Lord Advocate James Wolffe cited the case of Slovakian national Marek Harcar who was brought back to Scotland on a European Arrest Warrant (EAW) after murdering Moira Jones in a Glasgow park in 2008.
Appearing before the Scottish Parliament’s justice committee yesterday, Mr Wolffe said leaving the EAW after EU withdrawal would make it more likely that other European countries would refuse to extradite their citizens.
He said officials in the Crown Office are drawing up contingencies in the event of a no-deal Brexit which would see the UK “drop out” of existing legal arrangements and be forced to draw on “slower, more cumbersome” extradition processes.
The security arrangements between the UK and the EU post-Brexit are yet to be resolved, but EU chief negotiator Michel Barnier has said Britain will no longer be able to use the EAW.
Under the warrant agreement, EU countries are unable to refuse to surrender citizens who have committed a serious crime.
Prior to the framework coming into force in 2003, extradition in Europe was governed by the 1957 Convention on Extradition.
Mr Wolffe raised the case of Harcar, who fled to his home country of Slovakia after raping and murdering Ms Jones, 40, in Glasgow’s Queen’s Park. Harcar, who was moved to a prison in his home country earlier this year, was jailed for at least 25 years in 2009.
The Lord Advocate said the EAW system allowed extradition to take place with relative speed and simplicity, with an average time of 42 days.
Mr Wolffe said: “A good example is Marek Harcar, the man who was accused and ultimately convicted of the murder of Moira Jones.
“We issued an arrest warrant and he was picked up very quickly in his home country of Slovakia... and ultimately returned for trial.”
Scotland’s most senior law officer told MSPs that countries such as Germany and Slovakia would refuse to extradite their own citizens unless they are subject of a EAW.
He said: “Under the arrest warrant system member states are obliged to extradite in accordance with the system regardless of whether the person wanted is a national of that country or not.
“Outside the arrest warrant system – and we see it even in the transition arrangements that are envisaged – a number of countries within the EU will not extradite their own nationals.” He added: “I go back to Marek Harcar.
“I understand Slovakia is a country that will not normally extradite its own nationals, so outside the arrest warrant system a question would have arisen about whether we would be able to secure the extradition of that individual.”
Mr Wolffe continued: “One of the concerns is that because the arrest warrant system is relatively speedy, operates according to timetables that are laid down, that there is a risk that our extradition requests if they are made outside that system will not be treated with the same priority as those within the system.”
According to figures published earlier this year, more than 500 cases have been heard in Scotland’s courts since 2011 following an arrest made using the EAW.
Details released by the Crown Office showed 541 proceedings took place between 2011-16 after an offender was apprehended using the warrant.
The figures showed there were 48 extraditions to Scotland in the five years to 2016.
Justice secretary Humza Yousaf told MSPs that Scotland “greatly benefits” from existing security, law enforcement and criminal justice co-operation with the EU.
“Any dilution of the arrangements we have currently, any stepping back from that or moving away from that is going to be to the detriment of justice and justice capability, full stop,” he said.
“There would be some serious areas of risk – the European Arrest Warrant perhaps being one of the most obvious examples.”
The EU has said the UK cannot stay part of the system when it leaves in March, but would consider setting up a new EU-UK extradition deal as an alternative.
Mr Wolffe said: “I don’t think it controversial to observe that leaving that regime without replacing that regime would significantly and adversely affect our capabilities.
“From a professional criminal justice point of view, the realistic issue is the extent to which those detriments can and will be mitigated.”
Earlier this year, the House of Commons’ home affairs committee warned both the UK government and the EU risked “recklessly” undermining the safety of people across Europe with their negotiating positions.
In a strongly worded report the MPs said losing access to the second-generation Schengen Information System (SIS II) database would be “calamitous,” while being forced to rely on the 1957 Convention on Extradition instead of the EAW would be a “catastrophic outcome”.
The MPs said: “We believe that both the EU and the UK government need to show more flexibility, and give greater priority to getting an early agreement that continues existing policing and security co-operation; otherwise, they will recklessly undermine security in both the UK and the EU, and will let the public down badly.”
The UK government’s Department for Exiting the European Union has said that any reduction in crime-fighting co-operation after Brexit “would have a direct impact on public safety and on our collective ability to deliver justice across Europe”.