Amanda Kramer (Queen’s University Belfast) and Rachael Dickson (University of Birmingham)
Amongst other factors, criminal justice cooperation between EU Member States developed in response to the changing cross-border nature of crime, opening of internal EU borders, and increasing recognition of the value of trading expertise and training. Recognising this value, the UK has (at times reluctantly) participated in a range of cooperation tools, including mechanisms facilitating extradition and prisoner transfer, data and information sharing, and cross-border policing and prosecutorial cooperation.
However, Brexit and the conclusion of the Trade and Cooperation Agreement (the TCA) has significantly shifted criminal justice cooperation between the UK and the EU. The UK’s capabilities with regards to these valuable cooperation tools, including, the European Arrest Warrant (EAW), the Schengen Information System II (SIS II), the European Criminal Records Information System (ECRIS), and Europol has either been altered or removed altogether.
This post outlines some central components of criminal justice cooperation and how the UK-EU relationships across these areas have changed under the TCA. It highlights both positives and negatives of these new relationships and identifies opportunities for future development.
Post-Brexit Cooperation Landscape
TCA provisions on surrender do not allow the UK to remain within the EAW; however, they achieve the closest level of cooperation thought possible and closely mirror that which exists between the EU and Iceland and Norway.
The TCA contains provisions that allay concerns surrounding proportionality, double criminality, efficiency, select human rights issues, decision makers, and political offences. Including the principle of proportionality helps ensure that countries will not request persons who have committed very minor offences. The inclusion of time limits and offences not subject to double criminality requirements helps to ensure timely surrender. Relatedly, time limits also assist with protecting due process rights of suspected and convicted persons, and victim and witness rights. As with the EAW, extradition occurs through judicial channels, which helps ensure that surrender decisions are not political. Further, terrorism offences are expressly prohibited from inclusion as ‘political offences’ which allays concerns that the political offence exemption could be abused.
Notwithstanding these positives, the TCA fails to address all extradition concerns. The nationality exemption appears, which prevents countries with constitutional constraints, like Germany, Slovenia and Austria from surrendering their nationals to the UK. The Agreement requires states exercising this exemption to institute domestic proceedings, but this raises potential problems for successful investigation and prosecution. Additionally, practical concerns arise regarding the transmission of warrants where the person’s location is unknown. Previously, SIS II was used to transmit warrants to all EU member states; this is no longer possible. While Art. LAW.SURR.88 contains three possible solutions, they all increase the likelihood that a person could evade detection for longer. Finally, the removal of European Court of Justice (CJEU) jurisdiction makes it unclear how human rights protections will be enforced. Human rights may come under the remit of the new Partnership Council and the Specialised Committee on Law Enforcement and Judicial Cooperation; but, as these are political, not judicial, bodies this may not be appropriate or effective.
As an EU Member State, the UK was an active member of Europol; however, the TCA does not provide continued membership. The precise arrangements are currently being fleshed out, but the TCA makes possible something mirroring Europol’s relationship with other third countries. It allows for secondment of liaison officers from the UK, their attendance at operational meetings, and continued use of the SIENA system for the ‘exchange of operational and strategic crime-related information and intelligence’. However, the UK loses access to the Europol Information System, and its governance role. As yet, the extent of the changes and what they will mean for policing in practice remains to be seen.
Continued legal bases and access to systems that facilitate information-sharing are issues that cut across all aspects of criminal justice cooperation. A combination of factors underscores the importance of the continued ability for the UK and EU to exchange information. These include, the increasingly cyber nature of crime, the increasing reliance on intelligence in police operations, and the stricter data protection rules regarding the transfer of personal information in the EU under the GDPR.
The TCA provides for continued information-sharing between the UK and EU on the proviso that the UK receives a data adequacy agreement. This looks likely to occur with the European Commission publishing draft decisions in February 2021. However, this arrangement does not cover access to cooperation tools excluded from the TCA. For example, access to SIS II, a highly effective tool enabling live alerts and real-time information sharing to personnel on the ground, has been lost.
The UK can continue sharing information with EU Member States on a bilateral basis and through Interpol channels but, as yet, no systems have been developed that offer the same level of efficiency, which could result in delayed receipt of pertinent information. The use and reliance on information-sharing systems in criminal justice cooperation is increasing and working with the EU, and Ireland in particular as a close strategic partner, to ensure cooperation is keeping pace with technological advances and opportunities will be key.
Overall, while the UK has received the best possible outcome, it has lost access to important tools and avenues for cooperation, such as the EAW and SIS II. Brexit has, unquestionably, reduced the scope of criminal justice cooperation.
That said, opportunities do exist for developing future cooperation – particularly for facilitating information-sharing. The UK government should now be looking forward to developing these new tools and re-building partnerships.
Dr Amanda Kramer is Lecturer in the School of Law, Queen’s University Belfast.
Dr Rachael Dickson is Research Fellow in the Birmingham Law School, University of Birmingham.
The views expressed in this blog reflect the position of the authors and not necessarily that of the Brexit Institute Blog.