Matthias Monroy

British authorities retain access to the EU-wide exchange of PNR data and are allowed to query biometric records in EU member states. Additional agreements regulate close cooperation with Europol and the rapid extradition of wanted persons. However, the UK must leave Europe’s largest manhunt database.

Even after Brexit, Britain retains an important place in the European Union’s security architecture. The Trade and Cooperation Agreement presented by the EU Commission and the British government at Christmas reaffirms the „need for strong cooperation between national police and judicial authorities“.

Among the „areas of mutual interest“ are law enforcement and judicial cooperation in criminal and civil matters. To combat and prosecute cross-border crime and terrorism, British authorities may continue to participate in important EU information systems and also cooperate with agencies. Each of the new forms of cooperation is subject to the obligation to respect the European Convention on Human Rights. There is no way to involve the European Court of Justice for legal action concerning any of the measures foreseen in the Trade and Cooperation Agreement.

Participation in Prüm Decisions, ECRIS and PNR system

The UK retains the privilege of being able to search vehicle registration data and biometric information in EU member states via the Prüm Decisions of 2008. At present this is limited to DNA and fingerprint data, but the Prüm extension to facial images is in the pipeline. EU members and the Commission are also planning for a system to search police investigation files. This EPRIS could be set up in the Prüm framework, in which case it will also be open to British authorities.

British authorities will also keep their access to the European Criminal Records Information System (ECRIS) after Brexit. It contains information on convictions that can be searched by justice authorities across the EU. A special EU-UK provision doubles the time limit within which requests must be completed to 20 days. Britain’s remaining in ECRIS has a symbolic effect, because so far even the Schengen-associated states do not participate.

The UK also continue to exchange passenger data with EU member states. The contact point in London remains connected to the network of EU Passenger Name Record (PNR) central offices for this purpose. In return, the UK commits to sharing analyses generated from this data with the agencies Europol and Eurojust, as well as with the law enforcement agencies of EU member states.

Continued „operational cooperation“ with Europol

According to the Trade and Cooperation Agreement, there will be no more direct involvement in the agencies in the field of Justice and Home Affairs. The UK will therefore have to leave the relevant databases and analysis projects at Europol. The country is one of the main users of the service provided by the EU police agency, so the exit probably weighs heavily. However, the government in London will receive a supplementary agreement, like those concluded with Europol by Switzerland and Norway as third countries.

In addition to the further exchange of personal data, the trade and cooperation agreement regulates assistance in individual criminal investigations as well as „operational cooperation“. The broad wording is likely to mean that UK authorities may continue to participate in Joint Investigation Teams with other EU states. To facilitate this process, the UK will send „one or more“ liaison officers to Europol.

Further details are regulated by working or administrative agreements which Europol is to conclude with the competent authorities of the United Kingdom. This also concerns the further exchange of situation reports, strategic analyses or „crime prevention methods“, as agreed in the Trade and Cooperation Agreement. The passage is presumably aimed at cooperation with the Counter-Terrorism Centre, which was established at Europol in 2016 under the decisive initiative of British authorities.

Exchange of personal data with Eurojust

The UK government is also sending liaison staff to Eurojust, the European Union’s agency for judicial cooperation in criminal matters, including officers and a prosecutor. They are to implement cooperation in the „fight against serious crime“. For „terrorism matters“, the UK establishes a „Domestic Correspondent“ to which requests and communications can be sent. After approval by the other national members, UK authorities are also allowed to participate in „operational meetings“. The exchange of personal data also remains permitted.

The EU Commission and the government in London are also setting up a „Specialised Committee on Law Enforcement and Judicial Cooperation“, which can, for example, expand on the forms of crime in which cooperation with Europol and Eurojust will take place.

The EU-UK agreement also provides for cooperation in the fight against money laundering and the financing of terrorism. The text remains largely unspecific in this regard. It states that the contracting parties can exchange „relevant information“, including, for example, suspicious transactions or personal data on the participants. British authorities will remain connected to the network of financial intelligence units responsible for combating money laundering or terrorist financing.

No exchange of arrest warrants, but „surrender“ agreement

On the other hand, Britain will have to leave the European Arrest Warrant system with its provisions for extradition requests. The British police authorities therefore want to compensate for the exchange of arrest warrants through closer cooperation with Interpol. However, EU member states use arrest warrants distributed through Interpol to varying degrees. The Interpol channel also offers no opportunity for facilitating subsequent extradition.

However, the Trade and Cooperation Agreement contains the separate arrangement for an extradition agreement, referred to there as „surrender“. It can be applied to wanted persons if the alleged offences are punishable by a custodial sentence of at least 12 months. For this purpose, the Agreement contains a list of offences in which cooperation can take place, similar to the European Arrest Warrant.

For extradition to take place, it is usually necessary for an offence to exist in the legal systems of both countries involved. However, there are a number of limitations. Authorities of EU member states can refuse to execute a British arrest warrant for political offences, for example. Governments can also refuse or impose conditions if their own nationals are to be extradited.

Bye bye SIS II

The biggest deficit for the government in London is probably its ending participation in the Schengen Information System (SIS II). The country was one of the main users of this largest European manhunt database. In 2019, British authorities had around 37,000 wanted persons and 4.5 million objects stored in the SIS. Many covert Article 36 searches, which allow police and domestic intelligence to follow the movements of individuals across the EU, also originated in the UK.

British police and border authorities have misused the system since it was connected in 2015. This was revealed by two reviews, which included among the „major deficiencies“ the holding of a „significant number of full or partial copies of the database“ of the SIS II. The UK also violated the principle of reciprocity, for example by failing to implement extradition requests from Iceland, Liechtenstein, Norway and Switzerland, which are also connected to the SIS II as Schengen states.

Strengthening the intelligence services

Contrary to plans, the Brexit agreement does not contain cooperation in the areas of foreign policy, external security and defence. However, Britain will retain access to the European Union’s satellite surveillance and tracking services, including „Copernicus“. The country also remains involved in the EU’s Horizon Europe research framework programme.

The Trade and Cooperation Agreement thus continues security cooperation with the UK in numerous important areas. „Losses“ such as the exit from SIS II and Europol databases presumably strengthen secret service cooperation. This concerns the European association “ Club of Berne“ and its „Counterterrorism Group“ (CTG), in which the British domestic service MI5 participates. With more and more measures, the CTG is expanding its counterterrorism cooperation with Europol.

Finally, the UK remains a member of the Police Working Group on Terrorism (PWGT), which brings together police state security departments or secret services from all EU member states as well as Norway, Iceland and Switzerland. Contrary to what the name suggests, the informal group also deals with „extremist crimes“ after an extension of its tasks.

Image: „Northern Constabulary – Unst beat vehicle 1995 opposite Muckle Flugga (Shetland) Scotland“ by conner395, licensed under CC BY 2.0.