No-deal on extradition will significantly diminish security capability for the UK
Given the debate around Brexit over the last few months people would be forgiven for thinking that the UK’s relationship with the EU started and ended with trade. Confident insistence that if the UK were to drop out without a deal, we could simply operate under WTO rules ignores a huge swathe of UK policy unrelated to trade which is governed by EU law or relies on the infrastructure of EU cooperation.
A key area which has received only minimal attention is that of security cooperation. The EU infrastructure in this area is essential to the UK security apparatus. It supports police and judicial cooperation across the continent through EU institutions such as Europol and Eurojust, through less formal networks such as the European Judicial Network and through a number of legal tools including the European Arrest Warrant and the European Investigation Order. All of this cooperation is facilitated by data sharing in real time through databases to which the UK has access by virtue of its membership to the EU and the Schengen Acquis.
The UK is one of the most active members in the EU security arena. It contributes significant amounts of intelligence to Europol each year, participates actively in Joint Investigation Teams set up through Eurojust and, in 2015, arrested more individuals on European Arrest Warrants than any other EU member state. In 2017 the UK arrested 1,510 fugitives on EAWs and surrendered 1,164 to the state that requested them. In the same period the UK issued 278 EAWs and returned 183 people from the EU to face justice in the UK.
If the UK leaves the EU with no deal, or with a deal that fails to safeguard access to police and judicial cooperation mechanisms then it will lose access to these tools. It will also lose access to the second generation Schengen Information System, which includes alerts on wanted persons, missing persons, stolen vehicles, fraudulent and stolen travel documents and firearms. The system had 82 million alerts in 2018, almost 3 million from the UK. It was accessed over 6 billion times by EU law enforcement officials in this period and the UK accessed it over 600 million times.
The Schengen Information System underpins the operation of the European Arrest Warrant system creating live alerts for wanted persons in police databases around the EU. In the course of my research into the operation of the EAW I encountered many examples of wanted people located by chance because of this link between SIS II and national police databases. Fugitives have been arrested in Portugal when law enforcement believed they were in Belgium; or in Germany when they were thought to be in Greece. Because of the relatively frictionless operation of the EAW most of those arrested will be returned to face justice within 56 days.
Just as WTO rules are touted as a simple substitute for membership of the European single market, some politicians insist that simple replacements for the EAW and SIS II already exist. They argue that the 1957 Council of Europe Convention on Extradition along with the world-famous Interpol Red Notice can simply take the place of the EAW.
My research into the police role in the European Arrest Warrant System has involved building a picture of the day-to-day operation of the EAW and SIS II and I have come to understand numerous practical reasons why these solutions would significantly diminish security capability for the UK when it comes to cooperation in extradition with other EU member states.
Most importantly, a European Arrest Warrant circulated via SIS II is a universal request. That is, it is a warrant for arrest and a request for extradition to one EU member state, valid in all others, and instantly available to police officers on the ground across the Union. This is in contrast to a request under the 1957 Convention which must be directed to one specific state. Once received it may require validation by a court before police can make an arrest. This is a major impediment in cases where the exact location of a fugitive is unknown or where there is live and changing intelligence on the location of a suspect.
An EAW is more straightforward than a request under the ’57 Convention, it requires no detailed description of evidence and there is no need for sizeable bundles of documents to be produced and shared. The EAW provides a ‘dual criminality’ waiver for a list of 32 offences sidestepping a major hurdle to extradition under the Convention where prosecutors must establish that an offence is mirrored in each jurisdiction. This can provide a technical defence to extradition for criminals who should rightfully face justice. This problem is not entirely solved by the EAW, but the dual criminality waiver greatly reduces the complexity of the extradition process.
The EAW is also much faster than a convention request. There are short time-limits for cases to be processed meaning that surrenders can occur just days following arrest, providing swift justice for victims, witnesses and accused persons eager to return to resolve their situation. Under the Convention, although swift extraditions are not unheard of, proceedings commonly take months or even years to resolve.
Closely related to the EAW is the second-generation Schengen information System which the UK became a member of in 2015. This system is used to circulate EAWs and other security alerts to European law enforcement agencies. The system is updated in real-time so EAWs can be available to law enforcement on the street in participating states just minutes after being uploaded. An Article 26 alert indicates that an EAW is in place and gives a power of arrest to police in any participating state. This is in contrast to extradition requests or Red Notices received through Interpol which usually require a domestic warrant to be issued by a court before an arrest can take place.
Politicians have suggested that the Interpol i24/7 database can provide a reliable replacement for SIS II, but it has significantly less functionality and does not contain the wealth of intelligence available through SIS II. The SIS channel is more automated, standardised and has a larger volume of data passed through it.
In most countries Interpol is not directly linked to police databases, and therefore requires manual input, sometimes after a visit to court. Red notices are not routinely circulated to law enforcement on the street and this would only happen in cases where there is specific intelligence linking a fugitive to that jurisdiction. This makes arrests during routine stops or border checks much less likely to occur, since the introduction of SIS II in the UK some police forces estimate that up to 50% of their arrests on EAWs are made in this way.
Although SIS II and Interpol are operated by the same officers in some countries (e.g. the UK and Poland), in others they are separated and not able to share information with each other. Many EU states favour the SIS II channel and allocate more resources to it; only using the Interpol channel in the most serious cases rather than as a matter of routine. It is likely that, UK warrants will receive less attention when sent abroad, and the UK will receive fewer EAWs from the EU. The potential result is that fugitives will be on the streets of the UK without police or other law enforcement officers ever knowing they are wanted by police colleagues on the continent.
Ultimately, requests under the Convention circulated only though Interpol will cost more and be less effective. We will no doubt pursue murderers, rapists, and those who commit the worst crimes, but will we pursue extradition in the volume of cases? For mid-level crimes like serial burglary or robbery? We will lose the opportunity to catch those criminals who our law enforcement have been unable to trace or those transiting through the EU. Will we receive as many requests under these fall-back arrangements? Or will criminals wanted in EU member states find a safe haven on the streets of the UK?
Even where these issues have been discussed by national politicians, the language used to describe possible alternative arrangements is muted referring to the solutions as ‘sub-optimal’. The truth is that these fall-back arrangements will be significantly worse than suggested by such mealy mouthed language. The security of the UK will be diminished as criminals wanted by EU states are not requested or located. There will be injustice for victims and witnesses because the UK will pursue fewer criminals into the EU using less effective means.
This is just one element of the Brexit debate. This kind of complexity is multiplied across the spectrum of policy and cooperation. These are not issues that will disappear if the UK leaves the EU. Criminals will still travel to the UK free to commit crime here. Others will flee British justice free to offend overseas. Remaining in the EU would, of course, be the simplest solution to retain the foundation of security cooperation that has been built over decades. But if Britain is to leave the EU, then satisfactory solutions need to be explored and settled upon now.