British and EU negotiators are set to clash over the terms of a new extradition treaty during a crunch round of trade talks with Brussels, which start on Tuesday.
The UK will demand its judges have greater powers to refuse EU extradition requests than under the European Arrest Warrant (EAW) system it must leave at the end of the year.
Warrants could be dismissed if there had not yet been a decision to charge or try the wanted suspect to prevent long periods of pre-trial detention, under the British plan, or if the UK courts think the cost of an arrest outweighs the seriousness of the offence.
The European Commission wants EU courts to be able to refuse UK extradition requests for suspects facing whole life sentences unless Britain undertakes to review the penalty either on request or, at the latest, 20 years after the sentence.
Whole life sentences have been subject to failed legal challenges on the basis they break the European Convention on Human Rights. The UK has refused to commit to never leaving the Convention during the negotiations, which is an EU condition for continued criminal database sharing, but insists it won’t leave it.
Brussels also wants judges to refuse extradition requests if they believe they are motivated by the suspect's “sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation”.
The EAW replaced bilateral extradition agreements between countries with a much faster system that involved the judiciary directly rather than politicians. It was agreed, with British support, two months after 9/11.
Brexiteers later argued that carrying out arrests on the orders of foreign magistrates was an affront to national sovereignty.
The Government’s refusal to allow any future role for the European Court of Justice in Britain after Brexit means a replacement extradition system must be agreed before the end of the transition period.
If the deadline isn’t met by January 1, the UK will fall back on 1956 rules for extradition which are far slower.
The UK and EU must also finalise a free trade agreement by December 31, unless Downing Street caves on its repeated insistence it won’t extend transition, or be forced to trade on less lucrative WTO terms.
The two sides meet after the last round of talks ended in stalemate and mutual recrimination over the EU’s demand for level playing field guarantees and access to UK fishing waters under the current conditions.
This round is the last before Boris Johnson attends a June “high level meeting” with EU chiefs to evaluate progress on the trade negotiations and the last before the July deadline for any extension request. "In relation to the level-playing field the EU has insisted on including a set of novel and unbalanced proposals which would bind the UK to EU law or standards or impose control over our domestic legal regimes," the prime minister's official spokesman said.
"As soon as the EU recognises that we will not conclude an agreement on that basis, we will be able to make progress."
“The safety and security of our citizens is the government’s top priority, which is why we have said the agreement with the EU should provide for fast-track extradition arrangements,” a UK spokesman said.
British officials want a deal modelled the EU’s 2019 agreements with Norway and Iceland but with the additional safeguards that were not part of the EAW system.
“A lot of this is to do with procedural guarantees,” an EU source said, “Obviously the UK’s refusal to recognise the role of the European Court of Justice limits the level of ambition of our future partnership.”
The EU’s draft new extradition treaty says warrants can only be issued for crimes which are punishable by at least a year in prison or, if sentence has already been passed, by four months in jail.
Under the terms of the EU’s offer, the costs for the execution of the warrant are borne by the state executing it but all the other expenses of the extradition are paid by the issuing country. A decision on the execution of the warrant must be made in 60 days and suspects surrendered within ten days of a positive decision.
Germany, Austria and Slovenia have laws that forbid the extradition of their citizens to non-EU member states. They announced they would refuse to honour EAW requests from Britain on February 1, the day after the UK left the EU.
The UK wants countries who refuse to extradite their citizens to non-EU countries on constitutional grounds to commit to enforcing a sentence or prosecute a case themselves.
From 2010 to 2017, Britain extradited 6,514 suspects to other EU countries and brought back 800 from the Continent using the EAW, which can take as little as 48 days to complete in contested cases.