Orde would become a reality.

Even once new agreements are reached, there remain other significant issues relating to cross-territory investigation detection. Sir Hugh Orde said, to this effect:

We lose joint investigation teams. So [investigations of] serious crimes will be impeded because there will be long and complicated legal processes to get the evidence and information we need.

Of course, there is a question over whether the UK government would be so negligent as to leave the EU without having developed a plan to deal with the problem of extradition agreements. The likeliness of this occurring is arguably increased by the fact that the promise of a referendum in response to a rise in Euroscepticism has resulted in a split within the Tory party. This means that the Tory leadership is less likely to draw up a contingency plan in relation to extradition agreements, because doing so could be spun by the media as an admittance of the likeliness of a vote to leave the EU. If the political sensitivity can be avoided, however, and the government decides to develop a contingency plan, one way this could be done is to agree to continue to be part of the EAW until replacement agreements are reached with the 27 other member states.

There is, however, nothing within the current EAW legislation providing for such a situation, so the issue would be a wholly political one. From a political angle, then, it would be extremely unlikely that if the UK voted to leave the EU entirely, we would be allowed to opt in to any measures that would be convenient. If, however, the UK went down the route of an ‘amicable divorce’, and either became part of the European Economic Area (like Norway and Lichtenstein), negotiated on a sector-by-sector basis (like Switzerland), or remained part of the customs union (like Turkey), the retained level of contact with the EU may allow political leverage to retain the EAW.

The EAW is, however, one of the reasons that some Eurosceptics want to leave the EU, as they believe that the EU has too much control over law and order in the UK. This was clearly in the minds of the last coalition government too, who published a report on police and criminal justice as part of its series of reports reviewing the balance of competences between the UK and EU.

In the US, extradition may be granted by a court in accordance with an extradition treaty (18 U.S.C. § 3184). Such international extradition agreements have been reached with 110 countries. It is unknown what the average time is to negotiate each of the agreements, but even from the date of signing, many take over three years to come into force. This certainly suggests that there would be a significant chance of the UK becoming a safehaven for European criminals, should the UK leave the EU.

For more information on how extradition to non-EU countries works, see ‘Extradition Part 2: A Political Tool’.

The referendum and British society

The 2017 referendum will provide UK citizens with a once-in-a-lifetime opportunity to fundamentally alter the face of the society. A vote to stay in the EU would allow the UK to continue to be a key player in European and international discourse. This means that the UK can influence key decisions relating not only to trade, but also, as with extradition agreements, law and order. On the international stage, as part of Europe, the UK has the political mandate to negotiate with countries such as the US and China, and the voice of the UK public will continue to be heard in an ever-increasingly globalised world.

The alternative is either to become part of the EEA, where the UK would be bound by regulations that have had no British input as to their content, or the UK would ‘go it alone’ and leave the EU altogether. In either case, the UK would be the outsider of Europe, with decreased political weight and perceived international importance. Our economy would arguably suffer, and so too would our criminal justice system. With developments in modern-day crimes such as cyber crime and the resulting abundance of jurisdictional issues, European and international cooperation is ever more crucial to to the protection of UK citizens.

If the UK were to leave the EU, the isolation could certainly result in an influx of European criminals who seek to avoid prosecution in their home nations, as suggested by Sir Hugh Orde. But, if the comments of Sir Hugh Orde do nothing more than shift the Brexit debate away from economic issues, they will have been beneficial. It is important to consider not only potential economic consequences of a Brexit, but also the consequences for the British society as a whole; particularly if we are to see a referendum result that will benefit both the UK of the present, and the UK of generations to come.

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Tagged: Criminal Law, European Union, Extradition

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