Criminal mutual legal assistance: establishing a different relationship post-Brexit

The UK withdrew from the EU at midnight on 31 January 2020. Earlier that day, judges in London and Paris simultaneously approved deferred prosecution agreements that imposed fines on Airbus totalling EUR 3 billion. Both judges acknowledged that this record-breaking settlement was the product of collaboration between the British Serious Fraud Office (‘SFO’) and the French Parquet National Financier (‘PNF’) – collaboration formalised through a Joint Investigation Team (‘JIT’) between the two agencies.[1]

The JIT is a creature of EU law.[2] The Airbus JIT was administered by Eurojust, an EU body. There was a certain irony in the courts affirming the importance of this EU criminal justice measure several hours before the UK finally – after months of political paralysis – implemented Brexit, thereby jeopardising its ability to benefit from this and other EU measures once the current transition period ends.

Of course, this is hardly the first occasion on which the UK’s crime-fighting capacities have benefited from EU criminal justice measures. After the discovery of 39 bodies in a lorry at the port of Purfleet in October 2019, the British police retraced the lorry’s movements in Bulgaria and Belgium with the assistance of Europol (an EU body) and subsequently issued a European Arrest Warrant (an EU measure) (‘EAW’) against a suspect residing in Ireland. There are countless other examples. Little wonder the directors of many of the UK’s criminal law enforcement agencies have described Brexit as a strategic risk.[3]

This article assesses the strategic risk posed by Brexit to the UK’s future ability to seek and obtain criminal mutual legal assistance (‘MLA’) from Member States.

What were the EU MLA measures from which the UK benefited?

Prior to 1 February 2020, the UK benefited from three main types of EU-created MLA:

1. Participation in co-operation measures, such as the European Investigation Order (‘EIO’) and the mutual recognition of asset freezing orders.
2. Access to databases, such as the Schengen Information System (‘SIS’) and the European Criminal Records Information System (‘ECRIS’).
3. Participation in institutions, such as Europol and Eurojust.

The EIO had become particularly important in recent months. The EIO simplified cooperation between Member States by merging into a single instrument certain existing investigative powers (e.g. the power to obtain evidence from a witness, expert, suspect, victim or third party; the power to obtain bank and financial information; and the power to gather evidence in real time, such as intercepting communications). It also represented an expedited process; Member States have 30 days to recognise and 90 days to execute an EIO. The EIO was brought into force in English law on 31 July 2017. In that year alone, the UK authorities reportedly received 355 EIOs from Member States. In this firm’s experience, their use was increasing.

The transition period

Under the withdrawal agreement dated 17 October 2019, the UK is now in a transition period, during which it will retain most of these benefits of EU law until 31 December 2020.[4] In simple terms, the impact of this transition period on MLA is that:

1. The UK will continue to participate in many (but not all) of the cooperation measures, including the EIO.[5]
2. The UK will continue to access most of the databases, including SIS and ECRIS.[6]
3. The UK will continue to participate in Europol and Eurojust – and access its databases – but will no longer play a role in their management bodies.[7]

What happens after the transition period?

In its political declaration on 17 October 2019, the UK spelled out its vision of a future partnership with the EU, asserting that there would be “comprehensive, close, balanced and reciprocal law enforcement and judicial cooperation in criminal matters […] underpinned by long-standing commitments to the fundamental rights of individuals, including continued adherence and giving effect to the ECHR, and adequate protection of personal data […] and to the transnational ne bis in idem principle and procedural rights.”[8]

These words sound impressive but are bereft of meaningful detail. In one sense, this is unsurprising – there is no precedent for a third country to have the type of privileged co-operation agreement seemingly contemplated by the UK, which is more favourable than any existing partnership the EU has with any third country. These existing partnerships fall into two broad categories: partnerships with non-EU Schengen countries, such as Norway and Switzerland, and partnerships with non-EU non-Schengen countries, such as the US and Canada.

In negotiating a post-transition deal, the EU will likely start from the (logical) premise that a non-EU, non-Schengen country cannot enjoy the same rights (whilst assuming fewer obligations) as a Member State, nor can it enjoy better rights but assume fewer obligations than a Schengen country. If, for example, the UK executes its recent threat to withdraw completely from the EAW scheme[9], or if it retains its red negotiating lines on restricting freedom of movement and rejecting the jurisdiction of the European Court of Justice (CJEU), why should the EU reward this intransigence with, say, bespoke participation in the EIO? No other third country is able to participate in the EIO. Norway and Switzerland benefit from good co-operation with the EU, but unlike the UK, they have made concessions such as abolishing border controls and accepting the CJEU’s jurisdiction (the EU regards the latter as an important mechanism for ensuring the consistent application of any UK-EU agreement).

A further area of difficulty is data protection. The UK’s ability to continue to share data with the EU is likely to be determined by its future ability to conform to EU data protection requirements. However, the UK has said it will refuse to implement EU data protection rules, on the basis that it would have no influence over their contents. If this debate remains unresolved, the UK would be unlikely to retain access to SIS and would need to ask a friendly EU or Schengen country to run searches on its behalf, as the US and Canada do.

As for Europol and Eurojust, the UK would probably be able to establish a reasonable working relationship with these institutions (again as the US and Canada do). One precedent in this context is Denmark, which left Europol in 2015 with a cooperation agreement pursuant to which it was granted “observer status”.[10] In practice, this means that Denmark does not enjoy the equivalent benefits of other Member States, but it can access Europol’s databases indirectly through liaison officers. However, a precondition of this agreement was Denmark’s acceptance of the CJEU’s jurisdiction. It is difficult to see how the UK could hope to equal (let alone improve upon) Denmark’s current agreement with Europol.

The underlying problem – in relation to this and other aspects of MLA – is the incompatibility between the UK’s red negotiating lines (particularly but not exclusively CJEU jurisdiction) and the UK’s desire for a privileged future partnership with the EU on criminal justice matters.

The dangers of a “no deal”     

There is a risk that this incompatibility could result in a “no deal” from 1 January 2021 onwards. If that happens, the UK will probably fall back on multiple individual MLA agreements or the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters. Either mechanism would slow down cooperation by sacrificing the 30-and 90day timeframes imposed by the EIO. The UK would also lose access (direct or indirect) to the EU’s criminal justice databases. Further, by no longer playing a leading role in Europol or Eurojust, the UK would be unable to exert the influence it has previously enjoyed in relation to EU criminal justice policy. This may lead to a damaging divergence in approach between the UK and Member States, for example in relation to data protection rules, participation in JITs and the Eurojust guidelines on concurrent jurisdiction.[11] This would be a particularly ignominious outcome for a country which, historically, has been the second largest contributor to Europol information systems (two out of the five presidents of Eurojust have been British and another British national, Sir Rob Wainwright, was the director of Europol from 2009 to 2018).

It is true that successful MLA can be informal in nature – police forces in the EU routinely make requests to and share intelligence with their counterparts in the UK, and vice versa, outside any formal legal framework. No doubt this informal MLA would continue after the transition period on an ad hoc basis in very serious criminal investigations. But it is likely that this informal cooperation will also decline as the UK’s participation in and knowledge of formal EU criminal justice measures gradually fades.

Conclusion

The UK’s post-transition relationship with the EU in terms of MLA is uncertain, but whatever form it takes, it is realistic to assume that the UK will struggle to improve upon the partnerships enjoyed by non-EU Schengen countries. It may well do worse. Excluding the UK from measures that allow for swift and effective law enforcement across the EU and from specific instruments, such as the EIO, will undoubtedly have an adverse impact on the UK’s crime-fighting capacities.

The UK has two main arguments to deploy in the negotiations in the forthcoming year. The first argument is an appeal to nostalgia – that is, the UK is unique in being a former EU state, has unique knowledge of the EU institutions and their criminal justice measures, and should therefore be given unique privileges. The second argument is more persuasive, since it is grounded in a practical reality – that is, the UK necessarily remains an important partner of the EU, given the high number of EU citizens living in the UK, which is unlikely to decrease dramatically. Similarly, the volumes of goods and services moving between the EU and UK are still likely to remain high. The UK will no doubt emphasise these practical issues – and their consequences for a joined-up approach to criminal law enforcement – in arguing for a relationship that moves beyond existing partnerships.

Fighting crime will continue to be relatively high on the British political agenda; the UK will want to find ways to maintain its current operational abilities in MLA. Moreover, MLA is not as politically contentious as extradition. The UK may therefore calculate that it can take a tough stance on leaving the EAW (which is unpopular in certain swathes of the governing Conservative party and their allies in the right-wing media) whilst being more conciliatory on EU MLA measures (which do not suffer from such bad press as the EAW). This is a risky calculation, however, since the EU is unlikely to treat the EAW and EU MLA measures as mutually exclusive – criticising the former may jeopardise the UK’s negotiating position with the latter.

In summary, it would be wrong to regard the Airbus JIT as marking the end of the UK’s relationship with EU-created MLA criminal justice measures. The UK will be able to form a new friendship with the EU from 1 January 2021 onwards; cooperation will continue with criminal investigations and prosecutions that cross the UK/EU border. But the UK may ultimately come to regret being just friends.

[1] Paragraphs 2, 34 and 35 of the English judgment (available here: https://www.sfo.gov.uk/download/airbus-se-deferred-prosecution-agreement-statement-of-facts/) and paragraphs 39, 42 and 43 of the French judgment (available here:  https://www.tribunal-de-paris.justice.fr/sites/default/files/2020-02/CJIP%20AIRBUS%20version%20fran%C3%A7aise_0.pdf)

[2] Council Framework Decision 2002/465/JHA on joint investigation teams

[3] See, for example, the comments of the former Director of the SFO David Green QC at page 3 of the SFO’s Annual Report for 2016/2017, available here: https://www.sfo.gov.uk/publications/corporate-information/annual-reports-accounts/

[4] The withdrawal agreement is available here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/840655/Agreement_on_the_withdrawal_of_the_United_Kingdom_of_Great_Britain_and_Northern_Ireland_from_the_European_Union_and_the_European_Atomic_Energy_Community.pdf

[5] Article 63 of the withdrawal agreement

[6] Articles 8, 50 and 53 together with Annex IV of the withdrawal agreement

[7] Articles 7 and 8 of the withdrawal agreement

[8] Paragraphs 80 and  81 of the political declaration, available here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/840656/Political_Declaration_setting_out_the_framework_for_the_future_relationship_between_the_European_Union_and_the_United_Kingdom.pdf

[9] As reported here: https://www.theguardian.com/uk-news/2020/feb/27/uk-to-withdraw-from-european-arrest-warrant

[10] Available here: https://www.europol.europa.eu/publications-documents/agreement-operational-and-strategic-cooperation-between-kingdom-of-denmark-and-europol

[11] For the time being, the British Crown Prosecution Service retains reference to these guidelines on its website. See:  https://www.cps.gov.uk/legal-guidance/jurisdiction