UK court rejects argument that Brexit makes European Arrest Warrants void
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UK court rejects argument that Brexit makes European Arrest Warrants void 21 January 2021UK Reporter: Drew Nicol
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The UK’s High Court has rejected the argument that the end of the Brexit transition period nullified the extradition powers of European Arrest Warrants, meaning UK residents charged with cum-ex tax fraud on the continent may yet face their day in court.
Earlier this week, a legal team from business crime solicitors Rahman Ravelli argued that their client, a London hedge fund employee, could no longer be forced to appear in Germany to face tax fraud charges as the EU’s Extradition Act 2003 no longer had jurisdiction.
A European Arrest Warrant was issued in April 2020 by German prosecutors seeking to bring Vijay Sankar, of Duet Group, in front of judge in Cologne to face accusations of his involvement in a multi-billion euro tax fraud scheme, known as cum-ex trading, that has so far sucked in more than 600 individuals and more than a dozen financial organisations, law firms and auditors worldwide.
Sankar was arrested on 30 June 2020 and appeared at Westminster Magistrates’ Court on the same day. He was granted conditional bail and remains on bail.
Following the completion of the Brexit transition period on 31 December 2020, Sankar sought to apply the legal defence known as habeas corpus, that allows individuals to be brought before a court to challenge the lawfulness of their detention.
The two-day hearing was heard before the president of the Queen’s Bench Division of the High Court, lord justice Holroyd, and justice Chamberlain and ended on 18 January.
However, on 20 January, the court ruled that the application of habeas corpus did not apply in Sankar’s case as although an arrest warrant existed, no extradition order has been made.
Moreover, the court stated that the powers given by Extradition Act over British residents were not conditional on the UK’s continued membership of the EU.
The arrest warrant was issued legitimately during the transition period and will continue to apply in perpetuity, the judges ruled.
Elsewhere, the court found that the terms of the Withdrawal Agreement between the UK and EU provides a “clear basis in international law” for the continued cooperation of the governing and legal bodies of both parties.
The ruling highlights that of the several exceptions where the EU lost jurisdiction as of 1 January, laws governing active cases against individuals in the UK were not among them.
In conclusion, the judges refused permission to apply for judicial review in each case, but as this judgment deals with a point that is likely to be of significance in a number of cases, it can be cited.
Sankar now faces a full extradition hearing on 25 January and may become the first person to be extradited from the UK to the EU to face charges related to dividend arbitrage strategies.
He may be beaten to that unenviable title by Guenther Klar who is sought for questioning by Belgian prosecutors about his time working at Solo Capital hedge fund and Sanjay Shah, who is a central figure in the cum-ex scandal and currently fighting charges from Dubai.
Klar lost his own fight against extradition in Westminster Magistrates' Court earlier this week but is not currently facing criminal charges.
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