The four freedoms of the EU – the free movement of goods, services, capital and labour – enshrined in the 1957 Treaty of Rome and reinforced by the Single European Act in 1986, the Maastricht Treaty in 1992 and the Lisbon Treaty in 2007, represent the bedrock upon which European cooperation and integration are built. The drive towards transcending national borders, however, gave rise to unintended if not wholly unforeseeable consequences, as criminals exploited the ability to move, and to move assets related to criminality, between the Member States.
The EU responded through the creation of a range of agencies and legal instruments designed to undermine and prevent criminal activity throughout the bloc. These included the Schengen Information System, the European Arrest Warrant, the European Investigation Order, the Joint Investigation Team, the European Criminal Records Information System (ECRIS), the Prüm Convention and the Directive on Passenger Name Records (PNR).
The UK is a large user of these instruments. It is, for example, the fourth largest user of the ECRIS database and has been very effective in pushing forward the amount of information held in a PNR, with a view towards ever greater investigation and detection of terrorism and other forms of serious crime. The question arising from the UK’s decision to leave the European Union, is what will be the effect of losing the benefit of these instruments on the UK’s ability to prevent crime. Somewhat ironically, the value of the EU’s justice and policing apparatus has been made apparent by actions of the UK itself, which in 2013 exercised a right enshrined under Protocol 36 the Lisbon Treaty to opt out en bloc from approximately 130 pre-Lisbon instruments in the field, only then to exercise its right to immediately opt back into the most substantive provisions, including Europol and the European Arrest Warrant. This means that the UK has already been subject to a Brexit of sorts, at least in so far as the area of police and judicial cooperation is concerned, and has categorially decided that the substantive EU instruments in this area are worth being a part of.
The UK Government Position
The position of the UK Government was set out in a February 2017 White Paper, which at section 11 stated that the UK would “continue to work with the EU to preserve UK and European security and to fight terrorism.” Owing to its pre-existing security relationship with the EU, the UK is “uniquely placed to develop and sustain a mutually beneficial model of cooperation in this area,” and the UK hoped to “encourage joint working across the continent to protect citizens and our way of life.”
The White Paper did not rely solely on rhetoric, but went on to list a range of concrete issues in which the UK has played a major role in enhancing justice and security cooperation. These included pointing out that:
- The UK is one of the biggest contributors to Europol systems, supporting police forces across the UK and Europe, and currently participating in all thirteen of Europol’s priority projects;
- From 2004 to 2015 the UK extradited over 8,000 individuals accused or convicted of a criminal offence to other EU countries using the European Arrest Warrant;
- From April 2015 to April 2016, over 6,400 foreign alerts under the Schengen Information System II received hits in the UK, allowing UK enforcement agencies to take appropriate action, whilst over 6,600 UK-issued alerts received hits across Europe;
- The UK has been a leading proponent of the new EU Passenger Name Records rules, which allows for collecting passenger information in all Member States and making it more difficult for organised criminals and terrorists to hide their movements; and
- The UK is the fourth largest user of the European Criminal Records Information System (ECRIS), which in 2015/16 was the mechanism by which the UK made the majority of its 155,000 requests to EU Member States for information on overseas criminal convictions.
The UK Government also recognised the EU’s commitment to continue and deepen security cooperation, and asserted its commitment to cooperate on transnational threats such as cyber security and serious and organised crime.
It can only be seen as a frustration to policy-makers, therefore, that “as we exit” the Government is committed “to work together … to negotiate the best deal we can with the EU to cooperate in the fight against crime and terrorism” and that it will seek “a strong and close future relationship with the EU.” Unfortunately, no amount of good-will or practical policymaking can hope to duplicate the efficiency and effectiveness of the EU apparatus in this area, and the Prime Minister recognised as much in her September 2017 speech in Florence when she said, “[O]f course, there is no pre-existing model for co-operation between the EU and external partners, which replicates the full scale and depth of the collaboration that currently exists between the EU and the UK on security, law enforcement and criminal justice.” The Prime Minister’s proposition of “a far reaching partnership on how we protect Europe together” thus rings a little hollow. It does, nonetheless, remain the Government’s ambition to work as closely as possible with the EU to ensure the future security of the continent, even if the specifics of such a framework remain unclear.
The Court of Justice of the European Union
One of the most difficult challenges will be defining the role of the Court of Justice of the European Union (CJEU) in comparison to that of the UK Supreme Court. Within the EU the question of which legal system is preeminent, has been resolved by Member States accepting the supremacy of EU law on the assumption that the EU acts within its proper sphere of influence.
In the case of Van Gend en Loos the ECJ ruled that the community constituted “a new legal order of international law for the benefit of which the states have limited their sovereign rights … and therefore … confer[s] upon [individuals’] rights which become part of their legal heritage,” thus providing individuals with the ability to directly invoke their rights under EU law. In Costa v ENEL, it was decided that EU law takes precedence over Member States’ domestic law such that if national and EU provisions are in conflict, the EU provision must be applied. This formulation is accepted by Members States’ courts, but only to the extent that the CJEU limits itself to adjudicating upon questions falling within the powers conferred upon it, does not violate fundamental rights, or contravene some other basic principle of the national constitutional order. So long as the CJEU does not enlarge its competence, as defined in the treaties, it remains supreme on questions of EU law.
The same formulation will obviously not be acceptable to the UK, which in leaving the EU will withdraw any powers devolved to the competence of the CJEU. In the area of Justice and Home Affairs, like in every other realm, neither the UK nor the EU courts will be able to automatically assert a position of supremacy. In a White Paperpublished in August 2017, the Government put forward proposals based on existing precedents, where the EU has reached agreements with third countries without the CJEU having direct jurisdiction over those countries.
The UK’s position is that where the Withdrawal Agreement or future relationship agreements between the UK and the EU are intended to give rise to rights or obligations for individuals and businesses operating within the UK, then, where appropriate, these will be given effect in UK law and ultimately enforced by the UK Supreme Court. Similarly, UK individuals in the EU would be provided with a means of enforcing their obligations under EU law. In instances of disagreement between the UK and EU on the interpretation or application of an agreement term, the Government proposes a new dispute resolution mechanism, without which divergent interpretation and disagreements on application are likely to go unresolved and undermine the partnership. The appropriate mechanism would be dependent on the substance and context of each agreement but could include the establishment of a joint committee, an arbitration model or a reporting and monitoring requirement to ensure uniform interpretation and application of case law.
The House of Lords European Union Committee has stated that the removal of the jurisdiction of the CJEU as final arbiter on instruments of mutual recognition, “creates a tension with the operational necessity to deport serious criminals from the UK quickly and effectively, and to ensure that those wanted by the UK can answer for their crimes here.” It is wholly unclear how such instruments would operate in the future. At the moment, the CJEU has automatic jurisdiction to hear Member States’ disputes about the interpretation of EU justice and policing instruments, and UK courts at all levels are able to make use of the CJEU’s preliminary ruling procedure in order to have a question determined. After Brexit, both of these elements will disappear.
The creation of a bespoke court to adjudicate on issues of Justice and Home Affairs between the UK and the EU is possible but in no way certain. As Andrew Langdon QC told the House of Lords European Union Committee, “that would depend upon a lot of good-will on the part of the other Member States.” Moreover, any recourse to “political resolution mechanisms” is generally thought to be unworkable, or at least a far inferior outcome than some sort of superior judicial authority.
EU Policing and Criminal Justice Instruments
European Arrest Warrant
The European Arrest Warrant (EAW) facilitates the extradition of individuals between Member States and, like a number of EU criminal justice instruments, is based on the principle of “mutual recognition” of judicial decisions. This means that the Member State receiving the request recognises the decision of the authorities in the issuing Member State and thus avoids the need to litigate through the courts in both countries. The Home Secretary, Amber Rudd, has called the EAW an “effective tool that is essential to the delivery of effective judgment on … murderers, rapists and paedophiles”, and stressed that “it is a priority for [the Government] to ensure that we remain part of the arrangement.” Annually, around 1,000 individuals are surrendered by the UK to other EU Members States under the EAW, while the UK issues over 200 EAWs seeking extradition of individuals from other Member States. It was under the EAW that Hussain Osman, who along with others attempted to commit a series of bomb attacks in London in 2005, was extradited from Italy to the UK, ultimately found guilty and sentenced to a minimum of 40 years in prison.
There does remain, however, a large disparity between the number of UK arrests made upon receipt of an EAW request and the number of persons surrendered to the UK under an EAW request. This has been a source of criticism by Eurosceptics. In total, there have been over 12,000 EAW arrests in the UK since April 2009, while only approximately 1,000 people have been surrendered by other EU Member States to the UK. Aside from the mere population disparity between the UK and the rest of the EU, this is explained by divergent de minimis thresholds for the issuing of an EAW in national legislation across the EU – Poland, for example, has been heavily criticised for issuing a disproportionate number of EAWs for very minor offences, stemming from the fact that until recently it operated under an “obligation to prosecute” principle, which meant that the Polish Prosecutor had no discretion as to whether to prosecute a particular case or not. In contrast, UK prosecutors can exercise discretion in their decisions to prosecute and thus whether or not to apply for an EAW.
Another explanation is that some EU countries issue EAWs at a very early stage in the investigative process, with the consequence that an individual is often surrendered to another Member State only to then be subsequently released there. In Spain, for example, under the domestic criminal code, once the identity of the suspect is established, the individual must be brought before an investigating magistrate and given the opportunity to comment on the case against them. This obligation arises prior to formal charge and represents an onerous and often futile burden on the Member State receiving the request. Common law countries in particular have had to challenge EAWs on the ground that they were not trial-ready in the issuing Member State.
Despite these drawbacks the government has been emphatic about the value of the EAW, and the European institutions have continually published recommendations aimed at streamlining the operation of the instrument, with a view to ever enhancing its effectiveness. Member States have also been prevailed upon to make the EAW more workable. Since July 2015, for example, the competent district court in Poland, when deciding on an EAW, also considers whether the warrant is “in the interests of justice” or not. This evaluation includes not only the importance of the case, but also its cost, and the implementation of such a threshold test has proved effective at reducing the number of requests issued – in 2009 there were over 4800 EAWs issued by Poland, while in 2016 that figure had fallen to 2170.
There are a number of potential alternatives to the EAW. Norway and Iceland are non-Member States and have both negotiated extradition agreements with the EU. Under that proposed mechanism, disputes between those countries and an EU Member State regarding an interpretation of the agreement will be referred to a meeting of representatives of the respective governments. This agreement was finalised in 2014, after 13 years of negotiation, but has still not been fully ratified and so is not yet in operation. Negotiating such an agreement is thus likely to be a lengthy process, but the UK as a current Member State has laws presently aligned to the EU, so an agreement ought to be concluded faster than the lengthy timeframe it took Iceland and Norway to get a deal.
Another proposal is for the UK to negotiate bi-laterally with each remaining Member State. Aside from the complexity and expense of this approach, there is the anomaly for the UK that each Member Sate would continue to be bound by EU law when considering any extradition request by the UK. The UK may thus relinquish the ability to direct policy priorities regarding the EAW while still being indirectly bound by EU law.
Short of a negotiated agreement, the default position for the UK would be to revert to the 1957 Council of Europe Convention on Extradition. For good reason, the House of Lords European Union Committee stated that such an outcome “cannot adequately substitute for the European Arrest Warrant.” This is so for the following primary reasons:
- Whereas the EAW is a transaction between judicial authorities, applications under the 1957 Convention would need to be made via diplomatic channels, with Secretary of State approval required at a number of points in the process.
- The EAW framework imposes strict and efficient time limits at each stage of the process. The 1957 Convention does not impose the same time limits, and applications were prone to lengthy delays.
- Article 6 of the 1957 Convention provides that states can refuse an extradition request for one of their own nationals, and many applications failed under the Convention. The EAW framework abolished the “own nationals” exception based on the concept of EU citizenship.
Fundamentally, a political mechanism would place the UK’s ability to request potential suspects at the whim of the requested state, whose position may be at odds to that in the UK. As Mike Kennedy, former President of Eurojust and former COO of the CPS told the House of Lords European Union Committee:
“Often in this country we underestimate how big a decision it is for some of the European Union Member States to extradite their own nationals. In many countries before 2004 it was simply a no-go area. In fact, when the agreement was put into legislation in Germany, it was struck down first by the German constitutional court … because it was contrary to the constitution to extradite own nationals. … [H]istorically, Poland and several of the Scandinavian countries would not extradite their own nationals either.”
Europol supports the law enforcement agencies of Member States by providing a forum within which Member States can cooperate and share information. It does not have executive or coercive powers to conduct investigations or make arrests, but rather offers support by gathering, analysing and sharing information, and coordinating operations. The current Director, Rob Wainwright, is a UK national and has been in that role since 2009, having previously led a career as an intelligence analyst with MI5. Europol proved extremely effective in tracking down the perpetrators of the Brussels and Paris attacks, and the Government has said the UK uses Europol more than almost any other country. The National Crime Agency (NCA) and the Metropolitan Police Service (MET) identified membership of Europol, or an alternative agreement, as their most important priority among all the Justice and Home Affairs measures that the UK would be poised to leave behind following Brexit.
Currently, there are two types of cooperation agreement that Europol can enter into with states outside the EU: strategic and operational. Both types of agreement are aimed at enhancing cooperation between Europol and the country concerned. However, the difference is that strategic agreements are limited to the exchange of general intelligence, as well as strategic and technical information, whereas operational agreements allow for the exchange of information, including personal data. Strategic partners include Russia, Turkey and Ukraine. Operational co-operation partners, include the United States, Australia, Canada, Colombia, Norway, Switzerland, and most countries in the western Balkans. They get certain access to information and intelligence and the ability to share that, but they are not on the Management Board and have no say on Europol policy objectives.
The NCA takes the view that even operational cooperation would be insufficient to meet the UK’s needs, primarily because even with such an agreement in place the UK would lose access to the European Information System (EIS), which pools information on suspected and convicted criminals and terrorists across the EU, and to which the UK is the second largest contributor in Europe. This would result in all NCA inquires having to be made on a law enforcement to law enforcement basis through liaison – an extremely inefficient and cumbersome process when compared to the direct access to the EIS database currently enjoyed. Another depressing feature of cooperation agreements with Europol is the length of time taken to negotiate them – typically five years and increasing towards twelve years when dealing with the exchange of data. It would be hoped that for a former Member State, with procedures currently aligned to Europol, that time could be cut down, but nothing is certain in this respect and the experience of Denmark, which also opted out of post-Lisbon legislation, has not been positive, with no agreement envisaged for the foreseeable future.
The Government’s position is that considering its prospective starting point as a former EU member with a relationship built up with Europol over years, then “it is very right, and very possible, for us to have a bespoke solution.” There are, however, no blueprints for such a negotiation and policing and security is an area of anxiety for every Member State when interacting with any other country. At a minimum, the UK would have to make sure its data protection standards were equivalent to those of the EU, a requirement enshrined in the EU Charter of Fundamental Rights and thus not easily negotiated away. Moreover, after Brexit the UK will relinquish its membership of the Europol Management Board and thus not be a position to influence the strategic or policy objectives of the agency.
Eurojust works to improve coordination between national authorities to increase the effectiveness of their investigations and prosecutions. The UK has played a pivotal role in the agency’s development, and two former Presidents have been British – Mike Kennedy became the first President of Eurojust and held the position from 2002 to 2007, and Aled Williams held the position from 2010 to 2012. The agency’s most effective tool has been the use of the Joint Investigation Team (JIT), which is an agreement between competent authorities – both judicial (judges, prosecutors, investigative judges) and law enforcement – in two or more Member States in order to carry out a criminal investigation. The CPS and the NCA are heavy users of Eurojust and the UK currently participates in 31 JITs, making it one of the top users of the facility. Member States have created JITs for investigations into organised crime groups committing crimes in several jurisdictions, which allows for incremental prosecution of various cells of the group operating in different Member States. Alison Saunders, the DPP, has highlighted a core benefit of Eurojust as being its facilitation of multilateral rather than bilateral interaction among Member States. This means that decisions regarding evidential issues, and where the centre of gravity for an investigation should be, are made in real-time.
While Eurojust does have cooperation agreements with third countries, those countries do not have access to the case management system, which currently allows the CPS to cross-check its investigations with the Eurojust database and thus make a decision as to whether or not to engage another Member State. Moreover, third countries are not part of the Management Board, which decides upon strategic direction – a facility with added importance for the UK as one of the few common law countries in Europe. Without the UK’s influence, new instruments are increasingly likely to reflect civil law systems, which may not fit well with those of the common law, thus making the UK’s future interaction with the organisation even less tenable.
European Investigation Order
The European Investigation Order (EIO) is an instrument that speeds up the assistance provided by one Member State to another in criminal investigations. It was transposed into UK law in May 2017. Like other EU legal instruments, the fundamental premise is one of mutual recognition, and means that each Member State is obliged to recognise and execute the request of another for a specific criminal investigative measure to be carried out, in exactly the same way as if the decision were one emanating from its own authorities. The considerations for the judicial authority making the order are that it be “necessary and proportionate” and that the investigative measure in the EIO is one that “could have been ordered under the same conditions in a similar domestic case.” In relation to other EU criminal justice instruments, the EIO is comparatively new so its use is not yet as entrenched in the UK’s criminal justice architecture. In its 2017 Annual Report, however, the SFO listed failure to implement the EIO correctly as a strategic risk, so the organisation clearly viewed it as an important tool for future investigations – one that will have to be renegotiated after Brexit.
EU Data-sharing for law enforcement purposes
One of the key ways of detecting and prosecuting crime is through the sharing of information relating to criminal activity in the EU. The UK currently has access to the most significant EU databases and data-sharing agreements. Brexit threatens any such continued access.
Second Generation Schengen Information System
The Second Generation Schengen Information System (SIS II) is a real-time database comprising alerts on 35,000 people wanted under an EAW, suspected foreign fighters and other persons of interest to EU law enforcement agencies. In the year between 2015 and 2016, over 6,400 alerts issued by participating countries received hits in the UK, while over 6,600 UK-issued alerts received hits in other participating countries. This represents an outstanding way for the UK to be notified about persons potentially of interest to criminal justice agencies, as well as offering the ability to locate persons residing in Members States who are wanted in the UK. Over 190 wanted people were flagged to the UK, as well as over 350 believed to be involved in serious organised crime, and 25 returning from Syria and Iraq who posed a potential national security risk. The database is linked to the Police National Computer, allowing for immediate identification of such individuals. The system is also the principal means by which EAWs are issued and executed, thus facilitating the return of suspected criminals to the UK. There are no precedents for a non-Schengen, non-EU member to be a member of SIS II.
European Criminal Records Information System
The European Criminal Records Information System (ECRIS) provides for the exchange of information on convictions between EU Member States. Member States who convict a national of another Member State are required to inform that state of the conviction. There is also a requirement to respond to requests for previous convictions for the purposes of criminal proceedings, thus allowing UK criminal courts to reach a more informed decision when deciding upon criminal sentences. In 2015, UK requests for overseas criminal convictions data revealed 178 cases in which there had been a conviction of rape abroad and 177 cases for murder. Having that information on the Police National Computer allows police forces to monitor such individuals and reduce the threat posed to the public. Moreover, in cases where an offence has been committed in the UK and the court is to decide the issue of granting or declining bail, information from ECRIS demonstrating a chain of similar offending abroad can also inform the risk assessment around granting bail, as well as the CPS decision as to whether or not there is a public interest in commencing a prosecution. ECRIS is even more exclusive than SIS II. No non-EU country (including Schengen countries) currently has access to ECRIS so there is no precedent for the UK in negotiating continued access to the database following Brexit. It is likely the UK would fall-back on the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters, or informal Interpol channels, in order to exchange data on international criminal convictions.
Passenger Name Records
There are two principal types of information associated with individuals transiting into the UK. Advance Passenger Information (API) is data contained in a travel document, such as the name of the passenger, their date of birth and passport number. The EU obliges carriers to transmit API data to border agencies in order to identify persons of a security or law enforcement risk. Passenger Name Records (PNR) includes other information held by the carrier when a passenger arranges their travel. This includes the means of booking, the identity of the person who made the booking, contact details for that person and travel itinerary. The legislation obliging transmission of such data to Member States was passed in 2016 and all Member States have indicated they intend to make use of it for intra-EU flights. Like other non-EU countries, following Brexit the UK will require either a direct agreement with the EU or bi-lateral agreements with individual Member States in order to acquire PNR for flights originating in the EU. The US and Canada already have such agreements so the UK will likely negotiate one with little difficulty. It is worth noting, however, that until this measure was passed at an EU level, some European nations, including Germany, were not providing such information to the UK.
The Prüm Treaty
The Prüm Treaty was signed by a number of EU countries in 2005. In 2008 the EU Council of Ministers adopted two Decisions incorporating the key parts of the treaty’s provisions into EU law. The treaty sought to combat terrorist related threats by allowing reciprocal access to national databases containing DNA profiles, fingerprints and vehicle registration data. It was thanks to Prüm that French and Belgian authorities were able to identify Salah Abdeslam following the Paris attacks in November 2015. The UK was not an original signatory and Prüm was not one of the pre-Lisbon Police and Justice measures that the Government indicated it would re-join after exercising the bloc opt-out. Nonetheless, in 2015, following UK Parliamentary approval, the Government began a pilot to gradually implement Prüm with a view to full connection in 2020. The pilot has so far proved successful, and the UK obtained 118 DNA matches covering offences such as rape, sexual assault, arson and burglary. The fall-back position following Brexit will be for the UK to operate through an Interpol arrangement that is time-consuming, bureaucratic and much less effective than Prüm. There exists for the UK, however, the prospect of negotiating an agreement – Norway and Iceland have done so, and despite both being Schengen members they negotiated their agreements under Article 216 TFEU (which provides the mechanism by which the EU concludes international agreements in order to achieve an EU treaty objective) rather than relying upon the Schengen acquis as the gateway to such agreement.
The UK faces an uphill battle in order to negotiate cooperation agreements that replicate the efficiency and effectiveness of those currently enjoyed under the EU apparatus. The Government’s position is that the UK approaches negotiations from a perspective of strength. In Florence the Prime Minister said that the UK’s “outstanding capabilities” included the “largest defence budget in Europe, a far-reaching diplomatic network and world class security, intelligence and law enforcement services.” The UK clearly has much to offer. But the fact remains that Justice and Home Affairs has been an area jealously guarded by all EU nations, so negotiating policing and justice agreements will be a difficult task. This is made more challenging by the good-will lost through the UK having exercised what essentially became a symbolic opt out of pre-Lisbon justice and policing instruments in 2013, under Protocol 36. Moreover, the UK is one of the largest users of many EU instruments in this area and so will be in a disproportionately weaker position than many Member States when trying to negotiate the same access.
This article was originally published in the Archbold Review’s May issue and can be accessed here.