No deal Brexit: Criminal justice co-operation March 2019 1
Introduction This paper forms part of a series published by the Law Society. The aim of this paper is to highlight the changes that will occur should the UK leave the EU on 29 March 2019 without having concluded an agreement with the EU beforehand. In such a scenario, the EU and UK will have failed to sign both a Withdrawal Agreement (governing the terms of the UK s departure from the EU) as well as a political declaration governing the future relationship between the two parties. Similarly, the transition period that has been provisionally agreed between the UK and EU will not apply. This paper does not purport to set out an exhaustive list of all instruments used in the area of security and criminal justice cooperation, and only underlines the problems solicitors and legal professionals will face in order to prepare their practice for such an eventuality. This note does not replace legal advice or a consultation on an individual basis with the relevant regulators/authorities. We cannot accept any liability resulting from any action or lack thereof taken on the basis of the information contained in this note. Points for solicitors to consider under a no deal Brexit The absence of clear guidance or information about contingency planning on this topic is particularly troubling because of the immediate practical consequences of a no deal in the area of security and criminal justice cooperation, which applies across the board to all measures which fall into this category. The legal uncertainty will inevitably lead to disruptions to and delays in the exchange of security intelligence between the UK and the EU. There will also be delays to other forms of UK-EU cooperation in the detection, investigation and prosecution of cross-border crime including terrorism. Any bilateral or multilateral agreements that might be agreed in the future in order to address this situation can only be concluded after the UK has left the EU so there is bound to be an immediate gap in the aftermath of a no deal departure. The main problem in the field of security and criminal justice cooperation is that in absence of an agreement we will revert to national law on both sides. Requests from the UK for cooperation in support of UK criminal investigations and prosecutions would fall to be 2
governed by the national laws of the requested EU member state in potentially 27 different ways, as there is significant variation between member states criminal justice systems. In the event of a no deal Brexit, solicitors and other legal professionals should be aware of the following headline points: Judicial cooperation in support of criminal investigations - European Arrest Warrants (EAWs) issued by a member state will not be recognised in the UK after exit day, unless the requested person has already been arrested. The EU has not issued any guidance on what will happen to outstanding UK EAWs on exit day, and solicitors should assume that these requests will have to be re-issued. Similarly, European Investigation Orders (EIOs) and other forms of cooperation that involves giving effect to an order made in another member state such as decisions to collect evidence or to freeze property or bank accounts will not be recognised in the UK if received after exit day. Judicial cooperation in support of criminal proceedings - After exit day the UK will also no longer be required to give effect to orders made in connection with criminal proceedings in another member state, or vice versa such as European Protection Orders, European Supervision Orders ( Euro-bail ) or financial penalties imposed on those found guilty of crime. The UK will no longer be a party to the reciprocal arrangements in place to facilitate access to compensation in one member state by victims of crime in another member state, or the requirements for courts to take into account previous convictions in other member state. The UK has proposed limited contingency arrangements to enable continued processing of requests received prior to but not executed in advance of exit day such as requests to vary or revoke a European Protection Order issued by another member state; but it is not clear how corresponding UK requests will be treated by the EU27 after exit day. Operational cooperation: EU agencies and data exchange mechanisms - On exit day the UK will cease to be a member of any the specialist EU agencies and will no longer be eligible to access data held or participate in data exchange arrangements operated or facilitated by them. Under the UK s proposed contingency arrangements member state requests for data held by the UK authorities will be executed if they are received before exit day, but it is unclear what will happen to any outstanding UK requests for data in corresponding circumstances at this point. 3
Operational cooperation: Joint Investigative Teams (JITs) - The UK will no longer be able to initiate or participate in JITs set up in support of cross-border police investigations under EU instruments after exit day. Current system The UK and Ireland have a unique arrangement in the field of Justice and Home Affairs (JHA) pursuant to Protocols 21 and 19 to the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), with the possibility of the UK opting out of new Schengen-related measures and of opting in to other new JHA measures on a case-by-case basis; either at the stage when they are first proposed or after their adoption. The UK has already exercised a separate block opt-out from all JHA measures adopted prior to the Lisbon Treaty under Protocol 36, immediately re-joining those measures that were considered to be in the UK s interests to continue to participate in. In accordance with these arrangements the UK presently participates in the following key security and criminal justice cooperation instruments: The EAW scheme, which speeds up requests by one member state for the surrender of accused or convicted persons located in another member state. The European Investigation Order (EIO) scheme, which governs requests by one member state for gathering evidence located in another member state. The European Union Agency for Law Enforcement Cooperation (Europol), which supports member states law enforcement responses to cross-border crime. The European Union s Judicial Cooperation Unit (Eurojust), which coordinates and supports member states investigations and prosecutions of cross-border crime. The UK also participates in a number of free-standing arrangements for exchanges of intelligence, information and other law enforcement related data between member states authorities including access to Passenger Name Records (PNR) for intra-eu flights, access to the criminal records of EU nationals through the European Criminal Records Information System (ECRIS) as well as data held by member states on DNA profiles, fingerprints and vehicle registration pursuant to the Prüm agreements. In addition, the UK participates in the real time dissemination of alerts on wanted people, vehicle or objects through the second generation Schengen Information System (SIS II). 4
No deal scenario Should the UK leave the EU under a no deal scenario, it will immediately cease to participate in all EU security and criminal justice cooperation arrangements as a member state. Draft legislation due to come into force on exit day would revoke all relevant EU legislation for this purpose, subject to limited contingency provisions governing the UK s treatment of incoming requests. 1 The UK would need to reach agreement with the EU on the extent to which it may be able to resume its participation in any of these arrangements as a third country, in the absence of which it would need to rely on such other multilateral or bilateral arrangements as may already be in place or such new agreements as the UK may be able to secure with individual member states. The resulting gap in the period between exit day and such time as any agreement is reached with the EU and/or the member states will inevitably impact on the UK s ability to secure cooperation from the EU27 in support of criminal investigations and prosecutions conducted in the UK during this period. By way of guidance we set out the current understanding on some of the key instruments below. 1. European Arrest Warrant (EAW) In case of no deal, the default alternative basis for extradition between the UK and the EU27 will be the 1957 European Convention on Extradition, a Council of Europe instrument ratified by all member states as well as a number of third countries. Unlike the EAW scheme for extradition the Convention does not impose time limits on the execution of requests, does not prevent extradition being refused for lack of dual criminality or for political, military or fiscal offences and permits parties to refuse to extradite own nationals. Extradition requests between the EU and the EU27 would need to be transmitted through diplomatic channels rather than directly between the relevant national authorities via SIS II. In practice this means that after exit day there will be greater scope for the EU27 to refuse extradition requests from the UK and the average time for extradition (whether from or to the UK) will increase. 1 The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019; The Criminal Justice (Amendment etc.) (EU Exit) Regulations 2018 5
Contingency arrangements have been proposed by the UK which permit the UK authorities to execute EAWs received prior to exit day, but only where the fugitive has been arrested. Where a fugitive sought by the EU27 remains at large in the UK on exit day the request would likely need to be re-issued. There is no indication of how outstanding EAWs issued by the UK will be treated by the EU27 on exit day: the position is likely to differ in each EU27 state and dependent on whether or not the fugitive has been detained. It is possible that a person detained by a member state on the basis of an EAW issued by the UK may be released unless a re-issued request was received within any period specified by the national law of the requested member state for this purpose. Even if outstanding UK requests were to re-issued under the Convention their treatment would be governed by the requested member state s national laws, which could potentially be problematic for example, where the national legislation which governed extradition with the UK prior to the introduction of the EAW scheme has been abolished. Member states in receipt of competing requests for the same fugitive may choose to prioritise EAWs over any UK request. Until there is more clarity there is likely to be an increase in legal challenges in the UK courts as well as in the courts of the EU27 brought by or on behalf of fugitives seeking to resist their extradition from the UK to the EU27 or from the EU27 to the UK. Legal challenges would add further to the costs of extradition and might act as a disincentive for law enforcement, both in the UK and in the EU27, to seek extradition in all appropriate cases. 2. European Investigative Order (EIO) In the event of no deal the UK would no longer be able to issue and receive EIOs in support of criminal investigations and prosecutions. The default alternative basis for mutual legal assistance (MLA) between the UK and the EU27 would be the 1959 European Convention on Mutual Assistance on Criminal Matters, another instrument developed by the Council of Europe. Unlike under the EIO scheme, there are no time limits imposed on the execution of MLA requests and more grounds on which MLA requests can be refused. The process is not exclusively judicial and relies on diplomatic channels for transmission of MLA requests. In practical terms, it will become more expensive and take longer for the UK to secure MLA from the EU27; with the additional prospect that UK MLA requests are more likely to be refused by the EU27. 6
The contingency arrangements proposed by the UK would permit the UK authorities to process EIOs received prior to exit day but there is no indication of how outstanding UK EIOs would be dealt by the EU27 in corresponding circumstances after exit day. 3. EU agencies In a no deal scenario the UK would cease to be a member of EU agencies including Europol and Eurojust. The UK would no longer be eligible to participate in agency decision-making processes or have direct access to agency databases such as the Europol Information System. There is no precedent for full participation in and access to data held by EU agencies by a third country however some countries do participate on a reduced basis. 4. EU Joint Investigative Teams (JITs) In a no deal scenario the UK would not be able to initiate or participate in any new JITs set up pursuant to EU instruments. It is unclear whether the UK will be permitted to retain its role in existing EU JITs established before exit day, where investigations are still ongoing. In accordance with the proposed UK contingency arrangements member states law enforcement officers would be permitted to continue to work in the UK on ongoing investigations conducted by EU established prior to exit day. The UK will still be able to participate in JITs established pursuant to other international or multilateral agreements, 2 but these will be governed by different terms than their EU counterparts. Only EU member states can receive Europol and Eurojust funding to support their participation in JITs and benefit from access the analytical and translation facilities provided by these agencies for JIT purposes. 5. EU data exchange networks and EU databases The value of the current EU data exchange networks and the UK s access to EU databases is demonstrated by the UK s decision to opt in to recent amendments including proposals to make EU information systems in the fields of police and judicial cooperation, asylum and migration interoperable. 2 UN, Council of Europe 7
Default alternatives exist for some, but not all, of these mechanisms although they are less developed. For example, the UK can circulate requests for wanted persons and other law enforcement alerts to the EU27 in the same way as for non-eu third countries via the Interpol Information System. However, transmission of notices is not immediate and access is not direct: notices are uploaded by and accessed through the National Central Bureaus in each of the Interpol member states. Similarly, the Council of Europe s 1959 European Convention on Mutual Assistance in Criminal Matters provides for the exchange of criminal records but parties are required to transmit data for this purpose only once a year. Bilateral agreements with EU member states In addition to such existing bilateral or multilateral arrangements with the EU27 that the UK may be able to invoke after exit day, the UK could seek to negotiate additional new arrangements with individual member state as well as with the EU. A no deal exit does not rule out the prospect of the UK securing a security treaty or some other form of EU-wide agreement on criminal justice and security cooperation, but it may impact on the UK s prospects of securing the terms sought by the UK. In anticipation of or as an alternative to any such agreement the UK can seek to negotiate bilateral and/or multilateral agreements with individual member states covering existing forms of cooperation, other than operational cooperation involving EU agencies and EU data exchange mechanisms. The UK s ability to secure agreement on security and criminal justice cooperation with either the EU or with individual member states after exit day will be constrained by EU law including data protection and human rights. There may be additional restrictions on the ability of member states to conclude bilateral agreements with the UK in the area of security and criminal justice cooperation depending on the type of cooperation in question. For example, the ability of the EU27 to transmit data to the UK after exit day will be governed by EU law; 3 unless and until the UK secures an EU adequacy decision. The contingency arrangements already proposed by the UK in the event of a no deal recognises that data received by the UK before exit day will continue to be subject to restrictions on use. 3 For more information on the exchange and processing of data in case of no deal, please see the Law Society paper Brexit no deal data protection October 2018 8
Further guidance on the consequences of a no deal Brexit The European Commission has not yet produced any notices to stakeholders that specifically address the consequences of the UK s withdrawal for future criminal justice and security cooperation between the UK and the EU. The Commission has published a preparedness notice identifying the EU rules which would apply to transfers of personal data between the EU and the UK in connection with criminal justice and security cooperation: https://ec.europa.eu/info/sites/info/files/file_import/data_protection_en.pdf. To date two draft Statutory Instruments have been laid before Parliament, which indicate what the UK law position will be on a no deal exit: The Criminal Justice (Amendment etc.) (EU Exit) Regulations 2018: https://assets.publishing.service.gov.uk/media/5bf6db6be5274a3b36a4184b/151112- consolidated-criminal-exit-si-final-validated.pdf Subject to limited contingency arrangements these Regulations repeal the UK legislation implementing: Council Directive 2004/80/EC of 29 April relating to compensation to crime victims; Directive 2011/99/EU of 13 December 2011 on the European Protection Order; Council Framework Decision 2009/829/JHA of 23 October 2009 on the application between member states of the EU of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention; Council Framework Decision 2005/2014/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties; and Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in member states in the EU in the course of new criminal proceedings. The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019: http://www.legislation.gov.uk/ukdsi/2019/9780111178102 9