Uncertainty over pending extradition cases to UK after Brexit

Thomas Joseph O’Connor was sentenced to four-and-a-half years in jail at Blackfriars Crown Court in London for defrauding HM Customs and Revenue of tax.

However, O’Connor was not there to hear the judge’s words. The 49-year-old had been convicted earlier of the offence after a six-week trial, but left for Ireland before sentence was handed down.

He was arrested in Ireland under a European Arrest Warrant (EAW) in 2009. The High Court ordered his extradition. He appealed. The Court of Appeal dismissed his appeal in October 2015.

He lost a further appeal at the Supreme Court in March. Subsequently, his lawyers returned to court to challenge his extradition, on the grounds that the United Kingdom’s decision to leave the European Union infringed upon his rights.

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His lawyers argued that O’Connor was entitled to “a second shot” at challenging his extradition following the UK’s triggering of Article 50 – which set a two-year clock running on its departure from the EU.

Started a trend

O’Connor has started a trend. Between a dozen and 20 others are now challenging the safety of of extradition orders to the UK, made through the EAW system, on the basis of Brexit.

In summary, the argument is that the the European Arrest Warrant will be put in jeopardy once the UK quits, especially because extraditions to the UK will no longer be subject to the European Court of Justice.

Following the triggering of Article 50, a High Court judge in July rejected O’Connor’s appeal against extradition on the grounds that Brexit left him in “legal limbo”.

O’Connor, who is still living in Cloughbeirne, The Walk, Roscommon, is wanted in the UK over his role as a construction company director in a £5 million tax fraud.

“The very legal basis for this kind of extradition will no longer exist when the British leave” the EU, one legal source said.

Another source familiar with extradition cases said there has been an “increase from the UK” in extradition orders pending the uncertainty around Britain’s access to the EAW system after it leaves the EU.

Extraditions are more straightforward under the EAW system, and if the UK does not set up a separate arrangement with the EU following Brexit, the process will revert to international extradition rules which are more complex.

In the High Court appeal taken by Thomas Joseph O’Connor, Justice Aileen Donnelly “rejected the contention there is a real risk of a violation of his (O’Connor’s) fundamental rights”, the court heard on July 28th.

She said there was “no evidence he is at any real risk of his rights being breached” on the basis of Brexit.

Believed to be in Ireland

Last year the UK issued 27 arrest warrants for individuals believed to be in Ireland, according to figures from the British National Crime Agency.

Since 2010, EAWs have been issued for 195 individuals in Ireland wanted on charges in the UK.

In total in 2016, the UK made 349 requests for the extradition of individuals wanted across all EU states.

Last year, Ireland requested the extradition of 62 individuals who were believed to be in the UK, and over the last six years 332 requests for extradition under EAWs have been made from Ireland to the UK.

Last month Assistant Commissioner John O’Driscoll said gardaí are examining where Brexit may cause future problems: “The operation of the European Arrest Warrant is probably the area of most concern.”

However, planning for life after Brexit is difficult, if not impossible "until we know the shape of the Brexit arrangement. It is difficult for us to address these issues," he told an Oireachtas committee.

“We co-operate through Interpol with the non-EU countries. The level of co-operation with the UK authorities will continue post-Brexit,” he said.

David Armond, deputy director general of the National Crime Agency, said after Brexit the UK should put in place a treaty with the EU to maintain extradition arrangements, rather than negotiating treaties with all 27 members states.

Speaking to a House of Lords Brexit inquiry last year on policing, Mr Armond said future extradition arrangements to replace European Union-sanctioned extradition rules will be one of the UK’s most pressing security issues.

“If we cannot be a member of the EAW, we do not have extradition arrangements with Europe, so we need an alternative,” said Armond, who argues for a UK-EU deal rather than “going around and negotiating” with 27 states.