The decision to leave the European Union was one of the most significant constitutional decisions in our recent history, and the ramifications across all areas of law will be enormous. There are significant areas of overlap between EU instruments and criminal practice in England and Wales – how might they be affected?
Laws affected by EU directives, which require the creation of certain statutory instruments by member states, would probably be the area least affected, as existing legal frameworks relating to cybercrime, bribery, human-trafficking and terrorism are likely to remain unchanged. However, there remains a need for continued, meaningful cooperation between policing and judicial authorities across Europe. Judicial cooperation is an area that would be affected, though, as the UK will need to have discrete bilateral agreements on mutual legal assistance in criminal matters with other EU member states, as it does with, for example, the USA. For EU member states, the relevant procedures for judicial cooperation are covered by a number of EU instruments, in particular the 2000 Convention on Mutual Assistance on Criminal Matters (MLAC). This governs how member states cooperate with requests for everything from the temporary transfer of persons in custody to the use of video or telephone conferencing, and even the formation of joint investigation teams from different jurisdictions.
As a member of the EU, the UK also benefits from participation in a number of information-sharing networks, in particular the European Criminal Records Information System (ECRIS). This is a decentralised IT system based on the interconnected criminal records databases of each member state over an encrypted network. From this, the criminal records of suspects from foreign jurisdictions are available on request. Becoming particularly important after the Paris attacks in November 2015, its usefulness has been recognised explicitly by the UK government, which noted in March 2016 that it has ‘allowed the police to build a fuller picture of offending by UK nationals and allowed the courts to be aware of the previous offending of EU nationals being prosecuted’. Brexit would deny us automatic access to these systems.
Possibly the biggest changes in criminal practice would be in the field of extradition, though. Following Brexit, the European Arrest Warrant (EAW) would cease to have effect in the UK. This means it would no longer be possible for authorities in England and Wales to arrest immediately someone fleeing prosecution in another member state. Moreover, many member states have specific legal or constitutional provisions prohibiting the extradition of their own nationals, except to an international criminal court or another EU member state.
Some models have been proposed as replacements. There exist, for example, protocols between the EU and Norway and Iceland broadly mirroring the provisions of the EAW and MLAC, but both Norway and Iceland are participants in Schengen, which may be regarded as politically unacceptable in the UK (from a number of sides).
Moreover, the UK will probably have to re-negotiate separate intergovernmental instruments with every remaining EU member state (as the USA does), meaning there is a lot to accomplish following the triggering of Article 50. Using the UK’s re-negotiations of 35 of the bilateral measures contained in the Maastricht Treaty as the basis of his estimations, Cambridge law professor J R Spencer calculates that we would need to negotiate up to 954 agreements in two years to replace effectively all of the remaining instruments currently in use.
It is obvious that there is a strong demand to retain as much of these frameworks as possible. Green Party members both in and out of the legal profession must therefore remain vigilant in publishing these findings and pressing upon the government how important it is that they form a key part of both our Brexit negotiations and any subsequent legislation that the UK enacts to administer criminal justice in a post-Brexit landscape.