Crime and Security Post Brexit

EU (Future Relationship) Act 2020 – Security Provisions Relating To Business Crime

The European Union (Future Relationship) Act 2020 (EUFRA 2020) received its Royal Assent on 30 December.  The EUFRA 2020 provides a framework and rules for trade, nuclear operations, and security cooperation between the UK and EU.

Regarding security as it relates to business crimes and investigations, the following provisions are of note:

Criminal records

Fast exchange of criminal record data is provided for under the EUFRA 2020.  The arrangements include streamlined and time-limited processes for exchanging criminal records data and specifying that information can be exchanged for crime prevention and safeguarding purposes.

If a citizen of an EU Member State has been convicted of a crime in the UK court, the UK must notify the central authority of the relevant Member State within 28 days of the conviction.  There is a provision which allows for non-disclosure in cases where disclosure would breach data protection legislation.  The information must contain the person’s passport or identity card details, fingerprints, and an image or photograph of their face.

If a UK national is convicted of a crime in a Member State, section 2 allows the UK to receive and maintain the related data.

If safeguards provided for under Part 3 of the Data Protection Act 2018 and section 75 of that Act respectively are in place, transfer of conviction data to a third country is permitted.  Such transfer is also allowed under UK adequacy regulations.

Under section 4, a UK authority can request criminal conviction information recorded on a criminal records database from any Member State.  The intended use of the information must be for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and restriction of use can be ordered by the granting Member State.  Section 4 only provides for requests to be made to the relevant Member State rather than a centralised EU registry.

Passenger Name Record (PNR) Data

Section 2, which is based on precedents for PNR Agreements between the EU and third countries, provides for more frequent transfers of PNR data from airlines to the UK before flights take off between the EU and Britain.

Appeals for PNR data by the UK must be made by the UK Passenger Information Unit and only requested for law enforcement purposes set out in Regulation 6(3)(a) of Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record data for the prevention, detection, investigation, and prosecution of terrorist offences and serious crime.

Biometric and Vehicle Registration Data Exchange

Reciprocal searching and analysing of UK and EU Member State databases holding DNA and fingerprint information is provided for under the Act.  If a match is found, the searching State can request further information relevant to the DNA or fingerprint data, subject to that State’s domestic laws and the providing State’s regulations regarding legal assistance.

Vehicle registration data can also be exchanged for law enforcement purposes.

Mutual Legal Assistance (MLA) and Asset Freezing and Confiscation

Section 3 provides for MLA concerning criminal matters and mutual co-operation regarding asset freezing and confiscation orders made by either the UK or an EU Member State.

According to the Explanatory Note[C1] , the EUFRA 2020:

“supplements the relevant Council of Europe Conventions by providing for streamlined processes, including standard formats for making requests and specific timescales for action. On asset freezing and confiscation, the Agreement provides for more limited grounds for refusal of a request allowing for the broadest cooperation possible. On MLA, the Agreement provides for direct transmission, allowing UK prosecutors to send requests directly to competent authorities in EU Member States.”

There will likely be initial frustrations for defence counsel regarding obtaining internationally-based evidence, a factor which needs to be carefully considered when preparing a defence or assisting in a regulatory investigation.

Extradition

The Extradition Act 2003 (EA 2003) governs the UK law relating to extradition.  Before Brexit, extradition between EU Member States and Britain was covered by the European Arrest Warrant.  An EAW issued in one Member State is valid and directly enforceable in and by all other Member States.  However, EAW’s ceased to apply to the UK at 11 pm on 31 December 2020 and because Britain becomes a third country, nations such as Germany, which constitutionally bar the extradition of their nationals to non-EU States can no longer be compelled to hand over suspects for trial in a UK court.

The EUFRA 2020 provides that all Member States will remain designated as Category 1 for the purposes of the EA 2003.  There will now be a direct transmission for extradition requests between judicial authorities.  Grounds for refusing a request will be limited and time-limits regarding actioning appeals for extradition will be applicable.  The EUFRA 2020 also makes clear that a person’s surrender can be refused if their fundamental rights are at risk, extradition would be disproportionate, or they are likely to face long periods of pre-trial detention.

Comment

The relief of having an agreement in place could well be short-lived as the reality of prosecuting and defending business crime and investigations under a new and untested regime begins.  For legal professionals, taking anything for granted is likely to result in frustrated clients and personal stress.  As with all new systems and rules, preparation, patience, and an anticipation of problems at the outset of every matter will be required for the foreseeable future whilst the new laws are established, and case law precedence develop.

Tanveer Qureshi specialises in white-collar crime and regulatory investigations and prosecutions.  If you require legal representation, please contact Tanveer directly at t[email protected] or via his chambers, 4-5 Gray's Inn Square. for more about Tanveer or to subscribe to his newsletters, please go to www.tqlegal.co.uk 

 [C1]20236en.pdf (parliament.uk)