Cross-Border Criminal Cooperation in a Post-Brexit World

January 27, 2021, Covington Alert

In her closing remarks at the end of the UK/EU Brexit negotiations, European Commission president Ursula von der Leyen quoted T.S. Eliot: “What we call the beginning is often the end / And to make an end is to make a beginning.” Elsewhere in the same poem, Eliot speaks of arriving where we started, yet knowing the place for the first time. Many aspects of the EU-UK Trade and Cooperation Agreement, commonly referred to as “the Brexit deal”, puts the UK in this sort of position. With regards to cross-border information exchange and cooperation, UK agencies may find the clock has been turned back on them. In many instances, they will have to rely on outdated mechanisms insufficient to deal with current threats and modern policing environments.

In this article, we set out these changes to the UK’s enforcement landscape in detail.

Information exchange

As a member of the EU and throughout the transition period, the UK enjoyed almost seamless integration of its policing and security databases with EU Member States. One key information system that the UK utilised extensively is the Second Schengen Information System (SIS II), which automates alerts to police and border guards on wanted or missing persons. SIS II allows for real-time, frictionless sharing of such information between enforcement officials and agencies of member states. Another notable tool, the European Criminal Records Information System (ECRIS) provides for standardised, electronic exchange of criminal records with set timeframes for requests and thus allowed UK authorities fast access to criminal records of EU residents. The UK was “consistently the most active [user of ECRIS] in terms of the total volume of notifications, requests and replies”, according to the National Crime Agency (NCA).

The UK now no longer has access to SIS II or ECRIS. In place of SIS II, the UK has had to fall back on the Interpol database, which is not directly integrated with the UK’s Police National Computer (PNC) and Border systems or with other EU Member States’ national systems, and as such, requires more manual support. Although the UK is working to semi-automate the process of inputting Interpol notices, it is predicted that fewer notices will be circulated. Moreover, even once UK agencies have geared up their systems and processes to link with Interpol, full effective use of Interpol depends on other states diligently utilising the system on their end. The Brexit deal does set out an alternative mechanism for the exchange of criminal record information in place of ECRIS, but UK enforcement authorities will have to submit requests to individual member state authorities each time they wish to access such data. Under the terms of the Brexit deal, UK agencies may have to wait up to 20 working days to receive a response.

More positively, the UK will continue to exchange DNA and fingerprint data via the Prüm system. Prüm provides quick access to DNA data of suspects from 11 partner countries and fingerprint data from Germany. The NCA considers Prüm to be a key tool and credits the DNA Exchange Programme for over 89,000 DNA matches with EU-held data between July 2019 and September 2020. Retained access to the Prüm system means that the UK, alongside other participant states, can integrate vehicle registration information sharing into its systems in the future. The UK will also benefit from the introduction of data from future participant countries (three are currently in the process of connecting with Prüm DNA Exchange). UK agencies will also continue to share and access Passenger Name Records (PNR) which provide valuable EU passenger information from airlines under the PNR Directive.

Although helpful to have retained access to Prüm and PNR, it is clear that the loss of access to SIS II is a gaping hole and will have a “major operational impact”, according to the National Police Chief’s Council (NPCC). Moreover, having to submit manual requests and wait for what could amount to a 4-week response time is a far cry from the automated and integrated ECRIS that enforcement personnel have been using to date. That being said, EU Member States’ enforcement agencies are also likely to feel frustrated by the changes. UK officers have to upload alerts onto Interpol and submit requests for EU-based suspects’ criminal record data, but EU-based officers will be doing the same on their end. The additional burdens of checking and responding to requests increases red tape and will slow down investigations on all sides. Some experts have suggested that EU enforcement bodies will themselves begin to feel the strain of more manual and burdensome processes, and pressure could grow on both sides of the channel to allow the UK access to such key systems again. 

Cross-border cooperation on operational information and criminal investigations

The Brexit deal will also result in changes to the UK’s access to the services of the European Agency for Law Enforcement Cooperation (Europol) and the European Union Agency for Criminal Justice Cooperation (Eurojust), bodies that facilitate cooperation between member states’ police forces and prosecutors respectively. Europol in particular has played a crucial role in the UK’s fight against organised crime. The UK was a heavy user of Europol’s systems, exchanging intelligence roughly 47,000 times through the SIENA messaging platform. UK agencies have also benefited from “widespread operational use of Europol’s analytical and coordination services across all serious and organised crime threat areas” according to the NCA. In 2019 alone, UK representatives engaged in 170 operational meetings, leading 66 of these.

One of the most high-profile examples of this central coordination capability is the EncroChat case. In 2020, the French and Dutch police forces, facilitated by Europol, led a sprawling Europe-wide investigation in which forces managed to hack the EncroChat network, an encrypted communications system used by gangs and other criminals. The NCA participated in the operation and reaped its share of the rewards, with 746 UK arrests and the breaking up of dozens of organised crime groups. Europol performed a significant role in coordinating, e.g., the timing of raids and distribution of information.

While the UK will continue to cooperate with Europol and Eurojust after Brexit, it is no longer a fully-fledged member of either agencies. Official lines of communications will of course continue to exist between the UK’s designated central contact point and Europol and the UK will be able to second officers and prosecutors to Europol and Eurojust respectively. Although UK representatives will be able to attend certain Europol Heads of Unit meetings with observer status, the NCA has warned that the UK’s decision not to sit on the Europol Management Board means it will “no longer exert influence over the future focus and prioritisation of UK operations for specialist analytical assistance”. In addition, the UK has lost direct access to the information held on databases in which the UK has heavily invested and contributed significant volumes of data, such as the Europol Analysis Projects, although the EU will continue to grant access to the SIENA messaging system. 

In order to remedy its loss of full Europol membership, the UK will need to turn to bilateral cooperation with Member States. In the lead up to the end of the transition period, the NCA was preparing to transfer several hundred live investigations onto bilateral channels and dispatch additional International Liaison Officers (ILO) to European capitals (though with the caveat that Covid-19 restrictions may hinder such plans in the short-term). However, the NCA noted that even these efforts will not sufficiently fill the gaps left by the “multilateral coordination and specialist analytical services offered by Europol”.

As exemplified by the EncroChat case, prior to Brexit, UK/EU integration of law enforcement efforts extended to tight-knit cooperation on criminal investigation matters. European Investigation Orders (EIOs) were one of the tools by which this was achieved. Introduced in 2017 under EU Directive 2014/41/EU, the EIO process replaced previous arrangements for gathering and transferring evidence between EU member states for criminal investigations and prosecutions. The EIO established mutual recognition (i.e. obligatory execution) of other member states’ judicial decisions, standardised forms for requests, and deadlines for recognising (30 days) and executing investigation requests (90 days), with the aim of making cross-border investigations faster and more efficient. In place of the EIO, the UK will need to fall back on the Council of Europe’s European Convention on Mutual Legal Assistance (1959) alongside the provisions set out in the Brexit deal to facilitate the process. The UK and EU have agreed to create a standard form for requests and set a 45-day time limit for the requested state to decide whether to execute the request, but this procedure will still be less effective than EIOs due to its increased complexity, the requested state’s discretion as to whether to comply, and longer deadlines.

On a positive note, the UK will continue to be able to participate in Joint Investigation Teams (JITs), on the condition that their operation will be subject to EU law. JITs are another highly-publicised form of collaboration enabling member state authorities to coordinate and combine intelligence to facilitate complex, cross-border investigations. For example, the JIT involving France, the UK and USA was used to great effect in the high-profile Airbus bribery investigation. Concerns will arise, however, as to whether the removal of the right to free movement and work across the EEA for UK enforcement personnel may affect such JITs and investigations.

Extradition

The EU’s extradition system has also been another key weapon in the UK’s law enforcement arsenal. The European Arrest Warrant (EAW) procedure enables the efficient arrest and extradition of individuals between EU Member States. As the EAW is also based on the principle of mutual recognition, a warrant issued by one state is valid across the EU and grounds to refuse extradition requests are limited. Between 2009 and 2019, the UK extradited 11,300 individuals from the UK and 1,626 individuals were surrendered to the UK under the EAW.

The UK has decided to opt out of the EAW and instead, has negotiated a new fast-track extradition procedure similar to the EU’s Surrender Agreement with Iceland and Norway. Although better than relying on the European Convention on Extradition (1957), the new system set out in the Brexit deal is certainly less robust than its predecessor. Firstly, the offence in question must exist in both states for an extradition to be compelled. This dual criminality requirement may not be much of a hindrance in certain areas of law that are becoming increasingly harmonised across the EU, such as Anti-Money Laundering. However, under the new procedure, states can also deny extradition in cases involving their own citizens or suspected political offences. These limitations are significant, especially in light of the fact that 16 EU member states do not extradite their nationals to non-EU countries. Extradition requests will also be subject to additional conditions not applied to Iceland and Norway. For example, the proportionality principle will apply, whereby the surrendering country has discretion to decide if extradition would be proportionate to the seriousness of the alleged offence. This principle may frustrate UK requests for extradition but could also be used to the benefit of individuals fighting to remain in the UK and/or those the authorities do not consider appropriate to surrender.

Cooperation on Anti-Money Laundering and Counter Terrorism Financing

The Brexit deal does not deliver any significant changes in approach to Anti-Money Laundering (AML) and Counter Terrorism Financing (CTF) initiatives apart from the operational changes already set out above. This is no surprise given that there is general consensus across the EU and the UK in this area, and the UK has been seen as a global leader in setting AML and CTF standards. The UK has implemented the Fifth Money Laundering Directive (5MLD) into law and in the Brexit deal, both sides penned general commitments to maintain comprehensive AML and CTF regimes, taking into account Financial Action Task Force (FATF) recommendations. More specifically, the UK and the EU member states have agreed to maintain their beneficial ownership registers (a requirement under 5MLD) and ensure that respective competent authorities can provide the information to each other’s authorities. The UK though has not transposed the Sixth Money Laundering Directive into UK law and there are already calls from the Greens within the EU Parliament that the UK lacks equivalence on AML laws when compared with EU Member states. The UK and EU states will continue to cooperate and coordinate with regard to cross-border criminal investigations and proceedings relating to the freezing and confiscation of assets. The agreement sets out detailed procedural requirements and criteria, standard formats and methods of delivery for such requests and deadlines for compliance, which in substance are not materially different from those already in place.

“All shall be well / All manner of thing shall be well”?

All in all, the provisions set out in the Brexit deal will allay some concerns about the continued efficiency and effectiveness of cross-border policing and investigations, but due to the loss of access to key systems and agencies, and in the absence of suitable substitutes, significant challenges remain. Much of the capability gaps left by the loss of such tools will be filled by manual processes and bilateral relationships at least in the short-term. In the long-term and in the absence of political will to rejoin EU platforms, it is likely that the government will need to invest even more in personnel and systems to bridge these gaps. Those who negotiated and supported the Brexit deal may tell the public “all shall be well” (to quote again from Eliot’s Little Gidding), but even with continued efforts to remedy such gaps, UK agencies will face an uphill battle in maintaining the kingdom’s safety and security.

If you have any questions concerning the material discussed in this client alert, please contact the following members of our White Collar Defense and Investigations practice.