UK should keep European Arrest Warrant until Brexit, EU court opinion says

8 August 2018 2:14pm

7 August 2018. By Michael Acton.

EU member states should continue to extradite suspects to the UK under the European Arrest Warrant until Britain leaves the bloc, an opinion prepared for the EU’s top court has said.

In his non-binding opinion, Advocate General Maciej Szpunar concluded that the “EAW system should continue to apply for as long as the UK is a Member State,” and that “there appears to be no reason not to execute the EAW in question," according to a court press statement.

The EU Court of Justice is considering a question referred by Ireland’s High Court, on whether it should extradite a suspect wanted in the UK. The suspect’s lawyers argue that there’s no guarantee he’ll continue to be afforded his rights under EU law once the UK has left the bloc next year.

Szpunar’s opinion will reassure UK policymakers. If judges agree with him, they will avoid unravelling the UK’s legal relationship with the EU before it officially leaves. A disagreement would effectively deny the UK access to the EAW system and end hopes of a smooth transition to a new extradition procedures.

Judges at the Court of Justice tend to follow the opinions of advocates general, but they are under no obligation to do so. They could can still rule either way when they hand down their final decision in the coming months.

EU negotiators have already ruled out the UK maintaining access to the European Arrest Warrant after Brexit, as the functioning of the system is dependent on ongoing ECJ jurisdiction — a “red line” in the UK’s negotiating stance. But Szpunar’s opinion suggests that the UK should continue to enjoy the benefits of EU membership until it formally leaves.

— Potential mistreatment —

The High Court of Ireland referred the question to the EU’s highest court earlier this year, when a suspect detained in Ireland appealed against his extradition to the UK under the European Arrest Warrant.

Lawyers for Raymond O’Neill claim he could face “potential inhuman and degrading treatment” if he were to be surrendered to Maghaberry Prison in Northern Ireland.

They say there is “no guarantee that any rights which the respondent may enjoy under European law will, in a practical way, be capable of enforcement as a matter of Union law” once the UK leaves the EU.

On these points, the court’s press statement today said the Advocate General concluded that “none of the mandatory or optional grounds for non-execution of the EAW are present in the case at issue.” There is, the statement reports, "no separate issue of potential inhuman or degrading treatment in respect of [O’Neill’s] surrender to the UK.”

The ECJ will deliver a binding ruling on the question in the coming months, as the case is under “urgent procedure.” This means the court must settle the question faster than usual, ahead of the UK’s departure from the bloc in March 2019.

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