Imagine sometime after 29 March 2019; a large bomb is set off in a French railway station, killing hundreds of people, and it turns out that the United Kingdom government had information on those planning the attack but did not pass this onto the French because certain aspects of reciprocal information sharing had not been put in place during Brexit negotiations? It is political nightmare scenarios like this that makes the Brexit negotiations regarding security and law-enforcement vital for both the UK and the EU, and hopefully less susceptible to the kind of political machinations and grandstanding than has been seen in other areas.

On 18 September 2017, the United Kingdom Government published its Future Partnership Paper on Security, Law Enforcement and Criminal Justice, one of a series of such papers setting out basic negotiating positions on a number of key areas. The Paper advocates for the future relationship between the UK and EU to be based on the continuation and enhancement of existing mechanisms, and on a closer basis than the EU’s arrangements with other non-Member states. The Paper proposes that a new treaty be agreed to ensure this.

The Paper underscores the importance of the current reciprocal UK-EU arrangements in combating organised intra-jurisdictional crime and terrorism. Indeed, these arrangements are of such importance that the United Kingdom electorate should arguably have been far better informed about them by the Government prior to the EU Referendum. The Executive Summary of the Paper underlines the pivotal role that existing UK-EU mutual arrangements play:

“It is through pooling expertise and resources with EU partners that the UK has been able to develop some of the world’s most sophisticated cross-border systems and arrangements in the fight against crime. This close relationship has produced a comprehensive and sophisticated suite of mutually reinforcing arrangements that help protect citizens and the continent.”

The Paper goes on to laud the current arrangements to such a degree that it rather seems to cast Brexit itself as an act of reckless folly. Indeed, it acknowledges the leading role that the UK has played in the development of these existing arrangements:

“The UK has been one of the leading contributors to the development, at an EU level,

of practical, effective measures to strengthen information-sharing and cooperation. These in turn improve the ability of operational partners to prevent crimes from taking place, prosecute those who have committed offences, deliver justice, deport foreign criminals and terrorists, or stop them coming to the EU in the first place.”

Existing structures

There are a formidable array of existing structures or toolkits within the EU that underpin mutual cooperation in the fight against crime, and are given a legal basis through Title V of Part Three of the Treaty on the Functioning of the European Union. They include:

  • The European Union Agency for Law Enforcement Cooperation (Europol) the law enforcement agency of the EU formed in 1998 to handle criminal intelligence and combat serious international organised crime and terrorism through cooperation between competent authorities of EU Member States. It is under the umbrella of Europol that a number of other initiatives operate. The current director of Europol is Robert Wainright from the UK. It coordinates, for instance, a number of Europol Analysis Projects focused on tackling serious and organised crime and terrorism. The UK currently participates in all 13 of the EU’s current law enforcement priority projects. It plays a leading role in a significant number of those projects, as well as contributing to over 40 Joint Investigation Teams.
  • Likewise, the Europol Internet Referral Unit (IRU) set up in July 2015 to detect and combat terrorist propaganda online. It builds upon the Europol ‘check-the-web’ service, which was originally a German initiative, and has since expanded its remit to develop functionality based on the UK Metropolitan Police Service’s Counter Terrorism Internet Referral Unit.
  • Eurojust is an agency of the EU dealing with judicial co-operation in criminal matters and created to improve handling of serious cross-border and organized crime by stimulating investigative and prosecutorial co-ordination among agencies of the EU Member States. Eurojust is composed of a College formed of 28 National Members—experienced judges, prosecutors, or police officers of equivalent competence from each EU Member State.
  • Joint Cybercrime Action Taskforce (J-CAT) founded at Europol in 2014. J-CAT is part of Europol’s cybercrime centre, and is a forum for specialist to drive coordinated action against threats from cybercrime. In its first three years, J-CAT has led and coordinated cybercrime investigations and campaigns enabling hundreds of arrests. It provides support to many UK investigations both proactive and reactive, including the UK’s investigation into the recent WannaCry ransomware attack.
  • The Schengen Information System (SIS) II is a real-time alert system, the product of law enforcement agencies from across the EU using technology to flag people and objects of interest to law enforcement. The UK has for example uploaded details of registered sex offenders onto SIS II, enabling the UK and its EU partners to track and monitor them throughout the EU.
  • The Directive on Passenger Name Records data gives rise to a pan-EU approach to processing passenger data. This enables identification of known individuals and, from their patterns of travel, otherwise unknown individuals involved in terrorism-related activity and serious crime, including victims of trafficking and individuals vulnerable to radicalisation.
  • The European Arrest Warrant (EAW) is a mechanism by which individuals wanted in relation to significant crimes are extradited between EU Member States to face prosecution or to serve a prison sentence for an existing conviction.
  • The Prum Treaty allows for the reciprocal searching of each other’s databases for DNA profiles, Vehicle Registration Data and fingerprints.
  • The European Strategic Communications Network (ESCN) is a network of 26 EU Member States who collaborate on the use of strategic communications in countering violent extremism across Europe.
  • The EU’s law enforcement priorities are set with reference to a Serious and Organised Crime Threat Assessment (SOCTA) carried out by Europol.
  • The Council Framework Decision 2006/783/JHA provides for the mutual recognition of confiscation and freezing orders.
  • The European Supervision Order allows a person accused of a crime in one Member state to return home and be supervised until their trial takes place.

The task of finding legal structures through which the UK can continue to play a role within these various parts of the toolkit is a formidable one, which will require both political vision and some legal dexterity.

The objectives for future partnership

The Paper, therefore, advocates a new partnership between the UK and EU in this area in order to maintain and enhance current arrangements, underpinned by three core objectives:

  • To protect the safety and security of citizens and uphold justice in the UK and across the EU;
  • To maintain the closest and most cooperative of partnerships, continuing the longstanding traditions of friendship between the 27 EU countries and the UK;
  • Continue to cooperate on the basis of shared democratic values and respect for the rule of law.

Existing models for security co-operation with non-EU states

The Paper examines existing models for security and law enforcement co-operation between the EU and non-EU countries, such as the agreements with countries such as US and Australia regarding European Passenger Name Records data. Equally, Norway and Iceland have concluded agreements with the EU to participate in Prum for the rapid sharing of fingerprint DNA and Vehicle Registration data. Likewise, the EU has concluded agreements in regard to Mutual Legal Assistance, sharing evidence for use in a criminal trial of another country, with countries including the US and Japan.

The Paper acknowledges, however, that there would be some shortfall should the future relationship with the UK be built upon agreeing ad hoc arrangements regarding various EU security mechanisms, giving rise to perhaps the central concern underlining the whole Paper:

“While this would be one possible approach, it would result in a limited patchwork of cooperation falling well short of current capabilities. It would also fall short of current channels used to assess the strategic threats facing European countries – threats that will still be shared after the UK withdraws from the EU. 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 illustrates the risk of Brexit; there is a possibility that insufficient mutual security arrangements will result in increasing security risks to citizens across Europe. This is self-evidently and obviously true; organised crime and terrorism are increasingly multinational with crimes and attacks in one country often being organised in another. The UK, for instance, is a hub for human trafficking with large numbers of exploited women being forced or tricked into travelling to the UK and working in brothels. Brexit then threatens to reduce transnational co-operation and emphasise borders between countries at the same time that organised crime is becoming increasingly borderless.

The proposed treaty

To counter this, the Paper proposes that the future relationship between UK and EU be based upon what it describes as a ‘more ambitious model’ for cooperation than that based on existing precedents for arrangements with non-EU countries. It sets out the case for a strategic agreement that provides a comprehensive framework based upon a treaty between the UK and the EU to provide a legal basis for continued cooperation in this vital area. Although the Paper emphasises that it is seeking a new and dynamic enhancement of co-operation, it is hard to read it as anything other than a plea for common sense from both sides to allow existing arrangements to continue and develop. Indeed, there is almost an air of regret and embarrassment that there should be this jeopardy regarding continued participation in EU mechanisms that the UK has done so much to develop, and which it clearly believes are vital in the national interest.

Although there is evident good sense in some kind of close partnership being established, whether by treaty or other agreement, establishing this will not be without obstacles. For instance, given that the UK will no longer be subject to direct jurisdiction of the Court of Justice of the European Union, how will potential disputes between the EU and UK over the interpretation of such an agreement be resolved?

Likewise, what is to become of the European Arrest Warrant in the post-Brexit era given that one of the key rallying cries for those seeking Brexit during the referendum was freedom from the ‘tyranny’ of a European-wide state. What are such warrants if not the embodiment of a transnational state with the power to arrest citizens in any one of its jurisdictional provinces?  From 2004 to 2015 the UK extradited over 8000 individuals accused or convicted of a criminal offence to other EU countries using these warrants. Law enforcement agencies in both UK and EU will want these to continue but will pragmatism overcome politics and uncertainty as to the legal foundation for their continuance? Precedents for co-operation with other Non-EU countries does suggest that the need for co-operation in vital areas tends to trump legal jurisdictional ambiguity. Nonetheless, achieving a sound legal basis for the proposed treaty is not without challenge.

Others, however, do not see the imperative for the UK to bolster existing UK-EU mechanisms but rather see this as an opportunity to create modern and ambitious global rather than European mechanisms. Indeed, it is self-evidently true that transnational crime and terrorism shows no respect for the borders of the EU, and such crimes are just as likely to be planned outside the EU as within it. This is particularly so with terrorism. The Five Eyes network of states with enhanced security cooperation set up during the Cold War, for instance, could be seen as a prototype that could form the basis of expanded and genuinely global mechanisms. This perhaps is the other side of the Brexit coin; there is at least the opportunity for the UK to expand and enhance co-operation other countries seen as vital to preserve its national security. Further, there is the opportunity for the UK to be at the forefront of this.

Political machinations

There would clearly be potentially serious implications for security and law enforcement for both the EU and the UK should Brexit mean that the UK has to leave the current toolkit of institutions. This has not, however, stopped politicians on both sides from political posturing. Indeed, on 28 August 2017 chief EU Brexit negotiator Michel Barnier warned that Britain would be forced to leave Europol and that the EU-UK split would weaken British security and counter-terrorism, although there have been other more conciliatory comments from within EU sources since then. There has even been comment to the effect that the UK’s ability to stay within Europol can only be achieved by paying a certain fee, although this may not in reality amount to more than paying its share of the administration costs of the organisation. It must be hoped, therefore, that politicians on both sides will allow negotiations in this area to be driven by operational requirements rather than as part of a larger political game.

Kevin Dent has built up a wealth of experience over 20 years in fraud and serious crime and is often instructed as leading counsel. The core of Kevin’s practice is fraud, revenue evasion, money laundering, and healthcare frauds.  Kevin is often instructed in multi-million-pound fraud cases involving large volumes of complex material calling upon Kevin’s keen eye for detail.