Opting In, Opting Out: The Prospects for EU-UK Cooperation in Criminal Cases, Post-Brexit

John Binns considers the impact that Brexit will have on criminal cases, and how the EU and UK might continue to cooperate in future.

The UK’s impending withdrawal from the European Union poses a number of challenges, not least in the area of crime and security. Proposals to deal with the implications of withdrawal on the legal framework of the UK’s money laundering and sanctions regime are now contained in the Sanctions and Anti-Money Laundering Bill 2017-2019, though it remains unclear whether there will be substantive changes to these rules. Meanwhile, the effect of withdrawal on the arrangements for cooperation in criminal cases between the UK and (other) EU member states is now also attracting some much-needed scrutiny.

By way of background, the current arrangements provide for an unparalleled degree of cooperation between member states, to which the UK has (despite some initial reluctance) signed up. These include the European Arrest Warrant (EAW) scheme, which enables the simple and speedy surrender of individuals from one EU state to another for the purposes of criminal proceedings. This scheme has no requirements for dual criminality or to show a prima facie case, and for some countries (such as Germany) represents an important exception to the general rule against extraditing their own citizens.

Many of the broader arrangements for sharing evidence and intelligence in crime and security matters involve Europol, an alliance of police forces in EU countries, in which the UK currently plays a key role. A key facilitator of these arrangements is the common standard of data protection (DP) across the EU, subject to rules that are ultimately adjudicated by the Court of Justice of the European Union (CJEU).

Notably, as measures made under the EU’s Justice and Home Affairs (JHA) pillar, all of the above were subject to an ‘opt-out’ for the UK, and a specially negotiated ability to opt back in to specific measures. Following a debate in which Theresa May (then Home Secretary) spoke forcefully in their favour, the UK decided to opt back in to all of the significant measures in this area in 2014.

Since then of course, following the referendum in 2016, Mrs May, now as Prime Minister, has triggered the two-year exit process and said that, among other things, leaving the jurisdiction of the CJEU is one of the UK’s absolute ‘red lines’. The implication of this is that the UK’s involvement in all of the measures in this area, which relies on the CJEU’s jurisdiction and common DP standards, can continue only under a bespoke, and as yet unspecified, EU-UK agreement.

As with many other aspects of Brexit, there is a panoply of potential debates about the merits of the existing arrangements, and the extent to which the UK should try to retain them when we leave. With respect to the EAW, there are some who would argue that any new arrangements with the EU should revive the requirements for dual criminality and a prima facie case, and/or cease to allow the extradition of UK nationals to the EU. With respect to Europol and data-sharing, there is the potential for debate about distinguishing between terrorist investigations (for which even the most ardent Brexiteer would argue for the maximum possible cooperation) and other criminal investigations, where the balance between the public interest in investigating crime and the liberties of individual suspects could arguably be redressed.

The length of time the UK has taken to articulate a position on these issues is perhaps surprising, although the end result is not: Mrs May, just as she did when she was Home Secretary, has made it clear that the UK’s interests are in maintaining these cooperative measures as far as possible. Less clear however is how this can be done. To take the EAW as an example, although it would be open of course to the EU and the UK to agree to apply the scheme across their joint territories, there are a number of important details that would need to be agreed, including any role for the CJEU or, failing that, an alternative means of resolving disputes on the terms of the scheme. The terms of a similar arrangement between the EU, Iceland and Norway took some years to resolve, and includes exceptions for political crimes and extraditing nationals.

With respect to Europol, though there are existing arrangements between it and third (non-EU) countries that can be replicated with relative ease, it would require some creative thought to design a mechanism to allow the UK to play a full role as a member of Europol, let alone anything approaching the leading role it plays currently. That has implications both for the funding and efficiency of joint EU/UK investigations, and for the effectiveness of Europol itself, which has long benefited from the UK’s leading role.

With respect to the sharing of data, though the UK may seek to have its DP standards considered equivalent to the EU’s, this is not inevitable and would be subject to ongoing review. Without that, it is impossible to rule out the possibility that intelligence and evidence relevant to crime and security, even terrorism, will be unable to pass easily between the EU and the UK (by contrast perhaps, absent a ‘hard border’ between the UK and EU, with the criminals and terrorists themselves).

There is perhaps no area of the EU-UK relationship better suited to the wry observation on Twitter of Luxembourg’s Prime Minister, who said of the UK: ‘They were in with a load of opt-outs. Now they are out, and want a load of opt-ins.’ For matters concerning the investigation and prosecution of crime, however, it does at least seem clear that neither the EU nor the UK sees any benefit in loosening ties; the challenge is to settle the detail of how to keep them close, and within an ever-shortening timescale. A recent report of the House of Commons’ Home Affairs Select Committee urged the government to act quickly to clarify its plans, as well as to reconsider the rigidity of its approach in this area with respect to the jurisdiction of the CJEU. Given the issues and the legal complexities at stake, that would seem close to a statement of the obvious.

John Binns is a partner at BCL, specialising in business crime and proceeds of crime. Most of his cases involve an international element, and he has advised clients on appeals to the CJEU in the context of international corruption allegations and targeted financial sanctions.