No-deal Brexit could have drastic consequences for criminal justice
Brexit negotiations may have been extended, but lawyers and law enforcement officials continue to worry that Exit Day—the day the U.K. leaves the European Union—could bring the gears of justice to a grinding halt.
Even under a more orderly exit from the currently 28-member bloc, once the U.K. ceases to be a member, it will lose the preferential treatment and access it currently receives to the EU’s criminal justice infrastructure.
“From the criminal’s perspective, it’s great,” says Kevin Roberts, partner at Morrison Foerster in London. “Part from that, I can’t see any upside.”
With the focus of Brexit’s impact on trade, tariffs and immigration, criminal justice has taken a notable backseat. In an era where crime happens, increasingly, across national boundaries, international cooperation has become a cornerstone to criminal investigations. However, with an uncertain future, experts see a coming boon for criminals as the U.K. and EU consider rebuilding cooperation among its law enforcement and judicial agencies.
EU tools that make it possible for member states to work together at various points in a criminal investigation are put at risk by Brexit, according to a September 2019 report from the Law Society of England and Wales.
This includes European arrest warrants, which are used to extradite more than 1,100 people a year to and from the U.K. and European investigation orders that help local police gather and transfer evidence inside the EU but outside of their home country. Similarly, the EU has infrastructure for the reciprocation of cross-border supervision orders for a defendant’s release, protection orders and financial penalties levied through a criminal prosecution.
Without access to these and other tools, Anna Bradshaw, a partner at Peters & Peters Solicitors in London, says the EU and the U.K. are less secure.
Not alone in this opinion, for British investigators, Brexit may end their direct access to databases and cooperation opportunities operated by EU agencies, such as Europol and Eurojust.
“Existing EU tools allow us to respond quickly and intelligently to crime and terrorism impacting the U.K. and the EU—they make us better at protecting the public,” said Richard Martin, deputy assistant commissioner for the U.K. National Police Chiefs’ Council, in a statement. “We want to avoid leaving without a deal because that would see us lose access to those important tools.”
STILL NO EXIT
While all of this hidden activity is at risk of falling away, neither party to the divorce says they want that, according to the revised political declaration between the two parties. In October, a new deadline for Exit Day was set for Jan. 31, 2020.
“The future relationship will provide for comprehensive, close, balanced and reciprocal law enforcement and judicial cooperation in criminal matters, with the view to delivering strong operational capabilities for the purposes of the prevention, investigation, detection and prosecution of criminal offences,” reads a joint document released by the U.K. and EU.
It continues that “the closer and deeper the partnership the stronger the accompanying obligations.”
While the U.K. may want something similar to what it has now as a member state, the chances of that are unlikely, says Tim Durrant, senior researcher at the Institute for Government, a London-based, nonpartisan think tank.
“The EU is inherently a legal organization,” he says, which means the rights and privileges of member states are defined by legislation and treaties. Once the U.K. ceases to be a member, the country loses those rights.
Durrant points to EU-member country Denmark to illustrate how Brexit will limit the U.K.’s role in unionwide criminal justice infrastructure. The Scandinavian country previously voted to limit EU law enforcement integration, which most recently cost it its membership to Europol, the EU’s law enforcement agency.
While Denmark retains some data sharing and other benefits with Europol, the country no longer has any say in the management of the organization. To Durrant, this arrangement sets a ceiling for what the U.K. can expect.
Ultimately, the level of triage required by the U.K. to maintain or reinvent these existing relationships will come down to whether or not the country crashes out of the bloc or negotiates an orderly exit. Currently, Prime Minister Boris Johnson’s proposed agreement—if passed by Parliament—would allow for further negotiations regarding a post-Brexit relationship between the EU and U.K. through the end of 2020 with an option for a two-year extension.
In the world of a no-deal Brexit or a failed negotiation, law enforcement will need to rely on treaties from the 1950s covering extradition and criminal investigation cooperation, which U.K. police are preparing for.
“We are ready to use alternative arrangements to the current EU tools and powers, but they are not like-for-like replacements,” says Martin at the National Police Chiefs’ Council. “In all cases the replacements are slower, less effective, and more bureaucratic for officers than our existing setup.”
Illustrating this point, without access to the European arrest warrant, the U.K. can issue Interpol red notices to indicate a person is sought after. However, Bradshaw notes the system is manual and antiquated as compared to the EU’s more streamlined system.
There is precedent where non-EU countries create close ties to the bloc’s criminal justice infrastructure. Notably, however, these countries are in the Schengen Area, including Iceland, Norway and Switzerland, that have abolished border controls among themselves. The U.K. is not a Schengen member.
Non-EU, non-Schengen countries, such as Canada and the U.S., both have representation at Europol, for example, but cannot instigate meetings, sit on the board or access the European Information System, a database of criminal justice information created by national police forces, according to a 2018 report from the Institute for Government. The two North American countries have similar, if not limited, data-sharing agreements regarding airline passenger information.
In a possible work around, Bradshaw says that law enforcement agencies in the U.K. could lean on member countries to search various databases it may lose temporary or permanent access to—the geopolitical equivalent of asking a friend for his Netflix password.
While a negotiated withdrawal may allow up to 38 months for negotiations, that may be too little time for the scope of the task.
Making the EU and U.K. arrest warrant systems compatible could mean “the whole EU judicial system would need to be restructured so that a ‘Court of Justice for a European Criminal Justice Area’ uniformly adjudicated both intra-EU cases and cases with third countries involved,” according to a 2018 report from the Centre for European Policy Studies, a think tank in Brussels.
Durrant at the Institute for Government says that extradition treaties the EU made with Norway and Iceland, a notably smaller issue than what the U.K. faces, took about a decade to negotiate.
As Parliament and the prime minister tussle over the direction of Brexit, whatever will happen is anyone’s guess. However, even on this arduous and uncertain path, each side acknowledges a desire to build a close partnership post-Brexit on law enforcement matters.
“The irony of Brexit is that in five to 10 years,” says Roberts at MoFo, “a lot of the relationships will not look dissimilar to how they look now.”