Law enforcement and criminal justice cooperation with the EU: position paper

Introduction and purpose of paper 

The new UK Government has committed to resetting relations with the EU by seeking to build closer cooperation across a range of policy areas. Improving citizen safety, law enforcement cooperation and border security are now stated priorities for the UK Government. The Scottish Government has long-supported closer working relations with the EU and member states on law enforcement and criminal justice (LECJ) cooperation, believing that Scotland’s safety and security are best served by closer cooperation, as that can ensure our police and prosecutors are better placed to tackle all criminal activity, including serious and organised crime in Scotland.

Leaving the EU meant that the UK left the world’s most highly developed and sophisticated ecosystem for LECJ cooperation. The Justice and Home Affairs tools and measures were also greater than the sum of their parts, mutually supporting and reinforcing their use throughout the criminal justice process. Brexit made the UK and Scotland less safe than during our EU membership. While the Trade and Cooperation Agreement (TCA) mitigated some serious risks and issues with the UK leaving the EU, more can be done to ensure Scottish operational partners have the tools, data and support they need in order to combat criminality both at home and abroad.

This paper sets out the opportunities and aims for Scotland that the UK Government should seek to secure with the European Union, whether as part of present EU-UK discussions, the TCA review or other, separate arrangement.

Surrender, nationality bars and warrant transmission

Certain EU member states will no longer extradite their own nationals, meaning potential impunity gaps have arisen and, even where EU nationals will be extradited, conditional bars and the loss of mutual trust and mutual recognition between our systems place an additional burden on our public services through the significant increase in requests for assurances.

The Scottish Government believes the UK Government should explore the possibility of agreeing a “mutual trust” clause with the EU in order to illustrate the strong commitment on both sides to human rights and data protection standards. The intended outcome of such an arrangement would be to reduce the necessity for the giving of explanations, undertakings and assurances during TCA surrender proceedings, thereby making proceedings more efficient and effective.

One key aspect of pre-Brexit cooperation was the 'fire and forget' nature of the circulation of warrants where EU authorities could upload warrants for execution without any specific intelligence or expectation regarding a wanted individual’s current or future whereabouts. This ensured that opportunities to arrest and execute warrants, both expected and unexpected, were much less likely to be missed. The TCA does not currently provide a means for the UK’s and EU member states’ authorities to circulate warrants across the EU and UK in real time, at the same time which has negatively affected the number of Scottish warrants executed in EU member states. The UK Government should therefore seek to agree a mechanism for the real-time sharing of arrest warrants between the UK and EU in order to prevent those individuals subject to live proceedings slipping through the net.

The Scottish Government is also aware of and closely monitoring the efforts, both in the UK and EU, to consider whether a transfer of proceedings is an appropriate remedy for these post-Brexit deficiencies. Transferring proceedings remains a difficult process as different approaches across substantive and procedural criminal law between the Scottish and EU systems can create fundamental issues. It is essential that any arrangement relating to transfer of proceedings sufficiently protects the rights of victims and witnesses to the same standard as in Scotland. In particular, it should be a priority that any agreement ensures that victims whose proceedings have been transferred are given the same safeguards as they would be given when providing evidence to a Scottish court. The UK Government should therefore work with the EU to properly assess the appropriate legal basis and safeguards required for proceedings to be transferred in situations where surrender is not possible.

Prisoner transfer

Leaving the EU meant that it became harder to transfer sentenced persons back to their states of nationality, due to a lack of both appropriate legal basis and mutual recognition. Agreement on this issue was not negotiated as part of the TCA.

The UK now relies on the 1983 Convention on the Transfer of Sentenced Persons to transfer prisoners from Scotland to their home country. This has created a number of additional barriers to prisoner transfers as the 1983 Convention's process is considerably slower and relies on bilateral negotiation and agreement, including a need for consent to the transfer by both the prisoner and receiving country and evidence that the prisoner will benefit from the transfer. These additional barriers have contributed to the unprecedented pressure on Scotland’s prison system and broader public services.

The Scottish Government supports the UK Government’s work to agree Prisoner Transfer Agreements with certain EU member states but believes that a more holistic approach would deliver greater results. In particular, securing an EU-wide Prisoner Transfer Agreement which allows for more streamlined procedures for the transfer of prisoners should be a priority for any discussion around improving UK-EU cooperation. If any such agreement is secured, it is important that the UK Government commits to working with Scottish operational partners to ensure effective and timely implementation of the agreement in Scotland, in tandem with other parts of the UK.

Transfer of post-release licence conditions

The lack of mutual recognition of licence conditions means that conditions placed on foreign national offenders from EU member states by Scottish authorities on release from custody are not enforceable in their home state.

The Scottish Government believes that the UK Government should explore whether streamlined procedures for mutual recognition and enforcement of post-release licence conditions would support efforts to protect both individual human rights and broader public safety.

Alerts sharing

The loss of access to SIS2 also means Police Scotland must do more to achieve the same results as before, using more cumbersome and less effective tools. In particular, the sharing of alerts around missing persons, stolen items and vehicles, and other police intelligence, has become more difficult, even with effective channels of communication through platforms such as INTERPOL.

It is crucial that the UK Government seeks an arrangement whereby police forces across the UK and EU can effectively, quickly and efficiently create alerts and share information and intelligence in a way that helps keep the public safe and bring criminals to justice and reduces technical and administrative burdens inherent in present alert sharing models.

Strategic dialogue

One predictable outcome of Brexit was the UK’s voice being lost in strategic discussions at the European level. While operations at Europol and Eurojust continue largely as they did pre-Brexit, the UK no longer has a seat at the table where key, long-term decisions are made. The Scottish Government appreciates that the UK can no longer expect to have such a seat but the lack of strategic policy or operational dialogue between the UK and EU, whether at the Ministerial, policy or operational level, leaves us exposed to the ever more sophisticated means and methods of international criminals who seek to challenge our way of life.

The TCA created structures such as the Partnership Council and Specialised Committee on Law Enforcement and Judicial Cooperation in Criminal matters. However, these were not intended to be, nor do they operate as, a forum where competent authorities can exchange ideas and expertise in order to create common solutions. While engagement through the Specialised Committee on Law Enforcement and Judicial Cooperation in Criminal Matters has improved and the UK and EU have worked hard at re-establishing trust with one another, there will always be room for improvement. Finding those improvements and new ways of working together on common issues should be a priority for the UK Government.  

Scotland’s hybrid legal system, which combines elements of both civil and common law traditions, offers it a unique position within the UK and a distinctive perspective on tackling our shared challenges. The UK’s plurality of perspectives is valuable in and of itself and the hybrid legal system can serve as a bridge between the common law and civil law traditions, helping to find mutually beneficial solutions to real and perceived problems. Scotland is therefore well-placed to make a meaningful and strategic contribution to such discussions.

The Scottish Government believes that strategic cooperation will be most effective when being led by operational experts and re-enforced by dialogue between senior politicians. New forums that connect key actors in LECJ across the UK and the EU to discuss strategy, long-term trends, and common challenges are therefore essential. The Scottish Government believes this would be best served by creating platforms for regular meetings which look beyond the texts of the TCA and implementing arrangements and more towards considering policy, political and technological trends which present both risks and opportunities to current and future cooperation.

Next steps

It is crucial that we do all we can to improve UK-EU cooperation on LECJ, even where that cooperation is presently positive.

Scotland’s distinct legal system and prosecutor-led criminal justice system often face the same barriers to cooperation as their counterparts in the rest of the UK, but the solutions required are often different. Solutions designed with only the England and Wales system in mind may fail to facilitate, and potentially hinder, LECJ between Scottish operational partners and their EU member state counterparts. It is therefore crucial that the UK Government seek out and listen to diverse voices in preparation for its negotiations to ensure that UK solutions do not unintentionally impede Scotland’s frontline personnel across justice sector partners in their efforts to combat criminality. While there has been much positive cooperation across the UK to mitigate against negative Brexit impacts, it is crucial that officials continue to work closely together to devise solutions and further mitigations where possible.

Twenty-five years of devolution have also given the power to the Scottish Parliament to design distinct justice policies for Scotland and it is important that the UK Government respects that devolution and its outcomes. The solutions to Brexit-related issues must be considered with respect for devolution, particularly during the coming EU-UK discussions, TCA Review and any other UK-EU agreement relating to LECJ.

The Scottish Government is ready to assist the UK with its negotiations and intent to improve the relationship with the EU. We are keen to contribute our expertise, networks and reputation to support deepening UK-EU cooperation across the Justice and Home Affairs portfolio.

Law enforcement and criminal justice cooperation with the EU: position paper

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