Implications of Brexit for the justice system Contents

2Criminal justice

6.The UK is party to many but not all of the EU’s collaborations in criminal justice. We took evidence on an illustrative, but not exhaustive, list of these mechanisms, which can be grouped roughly into three categories: extradition arrangements, joint investigative resources, and information exchanges.

Extradition arrangements

7.The European Arrest Warrant (EAW) is an EU mechanism enabling rapid extradition from one Member State to another, to serve a sentence or in connection with a criminal investigation. It is based on the 2002 Framework Decision on the European Arrest Warrant and the surrender procedures between Member States and was brought into force in the UK by the Extradition Act 2003. It is a device to secure the return of those suspected or convicted of crimes in the UK: since 2009, the UK has issued, on average, 237 EAWs every year, of which 64% led to arrests and 56% to successful extradition. Drug trafficking is the crime most cited, accounting for 16% of UK-issued EAWs, followed by child sex offences, fraud, and rape. Most targets of the UK’s EAWs are British citizens.5 The system also enables hundreds of individuals annually to be returned to face charges or serve sentences in other EU jurisdictions. In the 2015–16 UK fiscal year alone, the UK made 2,102 such arrests, of which 1,271 resulted in surrenders: 15% of the latter were for theft, 12% for fraud and 11% for robbery.6 The numbers on both sides represent substantial gains for justice, and at greater speed than the likely alternative—relying on the 1957 European Convention on Extradition, described by Francis FitzGibbon QC, Chair of the Criminal Bar Association, as “cumbersome, awkward and slow”.7 The Police Foundation posited that “the extradition of Hussain Osman, the failed London bomber who was arrested and extradited in eight weeks via the EAW, highlights this increased efficiency”.8

8.We note two concerns with EAWs: that other Member States issue them excessively, and that they can send British citizens to jurisdictions with fewer protections for suspects than in the UK. The former concern was articulated in the Home Affairs Committee’s 2013 report, Pre-Lisbon Treaty EU police and criminal justice measures: the UK’s opt-in decision, which noted:

Whereas in the UK prosecutors can exercise discretion in determining whether to apply for an EAW, the authorities in Poland, for example, have no such prosecutorial discretion. Furthermore, in Poland sentencing guidelines are such that it is relatively easy to receive a custodial sentence of four months–the minimum threshold at which an EAW may be requested. This means that a large number of warrants are issued for relatively minor offences.9

9.British citizens subject to poor treatment under an EAW include Andrew Symeou, who was held in pre-trial detention for 11 months in Greece on evidence obtained through police violence (before acquittal).10 Our evidence reassured us somewhat this this could not happen again. Mr FitzGibbon told us that “the Poles have instituted a filter on their cases”11 and argued that the 2014 reforms12 of the EAW “would probably have assisted Mr Symeou or people in his situation”.13 The Police Foundation remained concerned at inappropriately frequent use of EAWs, particularly by Poland.14 However, given the ways to prevent trivial requests from progressing, we must weigh this concern against the wider benefits of the system: the National Crime Agency (NCA) stated that “leaving the EAW would … pose a huge public protection risk to the UK”.15 The Home Secretary has said:

It is a priority for us to ensure that we remain part of the [European Arrest Warrant], and I can reassure Members in all parts of the House that our European partners want to achieve that as well.16

10.The EU Prisoner Transfer Framework Decision (PTFD)17 allows Member States to deport prisoners to serve their sentence in their country of nationality or residence. The UK has transferred 154 prisoners in this way.18 Before opting back into the PTFD in 2014, the Ministry of Justice argued that returning foreign national offenders would “free up prison spaces and contribute to savings” and that in general “prisoners reintegrate better into society upon their eventual release from prison if they serve their sentence in their country”. The Ministry also noted the PTFD’s synergy with the EAW: British citizens who would serve sentences abroad under an EAW can instead serve them in the UK through the PTFD.19

Investigative resources

11.EU membership has provided the UK with additional investigative resources. Europol (the European Police Office) provides analytical and operational support to national law enforcement authorities, enhancing their capacity to tackle cross-border security threats. Its databases—including the Europol Intelligence System (EIS)—”not only provide data on convicted offenders, but also insights into criminal structures, suspects and those deemed to be at risk of committing offences in the future”, according to the Police Foundation.20 The National Crime Agency ranks it top of priorities to include in Brexit negotiations.21 Professor Tim Wilson, Professor of Criminal Justice Policy at Northumbria Law School, told us:

Europol provides the system. In other cases, it co-ordinates operations, particularly against organised crime in areas such as narcotics. I remember an example where there was a series of very well-organised raids on jewellers’ shops. One of the UK cities affected was Leeds. People would arrive on motorbikes, smash the window, terrorise the staff and disappear. Europol put together an operation that resulted in a spate of arrests in either Estonia or Latvia. Its analysts looked at all sorts of information, such as airline bookings, because the foot soldiers were coming in on cheap flights.22

The UK has opted into last year’s revised Europol framework;23 the Minister for Policing observed that this “signals our intention to continue practical law-enforcement co-operation with EU partners after we leave”.24

12.Eurojust (the European Union’s Judicial Cooperation Unit) establishes a framework for Member States’ police, prosecutors and judiciary to coordinate in the investigation and prosecution of serious crime affecting two or more countries. Joint Investigation Teams are one means for it to do so. The Police Foundation explained some of the benefits of Eurojust:

In particular, the increased coordination it provides supports more efficient judicial processes. Prior to the introduction of Eurojust, research suggests that attempting to negotiate each separate legal system that operates across Europe was extremely difficult. This was particularly the case for law enforcement officers trying to secure warrants, initiate arrest procedures or work with foreign prosecutors.25

Professor Wilson observed synergies between Eurojust and other EU mechanisms, citing the fact that DNA profiles are held by the judiciary in Belgium and the Netherlands, and by the police in many other places, as evidence for the necessity of the cross-cutting collaboration Eurojust facilitates.26

Information sharing

13.The EU offers various information-sharing tools. ECRIS (the European Criminal Records Information System) provides access to accurate records of EU citizens’ offending histories. The NCA stated:

Through ECRIS, the UK is able to exchange tens of thousands of pieces of information about criminal convictions each year that help police and other law enforcement agencies to investigate crime, protect the public and manage violent and sexual offenders.27

SIS II (the Second Generation Schengen Information System) gives the UK real-time access to all EAWs and other alerts (e.g. on missing persons), containing over 66 million such data: the NCA contended that “loss of access to SIS II would seriously inhibit the UK’s ability to identify and arrest people who pose a threat to public safety and security and make sure that they are brought to justice”.28 Prüm, a regime for exchanging biometric information and vehicle registration data, will reduce the time taken to find matches from “tens of days currently” to “15 minutes”, at the NCA’s estimation.29 Mr FitzGibbon told us that under Prüm, “if someone lets off a bomb in Berlin and makes his way to London, the police will be able to get hold of the fingerprints of the chap they arrest for double parking, or whatever it is, instantaneously”.30 It is not yet implemented in the UK.

Negotiating UK-EU cooperation

14.Professor Wilson characterised the measures above—extradition arrangements, investigative resources and information sharing—as a system that “you cannot disaggregate because, in my view, if you take out elements of the system, you have a less effective system for protecting British citizens on the streets”.31 The Northumbria Centre for Evidence and Criminal Justice Studies (NCECJS) raises the context of widespread migration and travel, and “the exponential growth of transnational cybercrime”,32 and claimed “EU arrangements are part of a holistic response to some of the worst negative spillovers from globalisation”.33 The Bar Council stated:

Crime, especially more serious and organised crime, increasingly does not recognise national borders. Even less serious crimes are increasingly likely to have a cross-border element as citizens of the EU have for the last 43 years exercised their Treaty rights of freedom of movement and establishment, and availed themselves of goods and services sent from, or supplied in, EU and other states. Foreign nationals who commit crime in the UK often flee abroad. Some crimes can be committed easily across national boundaries, such as child exploitation, fraud and identity theft. In particular the UK has seen a massive increase in people trafficking offences. Police and the judicial authorities need to cooperate internationally in order to combat crime and bring perpetrators to justice.34

15.Mr Fitzgibbon suggested that the UK Government separate criminal justice from other matters in Brexit negotiations:

I would like to think that there is a way of detaching the whole of that sphere from the bargaining chip negotiations that are plainly going to take place with regard to economic and other matters, because it seems to me that our public safety and protection from terrorism and other serious crime are just too important to put into the mix of poker chips that are likely to be on the table for other things. There seems to me to be so much common interest between the European Union and us on these matters that there should be a way of detaching them from the rest of the negotiation.35

Professor Wilson argued that “there is a tremendous amount of mutual interest” between the UK and the EU in criminal justice, noting:

We will be outside the EU, but they are our near neighbours and we share a lot of criminal activity. Crypto-crime is very much based in Europe, in terms of the UK, the Netherlands, Germany, France and Spain, so criminals are bringing us together. British justice and policing are highly regarded.36

The Bar Council notes that replacing overarching cooperation by “case by case contacts, or even bi-lateral agreements to cooperate, especially where several states are involved, is likely to be slow and cumbersome”.37

16.Agreeing to continue the UK’s criminal justice cooperation with the EU would be complicated, even if both sides’ interests coincide. Norway and Iceland have been trying to secure an extradition treaty largely based on the EAW, with no operational result so far.38 Those countries are facing analogous lags in joining Prüm.39 The Police Foundation claimed “Brexit means that [the UK] cannot legally remain a full member of Europol”, though there are other options for continued engagement,40 and noted that “there are no previous examples of a non-EU member having access to ECRIS”.41 Information sharing will be contingent on the UK’s data protection standards being compliant with the EU’s: Mr FitzGibbon continued:

I understand that at the moment we are just about compliant, and the European Union is willing to forgive any potential lapses in our data protection regime; but if we drift away from compliance when outside the European Union, it will not share data. That would be a very serious blow to co-operation across the piece in law and order and justice. Not just criminal records but the whole picture would be radically altered.42

17.The Ministry of Justice told us:

The importance of judicial and law enforcement co-operation with our EU and global allies has not changed. We are exploring options for cooperation arrangements once the UK has left the EU. We will do what is necessary to keep people safe, but it would be wrong to set out unilateral positions on specific measures in advance of negotiations.43

The Secretary of State for Exiting the European Union has said that the Government aims to “keep our justice and security arrangements at least as strong as they are”44 and wants “as far as possible, to replicate what we already have”.45 The Government’s February 2017

White Paper, The United Kingdom’s exit from and new partnership with the European Union (henceforth ‘the Brexit White Paper’) states:

Key European partners have made clear that they intend to continue, and indeed deepen, security cooperation, recognising UK expertise in the fight against terrorism, particularly in light of recent attacks and the threat posed by foreign terrorist fighters.

[ … ]

As we exit, we will therefore look to negotiate the best deal we can with the EU to cooperate in the fight against crime and terrorism.46

18.We welcome the Government’s signals of intent in relation to future UK-EU cooperation on criminal justice, which will be of critical importance in the context of modern crime. We recommend that the Government prioritise it accordingly in exit negotiations. The seriousness of the matter and the degree of mutual interest give weight to the suggestion that this aspect of negotiations be separated firmly from others. The security and safety of the UK’s citizens and residents is too precious to be left vulnerable to tactical bargaining.

5 NCA, European Arrest Warrant Statistics, Wanted by the UK: European Arrest Warrant statistics 2009–May 2016 (Calendar Year), retrieved 09 March 2017

6 NCA, European Arrest Warrant Statistics, Wanted from the UK: European Arrest Warrant statistics 2009–May 2016 (Fiscal Year), retrieved 09 March 2017

7 Q85

8 The Police Foundation (IBJ0015) para 26

9 Home Affairs Committee, Ninth Report of Session 2013–14, Pre-Lisbon Treaty EU police and criminal justice measures: the UK’s opt-in decision, para 16

10 House of Lords European Union Committee, 30th Report of Session 2010–20, The European Union’s Policy on Criminal Procedure, HL Paper 288, Box 5

12 The Extradition Act 2003 was amended by the Anti-social Behaviour, Crime and Policing Act 2014: this required judges to refuse disproportionate extradition requests (or those incompatible with the Human Rights Act 1998).

14 The Police Foundation (IBJ0015) para 32

15 NCA (IBJ0044)

16 HC Deb, 06 March 2017, Col 550 [Rt Hon Amber Rudd MP]

18 HC Deb, 03 February 2017, col 55984W

19 Ministry of Justice measures in the JHA block opt-out, HC (2013–14) 605, written evidence from the Ministry of Justice (JHA0007)

20 Police Foundation (IBJ0015) para 2

21 National Crime Agency (IBJ0044)

24 European Committee B, Europol, 12 December 2016, Col 7 [Rt Hon Brandon Lewis MP]

25 The Police Foundation (IBJ0015) para 16

27 NCA (IBJ0044)

28 NCA (IBJ0044)

29 NCA (IBJ0044)

32 NCECJS (IBJ0036), para 8

33 NCECJS (IBJ0036), para 13

34 Bar Council (IBJ0022) para 12

37 Bar Council (IBJ0022) para 13

38 National Crime Agency (IBJ0044)

39 Q127 [Professor Tim Wilson]

40 Police Foundation (IBJ0016) para 4

41 Police Foundation (IBJ0016) para 15

43 Ministry of Justice (IBJ0029) para 6

44 HC Deb, 10 October 2015, col 55 [Rt Hon David Davis MP]

45 HC Deb, 1 December 2016, col 1650 [Rt Hon David Davis MP]

46 HM Government, Cm 9417, The United Kingdom’s exit from and new partnership with the European Union, paras 11.3–11.7

17 March 2017