Brexit and its consequences for cooperation in criminal matters

On January 31st, 2020, the United Kingdom withdrew from the European Union, and their mutual relationship entered in a phase of transition. After 47 years of membership, the withdrawal led to a series of changes in various policy areas, in which the UK, as an EU Member State, cooperated with its counterparts. This notably concerns police and judicial cooperation in criminal matters, and the consequences of Brexit in this particular field will be our focus.

Police and judicial cooperation in criminal matters is not necessarily the most discussed areas of mutual cooperation between EU Member States. Yet the instruments elaborated in this field are often relied upon in the background of highly visible cases, among which the emission of European arrest warrants (EAWs) against Catalan politicians, like Carlos Puigdemont, or the creation of a joint investigation team between France and Belgium after the Paris attacks in November 2015. These instruments are also frequently relied upon by British authorities, such as in the course of the investigations that were launched after the macabre discovery of 39 bodies in the “Essex Lorry”. The investigators retraced its movement from Bulgaria to the UK, through Belgium, notably with the assistance of one of the EU specialized agencies, Europol, and EAWs were issued against a person residing in Ireland suspected to have been involved in the criminal operation.

The UK’s withdrawal from the EU will have an impact on its participation in such cooperation. To understand the consequences of Brexit in this field, the present contribution will retrace the role of the UK in the development of the EU area of criminal justice (1). It will then discuss the regime applicable during the transition period, and pinpoint some of the identifiable shortcomings (2). It will finally address the possible future modalities of cooperation between the UK and the EU (3).

  1. The role of the United Kingdom in the development of the EU area of criminal justice

The role of the United Kingdom in this field is inextricably linked to its attitude towards an increased cooperation between EU Member States in criminal justice, a field very close to the powers of the State to ensure and preserve national security, and thus also very close to the States’ sovereignty. The UK’s attitude in this regard would be best summarized as “it’s complicated”.

At first, the United Kingdom may have appeared as a state with a certain reluctance to develop EU instruments supporting cooperation in criminal matters. With the entry into force of the Lisbon Treaty the country extended the specific opt-out regime that applied previously to measures regarding visa, asylum and immigration. By virtue of this opt-out, provided for in Protocol No 21, the UK, together with Ireland, was not bound by measures adopted in the framework of the Area of Freedom, Security and Justice, nor by international agreements concluded in this field, or by judgments of the Court of justice of the EU. This opt-out regime was accompanied with a discretionary opt-in, which offered to the country the possibility to participate in new EU instruments whenever this was considered relevant. The UK exercised that possibility regularly, either from the moment an instrument was proposed, like for the Directive on the European Investigation Order (EIO), or after its adoption, like for the Europol Regulation.

In addition of this opt-out / opt-in regime, the UK also obtained a specific transitional regime concerning the 130 EU criminal justice instruments adopted before the entry into force of the Lisbon Treaty. Among these, were included for instance the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA), or Framework Decisions on the Transfer of Prisoners (2008/909/JHA) or on the recognition of probation measures and alternative sanctions (2008/9457/JHA). The Lisbon Treaty foresaw a specific legal regime for these instruments (Protocol No 36, Article 10), which remain in force and are for some still applicable today. From 2009 to 2014, their previous regime would continue to apply (optional jurisdiction of the CJEU and no infringement proceedings) and since December 2014, these instruments would be subject to the ordinary EU law regime (full jurisdictions of the CJEU and infringement proceedings). The United Kingdom was the only Member State that was recognized the possibility to withdraw from these instruments before the end of the transitional period, and the possibility to notify its intention to participate again in these instruments. In application of this Protocol, in 2014, a first cliff-edge scenario took place, as the UK withdrew from all these 130 instruments, and only chose to “opt-back-in” in 35 of them.

This specific regimes allowed for the UK’s participation “à la carte” in the EU area of criminal justice, and this was particularly noticeable when comparing the UK’s participation in instruments favouring a more effective cooperation, like the EIO Directive, and the UK’s non-participation in other key instruments, such as the Directive on the right of access to a lawyer.

Yet, the United Kingdom has also been a driving force in the establishment of the EU area of criminal justice. The principle of mutual recognition was first put forward by Home Secretary Jack Straw at the Cardiff European Council in 1998, and later proclaimed in the Tampere European Council conclusions of 1999. This principle is since then considered as the cornerstone for judicial cooperation in criminal matters, and it constitutes the basis of many instruments of judicial cooperation. The UK has also strongly supported and used very frequently certain EU criminal law instruments, such as the EAW. As an illustration, according to the National Crime Agency, from 2004 to 2016, the the UK surrendered almost 10,000 individuals to other EU Member States and more than 1,400 requested people were returned to the UK. Furthermore, the United Kingdom has had a significant weight in the development of Europol and Eurojust, the two European agencies, competent to support and assist cross-border cooperation between police and judicial authorities. The United Kingdom is for instance known as the second largest contributor to Europol information systems, and British nationals have exercised strategic positions in these agencies. Two out of the five presidents of Eurojust were British, and Sir Rob Wainwright has been the director of Europol from 2009 to 2018.

The United Kingdom has thus played a contrasted but essential role in the development of the EU area of criminal justice. The specific regimes it obtained did not prevent it from becoming a key partner, with whom EU Member States developed a strong and well-established cooperation in criminal matters.

  1. The regime applicable during the transition period

 With the UK’s withdrawal from the EU, the modalities of its cooperation with other EU Member States in criminal matters are bound to change. In this section, we will focus on the Withdrawal Agreement, which defines the legal regime governing police and judicial cooperation in criminal matters during the transition period. The relevant provisions were marginally modified during the negotiations which led to the conclusion of a revised withdrawal agreement on October 17th, 2019.

The agreement foresees various scenarios regarding the UK’s participation in the EU area of criminal justice. In sum, the Withdrawal Agreement allows for the preservation of most of the modalities of cooperation in criminal matters between the EU and the UK for the duration of the transition period.

The general provisions have an impact on the UK’s participation in the work of the two EU criminal justice agencies. As from February 1st, as EU law remains applicable until the end of the transition period, the UK remains an active participant to the activities of Europol and Eurojust, but it does no longer participate in their management bodies (Art. 7). The UK also retains until the end of the transition period its access to the databases, networks and databases managed by Europol and Eurojust (Art. 8). In other areas of criminal justice cooperation, the UK’s withdrawal has a limited  impact, provided that the requests for cooperation are made before the end of the transition period. This is for instance the case regarding ongoing judicial cooperation proceedings. According to Article 63 of the Withdrawal Agreement, only a series of instruments of judicial cooperation, 12 in total, continue to apply. As the UK had previously tailored its participation in pre- and post-Lisbon EU criminal law instruments, these 12 instruments represent the main ones for judicial cooperation in criminal matters. Are for instance included the Framework Decision on the EAW, or the EIO Directive. The same can be said regarding instruments on law enforcement cooperation and exchange of information, as the main ones will remain applicable (Art. 63). The UK authorities also retain the possibility to continue their participation in joint investigation teams, and to share and request information from Eurojust. The main change concerns the participation in new EU criminal law measures, in respect of which two options apply. For proposals amending, replacing or building upon measures in which the UK previously opted in, the UK has the possibility to opt in. However, for new proposals, the UK does not have the right to opt in, and it may only be invited to cooperate with the EU Member States under the modalities foreseen for third countries.

However, already in this legal regime, doubts arise, especially regarding the continuous execution of EAWs issued by the United Kingdom. Prior to the UK’s withdrawal from the EU, a person subjected to an EAW issued by UK authorities attempted to use a “Brexit argument” to prevent his surrender to the UK. He argued that the uncertainty of the law applicable in the UK after its withdrawal from the EU could not guarantee that he continues to benefit from the right he enjoys under EU law. The CJEU had the opportunity in the case RO (C-327/18 PPU, 18 September 2018) to dismiss this argument. The Court considered that there was a presumption that the UK will apply the substantive content of the rights derived from the EAW Framework Decision, relying notably on the incorporation into British national law of provisions of the European Convention on Human Rights and the European Convention on Extradition (para. 61). The Court nevertheless indicated the possibility to refuse to execute an EAW only if there is concrete evidence to the contrary (ibid.), in line with its case law since its judgment in the case Aranyosi and Căldăraru (Joined Cases C‑404/15 and C‑659/15 PPU, 5 April 2016),regarding the risk of fundamental rights’ violations in the execution of EAWs. This judgment is to keep in mind when considering the execution of EAWs during the transition period, which would continue, unless a real and individual risk of violation can be demonstrated.

Furthermore, some Member States decided to make use of the possibility provided for in Article 185 of the Withdrawal Agreement. This provision allows Member States, due to reasons related to fundamental principles of their national law, to declare that, during the transition period, their national executing judicial authorities may refuse to surrender its nationals to the United Kingdom pursuant to an EAW. This refers to the constitutional limits regarding the extradition to nationals outside the EU, which is for instance foreseen in Germany, where the Constitution limits the extradition of nationals to situations in which the request comes from an EU Member State and/or an international court. Only three Member States, namely Germany, Austria and Slovenia, made such notification by January 28th, and the United Kingdom has now one month to notify whether its executing judicial authorities may refuse to surrender its nationals to those Members States. The practical impact of such notifications may be limited, considering that Germany, Austria and Slovenia are not, according to the National Crime Agency’s statistics, the EU Member States sending the highest numbers of EAWs to the UK. These notifications are nonetheless particularly symbolic, and mark as of February 1st, a decrease in the intensity of cooperation in criminal matters between the UK and the EU.

  1. Possible future modalities of cooperation between the UK and the EU

 As in many other policy areas, the discussions regarding the future relationship between the UK and the EU will be crucial in the coming months, and this is also true for their cooperation in criminal matters.

Both parties share a mutual interest in maintaining a close cooperation. This was already mentioned in the negotiating guidelines adopted by the European Council in March 2018, and it was taken on in the revised Political Declaration of  October 17th, 2019. The future ambitious, broad, deep and flexible partnership between the EU and the UK “will provide for comprehensive, close, balanced and reciprocal law enforcement and judicial cooperation in criminal matters” (para. 80). The latter should notably be “underpinned by long-standing commitments to the fundamental rights of individuals, including continued adherence and giving effect to the ECHR, and adequate protection of personal data, (…) and to the transnational ne bis in idem principle and procedural rights” (para. 81). However, these elements of the Political Declaration remain vague and their concrete substance is left to the negotiations between the UK and the EU. As of February 1st, a lot of uncertainty remains. The European Commission has still to present its recommendation for a negotiating mandate, which shall be released on Monday 3rd February, and adopted on February 25th, 2020.  The British Prime Minister Boris Johnson is also expected to make on February 3rd, a speech setting out his red lines on the future EU-UK relationship. This would outline the positions of the two parties before the first round of negotiations scheduled for early March. These events would allow us to know more about the envisaged future relationship between the UK and the EU, including regarding their cooperation in criminal matters.

In that field, the main point of discussion would most probably be whether the UK should be treated like other third countries which are not part of the Schengen area and do not apply free movement of persons; or whether it should, as a former EU Member State and a privileged partner, benefit from specific arrangements. From the perspective of the European Commission (and as further supported by the slides released in January 2020), existing forms of cooperation in criminal matters with Denmark and third countries participating to the Schengen area constitute the basis (and the potential limit) for developing the future cooperation between the UK and the EU. As an example, regarding the access to Europol’s databases after the end of the transition period, the cooperation agreement signed between Denmark and the agency has been referred to as a form of cooperation that the future EU-UK cooperation would not be able to provide for. Under this text, Denmark benefits from the most advanced cooperation agreement, but under a regime which is not equivalent to that of a Member State. The country has an observer status, which is subject to a series of conditions, including the jurisdiction of the CJEU. Danish authorities have no direct access to Europol databases and liaison officers only have indirect access to the data. A future cooperation agreement between the UK and Europol will most likely contain lesser forms of cooperation (e.g. access to Secure Information Exchange Network Application (SIENA, a secure platform for the exchange of sensitive and restricted data), but not to the databases managed by Europol, etc.).

More generally, the possibility remains that by the end of the transition period, and without an extension, an agreement with detailed provisions on cooperation in criminal matters may not yet be finalised or ratified. It is important to stress that even in the absence of agreement, the cooperation in criminal matters between the EU and the UK would not be interrupted overnight. Rather, such cooperation would be conducted on alternative basis, such as regional instruments elaborated within the Council of Europe. This was notably foreseen in case of a no-deal Brexit, in preparation of which transitional arrangements were elaborated for existing EAWs, in order to ensure continuity in proceedings for cases where an arrest has been made prior to exit day. It was also provided that EAWs issued by EU Member States would be treated as requests for extradition under the 1957 European Convention on Extradition, which may have potentially resulted in longer procedures, but not necessarily in refusals to extradite the person requested.

To conclude, the future of cooperation in criminal matters between the UK and the EU will be as complex to build and analyze as their future cooperation in other policy areas. Common standards, notably on data protection and procedural safeguards for suspects and accused persons, will be an essential pre-requisite, and past experiences with third countries demonstrate their importance. The EU may keep as a reference point the modalities of cooperation elaborated with third countries, especially those which have accepted to participate in the Schengen area.  Flexibility and the possibility to design specific arrangements might then be limited.