Law enforcement and judicial cooperation in criminal matters after Brexit

This guidance sets out the implications for law enforcement and criminal judicial cooperation from the end of the transition period.

It:

• is relevant for UK lawyers and their clients involved in cross-border criminal matters with the EU from 1 January 2021
• takes account of the UK-EU Trade and Cooperation Agreement signed on 24 December 2020

Introduction

Law enforcement and judicial cooperation in criminal matters are an integral part of the agreement reached between the UK and EU.

The relevant provisions can be found from Common and Institutional Provisions Part 1 Title I, II and III, Final Provisions Part 7 and Law Enforcement and Judicial Cooperation in Criminal Matters Part 3.

The UK-EU Trade and Cooperation Agreement includes specific provisions on:

• exchanges of DNA, fingerprints and vehicles registration data (Title II & ANNEX 39)
• transfer and processing of passenger name record data (Title III & ANNEX 40)
• cooperation on operational information (Title IV)
• cooperation with Europol (Title V & ANNEX 41)
• cooperation with Eurojust (Title VI & ANNEX 42)
• surrender (Title VII & ANNEX 43)
• mutual assistance (Title VIII)
• exchange of criminal record information (Title IX & ANNEX 44)

The agreement does not include:

• access to the Schengen Information System
• arrangements on procedural safeguards, unless included in specific provisions (surrender procedure)

Additionally, there are a range of general provisions which should be noted:

• any other future agreement between the EU and the UK will constitute supplementing agreements to the main agreement and be governed in the same way (unless specifically otherwise provided)
• a Partnership Council will be established which shall oversee the attainment of the objectives of the agreement and any supplementing agreement
• matters covered by Part Three [Law Enforcement and Judicial Cooperation in Criminal Matters] will be addressed by a Specialised Committee on Law Enforcement and Judicial Cooperation
• nothing in this part of the agreement modifies the obligation to respect fundamental rights and legal principles as reflected in the European Convention on Human Rights and, in the case of the Union and its member states, in the Charter of Fundamental Rights of the European Union

Exchanges of DNA, fingerprints and vehicles registration data (PRUM)

Under the agreement, the UK will have access to the data provided that:

• its labs are compliant with EU law, as accredited by a domestic accreditation authority
• an evaluation and pilot-run has been conducted by the EU

Provisional application of the agreement will be allowed for nine months, extendable for another nine months by the Specialised Committee.

Transfer and processing of passenger name record data (PNR)

The exchange of PNR data will continue between the UK and the EU.

In a new provision, the UK will have to delete the PNR data of passengers after their departure from the country, unless objective evidence can be provided that certain passengers present a risk in terms of fighting terrorism and serious crime (Art 552.4).

To allow the UK PNR system to be able to delete PNR data after passengers have left the country, an interim period of nine months will be allowed to give time for adaptation, extendable for one year.

Cooperation on operational information

This title allows for operational information (including missing persons and objects) to be requested or spontaneously provided by competent authorities within the scope of fighting crime and terrorism, if allowed by domestic law and regulations.

Any judicial use of information must be authorised by the state which has provided it.

Information may be provided via any appropriate communication channel, including the secure communication line for the purpose of provision of information through Europol.

The UK and member states can conclude bilateral agreements between them on this matter, provided that the member states act in compliance with EU law.

Europol

The UK will post one or more liaison officers to Europol, and in return the EU will post one or more liaison officers to the UK.

While taking account of the fact that the UK is not a member state, the UK and EU shall endeavour to cooperate in the future with a view to ensuring that data exchanges between Europol and the competent UK authorities can take place as quickly as possible (Art. 572).

Exchange of information will be via the UK’s designated national contact point, but direct exchange of information is not precluded.

Transfer of personal data of witnesses, victims, minors or other persons is prohibited unless it’s strictly necessary and proportionate in individual cases.

The security of the exchange of information will be ensured by technical and organisational measures which will be determined by administrative arrangements (Art 574 and 577).

Eurojust

The UK will designate at least one contact point for Eurojust and will second one liaison prosecutor into the organisation, with up to five assistants. In return, Eurojust will post a liaison magistrate to the UK.

Onward transfer of information to any third country or international organisation is not permitted without the consent of whoever provided the information and without appropriate safeguards regarding the protection of personal data.

The modalities of cooperation between the parties shall be the subject of a working arrangement concluded between Eurojust and the UK.

Surrender procedure (to take the place of EAW)

The objective of this new procedure is to ensure that the extradition system between the member states, on the one side, and the UK, on the other side, is based on a mechanism of surrender pursuant to an arrest warrant.

The procedure follows the principles and mechanisms of the EAW, with two fundamental differences:

• a state can declare ex-ante that it will not surrender its own nationals; in this case it can either bring alternative domestic proceedings or explain the reason why it will not do so (Art 603). A state can also declare the conditions under which it will surrender its own nationals
• a state can declare ex-ante that it will apply the political offence exception unless the arrest warrant is for offences referred to in articles 1 and 2 of the European Convention on the Suppression of Terrorism or related to it; and terrorism as defined in ANNEX LAW-7 of the agreement (Art 602)

Information on EU member states' declarations have not yet been formally published, but the Home Office has published a notification letter.

The agreement introduces the concepts of necessity and proportionality in the cooperation through the arrest warrant, mentioning specifically the aim of avoiding long periods of pre-detention (Art 597).

The agreement is applicable to EAWs which were issued before the end of the transition period where the requested person had not yet been arrested (Art 632).

Mutual assistance

This Title supplements the above provisions, and facilitates the application between member states and the UK of:

• the 1959 European Convention on Mutual Assistance in Criminal Matters
• the 1978 Additional Protocol to the European Mutual Assistance Convention
• the 2001 Second Additional Protocol to the European Mutual Assistance Convention

Mutual assistance cannot be refused in:

• the obtaining of information contained in databases held by police or judicial authorities that is directly accessible by the competent authority of the requested state in the framework of criminal proceedings
• the hearing of a witness, expert, victim, suspected or accused person or third party in the territory of the requested state
• any non-coercive investigative measure as defined under the law of the requested state
• the identification of persons holding a subscription to a specified phone number or IP address

A request can be refused on the basis of the principle of ne bis in idem. 

The decision on the execution request must be communicated within 45 days from receipt, and executed within 90 days from the communication. Time limits do not apply for certain types of traffic offences; this will be kept under review by the Specialised Committee.

Requests for mutual assistance may be transmitted directly by UK public prosecutors to the competent authorities of the member states, and in case of urgency may be transmitted via Eurojust or Europol.

The Specialised Committee will establish a standard form for request of mutual assistance.

Exchange of criminal records information (ECRIS)

Each state shall designate one or more central authorities which shall be competent for the exchange of information relating to criminal records.

Each state will be responsible for recording, notifying and storing criminal record information.

Requests in the appropriate format (ANNEX 44) will be sent to the central authorities and the central authorities will be responsible for the reply within 20 days from the request.

The exchange between states of information extracted from the criminal record shall take place electronically in accordance with the technical and procedural specifications laid down in ANNEX 44 (a common communication infrastructure that provides for encrypted communications: the Trans European Services for Telematics between Administrations (TESTA) communications network).

The UK shall be responsible for the development and operation of its own interconnection software.