Opting in and Opting Out: Doing the Hokey Cokey with EU Policing and Judicial Cooperation
| Author | Carole McCartney |
| Published date | 01 December 2013 |
| Date | 01 December 2013 |
| DOI | 10.1350/jcla.2013.77.6.879 |
| Subject Matter | Article |
Opting In and Opting Out:
Doing the Hokey Cokey with EU
Policing and Judicial
Cooperation
Carole McCartney*
Abstract Policing and judicial cooperation across international borders is
now an expectation, and within the EU, is often mandated, but the
desirability of criminal justice cooperation between EU Member States
and the UK is now debated. This article examines recent UK political
interventions in the field of EU criminal law. This has focused upon the so-
called ‘block opt-out’ decision whereupon the UK government has to
choose whether to ‘opt out’ en masse of all unamended policing and
criminal law instruments entered into prior to the 2009 Lisbon Treaty
(under Article 10(1) of Protocol 36). The article will look in particular at
two EU instruments central to the ongoing and future development of EU
policing and judicial cooperation: the European Arrest Warrant and the
exchange of forensic DNA profiles, fingerprints and vehicle registration
details under the Prüm Treaty. While the UK government is asserting (at
the time of writing) that it is to opt back ‘in’ to the European Arrest
Warrant, it is refraining from opting back in (so remaining ‘out’) of the
Prüm Treaty. Examining the rationales for the use of the opt-out, and the
decisions in respect of each of these instruments, the article will ask
whether the choice to ‘opt out’ can be reconciled with the aspiration of
securing an EU Area of Freedom, Security and Justice, and whether it is
appropriate that the UK should be doing the ‘hokey cokey’ with EU
policing and judicial cooperation.
Keywords European Arrest Warrant; Prüm Treaty; Policing coop-
eration; EU opt-out; Judicial cooperation; EU criminal law
EU policing and judicial cooperation
The modern escalation in the mobility of goods and people across
international borders has not been limited to those legally permitted to
travel. The benefits to be accrued from crossing borders have been
capitalised upon by many, including organised criminals, terrorists, and
human traffickers. In addition, many criminals have sought advantage
over law enforcement agencies, avoiding detection by committing of-
fences in different legal jurisdictions. Thus, while governments en-
courage individuals and exports to cross borders for economic gain, this
comes at the cost of needing to protect national borders against illegal
trade and human migration. As such, to combat illegal activities policing
and judicial cooperation has become not merely desirable, but essential
in countries that share borders, particularly within the European Union
* Reader in Law, Northumbria University; e-mail: carole.mccartney@northumbria.
ac.uk.
543The Journal of Criminal Law (2013) 77 JCL 543–561
doi:10.1350/jcla.2013.77.6.879
(EU). Increasingly, even the notion of shared borders being a pivotal
point of convergence for policing efforts is becoming obsolete with
organised crime, terrorism and human trafficking of equal concern to
countries regardless of their geographic remoteness.
While both domestic and international policing networks are not
novel, their reach and capabilities continue to expand significantly.
Bilateral and multilateral agreements between countries, to exchange
information and coordinate law enforcement efforts, proliferate apace.
Strategies to combat terrorism, organised and serious crime, as well as
domestic crime problems, increasingly incorporate the exchange of
information and intelligence between national institutions and
agencies. The increasing number of Joint Investigation Teams (JITs)
instigated across the EU also highlights the trend of multi-country police
operations tackling crime problems across jurisdictional boundaries.
Despite these organisational developments and political exhortations
to increase criminal justice cooperation, most day-to-day policing re-
mains a national matter. This truism necessitates that policing efforts to
detect criminals whose activities cross borders must primarily focus on
sharing information and intelligence. Mutual assistance treaties have
made provision for information exchange between law enforcement
agencies and judicial bodies across the EU. One of the first treaties was
the 1959 European Convention on Mutual Assistance in Criminal Mat-
ters,1which came into force in 1962, and provided for the transfer of
information on previous convictions. Policing and judicial cooperation
across countries is thus not a new phenomenon. Older informal net-
works of direct cooperation became formalised with the creation of
Interpol in 1923 (with Europol established in 1995, operational in
1999). Within the EU specifically, the 1985 Schengen Treaty paved the
way for the creation of a ‘borderless’ Europe and facilitated (some would
say necessitated) transnational exchanges of information on European
citizens and visitors.2The Schengen Agreement did not however, as is
often asserted, mark the commencement of police cooperation in the
EU, but was: ‘the first stage in the creation of legal bases in a still existing
grey area of practical cooperation’.3It was the Maastricht Treaty of 1992
that formalised policing and judicial cooperation within the ‘Third Pillar’
of the constitutional framework relating to ‘Justice and Home Affairs’
(JHA).
An EU Council meeting of October 1999 noted a Presidency conclu-
sion that: ‘People have the right to expect the Union to address the
threat to their freedom and legal rights posed by serious crime. To
counter these threats a common effort is needed to prevent and fight
1 ETS No. 30, 20 April 1959.
2 The Schengen Area now comprises all of the Member States except the UK and
Ireland. Bulgaria, Romania, Cyprus and Croatia are bound by the provisions of the
Schengen acquis, but they do not yet fully apply to them. Four non-EU countries
also participate: Iceland, Liechtenstein, Norway and Switzerland.
3 W. Schomburg, ‘Are We on the Road to a European Law-Enforcement Area?
International Cooperation in Criminal Matters: What Place for Justice?’ (2000) 8
European Journal of Crime, Criminal Law and Criminal Justice 51 at 56.
The Journal of Criminal Law
544
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