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Apropos of a preliminary reference sent by the Supreme Court of Ireland to the Court of Justice of the European Union on 12 March 2018, this Policy Insight addresses the question of whether surrenders of suspects and convicts to the UK under the European arrest warrant regime would be affected by Brexit. Should an EU citizen, who is suspected of a crime or has been sentenced for committing one, be surrendered to and sentenced in the UK, he or she would highly likely be detained beyond Brexit, which is to take place in March 2019. Therefore, the rights that a suspect or convict might enjoy as an EU citizen will no longer be justiciable as matters of European law. This might set a bar against future surrenders to the UK. On 11 February 2018, however, the UK prime minister insisted that the UK wants to remain part of the European extradition regime, irrespective of Brexit. At the same time, the UK does not wish to follow any of the models of EU and third-country cooperation in criminal justice, but wants to have new, dynamic arrangements designed, and has a long list of demands. This paper argues that during the negotiations the EU should insist on values shared between the EU and the member states – such as justiciable fundamental rights and the rule of law, with special regard for judicial independence – which are the foundations of mutual trust and mutual recognition, principles that form a cornerstone of EU criminal justice. The paper attempts to reconcile the seemingly contradictory (sometimes self-contradictory) demands of the UK and the EU when laying down the details of their special relationship in the area of criminal cooperation.

This publication has been carried out within the framework of the ENGAGE Fellowship Programme. The Fellowship Programme counts with the support of the Open Society Initiative for Europe (OSIFE). It is a tailor-made Programme that connects academic, civil society and think tank actors from Central and Eastern European and Western Balkans countries with EU-level policy debates. It consists of a one-year programme providing a set of trainings, study visits, public events and a policy brief writing exercise. The ENGAGE Fellowship takes a Rule of Law approach to the policy domains of Rights, Security and Economics. 

Petra Bárd is a CEPS ENGAGE Fellow; Associate Professor, Eötvös Loránd University, Budapest; Visiting Faculty, Central European University (CEU), Budapest; and Visiting Professor, Goethe University, Frankfurt.