Brexit: disengaging on criminal law

It was announced a few days ago that the European Public Prosecutor initiative (EPPO) has run into opposition. When coming up for approval at the Council of Ministers, a number of countries (the Netherlands, Sweden, Poland and Hungary) did not approve, out of concern at losing sovereignty to a powerful new EU agency.

The EPPO has been under discussion for 20 years. In brief, it proposes an EU-level prosecution for fraud of EU budget funds, which will be undertaken by an EU prosecutor in the relevant national court. The losses from such fraud amount to around €50bn per year. EPPO’s legal basis comes from Article 86 of the Treaty, which makes the procedural requirement clear: ‘The council shall act unanimously after obtaining the consent of the European Parliament.’ Three countries, which have opt-out rights in EU justice measures, had already opted out – the UK, Ireland and Denmark. But there was still no unanimity among the rest.

Some countries are keen on the EPPO regardless. So it was announced at the same time that France and Germany will go ahead in any case, through the ‘enhanced cooperation’ procedure, which allows at least nine member states to proceed with an initiative (this is also allowed under Article 86). They will apparently obtain their remaining seven supporters from, among others, Romania, Bulgaria, Malta, the Czech Republic and the Baltic states. A similar procedure has been used most recently to advance the unified European patent, which was also not unanimously approved.

Lawyers have had their own concerns about EPPO, and most particularly in the area of defendants’ procedural rights. These concerns were summarised in the European Parliament’s recent study of the EPPO, which said the existing proposal ‘may submit individuals to variable standards depending on the applicable national law. Further harmonisation may be advisable, especially to better ensure the right to be actively involved in the criminal proceedings, and the access to the materials of the case.’

I know from my own research into member states’ laws that a suspect’s right to access case materials varies widely from state to state, meaning that trials conducted by the same EU agency on the same point might be governed by very different rules, depending on its venue. This is not desirable.

The EPPO saga tells us a lot about the current state of the EU, and doubtless Leavers and Remainers will draw their own conclusions. But I want to concentrate on the impact of Brexit on criminal law cooperation, within which EPPO falls. As mentioned, the UK has already negotiated a general opt-out from EU criminal law provisions, and has not opted into the EPPO (indeed another referendum would be required to opt into the EPPO under the European Union Act 2011). Some would say ‘hurray’ to all that.

But it should not lead us to conclude that Brexit’s impact in this area will be negligible. Our government has helpfully compiled a table of all the opt-in and opt-out decisions taken in the area of justice, and there are 128 separate initiatives affected. There are links to ministerial statements explaining the decisions in all cases, too.

A very useful summary of what’s involved comes from a briefing issued just before the referendum by Steve Peers, Professor of EU Law and Human Rights Law at the University of Essex. It is detailed and should be read in full by those interested.

Briefly, criminal cooperation covers five separate areas: substantive criminal law (the UK has opted out of nearly everything); mutual recognition in criminal matters (covering areas such as the application of another EU member state’s criminal law decision, or asking another country to hand over a suspect to face a trial – the UK is heavily engaged in this area); harmonisation of criminal procedure (the UK has some engagement); exchange of police information (the UK is very keen); and cooperation with EU agencies (this includes Europol and Eurojust, with which the UK is engaged, and will include the EPPO if it becomes a reality). The impact of Brexit varies obviously according to the extent of engagement in the area covered.

Professor Peers’ overall conclusion is that ‘Brexit is very likely to lead to a significant reduction on cooperation in criminal and policing matters between the UK and the EU’.

I know the hard Brexiteers will say until the end of time that the people have spoken, and that the verdict must stand regardless. But, given that no tally was available before the vote on the impact of Brexit across the very wide range of areas covered by the EU (including, as here, criminal law), are we to slide towards the exit door without reconsideration even if the overall outcome shows that it is distinctly not in our national interest?

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs