Professor Steve Peers

This piece examines the relationship between EU membership and UK policing and criminal law, exploring potential impacts of Brexit.

Summary

The UK held veto power over EU laws in this domain before the Treaty of Lisbon (enacted December 1, 2009). Subsequently, the UK secured two opt-out mechanisms: the ability to opt into (or out of) any new EU law in this area post-Treaty, and the option to retroactively opt out of pre-existing EU laws. The UK exercised the latter, opting out of most pre-Lisbon laws.

EU criminal law and policing encompass five key areas. One is crime definition, where the UK opted into a limited number of EU laws addressing issues like child abuse. Another is criminal procedure, with the UK adopting some EU laws concerning suspects’ and crime victims’ rights. These are primarily domestic law areas, making it unlikely that the UK would alter its rules post-Brexit.

The remaining three areas pertain to international cooperation, where independent action by any single country is unfeasible. These include: recognizing criminal decisions (e.g., arrest warrants, evidence collection); exchanging police information; and collaborating with EU agencies like Europol (the EU police intelligence agency).

Regarding mutual recognition of criminal law, alternative international regulations exist for certain issues like extradition, but these are less comprehensive than EU rules. In some instances, no alternative international rules exist. While the UK could pursue a treaty with the EU on these matters, precedents suggest that non-EU nations can only negotiate limited participation in these EU laws.

Non-EU nations can participate in EU agencies as associates, but this entails a more restricted role compared to EU member states.

The UK’s involvement in police information exchange with the EU would also be subject to renegotiation upon leaving the EU. Past examples indicate that non-EU countries can secure only limited participation in these EU laws. Additionally, if the UK ceases to fully adhere to EU data protection laws, legal conflicts could arise, potentially hindering the transfer of policing data from the EU to UK law enforcement.

Claims that the UK has “lost control” over its law enforcement and intelligence operations to the EU are unfounded, given the UK’s opt-out, the focus of EU law on cross-border matters, and the absence of any EU law concerning intelligence activities.

In essence, Brexit would likely substantially diminish cooperation on criminal justice and policing matters between the UK and the EU.

The details

While the EU has established numerous laws in this domain, the UK participates in only a select few, retaining opt-out rights for future laws. This analysis will: (a) outline the fundamentals of EU law in this area, including the UK’s opt-out; (b) summarize key EU laws in which the UK does (or does not) participate; and (c) explore potential Brexit scenarios. For a comprehensive academic analysis, refer to the fourth edition of EU Justice and Home Affairs Law (volume 2).

(a) The fundamentals of EU policing and criminal law

Before the Treaty of Lisbon’s enactment (December 1, 2009), police and criminal law matters operated under a separate legal framework from standard EU (or European Community) law. The authority of EU institutions (Commission, European Parliament, EU Court) was more constrained, and each member state, including the UK, had veto power over all laws.

The Treaty of Lisbon revoked these special regulations, integrating EU criminal and policing law into the general EU law framework. From that point onward, standard EU law rules have applied to this domain, with some exceptions. However, the crucial aspect for the UK is that it gained not one but two opt-out mechanisms from EU law in this area, replacing its veto power.

Firstly, the UK can opt out of (or into) individual EU laws on criminal law or policing proposed after the Treaty of Lisbon came into effect.

Secondly, the UK gained the authority to opt out of EU criminal laws agreed upon before the Treaty of Lisbon’s implementation. It could exercise this power as of December 1, 2014. The UK government utilized this to opt out of all but 35 EU criminal laws established before the Treaty of Lisbon. (See a discussion of this process here).

(b) Which EU criminal and policing laws does the UK apply?

EU criminal and policing law intersects with five primary issues:

(a) substantive criminal law (i.e., the definition of crimes);

(b) mutual recognition in criminal matters (i.e., applying another EU member state’s criminal law decision in situations with a cross-border element, such as gathering evidence in another EU nation or requesting the handover of a fugitive for trial or sentencing);

(c) harmonization of criminal procedure;

(d) exchange of police information; and

(e) EU agencies.

The combined effect of the two opt-out mechanisms is that the UK has been highly selective in applying EU law within this area. Addressing the five areas of law in sequence, the UK has opted out of nearly all EU substantive criminal law. While it adheres to EU Directives adopted since the Lisbon Treaty, which define offenses related to trafficking in persons, sexual abuse of children, and attacks on information systems (a type of cybercrime), it does not follow EU laws defining offenses related to terrorism, organized crime, fraud, drugs, market abuse by bankers, racism, or currency counterfeiting.

Secondly, the UK is more actively engaged in mutual recognition in criminal matters, particularly the landmark law on the European Arrest Warrant (EAW), a fast-track extradition system. The UK has also adopted EU laws concerning:

(a) mutual recognition of investigation orders (gathering physical evidence or interviewing witnesses in another EU country);

(b) victim protection orders (allowing victims of domestic violence who relocate to another EU country to have restraining orders against their abusers transferred to that country);

(c) pre-trial supervision (enabling criminal suspects to be released on bail while awaiting trial for less serious offenses back in Britain, rather than enduring extended pre-trial detention in a foreign prison);

(d) confiscation of assets and freezing orders (ensuring that proceeds of crime held by alleged or convicted criminals in another EU nation can be frozen pending trial and seized upon conviction);

(e) the impact of prior sentences or other judgments (ensuring that previous criminal offenses committed in another EU country are considered when determining repeat offender status); and

(f) the transfer of prisoners and criminal sentences (streamlining the movement of foreign prisoners to jails in their EU country of origin and recognizing fines imposed by criminal courts, including penalties against companies for violating criminal law).

Conversely, the UK has opted out of only one measure in this area: the mutual recognition of probation and parole orders.

Thirdly, concerning the harmonization of criminal procedure, the UK participates in the EU Directive on crime victims’ rights. However, it has opted into only two of the six EU laws outlining criminal suspects’ procedural rights: those pertaining to translation and interpretation and providing suspects with information about their rights. It has opted out of laws concerning access to a lawyer, presumption of innocence, child suspects’ rights, and a proposed law on legal aid (not yet finalized).

The UK is particularly invested in participating in the exchange of police information, adhering to every significant measure in this domain:

(a) the Schengen Information System (information on wanted individuals and stolen goods, encompassing terrorist suspects under surveillance);

(b) the Customs Information System (used primarily in drug trafficking cases);

(c) the ‘Prüm’ decisions (granting access to other EU countries’ police databases for fingerprints, license plates, and DNA); and

(d) laws concerning the exchange of criminal records.

Lastly, concerning EU agencies, the UK presently participates in Europol (the EU’s police intelligence agency) and Eurojust (the agency coordinating prosecutors’ work in cross-border cases). However, it has opted out of a new law regarding Europol and a proposed EU law concerning Eurojust, both of which establish (or would establish) revised rules for these agencies following the Treaty of Lisbon’s entry into force, though it might opt into these Regulations after their adoption. The UK previously hosted the European Police College (a training agency) but declined to continue doing so and opted out of a new iteration of the relevant law.

Concerns have been raised, particularly regarding the UK’s potential participation in a law establishing a European Public Prosecutor. While the EU Commission proposed a law to create a European Public Prosecutor in 2013, the UK opted out. Notably, under the European Union Act 2011, the UK would be required to hold another referendum before opting into that law.

(c) What would be the impact of ‘Brexit’?

Some argue that EU laws on policing and criminal law are irrelevant to the UK’s EU membership because the UK can accomplish its objectives in this field through domestic law. This argument holds for two of the five law areas outlined: substantive criminal law and harmonization of procedure. However, it is invalid for the remaining three – mutual recognition, exchange of information, and participation in EU agencies – as these necessitate cooperation with other states. Simply put, a British Act of Parliament cannot dictate how France or Germany issue extradition requests.

What would transpire if the UK were to leave the EU? As with other areas of EU law and policy, it hinges on post-Brexit negotiations between the UK and the EU. Nevertheless, it is possible to offer some general insights into the potential ramifications.

In the realm of mutual recognition, the UK can rely on Council of Europe treaties that address some of the same concerns. (Note: the Council of Europe is distinct from the EU, encompassing non-EU European nations like Turkey and Russia; some of its treaties can also be signed by non-European states like the USA.)

However, these treaties lack the comprehensiveness and effectiveness of EU laws. The UK government’s information on the application of EU law in this area illustrates this point. Extraditions from the UK have risen from 60 individuals annually (to all countries) pre-2004 to 7,000 annually since 2004 under the European Arrest Warrant. More than 95% of those extradited to other member states are not British.

Furthermore, in certain cases, the UK and/or other member states have not ratified the relevant treaties. For instance, less than half of all member states have ratified the Council of Europe Convention on the Validity of Criminal Judgments, including the UK. However, the EU law on the mutual recognition of criminal penalties outlines rules for a critical aspect of that Council of Europe treaty: recognizing another member state’s court-imposed criminal financial penalties. Some issues, such as the pre-trial supervision rules outlined in EU law, have not been addressed by Council of Europe treaties. In these instances, EU law represents the sole means of ensuring the cooperation in question.

Another option is negotiating treaties with the EU on these matters. The EU has been open to negotiating access to specific aspects of its criminal law measures, exemplified by a form of the EAW for Norway and Iceland, an extradition treaty with the USA, and mutual assistance (exchange of evidence) with Norway and Iceland, the USA, and Japan. However, the extradition treaty with Norway and Iceland required years of negotiation and, at the time of writing, is still not in effect. Additionally, it does not mandate that states extradite their own citizens, meaning that the UK could not compel Germany to extradite German nationals, for example. Negotiating away this limitation in a post-Brexit scenario would be challenging, as some EU countries have constitutional constraints preventing the extradition of their citizens outside the EU. (For further information on such matters, see E Guild, ed, Constitutional challenges to the European Arrest Warrant).

Overall, there are no treaties with any non-EU country concerning the majority of EU criminal law mutual recognition measures. Of the existing treaties, none are as extensive as the relevant EU legislation currently in effect.

Critics of EU extradition rules often express concerns about the “sufficient evidence” (“prima facie”) test traditionally employed by the UK before granting extradition requests. While some argue that the EAW eliminated the “prima facie” test for EU countries, this is inaccurate. The UK relinquished its right to apply this test to European nations when it signed the Council of Europe extradition treaty in 1990, over a decade before adopting the EU’s EAW. This is outlined in the Extradition Act 1989, section 9(4), implemented by the European Convention on Extradition Order 1990 (SI 1990 No. 1507). In other words, the abolishment of the “prima facie” test was not a consequence of EU law but had occurred well before the EU’s involvement in extradition law.

Why did the UK abolish the prima facie test? The 2011 Baker review of UK extradition law highlights that the decision stemmed from practical challenges it posed for extradition. A 1986 White Paper stated that it “did not offer a necessary safeguard for the person sought by the requesting State but was a formidable impediment to entirely proper and legitimate extradition requests.” Ultimately, the Baker review concluded that there was “no good reason to reintroduce the prima facie case requirement” where it had been abolished and that “No evidence was presented to us to suggest that European arrest warrants are being issued in cases where there is insufficient evidence.”

The prima facie test is sometimes misconstrued as an aspect of the “presumption of innocence.” However, a fugitive extradited under this test must still either be convicted via trial in the requesting state or has already been convicted but fled the country. Therefore, the presumption of innocence remains applicable during (or applied to) the substantive criminal trial.

Concerning EU agencies, the UK can, like other non-EU countries, enter into agreements to cooperate with Europol and Eurojust. However, as the Director of Europol highlighted, such agreements do not grant the UK direct access to databases, the authority to lead investigation teams, or involvement in managing these agencies. Notably, both Europol and Eurojust have had British Directors.

Finally, regarding policing, the EU has granted some non-EU states access to the Schengen Information System and the ‘Prüm’ rules concerning access to each member state’s national policing databases. This access, however, was contingent on those countries fully participating in the Schengen system, which the UK would not be part of after Brexit.

The EU has also established treaties on exchanging passenger name records with non-EU countries like the USA, Canada, and Australia, as well as a treaty on exchanging financial information (related to suspected terrorists) with the USA. Therefore, it might be amenable to signing similar treaties with the UK. The EU recently agreed to an “umbrella” treaty with the USA on the general exchange of police information, although it is not yet in force.

However, the EU has not extended access to its system for the exchange of criminal records to any non-EU countries. While the Council of Europe treaty on mutual assistance in criminal matters (to which the UK and all other member states are parties) provides for some exchange of information on such records, it results in significantly less information sharing. The exchange of criminal records is particularly crucial for the UK. The government has reported that the UK is among the most frequent users of the EU system and that criminal records checks of foreign nationals within the criminal justice system have increased by 1,650% since 2010.

However, a particular issue complicates the exchange of personal data between the EU and non-EU nations, especially concerning policing data: the question of whether their data protection standards align with those maintained by the EU. If not, the European Parliament might hesitate to endorse a deal, or it could face challenges in the EU Court. This is not merely hypothetical; it has occurred repeatedly.

This issue was examined in greater detail in a recent blog post for The Conversation (link in original text), but the key points are reiterated here. In dealings between non-EU nations and the EU, the EU Court of Justice overturned a Commission decision on transferring personal data to the USA due to insufficient scrutiny of US intelligence agencies’ data protection standards regarding access to personal data on social media. A replacement deal is in the works but is expected to encounter legal challenges. Another case is underway in which the EU Court has been requested to rule on the legality of the latest EU/Canada treaty on exchanging passenger records data to determine its compliance with EU data protection standards.

Should the UK exit the EU, any UK/EU agreement concerning personal data transfer would be subject to these same requirements. These requirements cannot simply be disregarded in negotiations, as they are rooted in the EU Charter of Rights, a component of primary EU law. While the Charter can be amended, any changes must be reflected in the EU Treaties to be legally binding. It is highly improbable that this would occur at the behest of a nation that has just left the EU.

Would UK legislation meet the standards of similarity to EU standards? In the pending Davis and Watson case, the Court of Justice has been tasked with assessing whether rules governing police access to personal data comply with the EU law binding upon the UK as a member state. Another bill addressing this issue is before the UK Parliament and could likely become law before Brexit. Given criticism of the draft bill from numerous privacy advocates, similar legal challenges to personal data transfers to and from the UK post-Brexit are almost certain unless the UK commits to fully upholding EU data protection law.

(d) Arguments by the referendum campaigns

The official leaflet outlining the positions of both sides in the referendum campaign presents several pertinent claims from each. The Remain side asserts that the EAW “allows us to deport criminals from the UK and catch those fleeing justice across Europe” and that EU membership aids in addressing “global threats like terrorism.” The Leave side contends that the EU “will continue to control…vital security policies such as counter-terrorism” and that the EU Court “will keep taking powers over how our intelligence services fight terrorism.”

Are these claims valid? Regarding the first Remain claim, statistics indicate that the number of individuals extradited to and from the UK has indeed risen since the EAW’s implementation, although some extradition would likely still occur even without the UK’s participation in the EAW.

Given the official UK government information previously cited, operational cooperation through Europol and other forms of EU police and criminal law collaboration presumably contribute to combating threats like terrorism and other serious crimes. However, quantifying their impact in comparison to solely national measures and other international cooperation efforts is not feasible.

As for the Leave side’s assertions, it is evident from the description of the laws the UK upholds that the EU does not “control…vital security policies.” The UK independently governs the operation of its law enforcement agencies, and there are no EU regulations governing intelligence agencies. EU law’s impact is limited to cross-border matters.

As demonstrated, the sole instance of EU case law affecting intelligence agencies involves non-EU agencies. This ruling restricts the transfer of data collected by social networks to those non-EU countries unless they adhere to EU data protection law. Therefore, if the UK leaves the EU, it would face the same constraints in obtaining personal data for criminal cases from the EU. Consequently, leaving the EU is more likely to hinder, rather than facilitate, the work of UK intelligence agencies.

Conclusion

The UK’s participation in EU criminal and policing law has resulted in increased cooperation in areas such as extradition and police information exchange. Brexit raises questions, primarily political but also legal, about the future of these collaborations. In the event of Brexit, cooperation between the UK and the remaining EU would very likely diminish, though not disappear entirely. Given the UK’s existing opt-outs and the limited influence of EU law on purely domestic matters, assertions that the EU “controls” UK law enforcement and intelligence agencies are baseless.

JHA4: chapter II:3, chapter II:4, chapter II:7

Barnard & Peers: chapter 25

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