What would Brexit mean for criminal justice?
EU criminal law operates in five distinct areas. Not all of them apply to the UK.
The first is a group of EU agencies that were created to improve criminal justice within the EU area. An example is Europol, which supports cooperation between EU law enforcement agencies.
The second is a series of agreements designed to improve cooperation between the law enforcement agencies of different EU countries.
The third is a series of agreements requiring courts and other authorities in EU states to give effect to judgments and orders issued by similar bodies in other EU countries. Of these “mutual recognition” measures, the best known is the European arrest warrant, or EAW.
The fourth is a series of agreements designed to “harmonise” the substantive criminal law of EU countries by requiring them to ensure that certain acts (for example, terrorism) are punishable by appropriate penalties. The logic is that this helps to ensure a common approach to common problems.
The fifth group is a series of agreements intended to harmonise criminal procedure in EU states, for example by providing minimum protection for victims of crime or minimum rights for defendants. The aim of these measures is to bolster mutual recognition. It’s argued that countries will be more willing to enforce foreign judgments if they have confidence in the legal systems that made them.
How is the UK affected by EU criminal justice?
The UK supports, and is supported by, the various EU crime-fighting agencies; but the government has made it clear that it will not support the creation of a European Public Prosecutor, if there ever is one.
We are bound by, and make extensive use of, nearly all the instruments designed to further police cooperation.
The UK is not bound by most of the harmonisation measures requiring EU states to punish certain acts under criminal law.
We are, by contrast, bound by nearly all the EU harmonisation measures on criminal procedure. Exceptions include recent measures intended to provide guarantees of fair treatment to suspects and defendants.
In respect of those parts of EU criminal law that apply to it, the UK accepts the jurisdiction of the EU Court of Justice at Luxembourg.
This means that courts in the UK can make preliminary references to the EU court on doubtful points of law. It also means that failure by the UK to carry out its obligations could be taken to the EU court. But it does not give convicted offenders, or prosecutors, an extra tier of criminal appeal.
Protocol 21 to the Lisbon Treaty guarantees that no future EU criminal justice rules will apply to the UK unless we decide to opt into them.
What would happen to all this if the UK left the European Union?
The UK’s departure from the EU would presumably involve negotiations leading to an exit treaty. Under that deal, it would presumably be possible for some parts of EU criminal law to continue as before.
If the settlement involved a “clean break”, the UK would be freed from the burdens imposed by EU criminal law but also deprived of its benefits.
The unwanted consequences of allowing free movement of goods and people under EU law are the free movement of criminals and crime. EU criminal law was created to deal with this problem. So the effect on the UK in this area depends on the extent of free movement after a vote to leave.
The most obvious downsides would arise if the UK pulled out of European crime-fighting bodies and no longer took part in the mutual recognition deals and police cooperation. In each case, however, the risk of damage could be mitigated—at least to some extent.
The UK could probably reach agreements to cooperate with EU crime-fighting agencies—in particular, Europol and Eurojust. But the UK would have little or no say in their policies or the way these organisations were run.
To replace mutual recognition instruments and police cooperation instruments would be more difficult. In principle these could be replaced by new “intergovernmental” agreements negotiated bilaterally with individual EU members. But that would be a long and complex process.
The task might be simplified if the UK could reach agreements with the EU as a whole. And there are some Council of Europe agreements, like the extradition convention, under which the UK already cooperates with non-EU states. These could become the legal basis for doing business with the remaining EU members.
But these instruments are less effective than the newer EU agreements that are replacing them. For example, the Council of Europe Convention on Extradition, unlike the EAW, allows signed-up countries to refuse to extradite their own nationals—as some EU countries used to do and might do again.