Bill Tupman, Honorary Fellow, Centre for European Governance, University of Exeter
June 25, 2020
As Brexit approaches one of many questions is, what will its impact be on Justice and Home Affairs (JHA) cooperation and consequently on safety and security in the UK and the European Union? An unanticipated but related question is: what will the impact of Covid-19 be on the way crime is organised and hence on JHA?
The UK has always been an outlier in European Justice and Home Affairs policy. The adversarial system, the absence of judicial supervision of investigation, trial by jury and the Common Law system were the main obstacles to cooperation between England and Wales (but not Scotland which has a procuratorial system) and the police and courts in the rest of Europe, with the possible exception of Ireland. The ability and skill of UK detectives were admired as was the bottom-up nature of British policing: including high discretion of the individual police officer, absence of a direct entry officer force, unarmed policing, service policing, absence of political control and consequently policing without fear and favour. The stability of the British legal system was much admired, too, although this stability has been absent in recent years with constant legislative change in investigative and criminal law. In contrast the rest of the European Union followed Napoleonic models and what has been referred to as a Civil Law system, although, in fact there were and are two competing systems of judicial supervision: judge-led and prosecutor-led.
Justice and Home Affairs cooperation began as a response to a perceived threat from organised crime terrorism and immigration to stability and prosperity in the EU after the removal of the internal borders, assumed to be an inevitable consequence of the Single European Act. The first response was the Schengen Convention, but in the codicils to the treaty of Maastricht there was also a paper on the use of information technology to counter these problems. From this latter grew a series of databases, initially conceived as a way of facilitating police cooperation by abolishing jurisdictional borders by the use of cyberspace.
So post-Brexit, the possibility is that the UK becomes an offshore haven for transnational criminal actors, because extradition will be problematic, money-laundering will be easy and cooperation will be one way…The UK will expect cooperation from the rest of Europe in finding and returning its offenders from Europe, while refusing or delaying the extradition and provision of evidence to police and judicial authorities outside its borders. It also becomes attractive to people-smugglers as its stronger border controls will enable them to put their prices up. Criminal networks will change behaviour wherever they see opportunities for extra profits and lower likelihood of prosecution.
Criminal networks have had to change their modus operandi as a result of Covid-19. Fewer flights, ferry movements and movement in general make drug trafficking and people trafficking mire exposed to discovery by the security services. On the other hand, there are new opportunities: black markets in PPE, counterfeit medicines, snake oil salespersons, and fraudulent health products are obvious opportunities. So are personnel shortages in health services. Illicit drugs have already been discovered in consignments of PPE. The movement to commit crime via the internet will be further enhanced. Intelligence about the changing nature of criminality was always important, but the pace of change is on the increase. When Romanians are sent to Ireland to open bank accounts into which victims make payments for the purchase of non-existent goods, it is likely that they are doing the same in other countries and investigators need to know this as a matter of urgency.
Nonetheless, there is confidence on the UK side that there will be cooperation under the banner of Mutual Legal Aid agreements that will lead to the arrest and prosecution of criminals, but such confidence appears to underestimate the nature and complexity of cross-border criminal networks as well as their changing modus operandi. UK investigators and politicians, however favour disruption over prosecution, arguing that prosecution takes too long and that juries tend not to understand complex cases and therefore acquit. This may reflect a flaw in the adversarial system, however and further enhance the possibility of the UK becoming the refuge of choice for both criminal money and illicit venture capitalists.
If there is lack of reciprocity, there is a likelihood that Continental investigators will give UK requests for assistance a low priority. Requests via Interpol for information are unlikely to run as smoothly as European Arrest Warrants and European Information Orders unless there is to be significant UK investment in technology and personnel into Interpol. The Swedish Decision, for example, lays down an 8 hour turnaround time for urgent requests for intelligence and/or information, tapering to one week or even two in less urgent cases.
The present author, when fortunate enough to be invited to act as the UK “expert” on a project investigating the possibility of a single database in the EU for prosecutions of criminal offences, interviewed two members of the then NCIS . When asked what would be the top of a UK investigators’ shopping list, the answer was “data-sharing”. In other words a legal basis for sharing data between investigators in different countries. The Prüm Decision and, to an extent, the Swedish Decision, provided for this, but UK politicians are uncomfortable with it, partly because of supervision by the ECJ, but partly because though they might be happy to look at data from EU countries, they are much less happy to have investigators from those counties accessing UK data. The EU itself is, of course, very suspicious of UK data protection law and procedures. That the Home Office failed to admit the wrongful storage of data from EU databases and its sharing of such data with the US and probably the rest of the “Five Eyes” has strengthened this suspicion and made access to the Schengen database in particular unlikely after Brexit.
The Schengen Database enables border control cooperation, law enforcement cooperation and vehicle registration cooperation. At the end of 2017 it had 76 million records, it was accessed 5.2 billion times and recorded 243,818 hits ie searches that created an alert and the appropriate authorities agreed. In March 2018, exchange of fingerprint data was enabled. At the end of 2021 it will also be capable of sharing of biometric information, for example on missing persons, alerts on vulnerable persons, information on persons suspected of involvement in terrorism-related activities, bans on entry and other aspects of illegal immigration, plus extend alerts on other criminal activities. It will also provide enhanced access for other EU agencies. Exclusion from the database will increase response time for UK requests for intelligence and access to alerts on individuals.
The UK is already excluded from access to the Schengen information System for immigration alerts as it is not a member of Schengen. There are also databases run by Europol, along with the system of Joint Investigative Teams. The UK is likely to be able to negotiate access to SIENA, the Secure Information Network Exchange Application, as the USA and Australia have already successfully negotiated such access. It has nowhere near the capabilities of the Schengen Information System but is extending its activities. It should be possible for the UK to participate in joint investigative Teams as third countries may be invited to join a particular case, but, of course, subject to judicial supervision under the law of the lead country. It is unlikely that the UK would be allowed to lead a Joint Investigative Team, but the final agreement has not yet been negotiated. There is still an assumption that somehow the UK is superior in investigative skills, but as already noted, its record on fraud and financial investigations is not seen that way by the rest of the European Union.
It should not be forgotten that there are plusses for the EU in the departure of the UK from the JHA system. For example, will remove the last major obstacle to the establishment of a European Public Prosecutor, with the power to supervise cross-border investigation within the EU and bring prosecutions in appropriate national courts. Working alongside Eurojust, such an office should be able to tackle the problems of preserving the chain of evidence across judicial boundaries, identifying jurisdictional problems and further the process of creating European Criminal Law, perhaps even the Corpus Juris already proposed for prosecuting fraud against the European Budget, but more likely through a series of framework agreements and directives such as the Anti-Money Laundering Directives.
If there is one certainty, it is that police officers will always find a way to work together and that politicians will have to legislate to legalise their operation if it leads to successful interdictions of criminal networks. A Dutch Chief constable told me back in the 1980s that Schengen became necessary when Dutch cranial investigators were found to be operating south of Paris in pursuit of a drug trafficking operation. Information and intelligence will always be exchanged informally. The problem is turning such exchanges into evidence that can be used in Court, which is why justice and Home Affairs policy exists.