Fair Trials on Brexit

In Blog by redsocks



H&G. We love a fair trial.


What’s Fair Trials’ position on Brexit?

This week, Michael Barnier gave a speech about the future EU-UK security relationship, where he said that the UK would no longer be able to participate in the European Arrest Warrant, but that the EU was willing to build a new partnership with the UK that would include a streamlined extradition procedure. As we look to the future and what that extradition agreement may look like, a lot of the current discussion looks a lot like this:

  • What are the precedents for a third-party extradition treaty with the EU?  Will the UK have time to negotiate a treaty like this?
  • Will some EU countries refuse to extradite their own nationals when the UK becomes a third-party state?
  • What other extradition treaties can the UK fall back on if no extradition deal is in place when Brexit happens?

At Fair Trials, we’re really concerned that all of this talk around our future extradition arrangements is focused on the UK’s operational capacity to extradite and prosecute people, with no mention of how our human rights protections are going to be impacted by Brexit.

Don’t get us wrong, there are important questions to be asked about how extradition will function, but whatever the details of the agreement that the EU and UK thrash out in Brussels, our position is really just that any agreement has to ensure all defendants have access to minimum human rights standards. This means that defendants shouldn’t lose any of their current (EU and UK specific) rights protections, and that all defendants should have access to any future measures that further protect their rights.

Why would Brexit make me lose my defence rights?!

It’s true that a lot of our human rights protections in criminal cases are contained in domestic law, and so we won’t lose these because of Brexit, but there are a few laws we’re pretty worried about losing:

The Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings: these are procedural defence rights, introduced in ‘Directives’ by the EU to help ensure all defendants across Europe have access to the same level of human rights protections. There are six of them, but the UK has only signed up to two: the Directive on Translation and Interpretation and the Directive on the Right to Information. Like all EU law, when we leave the EU there will be a vote in UK Parliament on whether to keep these Directives and make them part of our domestic law. This means we may lose these protections, and it also means there’s little hope of the UK taking part in the other four Directives, some of which contain really important standards on things like legal aid and access to a lawyer.

The UK’s domestic extradition protections: after the European Arrest Warrant was introduced, organisations like Fair Trials campaigned for years to highlight some of the injustices that were happening because there was a lack of protections for defendants facing extradition.

This included things like defendants being extradited for minor offenses (such as exceeding an overdraft limit), people being held in pre-trial detention for years before their cases were heard, and risks to the physical and mental health of defendants facing extradition. In 2013 and 2014, the UK introduced reforms to try and protect defendants from these kinds of violations, introducing new grounds to refuse extradition such as proportionality, “trial readiness” and a forum bar. These protections aren’t included in the Framework Decision of the European Arrest Warrant, but the UK and some other EU countries give these extra protections to citizens facing extradition in their territory. We’re worried that when the UK negotiates a new extradition treaty, it might be forced to give these protections up in order to have access to a new EAW-style treaty. This would be a real loss, and a return to the ‘bad old days’ where the UK was powerless to stop injustices like Andrew Smeou’s case from happening.

Harshest measures only: A few years ago, the EU adopted the European Investigation Order (EIO), which allows the transfer of evidence across borders. Whereas before the EIO was introduced, states would sometimes request the extradition of suspects in order to acquire evidence like testimony or statements, the EIO has reduced the need for the transfer of people across borders in order to obtain evidence.

The EIO means that suspects and witnesses can provide testify for proceedings via video link, and also allows the UK police to collect evidence like written statements and transfer this abroad rather than the person making the statement. The EIO clearly complements the EAW, reducing the need for states to employ harsher measures like extradition, that have a huge impact on people’s lives. We’re concerned that the UK’s focus on its extradition capabilities may mean that measures like the EIO may fall by the wayside, leaving us with access to only the harshest security measures. We’re also worried that we won’t be able to take part in future measures that reduce the need for states to use harsh security measures like extradition.

But if we’re not part of the EU, how could we be part of future EU measures?

According to the EU, we won’t be able to sign up to future measures. However, if we want an EAW-style extradition treaty that’s based on mutual recognition, then respect for human rights has to underpin it. In recent years, EU law and jurisprudence has moved towards a more rights-based approach to extradition; introducing the Roadmap on procedural rights, creating legal precedents for refusing extradition on human rights grounds and enacting complementary and less harsh security measures such as the EIO. For any future treaty to function, the UK will have to keep up with human rights developments.

If the UK isn’t part of future measures that reduce the need for harsher measures like extradition, then the UK’s security treaty and use of extradition may well be seen as disproportionate, and states may start refusing to extradite citizens to the UK. In the interest of a long-term security agreement that’s underpinned by respect for human rights, it’s in the interest of the UK and the EU to leave the door open for the UK participating in or incorporating future measures in the UK-EU security agreement.

What’s Fair Trials doing about all this?

In May 2018, we submitted written evidence to the House of Lords EU Home Affairs Subcommittee, outlining our concerns over the human rights implications of Brexit.

As well as consulting with UK and EU members of our LEAP network, we’re also starting a new expert blog post series on Brexit and human rights to outline some of the challenges that we all need to work out how to overcome before we leave the EU, so watch this space for more on Brexit and defence rights!