European criminal law without the United Kingdom? The triple paradox of Brexit
| DOI | 10.1177/2032284417743819 |
| Published date | 01 December 2017 |
| Author | Valsamis Mitsilegas |
| Date | 01 December 2017 |
| Subject Matter | Editorial |
Editorial
European criminal law without
the United Kingdom? The triple
paradox of Brexit
The current negotiations on the withdrawal of the United Kingdom from the European Union (EU)
have cast light into the significant ch allenges that Brexit poses to the sec urity of the United
Kingdom and, to some extent, of the EU. A so-called ‘hard’ Brexit may signify that the UK ceases
to participate in a series of key mechanisms of judicial cooperation in criminal matters and police
cooperation at EU level, including: the system of mutual recognition of judicial decisions, includ-
ing the establishment of an EU-wide system of surrender (th e European Arrest Warrant) and
mutual legal assistance (the European Investigation Order); the operation of key EU crimi nal
justice agencies including Europol and Eurojust; and the operation of criminal justice databases
including those established by the second generation Schengen Information System and by the
Pru
¨m instruments. A key question in a post-Brexit legal landscape is how the relationship between
the UK and the EU acquis on criminal justice will be articulated and how will this new relationship
affect the position of the United Kingdom in relation to existing EU cooperation arrangements and
in relation to EU criminal justic e agencies, including the newly est ablished European Public
Prosecutor’s Office.
There are three possible post-Brexit legal scenarios concerning the United Kingdom’s relation-
ship with the EU in this context: the conclusion of EU-UK agreements on various aspects of
criminal justice cooperation; the conclusion of bilateral agreements between the UK and individual
EU member states; and, in the absence of such agreements with the EU or member states, falling
back to existing Council of Europe mechanisms of cooperation. The first scenario (EU-UK agree-
ments) – which seems to be advocated also by the UK Government
1
– appears the most desirable in
terms of ensuring legal certainty, the establishment of an EU-wide level-playing field for the UK,
and operational efficiency to the extent that they have the potential to maintain the United King-
dom’s position as close as possible to its current position as an EU member state. The conclusion of
bilateral agreements under the second scenario will not guarantee that United Kingdom requests
for cooperation will be treated by EU partners with an equal priority status in comparison of
requests of EU member states under EU law mechanisms such as the European Arrest Warrant
and the European Investigation Order. Moreover, a fallback to bilateral agreements may mean that
existing innovations in judicial cooperation under EU law may cease to apply rendering judicial
cooperation slower and more cumbersome. The same considerations apply to the third scenario of
the UK falling back to existing Council of Europe agreements such as the agreements on
1. HM Government, Security, Law Enforcement and Criminal Justice. A Future Partnership Paper (September 2017).
New Journal of European Criminal Law
2017, Vol. 8(4) 437–438
ªThe Author(s) 2017
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DOI: 10.1177/2032284417743819
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