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21 Jun 2016

The EU Referendum and its potential impact on criminal justice

The 23 June 2016 may be a historic day but what will happen to criminal justice and quasi criminal proceedings in the UK, should the outcome be to Brexit or Remain? In practice the UK would remain bound by EU law for up to two years while its exit was negotiated so nothing would happen immediately, but what then for criminal justice measures?

Dealing with Cross-border crime

One of the most obvious areas that a Brexit outcome will affect will be the UK’s ability to use EU instruments designed to deal with cross-border crime.  The most well-known of the EU instruments is probably the European Arrest Warrant (the “EAW”).  EAWs are provided for in UK law under the Extradition Act 2003 and allow members of the EU to use a fast tracked system when seeking to extradite individuals back to EU countries.  They were designed to speed up extradition proceedings (which were taking years in some cases) and to reduce the cost to the courts and the UK Government.  No longer being able to use this system as a default, the UK will need to fall back on the Council of Europe Convention on Extradition, negotiate individual treaties with each member state (which seems unlikely) or negotiate an opt in arrangement with the EU in order to retain the EAW and other instruments. This may be a challenge in itself, as all remaining member states would also need to agree.

Another reason for the introduction of the EAW was to stop EU countries refusing to agree to their own citizens being extradited.  It may therefore become much harder to bring alleged European based perpetrators of crime to justice in the UK.  In other words, we stand to lose the significant law enforcement benefits of being part of the EU.

EU agencies

We will also lose automatic access to the EU agencies designed to improve criminal justice co-operation within the EU, such as Europol and Eurojust.  These organisations were set up in order to assist the EU member states share information and intelligence between law enforcement organisations. This is further complicated by the current Director of Europol being British.

Whilst it will clearly be in everyone’s interest to allow the UK to continue to share such information, for the sake of national security, it is not hard to see that the remaining EU member states may agree to UK participation but not to the UK having any input into how those organisations are run, their budgets or their policies.

EU framework decisions

The EU has produced minimum procedural safeguards for defendants in criminal cases in order to establish a uniform level of protection across the EU member states, in areas such as disclosure of evidence and access to legal advice.  The UK has signed up to the majority of these safeguards but by no means all, in particular not the recent Presumption of Innocence Directive.

It is difficult to know whether there will be any impact on these rights if we leave the EU.  The UK Government will not be governed by any overarching principles to keep such safeguards and we have already seen the creep of legislation against alleged perpetrators of crimes when it comes to terrorist cases and the introduction of wide ranging surveillance powers in the Investigatory Powers Bill, still to be further debated.  The UK Government will be at liberty to do whatever it feels is necessary without regard to EU criminal justice instruments, and of course individuals will have no recourse save to our own courts and Parliament.

At present, the European Court of Justice at Luxembourg acts as a final legal tier of reference (but not an appeal court) in making sure that rights of individuals are not abused.  Individuals will no longer have this option, unless the UK agrees to remain held by such safeguards under the terms of its ‘Exit’ deal.

What if we remain?

Even the most avid supporters of the EU agree that reform is required.  Such reform is necessary at an EU level.  EU lobbyists have already been working hard with the EU to reform the EAWs to include a requirement for individuals to have access to competent legal advice in both the requesting state and the state where the EAW is being executed.

Successful lobbying has previously seen the introduction of the proportionality test, meaning Poland could no longer seek extradition of Mr Blogs for the theft of some wardrobe doors. Other reforms proposed in the EU regarding the need for legal aid, training for defence lawyers, rights of victims and child suspects have not yet been the subject of a UK opt in, partly on the grounds that the Government considered our own procedures to be adequate.

Hopefully we will still be in the room to have these discussions and seek such reform. If not, let us hope that our MPs in Westminster are willing to uphold these important protections, and enhance and develop the rights of the individual against the power of the state – without the benefit of other European neighbours working to secure a common set of rules for an area of Freedom, Security and Justice.

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