Cross-border criminal justice post-Brexit – Operation Yellowhammer

13 September 2019

Tucked in between the “reasonable worst-case” post-Brexit scenarios for food, trade and fuel is a stark one liner:

“Law enforcement and information sharing between U.K. and EU will be disrupted” 

The reduction in capability of law enforcement agencies that will come from a no deal will, according to government documents, be accompanied by an increase in cross-border crime.

The National Economic Crime Plan 2019-22  published in July 2019 confirms the view of the Home Office (presided over at the time by the now Chancellor) and HM Treasury that:

as the UK prepares to leave the European Union, it is possible that criminals will seek to exploit changes created by the UK’s departure.

Without pre-emptive measures, changes affecting border controls, tariffs, trade and other economic activity may potentially lead to an increase in the fraud and money laundering threats. “ 

International bribery and corruption may also be on the rise as “the UK’s departure may also affect UK businesses seeking to expand into jurisdictions beyond Europe. By engaging with new markets and industry sectors that are commonly affected by corruption, the foreign bribery threat may increase.

The same plan confirms that “however, through our preparations for the UK’s exit, the government will ensure that criminals are prevented from taking advantage of changes.” 

Yet the plan is largely silent on funding. Whereas the Chancellor confirmed in the 2019 Spending Round a 6.3% real terms increase in Home Office spending; a 5% real terms increase in the resource budget for the Ministry of Justice; and, an extra £80 million for the Crown Prosecution Service this seems a drop in the ocean compared to his own statement that “Serious and Organised Crime is the most deadly national threat faced by the UK, costing the nation at least £37 billion each year.

No wonder the Serious Fraud Office categorised leaving the EU with the loss of instruments such as the European Arrest Warrant and European Investigation Order as a strategic risk. At the CPS, the (then incoming) Director of Public Prosecutions confirmed that post Brexit a fall back on 27 separate arrangements would have a definable impact in terms of resource, management, and speed of cases.

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It is clear that law enforcement co-operation relating to serious and organised crime will be significantly hampered. Moreover, the knock-on delay will inevitably impact upon the fundamental rights of the individuals at the sharp end of international investigations.

 “Disrupted” hardly seems to cover it.

Further information

For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.

You may also be interested in visiting our Brexit hub for comment on these and other legal issues.

About the author

Rebecca Niblock is a partner in Kingsley Napley’s criminal litigation team. She has significant experience in both domestic criminal litigation and extradition, having acted for defendants in a wide range of criminal matters from serious fraud, money laundering and corruption, to sexual offences and offences involving violence or drugs. Rebecca specialises in cases involving cross-jurisdictional elements. She has successfully defended a large number of persons requested by other states, both inside and outside the EU in extradition proceedings at all levels from the magistrates’ court to the Supreme Court. She also has experience in advising in sanctions cases, and in providing advice to those subject to Interpol red notices and mutual legal assistance requests. Rebecca is rated as a leading expert in Chambers UK 2019 for crime: extradition.



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