An attempt by five men arrested pursuant to the European arrest warrant to apply for a writ of habeas corpus because the Brexit transition period has ended, has been refused.
The five were arrested before 31 December 2020―two of them were detained and three released on bail. They argued there was no longer any legal basis in international law for their surrender, and therefore no basis in domestic law for continued detention or maintenance of bail conditions.
Giving the lead judgment in Polakowski and others v Westminster Magistrates' Court and others [2021] EWHC 53 (Admin), however, Dame Victoria Sharp, president of the Queen’s Bench Division, said the argument was misconceived for five reasons and refused permission to apply for judicial review in each case.
First, Dame Sharp said the correct starting point for legal analysis was the Act of Parliament governing extradition, not the framework decision or other piece of EU law. Legal questions involving rights or obligations said to be derived from EU law should be approached through the lens of domestic law.
Second, that the five were properly arrested under the Extradition Act 2003 (EA 2003) was not in dispute. Third, the ‘central plank’ of the applicants’ argument was that the framework decision could not apply in the UK after transition ended, but that was wrong, as Art 7(1) of the Withdrawal Agreement provided that all references to member states and competent authorities in provisions of EU law should be understood as including the UK, and Art 7(1) was not time-limited.
Fourth, domestic legislation expressly provided that the amendments to EA 2003 made as a result of the Trade and Cooperation Agreement (TCA) did not apply where the arrest took place before transition ended.
Finally, Dame Sharp said that ‘although the UK will no longer have access to the Schengen Information System II, there is nothing to support the submission that this will in practice render impossible arrangements for transit and surrender of requested persons. It may also be noted that, while the UK will no longer be a member of Eurojust or Europol, the TCA provides for cooperation with both bodies.’
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