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Criminal justice is not getting the urgent attention it needs in the Brexit negotiations ǀ View

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As the Brexit deadline on 31 October looms, there are still many uncertainties about the effects of the UK leaving the EU without a deal. Discussions tend to focus on trade, potential shortages and the constitutional position of Northern Ireland. Criminal justice sometimes gets a mention, and there is general acceptance that operational effectiveness will take a hit, but detailed analysis is rare. In fact, whereas a no-deal Brexit might be a step into the unknown for the economy, the effects on criminal justice will be immediate and clear.

The UK will be shut out immediately from important cross-border instruments, such as European Arrest Warrants (EAWs) and European Investigation Orders (EIOs), and will immediately lose access to the enormous pool of criminal intelligence shared by EU member states through Europol and the Schengen Information System (SIS 2). The police and National Crime Agency are working hard to make up for the lost capacity through other methods, in particular by reverting to data-sharing through INTERPOL. But INTERPOL can never replicate the EU measures we will lose, described by the UK government in its own position paper in September 2017 as “a comprehensive and sophisticated suite of mutually reinforcing arrangements that help protect citizens and the continent.” There are three particular areas where this can most easily be demonstrated: borders, Mutual Legal Assistance (MLA) and extradition.

Borders

The government confirmed in September 2019 that immediately following a ‘no-deal’ Brexit, “border crossing arrangements will remain unchanged. EU citizens will enter the UK as they do now… and they will not face routine intentions testing.” This means that free movement into the UK will continue for an unspecified period. Individuals convicted of serious offences can still be refused entry under normal immigration powers, but not those with only minor previous convictions. Importantly, there will be no automatic flagging of suspects wanted - but not convicted - of serious offences, nor any power to arrest them if we wanted to. Therefore, for example, a suspect in a paedophile ring in Italy with a history of shoplifting would have no difficulties crossing the border and entering the UK.

However, with a transitional deal, we would retain access to SIS 2, which gives Border Force immediate access to all EAWs circulated within the EU. Unlike INTERPOL Red Notices, EAWs are uploaded within hours and give powers of arrest to UK law enforcement. Therefore, someone wanted for a serious offence in another member state trying to enter the UK would be detected and arrested at the border and detained whilst the extradition process runs its course.

Mutual Legal Assistance

When police or prosecutors in one country need evidence from another, they can request it via a process called Mutual Legal Assistance (MLA). Crime is increasingly transnational so MLA is essential, but it is discretionary, slow and inefficient. That is, everywhere except within the EU, which in 2017 introduced the European Investigation Order. Currently, the Crown Prosecution Service (CPS) can obtain an EIO from a UK court order to be executed in any other member state for bank records, emails, searches of premises, public records and so on. The UK order is directly enforceable in the other EU country, which must send the evidence back within 90 days as set out in the EIO Directive.

Without a deal in place, the UK could still send an MLA request but this would be under the old Council of Europe Convention. Inevitably, other EU countries will prioritise EIOs received from other member states so as to comply with mandatory time limits, so UK requests, which will be discretionary rather than directly enforceable, are likely to go to the bottom of the pile. This would create real difficulties for those cases where the evidence is vital, especially if a dangerous defendant is remanded awaiting trial and his custody time limits are approaching. Indeed, there is uncertainty about whether some member states will still retain the domestic legislation permitting them to deal with Council of Europe requests from the UK. Without the EIO, there is no certainty that the CPS will be able to obtain crucial evidence in time to bring defendants to trial in some cases.

Extradition

Prior to the introduction of the EAW, nearly half of the EU member states (13 out of 28) refused to extradite their own nationals. The UK never imposed any such restriction, but for many other countries this remains an important constitutional principle. The EAW Framework Decision replaced the old, slow, diplomatic form of extradition with a more streamlined procedure that removed this barrier between EU countries. The EAW system is imperfect, but it has eliminated safe havens. However, if the UK is outside the EU without a transitional deal, it will be a ‘third country’ and this legal bar will immediately return. Therefore, for example, while the French authorities would be willing to arrest and surrender a French citizen to Germany, they would be constitutionally barred from doing the same for the UK.

A dangerous French offender who has absconded from criminal proceedings in the UK could not be returned to face justice if he made it back to France. The French authorities may offer to prosecute him instead but there is no guarantee, and differences in definitions of offences, procedures and rules of admissibility often mean that a case that could be prosecuted here might fail in another jurisdiction.

The UK government is said to be “cautiously optimistic" about a deal being agreed, while continuing to insist that the nation will leave the EU on 31 October with or without an agreement. As the deadline draws nearer, there is unlikely to be sufficient time to agree criminal justice ‘mini deals’ to replicate what we already have. With so many other issues dominating the Brexit discussion, criminal justice may only get the attention it needs once it is too late.

  • Nick Vamos and Stefan Ansah are a partner and trainee solicitor respectively at London-based legal firm, Peters & Peters

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