EU-UK trade agreement to impact on cross-border law enforcement

Out-Law Analysis | 10 Feb 2021 | 11:28 am | 3 min. read

Cross-border law enforcement between the UK and EU member states has changed as a result of the EU-UK Trade and Cooperation Agreement (TCA).

The TCA allows the UK to use a fast-track process to request extradition of EU nationals similar to that available to Iceland and Norway, although the process will be more limited than that available under the pre-existing European Arrest Warrant (EAW) regime. The UK has also lost access to certain widely-used real time EU law enforcement systems, further impacting on its international enforcement abilities.

The uncertainty surrounding the effectiveness of the new arrangements, and the possible hindrance of cross-border investigations, adds further complexities to increasingly transnational and interconnected criminal investigations which will almost inevitably now take longer to conduct.

Law enforcement agencies will no doubt need to be creative in finding practical alternatives to investigate cases where nationality or dual criminality might bar extradition. Greater emphasis will have to be placed on ‘soft’ cooperation with key partners until the implications of these changes are understood and fully worked through.

A new approach to extradition

Since 2004, extradition between EU member states has been based on the principle of mutual judicial recognition, governed in the UK by the 2003 Extradition Act. Where a domestic warrant has been granted, an EU member state can apply for an EAW to request the return of a fugitive for trial, or to enforce a jail sentence against an individual located in another EU member state.

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Andrew Sackey

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Greater emphasis will have to be placed on ‘soft’ cooperation with key partners until the implications of these changes are understood and fully worked through

European Commission statistics confirm that the EAW has dramatically reduced the time taken for extradition to take place. Average surrender times have reduced from around nine months to 16 days with consent, or 45 days without consent.

Following the TCA, the UK is no longer in the EAW scheme and instead follows a fast-track system that mirrors the arrangement between the EU, Iceland and Norway.

Under this new system, the time taken for extradition to take place is likely to increase, as is the risk of challenge. The fast-track system is more restrictive than the EAW, as EU member states can refuse to or limit the extradition of their nationals. Countries that have chosen to apply this derogation in relation to the existing fast track countries are likely to do the same with the UK. If so, the UK will lose the ability to extradite citizens from up to eight countries in some circumstances; and 16 countries if it is not willing to return convicted nationals to serve their sentences.

The new surrender mechanism will also revive the ‘dual criminality’ requirement, meaning that an offence must exist in both jurisdictions before an extradition request can be granted. Member states can opt to waive the dual criminality requirement; however, only Spain, Slovenia, Lithuania, Romania and, in limited circumstances, Poland have so far opted to do so.

On 20 January 2021, the High Court ruled that under article 185 of the TCA, the UK is “indefinitely” obliged to execute all outstanding EAWs in cases where an arrest has already taken place.

Other changes to law enforcement and criminal justice cooperation

Part 3 of the TCA, containing law enforcement and criminal justice cooperation provisions, includes new arrangements on the sharing of DNA, fingerprint and airline passenger information. However, UK investigators will lose direct, real-time access to sensitive EU databases such as the Second Schengen Information System (SIS II).

SIS II is the most widely-used automated criminal database in Europe, and was previously used extensively by UK law enforcement agencies. It instantly sends out alerts to police and border guards on persons and objects of interest. While alternative Interpol systems are available, these are not integrated into the UK’s police and border security systems.

UK enforcement agencies have previously warned that the loss of access to SIS II will reduce the UK’s ability to exchange real-time alerts and data. Both the National Police Chiefs Council and the National Crime Agency (NCA) have warned MPs that this will have a “major operational impact”.

The UK has also lost access to the European Criminal Records Information System (ECRIS) and will, under the TCA, now have to wait for up to 20 days to obtain the criminal records of EU residents. According to the NCA, the UK had consistently been the most active user of ECRIS in terms of the number of notifications, requests and replies it made.

Enforcement agencies including the Serious Fraud Office (SFO), HM Revenue and Customs (HMRC), the NCA and Financial Conduct Authority (FCA) have also lost access to European Investigation Orders (EIOs). Instead, they will have to make requests under mutual legal assistance treaties or the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters. Again, this is likely to slow down the receipt of information.

Introduced in 2017, EIOs are another part of the EU’s mutual recognition toolkit, allowing for quicker assistance between countries when gathering and transferring evidence across jurisdictions in criminal investigations. EIOs simplified cooperation between member states and imposed time limits on the exchange of information, which proved useful in cases involving money laundering, identity theft and tax fraud.

UK access to Europol and Eurojust, which facilitate cooperation among national police and prosecutors, has also been impacted. Under the TCA, access is now limited to the secondment of liaison officers and prosecutors. Europol in particular coordinates member states’ efforts against terrorism, cyber attacks and other forms of serious organised crime. The NCA has described it as having “significant and unique capabilities” that cannot be replicated through bilateral channels.