Lawyers must fix the problems with gagging orders before it is too late
Yesterday’s blog set out the background to UK involvement in EU cooperation in the field of criminal justice. In this, the second of our three-part series, we look at how Brexit may affect our involvement in those bodies that operate in this field.
What are the key bodies in EU criminal justice and security?
Eurojust: an EU body which aims to facilitate co-ordination when dealing with serious cross-border crime. It operates using mutual legal assistance and mutual recognition instruments to facilitate cooperation amongst jurisdictions, resolving conflicts of jurisdiction and coordinating cross-border investigations or prosecutions.
Europol: The EU’s agency for law enforcement. Its remit is to assist member states in their fight against serious international crime and terrorism.
OLAF: The EU anti-fraud office, which investigates fraud against the EU budget, corruption and serious misconduct within the EU institutions
European Judicial Network: a network of national contact points established in order to facilitate judicial cooperation in criminal matters. The network allows counterparts across member states to contact each other directly, and to assist in providing each other with legal and practical support. It was created in 1998 and is composed of more than 300 national contact points across all member states.
CEPOL: An EU agency for training law enforcement officials.
Frontex: The European Border and Coast Guard Agency, which co-ordinates and develops European border management.
FRA: The European Union Agency for Fundamental Rights, a decentralised agency which provides advice to the EU and member states on the protection of the fundamental rights of those living within the EU.
What are the prospects for the UK’s continuing involvement with key EU bodies?
Access to EU bodies is very often confined to those countries which are member states. Where access is wider than this, it is nevertheless only member states that will sit on the management board of the relevant body, and through this, be involved in determining strategy for the agency. Being outside the EU, the UK will not only lose its guaranteed access to those EU bodies as set out above, but will also lose its place on the board. Furthermore, any failure to create a symbiosis between the respective systems (particularly in respect of data retention) will also impede access. The general power to share data is dependent, as a prerequisite, on the assurance of adequate data protection and thus cohesion on these principles needs to be agreed and upheld. See our blog on the impact of the EU Data Protection Directive on police and criminal justice co-operation here.
The government clearly wishes to remain close to Europol: this is clear from the decision taken (after the referendum in June 2016) to commit to the new Europol Framework. In this regard, it seems likely that the UK’s relationship with Europol and Eurojust will remain in some form. Indeed Europol’s and Eurojust’s precedent of engaging with third party countries and organisations in an operational and strategic capacity should perhaps be seen as a sign that the UK would be afforded the same offer (so long as it meets adequate data sharing provisions set out in the new Regulations). See our blog here for more on the way in which an operational agreement could be achieved.
However whilst the precedent for non-Member engagement is there, the nature and extent of that relationship will have to change. The case of Denmark, which will leave Europol in May 2017, is instructive. The Joint EU/Danish Declaration issued in December 2016 gives an indication of the possible approach. The declaration stated that the operational arrangements to allow Denmark to participate in Europol did “…not in any way equal full membership of Europol, i.e. provide access to Europol’s data repositories, or for full participation in Europol’s operational work and database…it should ensure a sufficient level of operational cooperation including exchange of relevant data, subject to adequate safeguards”. Accordingly it is unlikely that any future relationship will provide levels of cooperation which are equivalent to those the UK currently enjoys; requests will be less of a priority and the power of the UK to influence the law in this area will be limited. The availability of useful, up-to-date, easily and quickly available information is likely to be hampered.
As a non-Member, the UK will no longer be permitted a role on the management team (and the number of liaison officers will almost certainly decrease). This means the UK will lose the influence it has had (particularly through Robert Wainwright, a UK national, who has been Director of since 2009) in shaping the direction of Europol. This dynamic influence on a group of countries who largely operate on an inquisitorial basis may in due course shape the effectiveness of Europol itself. As Professor Stephen Peers stated in the 28 February 2017 House of Commons Committee on Exiting the European Union evidence session, “some of the things can be negotiated, but the management issue and full access to the Europol information system is usually, traditionally, off limits to non-EU countries. Unless they are willing to accept something quite exceptional, it is bound to have a negative impact.”
Europol and Eurojust are the key organisations for the UK. Whilst the relationship between Europol and Eurojust are particularly close, Europol also works closely with OLAF, Frontex and CEPOL. It seems likely that Europol and Eurojust, as key agencies, will be the test-bed for the UK’s involvement with those others: what happens with these two bodies is likely to colour the outcome of negotiations for the other agencies.
What are the key databases in EU criminal justice and security?
Second Generation Schengen Information System (“SIS II”): an invaluable resource providing real time alerts about individuals (such as those wanted under an EAW or biometric information) and objects of interest to EU law enforcement agencies. Being connected to the Police National Computer it is a very effective, quick and easily accessible tool that has been in use in the UK since April 2013.
Prüm: The mechanism for sharing information on DNA, fingerprints and vehicle registration, initially brought in through the Prüm Treaty of 2005.
European Criminal Records Information System (“ECRIS”): in operation since April 2012, ECRIS is a secure electronic system for the exchange of information on convictions between member states.
Passenger Name Records (“PNR”): Under a 2004 Directive, air passenger carriers are obliged to provide information on passengers from a travel document (i.e. name, date of birth, nationality and passport number) with border agencies.
Will the UK have access to key databases?
The UK is, as many will know, outside the Schengen Area. To understand the basis on which the UK participates in SIS II, it is worth looking back at the way that the Schengen Area was established. The 1985 Schengen Agreement was not, initially, associated with the EU (or the EEC, as it then was). The Agreement, made between five EEC member states, effectively abolished border controls between them. Over time, additional countries acceded to the Agreement and the Schengen Convention was agreed. The Schengen Area now covers 26 states, including four non-EU countries (Switzerland, Liechtenstein, Norway and Iceland). In 1997, the Schengen Agreement was incorporated into EU law, however, the UK and Ireland remained outside this, negotiating an opt-out which exempted them from joining. Other member states who are not within the Area (Romania, Bulgaria, Cyprus and Croatia) are required to join once the EU is satisfied that they will comply with the Schengen regime.
The only non-Member States who have thus far been provided access to SIS II are Schengen zone members. The UK currently operates SIS II in the context of law enforcement co-operation. Whilst the government’s argument that its contribution of 6,600 UK-issued alerts receiving hits in Europe should sustain our place in SIS II carries some force, providing access in this way would nevertheless be a departure from EU policy.
The same is true for other key databases. The UK opted in to Prüm in November of last year. While Prüm had not initially been included in the block opt in in July 2013, a government analysis in May 2016 indicated that it was thanks to Prüm that the French and Belgian authorities had managed to identify Salah Abdeslam following the November 2015 terrorist attacks in Paris. It also pointed to a small-scale pilot of DNA profile sharing in 2015 from which the UK obtained 118 matches for offences including rape, sexual assault, arson and burglary.
As for access to criminal records through the European Criminal Records Information System (“ECRIS”), no non-EU country has yet been permitted access. Police and investigators have expressed concern that lack of access to this information presents an ongoing risk to the UK: giving evidence to the House of Lords EU Committee, Deputy Assistant Commissioner Stephen Roadhouse said that ECRIS can allow the authorities to make decisions about the risk posed based on the past history of a potential offender. Whilst there is of course nothing to say that a new precedent cannot be set, it will be important for negotiators to be aware of the EU’s starting point.
The same uncertainty regarding our future engagement with EU crime and justice co-operation mechanisms applies to EU prisoner transfer agreements; the European Supervision Order (allowing UK citizens to return home on bail whilst awaiting trial elsewhere and likewise); the European Protection Order and the European Investigation Order (which allows for other states to carry out investigative tasks, such as interviewing witnesses or providing bank account information). None of these are guaranteed to remain in a post-Brexit deal but obviously, as a package, contribute not only towards a safer UK but a less expensive and more effective criminal justice system.
Tomorrow, in the third and final part of the series, we will look at what all of this means for the most high-profile of the mutual recognition instruments, the EAW.
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