Senior politicians have been told of the “devastating” impact on UK crime and justice if the government leaves the European Convention of Human Rights (ECHR).
Foreign criminals would have impunity to break laws in Britain, extradition between UK and European Union countries would cease, and investigators would no longer have access to DNA, fingerprint, and vehicle data, legal experts said on Tuesday.
Members heard how Britain’s self-removal from the ECHR would leave it in a position of “mistrust”—similar to Russia—by other countries under the framework.
Asked about the consequences of the UK leaving the ECHR, Rebecca Niblock, a partner of London-based legal firm Kingsley Napley LLP, said the most obvious is the “immediate cessation” of extradition from EU member states.
“My biggest concern would be an almost guaranteed impunity for a time at least, where a person could come to the UK, commit an offence, and then jet off,” she said.
“And if there are no extradition arrangements, they wouldn’t face justice.”
Criminal Impunity
Following the UK’s exit from the EU on Jan. 31, 2020, the government was only allowed to continue using European Arrest Warrants (EAW)—a simplified cross-border judicial surrender procedure—until the end of the transition period.That ended on Dec. 31, 2020, with the UK using primarily Trade and Cooperation Agreement (TCA) warrants to extradite individuals from EU member states.
These are issued by British courts under Part 3 of the Extradition Act 2003.
However, if the UK pulls out of the ECHR, these warrants could no longer be used and no mechanism to replace those is in place.
“On the cessation of extradition relations, there isn’t an obvious mechanism to replace the TCA arrangements; the fallback position would be the 57th Convention on Extradition, but that’s the Council of Europe convention,” Niblock added.
“So as a non-member of the Council of Europe, we'd have to be invited back in to that unanimously by the remaining Council of Europe member states.
“There would be the possibility of negotiating bilateral agreements with all of those countries.
“But the sticking point there might be that the UK would have to give guarantees in respect of fundamental rights,” she said.
Élise Martin-Vignerte, a member of the European Criminal Bar Association, said the UK’s removal from the convention would have a “very strong impact” on the nation.
‘The UK would be placed at a very, extremely high level of mistrust from other member states due to loss of material trust,” she said.
The legal expert said there would also be “very tough scrutiny” of UK domestic legal system and prison conditions.
“For example, in terms of extradition, Rebecca highlighted the most primary concern, which is an impunity on the side of the offenders,’ she said.
“It will also bring back extradition at a diplomatic and political level, which was the case prior to the conventions, that puts extradition at the judicial level. Courts were dealing with extradition requests, not the executive power. So there was no conflict of interest, or at least no suspicion on that side. So that could be a reintroduction, or that kind of issue we had before.”
Asked by the committee if it was possible for the UK to remain part of the Council of Europe having pulled out of the EHCR, the lawyer said, “I think that would be an extremely difficult position to maintain.”
Joanne Jakymec, head of the Crown Prosecution Service’s International, London and South-East Division, said “any loss of tools” would “reduce” the UK’s ability to tackle cross-border crime.
Devastating Effect
Addressing the legal experts, Baroness Meacher said: “It just feels to me as though we’re getting a very sort of gentle presentation here.“Whereas if we’re really thrown out of the TCA, we’re going to lose exchange of DNA fingerprinting, vehicle registration data, all sorts of basic information exchange that is fundamental to our judicial system, is it not correct to say?
“And I’m not sure that I’m getting a sense of how serious this really is for this country.”
In response Niblock said, “Well, I don’t want to be a doom monger, but I do think the effect would be absolutely devastating, because the idea that we have a respect for fundamental rights really underpins all of cross border cooperation.”
Niblock said there would also be a “significant negative impact” on investigating crime.
“More generally, crime is increasingly international, and even with domestic criminal investigation, even with the smallest, most domestic seeming criminal case, there is usually some international element involved,” she said.
“There might be a piece of evidence on a server in Ireland, for example, a witness located overseas, a transaction undertaken in another jurisdiction, and without being able to access that evidence it would make even those very purely domestic cases very difficult to both investigate and prosecute.
“And the ultimate consequence of that is impunity.”
The committee also heard that the UK would lose access to passenger name record data, collected by airlines to prevent, detect, investigate, and prosecute terrorist offences and serious crime.
Britain would also lose access to the Prüm framework—an automated data exchange that allows EU member states to query DNA, fingerprint, and vehicle registration data in one or several other member states’ national databases.
Describing the situation as “very serious,” chair of the committee, Baroness Hamwee, said European colleagues were watching what the government was planning to do on these issues very carefully.
She added that the TCA is due to be reviewed in about 18 months time.
