WHITHER INTERNATIONAL CRIMINAL JUSTICE CO-OPERATION AFTER A “NO DEAL” BREXIT ? Police and Prosecution Co-operation, Some EU Instruments and Institutions Mike Kennedy President Eurojust 2002-2007

https://www.ceps.eu/system/files/TFR_EU-UK_Cooperation_Brexit_0.pdf

Outline UK government position EU position European Union Agencies & Institutions Europol Eurojust Some instruments JITs, EIO, ECRIS, PNR, Prüm, Data Exchange The Court of Justice of the European Union (CJEU) Timeline Conclusions

UK Government Position ? ‘Coherent and legally binding agreement on Internal Security to facilitate cooperation in 3 areas: Practical operational cooperation (e.g. EAW, EIO and JITs); Multilateral cooperation through EU agencies; Data-driven law enforcement (Query - intelligence led policing?) ‘on the basis of existing EU law enforcement and criminal justice tools’ ‘data protection arrangements for the continued exchange and protection of personal data between the UK and the EU the EU’s adequacy framework provides the ‘right starting point’ Seeking enhanced third country status ?

EU Position European Commission: European Parliament: UK will be considered a “3rd country outside Schengen” with partnership based on 4 building blocks exchange of information support to operational cooperation between law enforcement authorities judicial cooperation in criminal matters measures against money laundering and terrorism financing European Parliament: ‘future cooperation can be developed on the basis of non-Schengen third-country arrangements’ European Council: ‘data protection should be governed by Union rules on adequacy with a view to ensuring a level of protection essentially equivalent to that of the Union’

Withdrawal Agreement What will it say on Security ? We don’t know - can only look at what politicians have said UK position appears to be very positive maintaining existing security arrangements as far as possible Heard nothing – does it mean a security deal is done? Are we in for a bombshell - no deal? Senior person at UK Rep on security treaty : “Expect innovative solutions”

Government on EU Agencies/Bodies “…..representatives or experts from the UK may continue to participate in the meetings of EU agencies and bodies where the presence of the United Kingdom is necessary and in the interest of the Union, or where the discussion concerns acts addressed to the UK and its citizens. The exact nature of the UK’s participation is a matter for further discussion.” from the government response to recent HoL report on Brexit and security co-operation

UK Contribution to Europol UK is one of the biggest contributors of data, information and expertise to Europol. In 2016: UK was the highest contributor to Europol serious and organised crime analysis projects, and highest contributor of information in relation to firearms, child sexual exploitation and abuse, money laundering, cyber, and modern slavery

Third Country Relationships with Europol Existing third country agreements with Europol do not provide direct access to Europol’s databases or the streamlined exchange of data; do not allow national experts to be fully embedded within Europol and do not enable the third country to initiate activity in the same way

National Crime Agency NCA view “arrangements that been made to allow third countries to cooperate with Europol from outside the EU would not be sufficient to meet the UK’s needs.” David Armond, 2016 Deputy Director-General: “I do not think that we can look at the arrangements for Norway, Iceland or other partners and say that would do for us”.

Europol UK will very likely lose direct access to Europol’s databases and is likely to lose primary role in Europol’s Policy Cycle The operational and strategic agreements with 3rd countries – new procedure – will take time Denmark (pays into Europol’s budget) is interesting but not comparable: It is a member state of the EU and participates in Schengen; it applies EU data protection law; is under the jurisdiction of the CJEU. However: ‘it may be appropriate for the UK to make a financial contribution’ ?

UK & Europol - Future Relationship Access to Databases Equivalence UK data protection rules to EU rules Adequacy tests - “inspection” of UK laws & practice? Europol Management Board – observer status? Huge UK data inputs = qualify for something more? Contribution by the UK to Europol Budget ?

Referendum - Denmark & Europol Denmark left Europol on 1st May 2017 - but by a last minute agreement Danish police and Europol will continue to allow Denmark 24/7 access to Europol's databases share information and analysis assist each other "in connection with the establishment and work in JITs, including JITs established with other co-member states". Europol will have to disclose information "if absolutely necessary to prevent an imminent threat to life". Denmark participates in Europol's Management Board But observer status only - and no voting rights. Conditions New Danish data protection Law Denmark remain member of the EU & Schengen Accepts CJEU jurisdiction and EU Data Protection Supervisor’s competence

Eurojust 28 National Members = the Management Board Specialise in multilateral & trafficking cases Huge use by the UK’s CPS Joint Investigation Teams (JITs) Liaison Prosecutors based at Eurojust Norway, USA, Switzerland, Montenegro; No seat on the Management Board or voting rights ……………the UK ??

Eurojust (2) UK link to Eurojust easier than Europol ? New procedure for third state agreements to exchange information Take longer to approve Appoint UK Liaison Prosecutor No seat on management Board or voting UK should be able to take part in JITs but no leading role in JITs

Joint Investigation Teams (JITs) Mechanism for dealing cross border crime networks Multi-national teams of investigators/prosecutors Funded by EU via Eurojust Structured and supported by Eurojust & Europol Simplified Letters of Request UK huge user - involved in 31 JITs in 2016 Third countries can participate in JITs

European Investigation Order (EIO) UK early decision to opt-in in 2010 EIO Directive adopted in 2014 UK opt out of all JHA – then back in to EIO in 2015 Operational since 2017 in 27 states (not Denmark) If No Deal Return 1959 Council of Europe MLA Convention?

European Criminal Records Information System (ECRIS) Devised in 2005 UK Police & Home Office built the EU network Extremely useful for police, prosecutors & judges UK people maintaining the network Fall back ? Letters of Request for hard copies of court records

Treaty of Prüm Exchange of If No Deal ? DNA (UK has largest DNA database in EU) Fingerprints; and, Vehicle Registration Numbers If No Deal ? Separate bilateral or multilateral treaty ?

Passenger Name Records (PNR) UK is EU lead on PNR data collection EU Parliament rejected draft PNR directive in 2013 Adopted in 2016 Established in many EU states 16 states as of June 2018 If No Deal ? Separate bi-lateral arrangements ? EU has agreements with USA, Canada and Australia Probably easier than bilateral treaties to replace the EAW ?

Data Protection Issues We often underestimate the importance of robust DP rules from many EU states Very unlikely any exchange or access to operational data for the UK without a DP agreement on adequate levels of UK DP law and adherence to them Adequacy of UK DP law - Commission: ‘No compromise on adequacy’ Price to pay for access to data ? Future regular EU scrutiny of UK laws and practices ? Challenges: Investigatory Powers Act - Proportionality and necessity Data Protection Act (third country nationals) UK-US Agreement (under CLOUD Act) Alternatives: Legally binding instruments (including EU/UK Treaty) – piecemeal approach Transfer on a case-by-case basis in exceptional circumstances: worst case scenario

Court of Justice of the EU (CJEU or ECJ) Brexiteers bête noire & government’s red line Theresa May in March 2018: if we agree that the UK should continue to participate in an EU agency the UK would have to respect the remit of the ECJ in that regard. “….Not in EU….means the jurisdiction of the ECJ in the UK must end. It also means that the ultimate arbiter of disputes about our future partnership cannot be the court of either party. Query : another court of arbitration? But government has said: “UK would respect the remit of the CJEU (…) if there was a challenge to a decision made by an agency that affected the UK, this could be resolved by the CJEU” “ECJU judgements will have persuasive authority” House of Commons report: ‘we see no reason why it should not apply this principle to other forms of security cooperation, including data protection and extradition’

Practical Terms Police & prosecutors Willingness to co-operate but reluctance always keen to share information about linked serious crime cases Problems when there is no legal framework to seek information or evidence or extradition May be an element of return to personal lists of international contacts of the 1980s etc

Conclusions (1) For close cooperation with the EU, UK will have to: Comply with the EU criminal justice acquis, including the EU provisions on fundamental rights – which include defence rights. Be adequate: offer level of data protection essentially equivalent to those provided under EU law (in light of Charter) Will there be acceptable mechanisms to test that adequacy ? Enforcement mechanisms The Commission has stressed that future cooperation could be terminated if the UK departs from the ECHR, or is condemned for non-execution of ECtHR judgment Freezing mechanism: the possibility for either of the parties to suspend cooperation in cases where human rights are violated

Conclusions (2) Brexit Paradox: Limitations after Brexit, Will UK be in the position of having to accept more EU LAW than it presently does? Limitations after Brexit, Very unlikely that the UK could participate fully in Mutual recognition instruments EU agencies JHA databases (interoperability) The role of the Court of Justice in the interpretation of EU law will need clarification ‘Soft cooperation’ is important and will continue but EU law should be respected

Withdrawal Agreement … Pending cases will continue until concluded under EU law until completed EU law applies to 31 December 2020 Withdrawal Agreement Uncertainty about pending requests, release of arrested persons return of seized assets etc.) EU-UK Security Treaty EU law applies to 29 March 2019 New Cases New cases other options: old conventions, bilateral treaties later EU-UK Security Treaty when/if concluded Other options, Conventions Bilateral agreements etc. No Withdrawal Agreement Transition Period: 29 March 2019 to 31 December 2020 I January 2021 onwards

Thank you …… et “au revoir!”