Facilitating Cross-Border Criminal Justice Cooperation Between the UK and Ireland After Brexit: ‘Keeping the Lights On’ to Ensure the Safety of the Common Travel Area

DOI10.1177/0022018320977528
AuthorGemma Davies
Publication Date01 April 2021
Date01 April 2021
SubjectArticles
Article
Facilitating Cross-Border
Criminal Justice Cooperation
Between the UK and Ireland
After Brexit: ‘Keeping the
Lights On’ to Ensure the
Safety of the Common Travel
Area
Gemma Davies
Northumbria University, UK
Abstract
Much of the cooperation on criminal justice matters between the United Kingdom and the
Republic of Ireland is based on EU level instruments. While there has been consideration of the
broader impact of Brexit on the Good Friday Agreement and consensus on the need to avoid a
return to a hard border between Ireland and Northern Ireland, more detailed consideration
has not been given to the effect that Brexit may have on continued criminal justice cooperation
across the border. This article highlights the combined risks that Brexit presents for Northern
Ireland in the form of increased criminality at a time when the loss of EU police cooperation
mechanisms may result in a reduction of operational capacity and the removal of the legal
architecture underpinning informal cooperation. Part 1 seeks to highlight the historical context
of UK-Irish cooperation in policing matters. Part 2 explores the risk that post Brexit the Irish
border may become a focus for criminal activity. The risks relating to increased immigration
crime, smuggling of commodities and potential rise in terrorist activities are explored. Part 3
considers how the risks of increased criminal threats are exacerbated by the loss of EU criminal
justice cooperation mechanisms and how this will affect UK-Irish cooperation specifically.
Consideration is particularly given to the loss of information sharing systems. Part 4 considers
how loss of EU level cooperation mechanisms could be mitigated. The viability of bilateral
agreements between the UK and Ireland is considered alongside ways which police cooper-
ation can be formalised to compensate for the potential loss of EU criminal justice information
sharing systems. Nordic police cooperation is considered as a potential blueprint for the UK
and Ireland.
Corresponding author:
Gemma Davies, Associate Professor, Northumbria University, Newcastle upon Tyne, NE1 8QH, UK.
E-mail: gemma.davies@northumbria.ac.uk
The Journal of Criminal Law
2021, Vol. 85(2) 77–97
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0022018320977528
journals.sagepub.com/home/clj
Keywords
Criminal justice cooperation, Brexit, police cooperation, EU criminal law
Introduction
Brexit has presented many problems for the UK and the EU, among them is how to deal with the Irish
border. The border will, after the end of the transition on 31 December 2020, become an external land
border between the EU and the UK. What that means for the citizens of the UK and Ireland will depend
on the form of the new relationship that eventually emerges between the UK and Ireland.
1
While the loss
of EU criminal justice cooperation made headlines from the time of the referendum the consequences for
the Irish border and maintenance of criminal justice cooperation within the Common Travel Area have
been largely ignored. In August 2016 the First Minister and deputy First Minister of Northern Ireland
wrote to the UK Prime Minister to set out their concerns surrounding the implications of Brexit for
Northern Ireland. The letter set out a number of issues of particular significance which included the need
to ensure that ‘criminal justice and crime-fighting are not compromised’ and ‘that Brex it does not
provide an incentive for those who wish to undermine the peace process’.
2
With only months to go
before the end of the transition period little has been done to address the concerns. Brexit inevitably
meant a loss of some EU criminal justice cooperation mechanisms and a concomitant loss of operational
effectiveness. This paper emanates from a research network funded by the AHRC. The UK-Irish
Criminal Justice Cooperation Network began in 2018 and over a two year period 70 practitioners and
academic from Great Britain, Northern Ireland and Ireland generously gave of their time through a series
of workshops to consider the issues which are laid out in this paper. At the first event one practitioner
commented that ‘everyone wants to keep the lights on, but we need to work out how to do it’. The impact
of Brexit will be felt by all practitioners dealing with cross-border crime, even if a deal on criminal
justice and security cooperation can be reached. However, the impacts for Ireland are more acute
because of the existence of the Common Travel Area and the underlying political history which means
the border, and the political decisions which determine how it is managed hold the potential for conflict.
Consideration of the criminal justice risks and how they are best managed is therefore not just a legal
question. This paper attempts to highlight why Brexit presents a risk to safety of the Common Travel
Area and how the UK and Irish governments and the European Union can work to ensure ‘the lights stay
on’.
Part 1—Historical Context of Cooperation Between the UK
and Ireland
The Common Travel Area far pre-dates the founding of the European Union and can be traced to the
Anglo-Irish Treaty negotiations of 1921
3
and the comparatively slow political process by which Ireland
dismantled residual British constitutional ties.
4
From the British perspective, Ireland post 1922 remained
1. Tim Wilson, ‘Prisoner Transfer Within the Irish-UK Common Travel Area (CTA) After Brexit: Human Rights Between Politics
and Penal Reform’, in this issue suggests that some aspects at least of the new relationship may evolve through intermittent
readjustment over a considerable period of time.
2. Letter to the Prime Minister, The Rt Hon Theresa May MP from the First Minister and Deputy First Minister of the Northern
Ireland Executive, dated 10 August 2016 <https://www.executiveoffice-ni.gov.uk/sites/default/files/publications/execoffice/
Letter%20to%20PM%20from%20FM%20%26%20dFM.pdf> accessed 3 November 2020.
3. The politics that gave rise to the CTA, its common citizenship rights and the geographical incoherence of the border are
analysed in D Ferriter, The Border: The Legacy of a Century of Anglo-Irish Politics (Profile, London 2019).
4. T Mohr, ‘The Privy Council Appeal as a Minority Safeguard for the Protestant community of the Irish Free State, 1922–1935’
(2012) 63 NILQ 365–95.
78 The Journal of Criminal Law 85(2)

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