A new ‘special relationship’ or a damage limitation exercise? EU–UK criminal justice cooperation after Brexit

Date01 June 2021
Published date01 June 2021
Subject MatterEditorial
New Journal of European Criminal Law
2021, Vol. 12(2) 105106
© The Author(s) 2021
Article reuse guidelines:
DOI: 10.1177/20322844211006221
A new special relationshipor
a damage limitation exercise?
EUUK criminal justice
cooperation after Brexit
Brexit, criminal justice cooperation, security cooperation, extradition, mutual legal assistance, data
The EU-UK Trade and Cooperation Agreement (TCA) marked a new stage in the post-Brexit
relationship between its signatories. The Agreement has been hailed as leading to a special re-
lationshipbetween the EU and the UK,1but a more sceptical approach may view the text rather as
a damage-limitation exercise, attempting to replicate to the extent possible the pre-Brexit status quo
within the signif‌icant legal limits of the UKs new positon as a third state vis-`
a-vis the EU. A
substantial part of the Agreement is devoted to criminal justice matters, with the aim to provide
mechanisms for ongoing cooperation in the f‌ield. The Agreement contains a number of areas of high
ambition, aiming to replicate as far as possible the pre-Brexit status quo: these include extradition
(the provisions on the arrest warrant), data exchange (criminal records, PNR, Prüm) and anti-
money laundering and conf‌iscation. Areas of more modest ambition include mutual legal assistance,
cooperation with Europol and Eurojust, and participation in joint investigation teams.
Yet in all these cases, ambition is tempered by the limitations posed by the UK legal position as
a third state. In the f‌ield of extradition, the new arrest warrantsystem maintains momentum on
speedy and judicialised cooperation-yet in practice cooperation is hampered by the lack of access of
the UK to real-time alerts in SIS II post-Brexit, which provide the essential backbone of the
European arresr warrant system intra-EU. Efforts to replicate SIS II alerts with alerts in the Interpol
system may prove be a hard sell to EU Member States, both on resource and on human rights
grounds. Data exchange is contingent upon data adequacy, and the UK no longer has direct access to
EU databases; the UKs position as a third country means limited inf‌luence on the operational
development and strategy of EU agencies it contributed signif‌icantly to shape, Europol and Eu-
rojust. In addition to the legal limits on EU-UK post-Brexit cooperation, the UK will also have to
overcome limits of resources and trust: notwithstanding the tight deadlines for execution of
judgments the TCA arrangements on extradition, mutual legal assistance and criminal record
exchange provide, in practice the UK authorities will have to persuade their EU counterparts to
prioritise their requests in the same manner as they do requests from their partners inside the EU- this
may not always be easy in view of resource constraints and EU law obligations under the principle
1. See comments of Michael Gove: https://www.bbc.co.uk/news/uk-politics-55451102.

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