Financial crime co-operation should continue despite Brexit Trade Agreement changes

After the UK formally left the European Union (EU) in early 2020, there was a transition period which ended on 31 December 2020. The relationship between the EU and the UK concerning law enforcement cooperation is now governed by the UK-EU Trade and Cooperation Agreement (the Agreement). The UK Government states that the safety and security of British citizens is a top priority.

It argues that the Agreement provides a comprehensive package of operational capabilities that will help protect the public and bring criminals to justice. The Government is adamant that the Agreement ensures streamlined cooperation with law enforcement and the judiciary between the UK and EU Member States to prevent, investigate, detect and prosecute criminal offences, in addition to the prevention of and fight against money laundering and financing of terrorism.

Meanwhile critics say the new arrangements fall far below that which the UK enjoyed as a member of the EU. In particular access to ‘real time’ information sharing systems which is a major blow to UK law enforcement agencies.

They say that detection of crime will be slower and more cumbersome.

What does the UK-EU Trade and Cooperation Agreement say about law enforcement?

Part three of the Agreement covers information exchange and access to databases; cooperation between the UK and Europol and Eurojust; and extradition. 

Information Exchange and Access to Databases

The Agreement provides for the automated exchange of DNA, fingerprints and vehicle registration data between the UK and individual EU Member States.

There will also be access to European Union passenger name records for the purposes of preventing, investigating, prosecuting terrorism or serious crime. This is subject to safeguards on the use and storage of the information.

The deal is based on precedents for passenger information sharing that the EU has in place with third countries such as the US. In return, the UK will share analysis of passenger name records data with EU law enforcement agencies. The UK Government is keen to note that the new deal provides for more frequent transfers of passenger name record data than pre-Brexit arrangements.

The UK has lost access to the European Criminal Records Information System (ECRIS). However, the Agreement provides for criminal records data information to be shared through another mechanism. This will now take up to twenty working days instead of the previous ten days.

Critics are most vocal about the UK’s loss of access to the Second Schengen Information System (SIS II). SIS II is the most widely used and largest information sharing system for security and border management in Europe. The system focuses on three areas of cooperation: border control, law enforcement in particular to identify missing people and wanted suspects, and vehicle registration information.

The Government has noted that SIS II is just one system and they still have access to Interpol. The UK has been a member of Interpol since 1928. Today it stands alongside one hundred and ninety-three other member countries.

Cooperation between the UK and Europol and Eurojust

There are changes to the arrangements between the UK and Europol and Eurojust. Europol is the EU’s law enforcement agency. Its main goal is to achieve a safer Europe and helps the EU Member States in their fight against terrorism, cybercrime and serious and organised crime. Eurojust is an agency of the EU which deals with judicial cooperation in criminal matters across the Member States. Its aim is to improve the detection and prosecution of cross-border crime by promoting investigative and prosecutorial coordination.

The UK Government’s position is that the Agreement supports effective multilateral cooperation between the UK and EU Member States. Noting that the aspects of the Agreement relating to Europol and Eurojust are broadly in line with those between theEU and third countries such as the US, but take account of the UK’s historic contributions to these two agencies. Opponents of the Agreement highlight that the cooperation afforded under the Agreement is limited to the secondment of liaison officers and prosecutors to these two EU bodies, with limitations on the exchange of data. The UK will no longer be able to take part in management of the organisations or have access to some databases.

Extradition

Another big change to note is the loss of the European Arrest Warrant Scheme for the UK. The UK is now deemed a third party country and some EU Member States who do not extradite their own nationals due to constitutional principles will now be able to avoid extradition of some individuals to the UK. However, there are other paths to justice such as that person being prosecuted in their home country. It is yet to be seen what problems this will create in practice.

Anti-money laundering and counter-terrorist financing

The Agreement commits the UK and EU to support international efforts to prevent and fight against money laundering and terrorist financing, exchange relevant information, and maintain comprehensive anti-money laundering and counter-terrorist financing regimes.The Agreement commits the UK and EU to maintain high standards of beneficial ownership transparency. It goes beyond the international Financial Action Task Force Standards (FATF) in requiring registers of beneficial ownership of corporate entities and includes provisions on beneficial ownership of legal arrangements that are in line with the FATF standards.

What does the future hold?

For many years the UK has worked well with its European counterparts to tackle all kinds of criminal activity, including financial crime. Cooperation with European law enforcement agencies can work well and it is expected that there is desire on all sides for that to continue. This is evidenced by the fact that the UK can continue to participate in Joint Investigation Teams (JIT).

A JIT is a team consisting of prosecutors and law enforcement authorities from different countries for the purpose of carrying out specific criminal investigations in one or more of the participating countries. The Agreement is only the start of the new relationship and it is expected that there willbe efforts to reach further mutually beneficial arrangements in the future.

 Francesca Titus, partner and barrister, McGuireWoods