The impact of Brexit on business crime: part two

As the debate around Brexit rages, and the Supreme Court is set to hear arguments from both sides on whether the decision to trigger article 50 is for Parliament or the Prime Minister, the comments on detail progress.  Recent weeks have seen two of the UK’s leading prosecutors appearing before select committees to comment on the potential effect of Brexit on their departments, along with the government committing to information sharing.

Alison Saunders, the Director of Public Prosecutions, gave evidence to the House of Lords EU Home Affairs sub-committee. The DPP began by providing an overview of the CPS’s relationship with the EU, which was described as “a really good established  relationship”. The DPP also confirmed that as the majority of cases have an international connection, more and more global connections are a necessity.

The DPP stated she would like to retain the European Arrest Warrant, which was vital for the CPS. The EAW has made extradition “three times faster, four times less expensive” and enables foreign citizens to be returned when they would otherwise be protected by the domestic laws of countries. The DPP provided three case studies:

  • A terrorism case, (R v Osman), where an associate of the 7/7 bombers who fled to Italy was extradited within 51 days.
  • A money laundering/fraud case (R v Di Stefano) where an EAW was issued, and the suspect arrested two weeks later in Spain and swiftly extradited..
  • A man suspected of the murder of an elderly couple who fled to France via the Channel Tunnel. Intelligence came back from the Schengen Information System to say he was in Luxembourg.

The DPP suggested that leaving the confines of the EAW would mean extraditions could take much longer, citing that non-European extraditions can take months or years. In addition, the EAW means there is no bar to nationals being extradited.  The DPP gave the example of Poland, who will only extradite their citizens under an EAW.  She suggested that a total 150 persons would not have been extradited under bilateral treaties.

In practice, the DPP agreed the UK could fall back on to the 1959 convention, although it had been repealed in some countries so new legislation may be needed. For more information on the extradition process, see Practice note, Extradition from the UK. 

The DPP confirmed that the UK makes extensive use of Eurojust, and is currently involved in 31 current joint investigation teams (JITs).  The CPS had found it incredibly useful to do things in real time, rather than having to send letters of request to individual states. Co-ordination meetings are easy to arrange, ensure no national priorities disrupt the investigation and allowed “a neutral space with translation facilities”.

In addition, the ability to raise and resolve problems through Eurojust was a significant strength of the existing system. The DPP provided the example of prison conditions in member states when seeking to extradite, which was causing delays. The issue was raised with Eurojust, and resolved very quickly.

The DPP accepted EU membership was not a prerequisite for cooperation – the US and Swiss have prosecutors at Eurojust, but they were not part of the management board and therefore cannot help with strategy, or gain access to case management, or to determine conflicts. The DPP did not know how long it took to negotiate their position, although she understood the Swiss started in 2008 and got a prosecutor in 2015.

The Schengen Information System (SIS) was another vital tool that enabled the CPS to send requests to all 27 countries at once, a far more efficient method of locating wanted persons than making enquires with each member state. For more information see Practice note, Mutual legal assistance.

The DPP also expressed the growing importance of mutual recognition for proceeds of crime, which greatly increased the ability to locate and recover assets abroad.  The DPP confirmed this was mutually beneficial: it has had 69 requests for restraint and frozen assets in excess of £179m.

The evidence of the DPP contained no surprises, and was a master class of diplomacy, not seeking to influence government policy, but making it quite clear the effectiveness of the CPS would be severely compromised by not maintaining the existing arrangements with EU states. This view was echoed by David Green CB QC, the Director of the Serious Fraud Office (SFO) who in evidence to the Justice Select committee confirmed the need to maintain effective cooperative relationships with EU member states. For more information see Legal update, SFO Director gives evidence to the Justice Select Committee.

Although attracting limited publicity, a development occurred this week that provided some indication the government is considering maintaining a close working relationship with the EU organisations.

The Prüm Convention allows member states reciprocal searching of each other’s databases for DNA profiles, vehicle registration data and fingerprints. The UK’s participation in the convention was agreed in December 2015. This week it was reported that Brandon Lewis MP, a Home Office minister, has confirmed that Britain will agree to continue implementation of Prüm in a letter to the Commons European Scrutiny Committee, stating:

The Government does not envisage the initial timeline for implementing Prüm being affected by the decision to leave the EU, and is continuing with the implementation of Prüm. We are confident that the exchange of data will start to take place in 2017.

Mr Lewis added that it was “premature to speculate” on what sort of agreement the UK would seek to reach after leaving the EU.

The decision is perhaps indicative that Britain will remain a member of and continue to enforce the EU-wide arrest warrant. Tim Farron, the Liberal Democrat leader, who recently asked the Prime Minister whether she will put UK security ahead of ideology and opt in to Europol said it was now crucial that the Prime Minister also “sign up to Europol and other crime fighting powers, and that organised crime and criminals do not stop at the cliffs of Dover and Britain gains from being part of the European Arrest Warrant, Prüm and Europol”.

In among a multitude of ideas and proposals for a post-Brexit future, judicial co-operation seems relatively uncontroversial. Perhaps a helpful step in the negotiations would be for an early commitment to remain a full contributing member of Europol and honouring existing commitments to the EAW. Advocating a less effective and more costly prosecution service as evidence of retaining sovereignty would be an unusual argument.

Practical Law David Bacon

Leave a Reply

Your email address will not be published. Required fields are marked *