31 Jan 2024

Human rights risk to UK EU Mutual assistance post Brexit

Successful challenges to criminal mutual assistance powers post Brexit remain elusive. There was no doubt noisy celebration within the organised crime community at the prospect of enormous criminal gains to be made with impunity as a result of the confusion arising from the UK’s departure from the EU. In fact the transition has been far smoother than it might have been. The European Arrest Warrant continues to operate to a large extent in the same way for the surrender of suspects and convicted criminals 1 and other aspects of mutual assistance including co-operation in relation to the proceeds of crime continue under the Trade and Co-operation Agreement (TCA) arrangements much as they did before. The big deficiency is of course in data sharing through the Schengen Information System in which the UK no longer participates.

Despite the apparent success of the TCA thus far, the future of the UK’s mutual assistance relationship with the EU is at serious risk because the current government is plainly prepared to break international law and appears to be on a collision course with the European Court of Human Rights in Strasbourg; particularly as the Safety of Rwanda (Asylum and Immigration) Bill is bulldozed towards an inevitable conflict in the House of Lords over human rights. This threatens the UK’s adherence to the rule of law and will bring Parliament into conflict once again with the courts.

The UK’s status as a trusted external partner and member of the ECHR is under threat 2. Only last summer, the House of Lords Justice and Home Affairs Committee wrote to the Home Secretary 3 to underline the importance of mutual assistance warning of the risk of suspension of Part III of the TCA which deals with this area. Were this to happen, the UK’s ability to combat cross-border criminal activity would be severely impacted. This would include efforts to combat the organised criminal gangs of people traffickers which the government so frequently mentions in promoting its Rwanda policy.

The UK was a leading light in the late 1990’s in the development of the EU criminal mutual assistance framework and even during the hostile negotiations of Brexit it was recognised that co-operation in fighting crime was a political imperative. The UK was most successful in securing the acceptance of the principle of mutual recognition in the area of criminal mutual assistance.

A recent case in the Crown Court provided a first opportunity to examine the post-Brexit position in relation to external requests and orders which rely on mutual recognition 4. A Polish request sought restraint orders in the UK for the proceeds of sale of psychoactive substances (“legal highs”) in Poland between 2016 and 2018. Crytocurrency to the value of US$24 million was restrained. The massive sum involved in this single case by itself demonstrates the huge importance of maintaining effective co-operation arrangements with our EU neighbours. The court had to conduct a careful examination of the post-Brexit law which it described as “less than straightforward”. In the end the conclusion was that the new arrangements under the TCA were fully effective to permit the UK restraint orders to be made. Attempts to challenge the orders mainly on the grounds of lack of double criminality and delay were roundly rejected. Quoting Lord Bingham, the Court made it clear that it should not “shut its eyes to the practical realities of litigious life”. There was no requirement normally for a prosecutor to devote his time to one case and there was no general requirement for expedition.  In this case there was no evidence of a marked lack of expedition. An attempt to challenge the Polish order before the English court was also rejected on the basis that the TCA plainly prohibits a challenge to the substantive reasons for a requested measure. In fact such a challenge had already been made in Poland and failed. Perhaps this underlines the importance in international cases of this kind of securing the best local legal advice so that challenges can be mounted in the requesting state where possible.

The UK will no doubt keep muddling its way through the messy post Brexit relationship ducking and diving to avoid the melt-down of a suspension of the TCA which would be a serious disaster and surely not worth risking when criminal money flows, even in relatively small cases valued in millions are concerned. The true cost of losing our close law enforcement relationship with the EU will probably not emerge for some time but there are already longer delays and lower priorities being given to UK mutual assistance business.

 

  1.  Note that some 13 Member States will not now extradite their own nationals to the UK.
  2.  See Valsamis Mitsilegas & Elspeth Guild (2023) Police and criminal justice
  3. co-operation after Brexit, Journal of European Public Policy, 30:11, 2519-2539, DOI:
  4. 10.1080/13501763.2023.2181382
  5. https://committees.parliament.uk/publications/41088/documents/200044/default/
  6.  Michal Wieromiejczyk and others v DPP 22 September 2023 (unreported)
  7. https://www.judiciary.uk/wp-content/uploads/2023/09/2023-09-22-WIEROMIEJCZYK-Ors-v-DPP-FINAL-Judgment-1.pdf
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