15 August 2019

Boris Johnson has spent the past few days signalling a crackdown on crime, but a no-deal Brexit would take us in the opposite direction, says Lewis Lloyd.

In the event of a no-deal Brexit, the UK would lose access to a wealth of EU policing and criminal justice tools overnight on which we currently rely. This would make it more difficult to ensure that criminals are “caught, locked up, punished and properly rehabilitated”, as the prime minister intends.

No deal would make it harder to bring criminals back to the UK to face justice

Currently, if a criminal or suspect flees the UK for another EU country, they are returned to the UK to serve their sentence or face trial on a European Arrest Warrant (EAW). The streamlined process requires no political involvement and takes an average of 48 days. With no deal, extradition requests would be made under the 62-year-old European Convention on Extradition, which offers more grounds for refusal to surrender and sets no time limit for a response.

According to the former director of public prosecutions, Alison Saunders, this would typically take three times longer and be four times more expensive. Where the UK was able to bring Hussain Osman, one of the failed 21/7 bombers, back to the UK within 51 days on an EAW, authorities could face delays of months and even years, as seen with extraditions from non-European countries.

Some EU member states are no longer even party to that convention, leaving the UK with no legal grounds for co-operation with them on extradition after a no-deal Brexit.

The change could also make it significantly more difficult to extradite thousands of criminals from the UK. The UK extradited fewer than 60 people a year to any country before the introduction of the EAW. National Crime Agency statistics indicate that it now extradites roughly 500 to Poland alone and over 1,000 in total annually.

No deal would make it harder to know when criminals are entering, or already in, the country

Losing access to key EU databases would make it difficult even to know when criminals are in the country, let alone extradite them.

Access to the Schengen Information System II database (SIS II) means that Border Force is alerted any time a wanted person tries to enter the country from the rest of the EU. Interpol systems would serve as a back-up, but these are less widely used so offer less comprehensive intelligence, as well as being slower to access and update.

The European Criminal Records Information System (ECRIS), meanwhile, is used to check whether an individual has a criminal record in another member state. This informs investigations, sentencing and bail decisions, and is used when screening applicants for jobs with children. Retrieving records in a no-deal scenario could take up to a year.

The UK will still have an open border for EU citizens after Brexit – free movement cannot end for some time. But without access to these critical systems, the government will have much less information about who is entering the country. Individuals wanted for serious crimes in the EU could enter without warning and police may have little idea about the criminal past of people they investigate or arrest.

No deal would make it harder to tackle serious organised crime

Access to EU systems also helps solve cross-border cases, with member states sharing information on missing objects, airline passenger movements, DNA profiles and more. Cross-border investigations are further accelerated by requests for rapid assistance made between national police forces under the European Investigation Order.

Without these mechanisms, the UK’s ability to tackle serious organised crime, which increasingly takes place across borders, would be seriously compromised.

The UK may be able to negotiate future access but this will take time and is far from guaranteed

The EU is clear that the UK would lose access to many key tools, including the EAW and SIS II, even with a deal. But it has expressed willingness to negotiate some bespoke arrangements and continued UK involvement in certain data sharing initiatives.

That willingness to negotiate will be coloured by the terms on which the UK leaves, though – and there could be substantial gaps in capability either way. Access to any EU databases, for instance, will be dependent on an ‘adequacy’ decision recognising that the UK is compliant with EU data protection standards, but the fastest ever adequacy assessment took 18 months.

The prime minister may promise more police and more prisons, but this won’t make up for losing access to these EU systems. Although debate has focused on the economy so far, the government cannot overlook the impact a no-deal Brexit would have on law enforcement.