Criminal justice post-Brexit: could the UK be left out in the cold?

The Government’s recently published policy paper: “Security, law enforcement and criminal justice – a future partnership paper”[1] would have been a reassuring read for most criminal justice practitioners.  Although light on technical detail it is a welcome statement of support for EU Justice and Home Affairs (JHA) measures which, it is stated without qualification, make up “a comprehensive and sophisticated suite of mutually reinforcing arrangements that help protect citizens and the continent”.  The European Arrest Warrant (EAW) is the best-known JHA measure but others such as Europol, the Schengen Information System (SIS 2), and the newly-minted European Investigation Order are also singled out for approval. There is a slight whiff of sophistry here, because in December 2014 the Government chose to opt-out of most other EU JHA arrangements, only opting back in piecemeal to those it considered to be most valuable.

So, praising the EU for “develop(ing) a package of measures that support a streamlined end-to-end process of cooperation” rather glosses over the Government’s previous equivocation.  Nevertheless, what is significant is the support not just for the practical benefits of cooperation, but also the underpinning principles.  The document is peppered throughout with language that could have been lifted directly from Remain campaign literature:  “uniquely aligned”,shared priorities”, “mutually reinforcing”, “closest and most co-operative of partnerships”, “pooling expertise and resources”, “inter-connected”, culminating in the proposition that “cooperation produces cumulative shared benefits that extend well beyond an ad hoc collection of capabilities”. For the most part it reads like an argument to remain in the EU.

That is until you reach the section about ending the jurisdiction of the European Court of Justice (ECJ) over UK law.  Here, the Government’s red line crashes through the preceding discussion of harmony and mutual cooperation like a Nigel Farage speech to the European Parliament.  Much of what then follows is a discussion of how to replicate the existing JHA measures in some form of UK-EU Treaty (aka having our cake) whilst removing ourselves from the direct jurisdiction of the ECJ (aka eating it).  Given the importance of JHA measures to justice and security, it is crucial to avoid any operational gaps, so the Government’s ambition is to agree a new Treaty as part of the Withdrawal Agreement that terminates our EU membership.  The proposed Treaty would place the UK in almost exactly the same position as it is now – a full participant in an EU-wide area of freedom, security and justice – rather than a semi-detached third party.  But can this be achieved in practice?

The paper considers and rejects existing models for third country cooperation with the EU on justice and home affairs, such as those used for the Nordic States and the US.  Whilst these arrangements tend to be outside of ECJ jurisdiction it is argued that they would “result in a limited patchwork of cooperation falling well short of current capabilities… A piecemeal approach to future UK-EU cooperation would therefore have more limited value, and would risk creating operational gaps for both the UK and for its European partners, increasing the risk for citizens across Europe.”  This echoes the language in Theresa May’s letter to Donald Tusk on 29 March triggering Article 50, in which she made explicit reference (interpreted at the time by some as a threat) to the danger of weakening the fight against crime and terrorism through the failure to reach agreement.  It is clear that the Government believes that the EU has as much to lose as the UK from any reduction in JHA cooperation, and intends to negotiate on that basis.

However, this approach leads to a problem which may produce unavoidable and unintended consequences.  Many of the “comprehensive and sophisticated suite” of JHA measures which we wish to retain are based on the principle of mutual recognition. This is the free movement of judicial decisions across borders: a court order in country A is automatically enforceable in country B and vice versa.  Mutual recognition does not require each jurisdiction to have the same laws, but it does require them to trust, recognise and enforce each other’s judicial decisions.  This, in turn, is predicated on the assumption that each jurisdiction has minimum substantive and procedural standards of criminal justice.  In the lead-up to the 2014 opt-out and, to a lesser extent, the Referendum, many on the Leave side argued that this assumption is simply a fiction which leads to injustice: court orders could be enforced against UK citizens without any of the protections of our own legal system.  This is a sub-set of the same basic argument in support of the Government’s red line on ECJ jurisdiction: we should not be bound by any foreign laws.  However, whatever the rights and wrongs of the debate, mutual recognition is what we are asking to sign back up to after Brexit.  The EAW is quintessentially a mutual recognition measure.  The European Investigation Order is mutual recognition, but on performance enhancing drugs.

To provide all the benefits to security and justice that we wish to retain, mutual recognition requires consistent interpretation of underpinning legal principles such as necessity, proportionality and procedural fairness.  Any divergence in approach between participating countries directly undermines the foundations upon which cooperation is based.  Pre-Brexit, the EAW system coped with divergence in two different ways.  First, in other Member States, by officially ignoring it.  Although many public officials across the EU privately acknowledged the wide variety in criminal justice standards amongst Member States, it was considered too risky to the whole enterprise of mutual recognition to address them directly.  Any drive to enforce consistency, for example on pre-trial detention or whether EAWs should be issued for very minor offences, would have meant acknowledging in public that not all legal standards were equal.  Diplomatic and practical remedies were the preferred solution.  Second, by contrast, in the UK divergence was ‘outed’ and ultimately embraced.

Prior to our opt-out, critics argued that some countries issued EAWs for trivial offences which did not justify forcibly removing someone to face trial overseas.  In addition, some jurisdictions requested extradition far earlier in proceedings than would be possible in the UK, leading to lengthy periods of pre-trial detention in unsavoury conditions, away from their homes and families, for suspects who were subsequently acquitted.  Our courts had already diverged significantly from other Member States in routinely refusing extradition based on a disproportionate interference with an individual’s private and family life under Article 8 ECHR; and by permitting arguments under Article 6 and/or abuse of process that challenged the substantive basis upon which an EAW had been issued.  These practices infuriated practitioners in other Member States, who argued that they drove a coach and horses through mutual recognition.  Undeterred, in 2014 the Government introduced new statutory bars to extradition which arguably did not feature in the EAW Framework Decision at all.  Extradition could now be barred explicitly on grounds of proportionality, forum, or in the absence of a decision by the requesting State to charge and try the suspect.

Pre-Brexit, the UK was able to pursue a divergent approach to mutual recognition because the other Member States did not want to risk undermining the whole project.   The EAW was – and still is – considered a success.  It was too dangerous to start exposing and picking at the foundations; therefore the UK’s unorthodoxy was tolerated.  The irony is that, in negotiating a new UK-EU Treaty for justice and home affairs, the EU 27 no longer have as much incentive to be tolerant.   The UK, by its own choice, will be outside of the EAW Framework Decision and outside of the jurisdiction of the ECJ that enforces consistency in approach, interpretation and application.

Post-Brexit, the risks to the Member States in demanding conformity from the UK will be greatly reduced. If the UK won’t be bound by the ECJ, but still wants the benefits of mutual recognition, it is even more important to the Member States that any new Treaty is as consistent as possible with the measures that will continue to operate within the EU.  They will want whatever replaces the EAW between the UK and the EU to operate like the EAW already does between the EU 27, and not the divergent version currently tolerated.  So on the narrow question of dispute resolution, the EU may agree to forgo the direct jurisdiction of the ECJ, but is likely to insist that its pre-existing caselaw is binding and post-Brexit caselaw will be highly persuasive.  This would preserve the Government’s red line.  But, on the broader principle of mutual recognition the EU may well demand that the UK strip out the additional bars to extradition introduced in 2014 that do not appear in the Framework Decision.  Therefore, at least in relation to crime and security, by leaving the EU we will be obliged to conform more closely to its legal norms and to weaken, according to some, the additional protections for UK residents from the reach of ‘inferior’ legal systems.  We may be able to have our cake and eat it, but the cake will have to be baked using the EU’s recipe.

By Nick Vamos, Partner at Peters & Peters LLP

Nick has nearly 20 years of criminal law experience focussed on international, high-profile and sensitive matters. He joined the firm in September 2017 from the Crown Prosecution Service where he was Head of Special Crime, overseeing the most complex casework in the CPS including the Hillsborough disaster, corporate manslaughter, police corruption, deaths in custody, medical manslaughter and election fraud cases.


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