UK opts into several EU criminal measures just before Brexit

In all the noise of recent Brexit controversies, the UK government has made a number of surprising moves that seem to have gone unreported in the UK. 

First, back in the middle of March, when it still looked as if we would be leaving the EU by UK law a fortnight later on 29 March, the UK filed formal notifications with the registry of the EU Council that it would opt in to two measures regarding judicial cooperation.

The first March notification was that the UK wants to be part of the proposals to improve the Eurodac system, a large centralised database containing the fingerprint data of asylum seekers and illegal border crossers who are found within EU territory.

Eurodac both makes it easier for Member States to determine responsibility for examining an asylum application, and also allows Member States’ law enforcement authorities and Europol to compare fingerprints linked to criminal investigations with those contained in EURODAC, for the prevention, detection and investigation of serious crimes and terrorism (under strictly controlled circumstances).

The new system into which the UK has just opted has the following additional measures:

• storage of facial images and alphanumerical data (name, ID or passport number) of asylum seekers and irregular migrants; and
• lowering of the age for obtaining fingerprints and facial images for minors from 14 to 6 years, to help identify and trace missing children and establish family links (under the conditions that force should never be used but, as a last resort, and where permitted by relevant EU or national law, a ‘proportionate degree of coercion’ may be applied to minors, while ensuring respect for their dignity and physical integrity).

The second March notification was to accept the new governance changes to Eurojust. Eurojust, the cooperation unit between Member States for investigations and prosecutions, now becomes the EU Agency for Criminal Justice Cooperation, with a new structure to deal with rising case numbers. Its purpose remains the same: supporting national authorities in their criminal investigations and prosecutions, and discovering links between cases.

These two notifications were in March. Then on 12 April, the next date on which it seemed that the UK was going to leave the EU, the UK again sent off two further notifications in the field of criminal cooperation.

The first April notification was that the UK wishes to take part in the adoption and application of changes made to the European Criminal Records Information System (ECRIS).

The ECRIS database enables information on convictions to be exchanged between EU Member States in a uniform, fast and compatible way, giving judges and prosecutors easy access to comprehensive information on the criminal history of requested people, including in which EU countries that person has previously been convicted. This removes the possibility for offenders to escape convictions by moving from one Member State to another.

Late last year, there was agreement on reforming ECRIS to include a centralised database with information on convictions of third country nationals and stateless persons (called ECRIS-TCN), and these are presumably the changes of which our government wants to be part.

The second April notification was to the effect that the UK proposes to apply the so-called Prüm Convention, an intergovernmental treaty on cross-border cooperation, particularly in combatting terrorism and cross-border crime.

The House of Lords EU Committee undertook a study some years ago of our in-out relationship in relation to Prüm, expressing much frustration at the government’s indecision. Now the government is back in to the treaty.

Essentially, Prüm allows for automated access to DNA profiles, fingerprint data and national vehicle registrations. It also contains provisions for the deployment of armed sky marshals on flights between signatory states, joint police patrols, hot pursuit by armed police into the territory of another state for the prevention of immediate danger, and cooperation in case of mass events or disasters. It began life as a treaty between some Member States, but some of the content has since been adopted by the EU in the Prüm Decision. The UK is opting presumably into the original treaty.

The timing of these four notifications is significant. While still a Member State, and when such notifications are easier, we are opting into as much as possible in the hope of seamless criminal cooperation after we have left. It is a mystery why this has not been reported in the UK – or, if reported, given more profile.

The most interesting feature is that the UK is under no obligation to opt into any of these measures, since they all fall under the category of measures from which the UK has the right of opt-out.

In a week when Brexit returns to the headlines, every voter, Leave or Remain, will have their own view on the government’s actions.