The Brexit Deal; UK Crime Fighting with European Friends

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Since Brexit, the relationship between the European Union (EU) and the UK concerning law enforcement cooperation is now governed by the UK-EU Trade and Cooperation Agreement (the Agreement).

The UK Government state that the safety and security of British citizens is a top priority.  It argues that the Agreement provides a comprehensive package of operational capabilities that will help protect the public and bring criminals to justice.

Meanwhile critics say the new arrangements fall far below that which the UK enjoyed as a member of the EU.  In particular access to ‘real time’ information sharing systems which is a major blow to UK law enforcement agencies.  They say that detection of crime will be slower and more cumbersome.

What does the UK-EU Trade and Cooperation Agreement say about law enforcement?

Part three of the Agreement covers information exchange and access to databases; guidance on anti-money laundering and counter-terrorist financing; cooperation between the UK and Europol and Eurojust; and extradition.

Information Exchange and Access to Databases

The Agreement provides for the automated exchange of DNA, fingerprints and vehicle registration data between the UK and individual EU Member States.

There will also be access to European Union passenger name records for the purposes of preventing, investigating, prosecuting terrorism or serious crime.  The UK Government is keen to note that the new deal provides for more frequent transfers of passenger name record data than pre-Brexit arrangements.

Critics are most vocal about the UK’s loss of access to the Second Schengen Information System (SIS II).  SIS II is the most widely used and largest information sharing system for security and border management in Europe.  The Government have noted that SIS II is just one system and they still have access to Interpol.

Anti-money laundering and counter-terrorist financing

The Agreement commits the UK and EU to support international efforts to prevent and fight against money laundering and terrorist financing, exchange relevant information, and maintain comprehensive anti-money laundering and counter-terrorist financing regimes.

The Agreement commits the UK and EU to maintain high standards of beneficial ownership transparency.  It goes beyond the international Financial Action Task Force Standards (FATF) in requiring registers of beneficial ownership of corporate entities and includes provisions on beneficial ownership of legal arrangements that are in line with the FATF standards.

Cooperation between the UK and Europol and Eurojust

There are changes to the arrangements between the UK and Europol and Eurojust.  Europol is the EU’s law enforcement agency.  Eurojust is an agency of the EU which deals with judicial cooperation in criminal matters across the Member States.

The UK Government’s position is that the Agreement supports effective multilateral cooperation between the UK and EU Member States.  Noting that the aspects of the Agreement relating to Europol and Eurojust are broadly in line with those between the EU and third countries such as the US, but take account of the UK’s historic contributions to these two agencies.

Opponents of the Agreement highlight that the cooperation afforded under the Agreement is limited to the secondment of liaison officers and prosecutors to these two EU bodies, with limitations on the exchange of data.  The UK will no longer be able to take part in management of the organisations or have access to some databases.

Extradition

Another big change to note is the loss of the European Arrest Warrant Scheme for the UK.  The UK is now deemed a third party country and some EU Member States who do not extradite their own nationals due to constitutional principles will now be able to avoid extradition of some individuals to the UK.  However, there are other paths to justice such as that person being prosecuted in their home country.  It is yet to be seen what problems this will create in practice.

What does the future hold?

For many years the UK has worked well with its European counterparts to tackle all kinds of criminal activity, including financial crime.

Cooperation with European law enforcement agencies can work well and it is expected that there is desire on all sides for that to continue.  This is evidenced by the fact that the UK can continue to participate in Joint Investigation Teams (JIT).  A JIT is a team consisting of prosecutors and law enforcement authorities from different countries for the purpose of carrying out specific criminal investigations in one or more of the participating countries.

The Agreement is only the start of the new relationship and it is expected that there will be efforts to reach further mutually beneficial arrangements in the future.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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