What will Brexit mean for our Criminal Justice System?
Article by Sinead Willox, Solicitor Advocate at P.A.Duffy & Co Solicitors.
Discussions concerning Brexit have focused on trade, potential shortages and the constitutional position of Northern Ireland. As we enter the transitional period for the next eleven months what will Brexit mean for our Criminal Justice System and, our important cross-border instruments, such as European Arrest Warrants (EAWs) and European Investigation Orders (EIOs). Will we immediately lose access to the enormous pool of criminal intelligence shared by EU member states through Europol and the Schengen Information System (SIS 2)?
Although there is not an immediate shut down during the currency of the transition period, the Police and National Crime Agency are working hard to make up for future lost capacity through other methods, in particular by reverting to data-sharing through INTERPOL in preparation for the end of the transitional period. But can INTERPOL ever replicate the EU measures, described by the UK government in its own position paper in September 2017 as
“a comprehensive and sophisticated suite of mutually reinforcing arrangements that help protect citizens and the continent.”
There are three particular areas where this can most easily be demonstrated: Borders, Mutual Legal Assistance (MLA) and Extradition.
The government confirmed in September 2019 that, “border crossing arrangements will remain unchanged. EU citizens will enter the UK as they do now… and they will not face routine intentions testing.” This means that free movement into the UK will continue for an unspecified period.
Individuals convicted of serious offences can still be refused entry under normal immigration powers, and we have retained access to SIS 2, which gives Border Force immediate access to all EAWs circulated within the EU. Therefore, someone wanted for a serious offence in another member state trying to enter the UK will be detected and arrested at the border and detained whilst the extradition process runs its course.
Mutual Legal Assistance
When police or prosecutors in one country need evidence from another, they can request it via a process called Mutual Legal Assistance (MLA).
Crime is increasingly transnational so MLA is essential, but it is discretionary, slow and inefficient. That is, everywhere except within the EU, which in 2017 introduced the European Investigation Order. Currently, the Crown Prosecution Service (CPS) (England and Wales) Public Prosecution Service (PPS) (Northern Ireland) can obtain an EIO from a UK court order to be executed in any other member state for bank records, emails, searches of premises, public records and so on. The order is directly enforceable in the other EU country, which must send the evidence back within 90 days as set out in the EIO Directive.
Prior to the introduction of the EAW, nearly half of the EU member states (13 out of 28) refused to extradite their own nationals. The UK never imposed any such restriction, but for many other countries this remains an important constitutional principle. The EAW Framework Decision replaced the old, slow, diplomatic form of extradition with a more streamlined procedure that removed this barrier between EU countries. The EAW system is imperfect, but it has eliminated safe havens.
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