COMMENT: The UK-EU Trade Agreement: impact on security and cooperation

On 24 December 2020, criminal practitioners and law enforcement agencies breathed a collective sigh of relief at the conclusion of the UK-EU Trade and Cooperation Agreement (‘the Agreement’). Throughout the transition period, the perils of no deal for criminal justice and security cooperation had been forewarned by senior police officers, prosecutors and Parliamentary Committees alike and the avoidance of such a ‘cliff-edge’ outcome is surely to be celebrated.  While the Home Secretary was quick to extol the virtues of the deal declaring the UK would be “more secure” after 31 December, the Agreement, while undoubtedly preferable to the disruption and uncertainty of no deal at all, leaves the UK on the outside looking in on a number of key institutions and excluded entirely from some cross-border information sharing and investigative mechanisms, the material impact of which on the safety of UK citizens and the prevention, detection and prosecution of serious crime will not be fully understood for some time.

The Agreement seeks to remedy the UK’s loss of access to the EAW, the country’s most valuable cross-border crime fighting tool, through the surrender arrangements contained in Title VII of Part 3 in the Agreement. The approach, as incorporated into the Extradition Act 2003 (‘the 2003 Act’) by the European Union (Future Relationship) Act 2020 (‘the 2020 Act’), is largely consistent with that operated under the EAW scheme and avoids the need to revert to the 1957 Convention on Extradition, under which extradition was a cumbersome and time consuming procedure. The new scheme does diverge from procedure under the EAW in some significant respects, the most notable of which is to be found in section 12 of the 2020 Act, which amends sections 64 and 65 of the 2003 Act to remove the mandatory waiver of dual criminality for offences contained in the European Framework List and replace it with an optional waiver for a nearly identical list of offences. It remains to be seen in practice how the UK will approach this optional waiver; to opt out would be a significant departure from the mutual trust and recognition at the centre of the EAW scheme. This requirement, under the EAW scheme, to treat all other Member States on an equal footing even in cases where adherence to the rule of law in some of those jurisdictions fell far below the UK standard underpinned the UK’s pre-Brexit concerns surrounding the EAW. Other notable changes include the introduction of an overarching principle of proportionality and a nationality bar to extradition, whereby the UK or any Member State may notify the Specialised Committee on Law Enforcement and Judicial Cooperation of the fact it will not extradite its own nationals. Notifications will likely be made by Germany, Austria and Slovenia, all of which declined to extradite nationals to the UK during the transition period.

While the operation of the surrender arrangements in practice remains to be seen, the apparent alignment between the new arrangement and the EAW regime offers hope for the smooth continuation of extradition between the UK and Member States. In the matters of cross-border cooperation and information sharing, however, there is less cause for optimism as the UK now finds itself on far weaker footing than its European counterparts. As was expected, the UK has, subject to saving provisions applying to requests received and transmitted prior to 31 December 2020, lost access to the European Investigation Order and with it the significantly expedited timeframe for responses to requests for mutual legal assistance (‘MLA’). Access to real-time border security alerts for wanted criminals and missing persons via the Schengen Information System, searched over 600 million times annually by UK law enforcement, has also been lost. While the Agreement makes some provision for MLA and the exchange of certain data between the bloc and the UK, critical time in investigations will invariably be lost. No longer a full member of Europol or Eurojust, the UK has also lost direct access to the SIENA database for the secure exchange of sensitive and restricted information and will not play a role in the management, decision making or objective setting of either agency.

Among the many losses, some key tools have been preserved. Provision is made for the exchange of criminal records data – though no longer in the form of real-time access to the European Criminal Records Information System (‘ECRIS’). Provision is also made for the sharing of passenger record data and biometric data and the UK can continue to participate, on a third country basis, in joint investigations teams, which have proved invaluable in the fight against cross-border crime. While the Agreement has avoided the immediate catastrophic effects of no-deal, large gaps in the UK’s cross-border investigative and enforcement capabilities remain unaddressed. It is too early to assess the impact of the UK’s loss of access to so many previously integral information sharing and investigative tools but, in an increasingly globalised criminal landscape, any increase in barriers to international cooperation is regrettable.