The Criminal Justice Implications of a Brexit Professor John Spencer May

Competence: a reminder Maastricht 1992 – “inter-governmental” Amsterdam 1997/ 1999 – as above Lisbon 2009 – no longer inter-governmental [Schengen 1990]

Under Maastricht …

Maastricht measures (cont.) Adopted by unanimity No enforcement through the courts

Under Lisbon In essence, uniform procedure with the rest of EU legislation QMV/ no more veto ECJ / CJEU acquires jurisdiction Legal basis in Chapters 4 and 5 of Title V of Part 3 the TEU (articles 82-89)

Lisbon: the main provisions 82 TFEU “approximation” of criminal procedure, so far as “necessary to facilitate mutual recognition” 83 TFEU “approximation” of substantive criminal law on a range of specified topics, to which the Council can add, by unanimous decision. 86 – power to create a European Public Prosecutor

What EU criminal law currently consists of New agencies Police co-operation measures Mutual recognition Harmonising criminal law Harmonising criminal procedure

agencies OLAF Europol Eurojust EJN [EPPO – European Public Prosecutor]

The problem with OLAF…

Police co-operation measures [e.g. …. ] “JITs” (joint investigation teams): FWD of 2002 “ECRIS” (European Criminal Records Information System)

Judicial co-operation measures [e.g.] The EAW (European Arrest Warrant); FWD 2002 The European Supervision Order; FWD 2009 The EIO (European Investigation Order); Directive 2014 Cross-border enforcement of fines: FWD 2005

EU measures “harmonising” substantive criminal law Terrorism (FWD 2002) Drug trafficking (FWD 2004) Bribery (FWD 2003) Money-laundering (FWD 2001, plus four Directives) People trafficking (Directive 2011) Child porn (Directive 2011) Cybercrime (Directive 2013) [etc etc etc … ]

EU measures “harmonising” criminal procedure Victims’ rights: (Directive 2012) Defendants’ rights: (Roadmap 2009, and progeny) Duty to recognise convictions from other Member States: (FWD 2008) Schengen Convention, Article 54

The UK’s involvement Phase 1: New Labour, Phase 2: the Coalition, Phase 3: the Tories, 2015-

New Labour, “tough on crime, and tough on the causes of crime” “Forward with Europe in repression!” In for “tough on crime” measures (but wary of the European Public Prosecutor) Blocked proposals for measures to improve defendants’ rights Secured opt-outs in the Lisbon Treaty

Lisbon Treaty: UK opt-outs Protocol 21: “No new EU justice measures apply to us unless we decide to opt into them” Protocol 36, article 10, clause 4: “We can pull out of all the remaining Maastricht measures ahead of the CJEU getting power to make us implement them”

The Coalition

Coalition policy “We will approach forthcoming legislation in the area of criminal justice on a case-by-case basis, with a view to maximising our country’s security, protecting Britain’s civil liberties and preserving the integrity of our criminal justice system. Britain will not participate in the establishment of any European Public Prosecutor.”

European Union Act 2011 The “Referendum Lock” No UK participation in a European Public Prosecutor unless a national referendum votes in favour (!)

But otherwise, “business as before” UK opts into the European Investigation Order UK opts into the Cybercrime Directive (etc) BUT THEN ….

The Protocol 36 saga, Final outcome: in July 2013 the UK exercises the opt-out, and (after many arguments, and amendments to Part I of the Extradition Act 2003) then opts back into all the significant measures in December The value of the exercise? Compare assessments from David Cameron and from Yvette Cooper (shadow Home Secretary) – see next two slides.

[Yvette Cooper] “… We have the power not to do a whole series of things we plan to carry on doing anyway, the power not to follow guidance we already follow, the power not to take action we already take, the power not to meet standards we already meet, the power not to do things that everyone else has already stopped doing and the power not to do a whole series of things we want to do anyway.”

The “Magic 35”; the list includes: Agencies: Europol, Eurojust, EJN, SIS Police co-operation: Naples II, “Swedish FWD”, JITs, ECRIS, Schengen Mutual recognition: **EAW**, supervision order (alias“Eurobail”), fines, jail, confiscation orders;[but not probation] Harmonising criminal law: child porn (only); all the rest are dropped – including e.g. the FWD on terrorism (!) Harmonising criminal procedure: Schengen art. 54; equal weight to convictions imposed in other EU Member States

Defence rights under the Coalition? Translation and interpretation: we’re in! Information: we’re in (just!) Legal advice and communication: “After joining negotiations, refused to join…” Green Paper on Pre-trial Detention? Governmental response: “no legislation” Proposals for Directives on Juvenile Suspects Well, maybe … Legal Aid and the Presumption of Innocence “No way!”

2015 – the Tories Brexit in the background … but meanwhile, a taste for repressive measures An extended ECRIS ? – “We like it!” And back into Prüm …

Prüm Decision 2008/615/JHA Decision 2008/616/JHA Framework Decision 2009/905/JHA We still have the Protocol 21 opt-out

To sum up … We’re in for nearly all of the “repressive package” (in particular, the EAW) Though we’re out of most of the measures relating to substantive criminal law And out of the EPPO We’re in for victims’ rights, though from defence rights, pulling back We still have the Protocol 21 opt-out We’re now subject to the jurisdiction of the CJEU