Brexit

The Post-Brexit criminal justice co-operation landscape

On 24 December 2020 the UK and the EU agreed the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community of the One Part and the United Kingdom of Great Britain and Northern Ireland, of the Other Part (‘Trade and Cooperation Agreement’), which heralds a wave of reforms to co-operation between the UK and the EU on Justice and Home Affairs (JHA) matters. The sections below set out the background to the Trade and Cooperation Agreement and the key changes made in the areas of criminal justice cooperation.

UK’s Approach to Negotiations

The UK set out its objectives for post-Brexit law enforcement and judicial cooperation in its published ‘Approach to Negotiations’ document, which stated that any agreement reached should facilitate police and judicial cooperation between the UK and EU Member States; equip operational partners on both sides with capabilities that help protect the public and bring criminals to justice; and promote the security of all citizens. In particular, provision should be made for:

• arrangements that support data exchange for law enforcement purposes;
• operational cooperation between law enforcement authorities; and
• judicial cooperation in criminal matters, including MLA and extradition.

UK-EU Trade and Cooperation Agreement

Data exchange for law enforcement purposes

In line with the UK’s negotiation objectives, provision is made for the continued exchange and storage of criminal records information, though no longer with real time access to the ECRIS database; continued exchange of DNA and other biometric data through the Prüm system and reciprocal transfers of passenger name record (PNR) data.

Despite the UK government’s desire to agree a mechanism for the sharing of real-time alerts on wanted or missing persons, previously provided by the SISI II system, no provision for extending access to that system was agreed.

Operational cooperation between law enforcement authorities

The UK and the EU have agreed arrangements for ongoing operational cooperation between the UK and both Europol and Eurojust, albeit on a ‘third country’ basis. These arrangements will be supplanted in due course with more detailed operational and administrative arrangements to be agreed and published separately.

Judicial cooperation in criminal matters

The UK did not seek continued participation in the EAW regime and surrender between the UK and the EU is now governed by Title VII of Part 3 of the Trade and Cooperation Agreement. The terms of the Agreement closely mirror the provisions of the Framework Decision on the EAW with some notable differences. For more information on the post-Brexit extradition arrangements between the UK and the EU, see our page on Part 1 of the Extradition Act 2003.

Part 3 of the Trade and Cooperation Agreement also contains arrangements for ongoing MLA between the UK and the EU. Information on these arrangements can be found at our MLA page.

Sticking point in the negotiations: the UK ‘red line’ and the future role of the CJEU

The UK Government imposed a ‘red line’ over the post-Brexit jurisdiction of the CJEU. In short, it stated it would not enter into an agreement which would allow the CJEU to over-rule the UK courts or to give binding judgments over how the agreement must be applied in the UK. This is reflected in the outcome of the negotiations. Title VII of the Trade and Cooperation Agreement, which makes provision for surrender arrangements between the UK and the EU is not subject to the dispute settlement provisions contained in Title XIII, as such the CJEU has no jurisdiction in this area.

Extradition (Provisional Arrest) Act 2020

On 22 October 2020 the Extradition (Provisional Arrest) Act came in to force and amended Part 2 of the Extradition Act 2003. The Act creates a new power of arrest without a warrant in the case of an individual sought for extradition purposes on foot of a request, which could include an INTERPOL Red Notice, which has been certified as being from one of a number of “trusted countries” and in connection with a serious offence. The six “trusted countries” when the Act came into force were Australia, Canada, Liechtenstein, New Zealand, Switzerland and the United States of America. A “serious offence” is defined as one punishable in the UK with a custodial sentence of three years or more and that the conduct is sufficiently serious to make it appropriate to issue a certificate.

In the event of a no-deal Brexit, the 2020 Act was intended to serve a failsafe to allow for arrest to take place on the basis of INTERPOL Red Notices, which it was hoped would plug the gap left by loss of access to the EAW regime.

All EU Member States plus Norway and Iceland were specified in an uncommenced provision in the Act with a view to bringing those entries into force on 31 December 2020, in the event that the UK left the EU without a deal. As a consequence of the Trade and Cooperation Agreement, the provision was only partially brought into force in relation to Norway and Iceland but not the remaining EU Member States.

Further information

• Centre for European Reform, Plugging in the British – Completing the circuit, Sophia Besch, Ian Bond and Camino Mortera-Martinez, June 2018.
• Home Affairs Committee, UK-EU security cooperation after Brexit, March 2018; and Follow-up Report, July 2018
• House of Commons, Justice Committee, Implications of Brexit for the justice system, March 2017.
• UK Government, Future Partnership Paper.
• Department for Exiting the European Union, Technical note on security, law enforcement and criminal justice, May 2018.
• House of Commons Home Affairs Committee, Home Office preparations for the UK exiting the EU, 5 December 2018.
• RUSI, No Deal, No Data? The Future of UK-EU Law Enforcement Information Sharing, 26 February 2019.
• House of Lords Library, Extradition (Provisional Arrest) Bill [HL] Briefing for Lords Stage, 27 January 2020.
• UK Government, The Future Relationship with the EU; The UK’s Approach to Negotiations, February 2020.
• The Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community of the One Part and the United Kingdom of Great Britain and Northern Ireland, of the Other Part, 24 December 2020.