Criminal Justice cooperation post Brexit: European Arrest Warrant, European Investigation Order and Mutual recognition

While the letter triggering Article 50 was being delivered  the EU Home affairs sub- Committee was in session considering “Criminal Justice Cooperation with the EU after Brexit: The European Arrest Warrant inquiry“.

Oral evidence was given by academics and practitioner experts including Professor Sir Francis Jacobs QC, Professor of Law and Jean Monnet Professor; former Advocate General, King’s College London, European Court of Justice and Dr Anna Bradshaw, Member of the Law Society’s EU Committee; Counsel, Law Society, Peters and Peters.

The remit of this inquiry is to follow up on the Sub-Committee’s previous report on Brexit: UK-EU security and police cooperation by examining more closely how the Government’s intention to “bring an end to the jurisdiction of the Court of Justice of the European Union in the UK” will affect the UK’s ability to sustain “deep cooperation” with the EU and its Member States in the fight against crime and terrorism.

Some EU leaders felt that Theresa May’s Article 50 letter was threatening that a failure to reach a comprehensive Brexit agreement covering crucial deals on justice and home affairs would result in a weakening of cooperation on crime and security. For more see Legal update, Government triggers Article 50 and starts countdown to Brexit.

The former Belgian prime minister (Guy Verhofstadt ) who represents the European parliament in the negotiations, called it a threat and said the security of citizens was “far too important to start a trade-off of one and the other”

David Davis, Minister for Brexit, responded by confirming that the terms of the letter did not constitute a threat to withdraw security cooperation with the EU if no final deal is reached before Britain’s exit in two years’ time.

The UK and the EU-27 share a strong mutual interest in sustaining police and security cooperation post Brexit. In contrast to other policy areas, all states stand to gain from a positive outcome to this aspect of the negotiations and so it should be dealt with separately. There is a perceived risk that there will be limits to how closely the UK and EU-27 can work together if they are no longer accountable to, and subject to oversight and adjudication by, the same EU institutions, for example the CJEU.

Faced with the rise in cross-border crime, the administration of justice must not be politicised or impeded by differences between the EU countries’ judicial systems and the lack of mutual recognition for judicial decisions. It is essential to ensure effective cooperation on obtaining evidence in criminal cases. The Director of Interpol, Rob Wainwright, has made this very point in a podcast made with the Centre for European Reform earlier this year. For more information on the speech see Legal update, Europol Director speaks about the challenges posed by Brexit.

To this end, the UK is in the process of implementing the European Investigation Order (EIO)  and it is anticipated to become law by the 22 May 2017.

What is an EIO?

An EIO can be issued in order to obtain evidence that already exists and is directly available in the form of items, documents or data. It can also be issued for the purpose of having one or several specific investigative measures carried out in the executing State EIO with a view to gathering evidence. It covers all investigative measures aimed at gathering evidence, including telephone interceptions, covert investigations and information on banking.

The EIO is designed to replace a series of existing measures, including the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters and the 2000 EU Convention on Mutual Assistance in Criminal Matters, with a single instrument intended to make cross-border investigations faster and more efficient

From 22 May 2017,  obtaining criminal evidence within the EU will be governed the Directive on the European Investigation Order by  based on the principle of mutual recognition. The Directive was adopted on 3 April 2014. The Directive is based on the principle of mutual recognition for judicial decisions when it comes to obtaining evidence for use in criminal proceedings.

Following the adoption of EIO the Framework Decision on the European Evidence Warrant of 2008, which only applied to evidence which already exists and therefore covered a limited spectrum of judicial cooperation in criminal cases with respect to evidence, will be revoked.

How does an EIO work?

It will be issued using a standard form and translated into the official language of the executing State. It shall be recognised and acted upon within a fixed deadline of a maximum of  30 days for evidence already available or 120 days for investigative measures which still need to be carried out by the executing Member State, unless there are applicable and relevant grounds for refusal. The execution of a EIO  will not be subject to verification of dual criminality if the offence is punishable by a custodial sentence of at least three years and is mentioned on a list of offences in the Directive.

The executing authority should use another type of investigative measure if the indicated measure does not exist under its national law or would not be available in a similar domestic case. The executing authority may also have recourse to another type of investigative measure where it would achieve the same result as the investigative measure indicated in the EIO by means of implying less interference with the fundamental rights of the person concerned.

European arrest warrant

Allied to the EIO, another pillar of cross-border collaboration in tackling crime is the European arrest warrant (EAW) and will be an arrangement it is hoped that the UK will be negotiating to keep. The CPS regard  the EAW as “absolutely vital” . The National Crime Agency list the EAW in their top three priorities for the forthcoming negotiations on UK withdrawal from the EU. The Metropolitan Police Service’s Senior National Coordinator for Counter-Terrorism Policing currently rates the EAW an extremely valuable power to use in Counter Terrorism policing.

The Scottish Authorities, The Crown Office and Procurator Fiscal Service state that there was clear evidence that EAWs allow suspects to be surrendered far more speedily than traditional extradition processes  and emphasised the benefits both to the public purse  and in delivering justice and upholding the rights of both victims of crime and accused persons.

Alison Saunders, the Director of Public Prosecutions (DPP), has been unequivocal in stating the importance of the EAW.  She identifies four problems with operating under the 1957 Convention rather than the EAW:

  • A number of EU Member States had rescinded the domestic legislation underpinning the Convention when they adopted the EAW.
  • The own nationals exemption.
  • The increased cost.
  • The potential for delays.

For more  Practice note, Extradition under Part 1: receipt and certification of extradition requests

Mutual recognition for confiscation orders

The Framework Decision providing for mutual recognition of confiscation orders is one of the 35 pre-Lisbon police and criminal justice measures that the UK re-joined in December 2014.Mutual recognition for proceeds of crime is among the CPS’s top four priorities in any forthcoming negotiation on a UK exit from the EU. Although this is a fairly new measure it is an important step in preventing criminals from benefiting from crime.

Under this mutual recognition, a UK authority can ask other EU member states to recognise UK orders and enforce them abroad, and vice versa. For example where a confiscation order is made in England and the prosecution authorities know that the assets are in Spain, the Spanish court can enforce the confiscation order by forcing the sale of the property.

There has been an increase in the number of requests from EU countries asking the CPS to freeze assets in the UK. In cases where more than £10,000 was being recovered, the proceeds that were recovered were split 50/50, so that there is a financial incentive to co-operation.

There are five key areas in which co-operation with the EU is essential for the investigation and prosecution of serious crime:

  • Definitions of crime.
  • Procedural harmonisation.
  • Mutual recognition of agreements.
  • Information Exchange.
  • Pan-European agencies.

The EIO will have only been implemented for a month or so when negotiations begin to secure these processes.

In the negotiations for continued cooperation the UK will be seeking unprecedented access to measures for a non-EU, non-Schengen country. It remains to be seen whether the UK’s pre-existing relationship with the EU, and the contribution it currently makes in relation to cross border crime and security, will be enough to secure this access.



Morag Rea

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