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The UK-EU Trade and Cooperation Agreement: Law enforcement and judicial cooperation in criminal matters

Tim O'SullivanLaw Society EU Committee chair

The UK-EU Trade and Cooperation Agreement reached on 24 December 2020 swerved an early festive present for serious and organised criminals and those who threaten national security, although much of what it replaces is thin gruel compared with what went before.

Police officer

In place of a separate agreement the new provisions on law enforcement and judicial cooperation in criminal matters can be found in Part 3 of the agreement at pages 262–358.

The main provisions concern:

  • exchange of DNA, fingerprint and vehicle registration data
  • transfer of passenger name record data
  • cooperation with Europol and Eurojust
  • surrender and replacement arrangements for the European Arrest Warrant
  • mutual cooperation and assistance between judicial authorities
  • exchange of criminal records

This is a new arrangement and not a cut and paste of what went before. It will not I believe provide the same support for UK police detectives and prosecutors or the same level of reassurance for victims and the public in the fight against serious and organised crime. Then again, compared with a no deal outcome, there is some reassurance and presumably the option for further bolt-on measures as the new arrangements mature and deficiencies and omissions are identified.

As expected there are no discrete arrangements on procedural safeguards. Were the UK to exit the European Convention on Human Rights the provisions on surrender would cease to apply.

The surrender arrangements to replace the European Arrest Warrant (EAW) are no replacement, but remain welcome. The EAW has generally been considered a success story with a form-based procedure to enable extradition in a matter of sometimes months instead of previously years.

To return to the days of the 1957 European Convention on Extradition with its many exclusions and delays would have run the risk of setting up safe havens for organised criminals. Those with longer memories will remember the concerns over the ‘Costa del crime’ of the 1970s.

Even so, the new arrangements are no parallel arrangements. The UK remains a third country for extradition. Some member states, Germany for example, have a constitutional bar on extraditing own nationals. The agreement says that if a member state cannot extradite its own nationals it needs to bring alternative domestic proceedings (an exercise fraught with evidential complexities) or more likely explain why it cannot. Some who previously might have stood trial will escape justice.

The replacement provisions for the exchange of DNA evidence, fingerprints, vehicle registration data, passenger names and criminal records are welcome, provided that the new procedures are uncomplicated and timely.

Of crucial importance to UK police officers is the lack of real time data retrieval under Schengen Information System 11 which will no longer be available. In 2019 this was accessed 600 million times. A police officer stopping an individual or vehicle needs to know if the occupant or suspect is fleeing from justice, a suspected security risk, or a trafficked victim of modern slavery in need of protection.

Mutual trust and cooperation in criminal proceedings through Europol and Eurojust will continue on the basis of cooperation agreements. Eurojust in the Hague, responsible for the coordination of the prosecution of serious cross-border crime involving more than one country, will see the UK national member replaced by a liaison member.

Two English and Welsh solicitors have served as president of Eurojust. A UK police officer is a former Europol chief. After a distinguished record of involvement the UK’s influence is necessarily reduced.

Police investigators will need to rebuild mutual trust and confidence within the limitations of the new arrangements.

The agreement establishes a joint committee to monitor the functioning of the new arrangements. How well it succeeds in disrupting and prosecuting serious and organised crime will be readily apparent once the public health emergency recedes and borders reopen.

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