Monday, 28 December 2020

Agreement with the EU ~ Overview ~ Post No.2 ~ Law Enforcement / Judicial Cooperation in Criminal Matters

A crucial aspect of the UK's relationship with the EU has been involvement in EU-wide action to combat crime. This post looks at Part Three of the TCA - Law Enforcement and Judicial Cooperation in Criminal Matters.

In 2014, after a complicated and lengthy process, the UK decided to retain the European Arrest Warrant and a number of other Police and Criminal Justice measures - previous post 6 November 2014. This recognised the the necessity for effective structures to combat international crime. Without further agreement, withdrawal from the EU would mean that UK participation in such structures would come to an end. 

The Trade and Cooperation Agreement Part Three provides

for law enforcement and judicial cooperation between the Member States and Union institutions, bodies, office and agencies, on the one side, and the UK , on the other side.

However, as noted in a briefing (24 December) by the House of Commons Library, the new arrangements create - "A new security partnership providing for data sharing and policing and judicial co-operation but reduced compared to previous levels of co-operation. Security cooperation can be suspended in the case the UK no longer adheres to the European Convention of Human Rights or enforces it domestically." [My emphasis].

A key concern over recent years has related to ease of access to information - (often held in databases) - for the purposes of combating crime. The Schengen Information System (SIS-II) is such as system and it has been argued that border safety will be at risk if the UK loses access to such EU databases - see LSE Blog 12 November 2020. Whilst Part Three of the TCA should be welcomed it is noticeable that it does not cover access to SIS II.

The European Union's document "EU-UK relations: A new relationship, with big changes" sets out the position:


Links:

The Draft EU-UK Trade and Cooperation Agreement

Part Three of the TCA

The Titles:

Part Three contains 13 Titles.  I (General Provisions), II (Exchange of DNA, Fingerprints and Vehicle Registration Data, III (Transfer and Processing of passenger name record data), IV (Cooperation on Operational Information, V (Cooperation with Europol, VI (Cooperation with Eurojust), VII (Surrender), VIII (Mutual assistance), IX (Exchange of criminal records information), X (Anti-money laundering and counter terrorist financing), XI (Freezing and confiscation), XII (Other provisions), XIII (Dispute settlement).

There is a great deal of detail in the TCA and the following is a note of some key features.

Title I (General Provisions) contains 5 articles. Article LAW.GEN.1 (Objective) notes that the objective of Part Three is to provide for law enforcement and judicial cooperation between the Member States and Union institutions, bodies, office and agencies, on the one side, and the UK , on the other side, in relation to the prevention, investigation, detection and prosecution of criminal offences and the prevention of and fight against money laundering and financing of terrorism.

LAW.GEN. 1 goes on to specify that Part Three applies to law enforcement and judicial cooperation in criminal matters taking place exclusively between the UK and the Union (and the Member States). It does not apply to situations arising between the Member States or between Member States and Union institutions. Nor does it apply to the activities of authorities with responsibilities for safeguarding national security when acting in that field.

LAW.GEN.3 - the cooperation provided for in Part Three is based on the Parties' and Member States' long-standing respect for democracy, the rule of law and the protection of fundamental rights and freedoms of individuals, including as set out in the Universal Declaration of Human Rights and in the European Convention on Human Rights, and on the importance of giving effect to the rights and freedoms in that Convention domestically.

Nothing in Part Three modifies the obligation to respect fundamental rights and legal principles as reflected, in particular, 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 EU.

Part 3 of the TCA could be terminated if the UK were to "denounce" the European Convention on Human Rights (ECHR) or Protocols 1, 6 or 13 thereto. (See Part 3 LAW.OTHER.136). ECHR Protocol 1 (Protection of Property) also provides for free elections (Article 3) and was in issue regarding votes for serving prisoners in the UK. Protocols 6 and 13 are concerned with abolition of the death penalty.

Title II (Exchange of DNA, Fingerprints and Vehicle registration data) - There is a lengthy history between the UK and the EU regarding this topic. For example, it was not until June 2020 that the UK dropped its opposition to sharing criminal suspect DNA data with EU law enforcement bodies - The Guardian 15 June 2020.

Article LAW.PRUM.5 (Objective) - states that the objective is to establish reciprocal cooperation between the competent law enforcement authorities of the UK and the Member States on the automated transfer of DNA profiles, dactyloscopic data and certain domestic vehicle registration data.

"Dactyloscopic data" is defined (Article LAW.PRUM.6) as "fingerprint images, images of fingerprint latents, palm prints, palm print latents and templates of such images (coded minutiae), when they are stored and dealt with in an automated database."

Articles LAW.PRUM.7 to LAW.PRUM.19 deal with implementation of the exchange system and also provides, in certain circumstances, for suspension of the arrangements. 

See also ANNEX LAW-1

Title III (Transfer and Processing of passenger name and record data) - Title III lays down rules under which Passenger Name Record (PNR) may be transferred to, processed and used by the UK competent authority for flights between the Union and the UK. The Title also provides for police and judicial cooperation in criminal matters between the UK and the EU in respect of PNR.

See also ANNEX LAW-2

Title IV (Cooperation on Operational Information) - There is only one Article in this Title - Article LAW.OCO.1. This aims to ensure that the competent authorities of the UK and the Member States are able to, subject to the conditions of their domestic law and within the scope of their powers, and to the extent that this is not provided for in other Titles of Part Three, assist each other through the provision of relevant information for the purposes of (a) the prevention, investigation, detection or prosecution of criminal offences, (b) the execution of criminal penalties, (c) safeguarding against, and the prevention of, threats to public safety, and (d) the prevention and combating of money laundering and financing of terrorism.

Title V (Cooperation with Europol) -  establishes cooperative relations between Europol (the EU Agency for Law Enforcement Cooperation) and the competent authorities of the UK in order to support and strengthen the action by the Member States and the UK, as well as their mutual cooperation in preventing and combating serious crime, terrorism and forms of crime which affect a common interest covered by a Union policy, as referred to in Article LAW.EUROPOL.48 (Forms of crime).

Article LAW.EUROPOL.48 states that the cooperation established under Title 3 relates to the forms of crime within Europol's competence (as listed in ANNEX LAW-3) including "related criminal offences."

Europol website

ANNEX LAW-3

Title VI (Cooperation with Eurojust) -  Eurojust is the EU Agency for Criminal Justice Cooperation. Article LAW.EUROJUST.61 states that the objective of Title VI is to establish cooperation between Eurojust and the competent authorities of the UK in combating serious crimes referred to in Article LAW.EUROJUST.63 (Forms of Crime).

Article LAW.EUROJUST.63 essentially refers to ANNEX LAW-4

Title VII (Surrender) - As a member of the EU (and during the transition period) the UK was party to the European Arrest Warrant (EAW) system. The TCA replaces this with a new Surrender arrangements set out in Part Three Title VII and in ANNEX LAW-5. The provisions are very detailed. 

The various articles (LAW.SURR.76 to LAW.SURR.112) detail how, and under what cirucmstances, a surrender must take place and the gounds for refusal to surrender are set out. If a member State cannot extradite its own nationals then it needs to bring domestic proceedings or explain why it will not do so.

Further reading - Crimeline - Extradition to the EU 27 - article by 6 Bedford Row barristers Stefan Hyman and Jonathan Swain.

Title VIII (Mutual assistance) - This Title supplements the provisions of :

a) the European Convention on Mutual Assistance in Criminal Matters - Strasbourg 1959 - (the mutual assistance convention)

b) the Additional protocol to the mutual assistance convention - Strasbourg 1978,

c) the Second Additional Protocol to the mutal assistance convention - Strasbiourg 2001.

This convention operates under the aegis of the Council of Europe and not the EU.

Title IX (Exchange of criminal records information) - to enable the exchange between the Member States and the UK of information extracted from the criminal record.

See also ANNEX LAW-6.

Title X (Anti-money laundering and counter terrorist financing) -  This Title is aimed at supporting and strengthening action by the EU and the UK.

Title XI (Freezing and Confiscation) - A lengthy title comprising Article LAW.CONFISC.1 to LAW.CONFISC.34. The Title provides for cooperation to the widest extent possible for the purposes of investigations and proceedings aimed at the freezing of property with a view to subsequent confiscation thereof and investigations and proceecdings aimed at the confiscation of property within the framework of proceedings in criminal matters. 

See also ANNEX LAW-8

Title XII (Other provisions) - Specifies certain actions to be taken before the TCA comes into force. The Title also deals with Review and Evaluation of Part Three, Termination and Suspension of Part 3.

The possibility of termination should the UK "denounce" the European Convention on Human Rights was noted above.

Title XIII (Dispute Settlement) - This Title aims to establish a swift, effective and efficient mechanism for avoiding and settling disputes concerning Part Three.

Terrorism:

The word "terrorism" is defined in ANNEX LAW-7

The definition applies for the purposes of Title IX, certain of the articles in Title VII (Surrender), and ANNEX LAW-8 (Freezing and Confiscation).

Other materials:

Institute for Government - Future relationship - Law and Justice

Lexis Nexis - Brexit - implications for law-enforcement and judicial co-operation in criminal  matters

UK Parliament - Committee on the Future Relationship with the EU - The UK-EU furure relatonship: the Trade and Cooperation Agreement (pdf)

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