European Arrest Warrants: Continued Detention Lawful
Five applications for writs of habeas corpus were today refused by the Divisional Court: Polakowski & Ors v Westminster Magistrates’ Court & Ors [2021] EWHC Civ 53 (Admin) Dame Victoria Sharp P, Holroyde LJ, Chamberlain J.
The five applicants were arrested pursuant to European Arrest Warrants (EAWs) before 31 December 2020. Two were detained; the other three were on conditional bail.
On the reasoning of Jane v Westminster Magistrates’ Court [2019] EWHC 394 (Admin), [2019] 4 WLR 95, with which the Court agreed, the proper means of challenging such an order was a claim for judicial review.
Accordingly, the Court exercised its power under CPR r.87.5(d) to direct that the application continue as an application to apply for judicial review.
The single common ground for the applications were that since 11pm on 31 December 2020, the end of the transition period defined by the Agreement on the withdrawal of the United Kingdom from the EU and Euratom (the Withdrawal Agreement), there was no longer any legal basis in international law for their surrender, and that in consequence there was no basis in domestic law for continued detention or for the maintenance of bail conditions.
The argument was misconceived for five reasons.
First, as a matter of constitutional principle, the correct starting point for the legal analysis was the Act of Parliament which governed extradition – the 2003 Act – and the domestic law which modified it, not the Framework Decision 2002/584 JHA or any other piece of EU law, nor any unincorporated international agreement.
Even before the UK ceased to be an EU Member State, most EU law was implemented by domestic legislation of one sort or another, and that was the starting point.
Second, there was no dispute that the five applicants were all properly arrested pursuant to Part 1 Warrants under the 2003 Act. Nor was there any dispute that the decisions to remand two of them in custody and impose bail conditions on the others were all properly made under the 2003 Act.
There was nothing in the Act, or any other provision of domestic law, which suggested that they must all be discharged unless surrendered prior to 11 pm on 31 December 2020.
Third, the central plank of the applicants’ argument was that the Framework Decision could not apply to or in the UK after 11 pm on 31 December 2020 because, from that time onwards, the UK was neither an EU Member State, nor to be treated as if it were.
That was wrong. Article 7(1) of the Withdrawal Agreement provided as follows:
“For the purposes of this Agreement, all references to Member States and competent authorities of Member States in provisions of Union law made applicable by this Agreement shall be understood as including the United Kingdom and its competent authorities … “ with certain exceptions.
It was common ground that none of the exceptions applied.
Article 7, unlike the provision to similar effect in Article 127(6), was not time-limited by reference to the transition period. It was open-ended. It applied to all “provisions of Union law made applicable by this Agreement”.
Fourth, the principle that the 2003 Act must be read conformably with the Framework Directive, far from supporting the applicants’ case, told against it. Domestic legislation expressly provided that the amendments to the 2003 Act made in consequence of the Trade and Co-operation Agreement did not apply in EAW cases where the arrest occurred before 11 pm on 31 December 2020.
Fifth, although the UK would no longer have access to the Schengen Information System II, there was nothing to support the submission that this would in practice render impossible arrangements for transit and surrender of requested persons.
The challenge was not arguable and application for judicial review was refused in each case.