Madeleine McCann prime suspect may not be extradited to UK to face trial due to Brexit, legal experts say

Brexit could prevent the prime suspect in the disappearance of Madeleine McCann from being extradited to the UK for trial, lawyers have said.

Scotland Yard wants German citizen Christian Brueckner to be tried in England for the alleged kidnapping and murder of the young girl. Telegram.

The convicted rapist was first linked to the missing three-year-old’s disappearance in 2022, but has vehemently denied any involvement.

However, after Brexit, this could prove legally difficult for the Metropolitan Police as German law prohibits the extradition of its citizens to non-EU countries.

According to Article 16 of the Constitution, German citizens cannot be extradited to foreign countries outside the bloc, despite other agreements to prevent such events.

Lawyers and legal experts told Independent The chances of Brueckner being handed over to England are almost zero.

George Hepburne Scott, a specialist extradition barrister and head of extradition at Church Court Chambers, said: “Germany is unlikely to extradite him to the UK as he is a German national.”

“Under the German Basic Law and the post-Brexit EU-UK Trade and Cooperation Agreement, Germany can refuse to hand over its own citizens and does so in practice.”

The Court of Accounts came into force in 2021 and covers mutual refund processes. But due to the country’s constitution, Article 16 is now likely to override its obligations to the UK, which are outside its EU obligations.

In fact, Germany has rejected such demands in the past. In September 2023, he refused the extradition of an Albanian man accused of drug trafficking due to “the state of the British prison system”.

Separately, for the first time in its history, it rejected an extradition arrest warrant to extradite a Polish citizen accused of fraud to Poland in 2020 due to concerns about the fairness of the proceedings.

Accordingly Telegram, The Metropolitan Police are determined that Brueckner faces charges in Germany if the country refuses to extradite him to the UK.

But tensions could trigger a diplomatic spat, worsened by the UK having less legal authority over such events due to Brexit.

“If there was sufficient evidence, the realistic course would be for Germany to prosecute him domestically rather than handing him over,” Mr. Scott says. “Pre-Brexit extradition would have been simplified, accelerated and effectively automated subject to routine procedural requirements.”

Experts say that before Brexit it would have been much easier for Brueckner to be extradited to the UK to stand trial on suspicion of a crime against a British citizen due to a European Arrest Warrant.

The expedited process is defined by the European Commission as “a simplified cross-border judicial surrender procedure for the purpose of prosecution or execution of a prison sentence or detention order.”

But despite a new extradition scheme, the UK is on shaky ground when it comes to extradition when it comes to crimes across Europe. The only way out would be if Brueckner somehow decided to leave Germany, leaving himself open to arrest.

“Following Brexit, the UK and EU negotiated a new extradition scheme that closely matches the European arrest warrant,” says Nick Vamos, head of extradition at the Crown Prosecution Service and now a partner at Peters & Peters.

“However, since the UK is now outside the EU, 10 countries, including Germany, have used the option of setting a ‘citizenship’ limit in Article 83 of the Trade and Cooperation Agreement to extradite their citizens to the UK.

“In Germany this is not a matter of political discretion but of constitutional law, so there is no possibility of Breuckner being extradited to the UK unless he leaves his home country.”

Additionally, the CPS have not yet decided to seek extradition and will need to have solid evidence before doing so. Extradition of a person to gather more information is not enough, and even that process faces increased scrutiny due to the UK’s decision to leave the EU.

“The prosecution in the UK must have made the decision to prosecute before requesting extradition from Germany,” says Richard Cannon, partner at Stokoe Partnership Solicitors.

“A person can only be extradited to the United Kingdom for one of three purposes: to prosecute a criminal offence, to obtain a conviction after conviction or to serve an already imposed sentence.

“A person may not be extradited for the purpose of determining whether there is sufficient evidence to warrant prosecution or further investigation.

“Extradition from Germany to the UK has become more complex post-Brexit. We no longer rely on the enhanced framework of the European arrest warrant, so requests face greater documentation, longer timelines and closer judicial scrutiny on issues such as double criminality, proportionality and adequacy of safeguards.”

“Defendants may resist extradition where there is a real risk to fundamental rights, where proceedings will be oppressive due to ill health or delay, or where guarantees of fair trials and prison conditions are inadequate. In practice, careful litigation on human rights, expertise and procedural safeguards can be decisive in preventing deportation.”

A Met spokesman said: Independent: “The Met’s investigation into the disappearance of Madeleine McCann has been active since 2011. A special team continues to examine the events in Praia da Luz on the evening of 3 May 2007, while supporting and updating Madeleine’s family.

“We remain in close working discussions with our police colleagues in Germany and Portugal as part of ongoing investigations.

“We will continue to pursue any lines of investigation that may be applicable.”

The German government has been contacted for comment.