No-deal Brexit guidance: Criminal justice and security co-operation
The Law Society has published guidance for solicitors that highlights the changes in criminal justice and security co-operation that will occur should the UK leave the EU without having reached an agreement with the EU.
In this scenario, the EU and UK will have failed to sign a withdrawal agreement (governing the terms of the UK’s departure from the EU) and an agreement governing the future relationship between the two parties.
The UK will immediately leave the EU’s institutional structures without a transition period. In many areas, cooperation between the UK and EU will cease, and the applicable legal regime in many practice areas will change.
In this article we consider the loss of several criminal justice and security mechanisms such as European Arrest Warrants, European Protection Orders and the loss of participation in Eurojust, Europol and Joint Investigative Teams.
Key points to consider in relation to criminal justice and security:
- Judicial cooperation in support of criminal investigations - European Arrest Warrants (EAWs) issued by a member state will not be recognised in the UK after exit day, unless the requested person has already been arrested. The EU has not issued any guidance on what will happen to outstanding UK EAWs on exit day, and solicitors should assume that these requests will have to be re-issued. Similarly, European Investigation Orders (EIOs) and other forms of cooperation that involves giving effect to an order made in another member state - such as decisions to collect evidence or to freeze property or bank accounts - will not be recognised in the UK if received after exit day.
- Judicial cooperation in support of criminal proceedings - After exit day, the UK will also no longer be required to give effect to orders made in connection with criminal proceedings in another member state, or vice versa - such as European Protection Orders, European Supervision Orders (‘Euro-bail’) or financial penalties imposed on those found guilty of crime. The UK will no longer be a party to the reciprocal arrangements in place to facilitate access to compensation in one member state by victims of crime in another member state, or the requirements for courts to take into account previous convictions in other member state. The UK has proposed limited contingency arrangements to enable continued processing of requests received prior to but not executed in advance of exit day - such as requests to vary or revoke a European Protection Order issued by another member state; but it is not clear how corresponding UK requests will be treated by the EU27 after exit day.
- Operational cooperation: EU agencies and data exchange mechanisms - On exit day the UK will cease to be a member of any the specialist EU agencies and will no longer be eligible to access data held or participate in data exchange arrangements operated or facilitated by them. Under the UK’s proposed contingency arrangements member state requests for data held by the UK authorities will be executed if they are received before exit day, but it is unclear what will happen to any outstanding UK requests for data in corresponding circumstances at this point.
- Operational cooperation: Joint Investigative Teams (JITs) - The UK will no longer be able to initiate or participate in JITs set up in support of cross-border police investigations under EU instruments after exit day.