Extradition Between the UK and Ireland after Brexit – Understanding the past and present to prepare for the future

Davies, Gemma and Arnell, Paul (2021) Extradition Between the UK and Ireland after Brexit – Understanding the past and present to prepare for the future. The Journal of Criminal Law, 85 (2). pp. 98-120. ISSN 0022-0183

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Abstract

The Republic of Ireland and the United Kingdom have a long, close and difficult history. The most recent phase of which dates from 1998 and the conclusion of the Good Friday Agreement. Since 1921, however, there has been unique practice between Ireland and the UK as regards the transfer of accused and convicted persons from one to the other. Indeed, there has been a special and close relationship between the two in that regard; albeit one not without difficulties. In recent times EU Justice and Home Affairs measures and the Good Friday Agreement have supplemented and strengthened the relationship. These include, since January 2004, the European Arrest Warrant (EAW). The EAW has been particularly important in streamlining the extradition process between the Ireland and the UK. This phase of history and co-operation is coming to an end. The UK's membership of the EU has now ceased, and a transition period during which the UK remains part of the EAW will end on 31st December 2020. The extradition relationship between the two is therefore facing a considerable challenge. There are several options open to Ireland, the UK and the EU as a replacement. Time, political will and the interests of third states, however, may well stand in the way of the conclusion of an agreement that optimally serves the interests of all parties and criminal justice. This paper considers the origins of extradition between the UK and Ireland and the alternative methods of extradition open to the UK and Ireland after Brexit. Consideration is given to the likely operation of a Norway-Iceland style agreement and whether such an agreement will be in place by the end of the transition and, if it was, whether its terms are likely to be sufficient for the needs of Ireland and the UK. The possibility of a bilateral arrangement on extradition between Ireland and the UK is also explored. Underlying the discussion is the critical point that the future extradition relationship must retain its ‘special’ characteristics, and therefore maintain the trust and good will that has developed over the years and given rise to an effective extradition relationship between the two countries. In other words, the lessons of history must be remembered. Table of ContentsIntroductionPart I - The Past, 1921 - 1998 The Context of Ireland-UK Extradition The Origins of the Process 1921 - 1965 Extradition Hindered 1965 - 1998 Part 2 – The Present, 1998 – 2020Peace and Prosperity as the European Union expands The European Arrest Warrant Brexit and the Northern Ireland problemPart 3 – The Future, 2021 - The EAW is not an optionAn EU-UK Multilateral Treaty on the horizon?Alternative models European Convention on Extradition 1957 – the default option Preparation for operation of the 1957 Convention Is a bilateral agreement between the UK and Ireland a possibility? Nordic Arrest Warrant – a way forward for Ireland and the UK?Conclusion

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