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Security, law enforcement and criminal justice

Criminals and terrorists operate across borders. These threats have grown in intensity, complexity and severity. Criminal networks are increasingly resilient and adaptable, exploiting technology and becoming involved in almost every type of crime.

The UK and the EU have created a range of legal, practical, and technical capabilities to combat these challenges at a European level through close cooperation between countries. These capabilities are mutually reinforcing, from the initial stages of identification and investigation of a suspect through to arrest, prosecution and prisoner management. Together they prevent criminals from using international borders to avoid detection and justice, safeguard against threats to public security and protect citizens and victims of crime.

The UK currently participates in more than 40 EU tools that support and enhance police and judicial cooperation in criminal matters. These include mechanisms that enhance cross-border cooperation and help bring criminals to justice; European law enforcements agencies that enable unrivalled multi-jurisdictional cooperation; and tools that facilitate rapid and secure information exchange, protecting the public and saving lives.

Given the scale of the threats we both face, and the volume of cross-border movements between our neighbouring territories, the UK believes it is vital to find a coherent way to maintain these capabilities in the future. The UK is and remains committed to cooperation across the same breadth of our current cooperation. That includes but should not be restricted to the illustrative examples set out in the following section.

Where they exist, the existing precedents for law enforcement and criminal justice cooperation between the EU and third countries take the form of agreements to cooperate through the EU tool itself, or through an alternative bilateral agreement between the EU and the third country. Not only do these agreements enable a lower level of cooperation that would fall well short of current capabilities, the UK assesses that such a piecemeal approach to future cooperation would result in a limited patchwork of cooperation that would create operational gaps and not deliver our shared objectives of protecting our continent. Law enforcement cooperation would be narrower, slower and less effective. Both the UK and the EU would lose out and our ability to protect our citizens would be undermined.

lnstead, as the Prime Minister set out in Munichl2o, the UK believes that it is in our mutual interest to agree a new and comprehensive lnternal Security Treaty, that enables continued cooperation on the basis of the most operationally beneficial EU tools. Such a Treaty should preserve our shared capabilities and address cross-cutting issues through a single set of horizontal provisions.

The EU and third countries have previously agreed such frameworks on other areas of the acquis through strategic agreementsl2i. The UK believes that such a structured framework would enable the UK and the EU to sustain cooperation on the basis of existing EU measures.

While the UK will be a third country, we will have operational processes closely aligned with EU tools and data sharing systems uniquely compatible with the EU, making it possible to continue our existing cooperation. lt will be important that the UK and the EU approach discussions with the flexibilities to achieve the same operational capabilities or outcomes.

ln addition to maintaining operational capability, it is vital that our new relationship is dynamic, adaptable and responsive to ever-changing and increasingly complex criminal and terrorist threats. So as well as covering existing capabilities, the security partnership should enable the UK and the EU to work together on new capabilities in the future. This must be in the mutual interest, and with the agreement of both parties; moving away from the current opt-in mechanism. The partnership will also need to include strategic and operational dialogues that allow the exchange of expertise and experience, and establish a reciprocal secondment programme which will provide a platform for sharing and growing skills and expertise.

This depth of cooperation is particularly important on the island of lreland. Existing EU instruments support strong cooperation between the Police Service of Northern lreland and the Republic of lreland’s police service An Garda Siochana, and HMRC and lreland’s Revenue Commissioners in their efforts to combat serious and organised crime and terrorism. lt is important that the new partnership ensures effective ongoing cooperation between Northern lreland and the Republic of lreland.

The UK is a multi-jurisdictional state with Scotland and Northern lreland operating distinct legal systems and criminaljustice institutions. The Government will continue to work closely with the Devolved Administrations and the governments of Gibraltar and the Crown Dependencies, especially where justice and policing are devolved.

Operational cooperation between the UK and the EU would be supported by the arrangements on data sharing and information exchange set out in Chapter 3. lt will be built upon shared values such as respect for and safeguarding human rights and the rule of law. As the Prime Minister has said, the new lnternal Security Treaty must also be underpinned by the robust governance arrangements and independent dispute resolution detailed in Chapter 4, ensuring that where the UK participated in an EU tool, both parties could be confident it was implemented and operated consistently.

Practical Cooperation

The UK and the EU have developed together a range of tools for effective cross-border law enforcement and judicial cooperation – all with the aim of bringing more criminals to justice.

The UK believes continued UK participation in these tools is in our mutual interest. Where this occurred in the future, the UK would apply rules that mirror the substance of the EU’s.

The following examples of practical cooperation illustrate how these tools enable the UK and Member States to act swiftly in response to real-time developments, to arrest criminals who have fled overseas and to efficiently extradite them to face justice before the relevant jurisdiction.

Join Investigation Teams

Joint lnvestigation Teams (JIT) are established to support criminal investigations and prosecutions across multiple jurisdictions. JITs enable more efficient, effective, and speedier justice. They facilitate the coordination of investigations and prosecutions conducted in parallel in several Member States or in cases with a cross-border dimension.

As a Member State, the UK contributes cutting-edge expertise and leadership to cross-border JITs that collect and exchange evidence in the investigation of the most serious crimes. As of February 2018, the UK was participating in over 50 JITs, the majority of which were in partnership with one other Member state. Whilst third countries can be invited to join a JIT in some circumstances, they cannot be in bilateral JITs with just one EU Member State and cannot apply for funding or call coordination meetings at Eurojust to discuss the setting up of a JIT. ln 2017,87 new JITs were established overall at Eurojust, of which the UK is involved in 24. This would not be possible if the UK fell outside the EU JITs Framework, meaning investigations could be significantly delayed or compromised altogether.

Mutual legal assistance and the European Investigation Order

Judicial cooperation in criminal matters is based on the mutual recognition of judgments and judicial decisions, and includes measures to approximate the laws of the Member States in several areas. Mutual Legal Assistance (MLA) is a method of cooperation between judicial, police and customs authorities in different states. Requests can involve the exchange of information and evidence or the provision of practical investigative assistance. ln the EU, a number of mutual recognition measures have been introduced to facilitate the speedier provision of mutual legal assistance between Member States. For example, in2017, the European lnvestigation Order (ElO) was implemented. The EIO applies mutual recognition, meaning that each EU Member State is obligated to recognise and carry out a request made by another Member State, as it would do with a decision coming from its own authorities.

The UK routinely exchanges evidence with Member States to support investigations in a timely and reliable manner in a way that is admissible in domestic court proceedings. ln the first eight months of operating the ElO, the UK received more than 850 EIO requests and these levels are expected to rise as more Member States participate.

There is no precedent for third countries to participate in the EIO and the EU’s agreements on the mutual provision of legal assistance with third countries fall short of the level of cooperation that benefit both the UK and Member States. The EU has concluded agreements on mutual legal assistance with lceland and Norway, the US and with Japan. lf the EU were to limit future mutual legal assistance to the terms of those agreements, it would result in a mutual loss of capability. For example, the agreement between the EU and Norway and lceland does not set timelines for the exchange of information. The agreements between the EU and US and the EU and Japan both contain general grounds for refusal and cooperation between the EU and the US does not allow for prisoners or witnesses to assist with investigations or the monitoring of bank accounts.

lf the UK were to fall back on other mechanisms below the current level, it would result in a significantly slower and less efficient provision of assistance that would impede justice being served both in the UK and in Europe. lt is in the interests of the EU and the UK that both retain an arrangement which facilitates efficient and secure evidence exchange in cross-border criminal investigations.

European Arrest Warrant

The European Arrest Warrant (EAW is a mechanism by which individuals wanted in relation to significant crimes are extradited between EU Member States to face prosecution or to serve a prison sentence for an existing conviction.

ln 2016, the UK arrested 1,735 individuals on a EAW. The total number of individuals arrested in the UK on an EAW since April 2009 is more than 12,000. More than 1,OOO individuals have also been surrendered by Member States to the UK.128 For every person arrested on a EAW issued by the UK, the UK arrests eight on EAW issued by other Member States.

Existing extradition agreements between the EU and third countries do not provide the same level of capability as the EAW. The agreement with Norway and lceland was concluded in 2006 but has not yet come into force. However, once implemented, it will leave a significant capability gap relative to the EAW including, additional grounds for refusal to surrender nationals. lf a future UK-EU agreement were to be on similar terms, extradition to the UK may no longer be possible in some cases, adding significant complications and delays to prosecuting suspects, or even risk impunity of criminals. Given the high volume of extradition requests under the EAW between the UK and Member states, such an outcome would not be in the interests of either party in bringing criminals and terrorists to justice.

The EAW has transformed extradition and closed loopholes, it has streamlined a complex, lengthy and often frustrating processes, and it continues to play a vital role in police cooperation between lreland and the UK (including Northern lreland). lt is in our mutual interest that the UK and the EU have a fast-track surrender system, based on clear time constraints and effective and robust rights protections.

Agencies

EU agencies provide forums for exchanging expertise, sharing resource, coordinating joint investigative action and developing new methods for cooperation. Having law enforcement officers and legal experts working in close proximity means operations and judicial proceedings can be coordinated quickly. The UK has played a crucial role in shaping and developing both the strategic and operational capabilities of Europol and Eurojust in particular.

TheUK is proposing a relationship with Europol and Eurojust which allows for continued cooperation between national investigation and prosecution agencies in tackling serious cross-border and organised crime. When participating in EU agencies the UK will respect the remit of the European Court of Justice.

Europol

Europol is an EU law enforcement agency that brings together partners from Member States and other non-EU partner states and organisations. Europol aims to strengthen and facilitate cooperation between partners in preventing serious and organised crime and terrorism. Europol itself also provides crucial analytical support and houses databases storing significant volumes of law enforcement data that can be connected to better facilitate intelligence-lead investigation, The UK has been a member since Europol’s creation in 1998.

The UK is one of the biggest contributors of data, information and expertise to Europol. ln 2016 and 2017, the UK was the highest contributor to Europol’s Serious and Organised Crime Analysis Projects, and the highest contributor of information in relation to firearms, child sexual exploitation, money laundering, modern slavery and cybercrime, and the second-highest contributor to the Organised lmmigration Crime Analysis Project.131 The UK contributes key technical and operational knowledge in developing EU measures. UK liaison officers at Europol offer valuable expertise in dealing with other countries’ policing systems and helping to progress EU wide investigations.

The existing third country agreements with Europol, do not provide those third countries with direct access to Europol’s databases and the streamlined exchange of data, generally do not allow national experts to be embedded within Europol and do not enable the third country to initiate activity in the same way. lt would not be possible to maintain the UK’s current contribution to Europol on the basis of an agreement along those lines, in part due to the sheer volume of activity the UK participates in and the data that the UK shares. Consequently, it is in the interest of the UK and EU for the UK to continue to participate fully in Europol.

Eurojust

Established in 20A2, Eurojust brings together prosecutors, magistrates and law enforcement officers from each of the EU Member States, who assist national authorities in investigating and prosecuting serious cross-border criminal cases. lt does so by coordinating the activities of the national authorities responsible for a particular case and facilitating the collection of evidence under EU and other international mutual legal assistance arrangements.

Eurojust is a key component in EU-wide investigations to combat cross-border crime. The UK contributes specialist law enforcement intelligence capabilities and knowledge through liaison magistrates and national experts. ln 2016, the UK participated in more than 80 coordination meetings at Eurojust of which the UK coordinated over 30. ln 2017, support from UK’s national desk was requested 290 times, making us the second highest requested and a net contributor.

lf the UK’s future participation in Eurojust were on the terms of existing third country agreements, the UK and Member States would lose the ability to initiate bilateral coordination meetings, and the UK would be forced to reduce the number of UK magistrates and prosecutors deployed to Eurojust. As a result there would be fewer opportunities for the UK to contribute to Eurojust’s work and a reduced capability for the UK and EU to cooperate in tackling serious cross-border and organised crime. The UK therefore assesses that it is in our collective interests that the UK continues to participate fully in Eurojust.

Data exchange

The international nature of crime makes the swift, effective and efficient exchange of data essential in modern law enforcement. lncreasing volumes of data create a greater need for connecting different data sets quickly and securely, enabled by ever more sophisticated analytical capabilities.

The following examples demonstrate why it is in our mutual interest to preserve the ability to share analytical expertise and reciprocal direct access to law enforcement and criminal justice databases, including those for disrupting terrorists and criminal activity.

Passenger Name Record Directive

The UK has driven the EU-wide approach to processing Passenger Name Record (PNR) data. The PNR Directive obliges air carriers to transfer to Member States the PNR data they have collected in the normal course of their business. This enables the identification of known individuals and, from their patterns of travel, otherwise unknown individuals involved in terrorism-related activity and serious crime.

A number of third countries, including the US and Australia, have agreements with the EU on the protection of European PNR data. But these agreements are on the basis of data processing by the third country only, they are not reciprocal, and do not provide for those third countries to work with EU Member States’ Passenger lnformation Units (PlUs) to identify travel patterns in the same way as Member States are under an obligation to do under the Directive.

|f, in the future, the UK were restricted to the type of arrangements that the EU has agreed with the US and Australia, then sharing information about suspicious travel related to terrorism offences or serious and organised crime would become slower, more difficult and less effective. This would result in fewer opportunities for both the UK and Member States to identify and intercept suspects, to identify and protect victims of trafficking, and to disrupt terrorist and criminal travel across Europe.

Therefore, the UK proposes that the UK and the EU should maintain the ability of to exchange and process PNR data in the same was as under the Directive.

Schengen Information System II

The Schengen lnformation System ll (SlS ll) enables police and border guards to enter and consult alerts on wanted or missing persons and objects. Through SIS ll, the UK is contributing real-time data on wanted criminals, missing persons, suspected terrorists and stolen objects that means individuals or objects can be detected as they cross borders and through national police computers.

The UK’s participation also means that when an EU Member State issues an EAW it is automatically broadcast to police and border forces in the UK. This increases the chance of suspects who have evaded police being arrested in the UK and extradited to face justice in the country in which the crime was committed.

In 2017 , there were almost 10,000 UK hits on alerts that had been entered into the system by other Member States and almost 17,000 hits by other Member States on alerts entered by the UK, ln 2016 and 2017, the UK alerted our European partners over 600 times that individuals linked to terrorism had travelled to the UK. This period also saw 173 instances where European partners alerted the UK to the travel of our own terrorist suspects. Without access to SIS ll it is likely that many of these instances would not have been identified.

lf the UK were no longer to have access to SIS ll, UK authorities would not in future be able to provide alerts via SIS ll and alerts from participating countries would not be checked against passengers entering the UK (129.9m in 2016). Authorities in other EU Member States would therefore not be alerted when individuals of interest to them come to the attention of UK authorities. This would represent a loss of operational capability for the law enforcement and security agencies of those countries.

As a result, the UK believes that it is in our national interest, and the national interest of other Member States for the UK and EU to maintain the reciprocal ability to transmit alerts in real time as well as adequate access to systems that allow for a timely and efficient response to these alerts.

European Criminal Records Information System

The European Criminal Records lnformation System (ECRIS) is a secure lT system that ensures the efficient, accurate and reliable exchange criminal record information between EU countries. This is valuable as a guaranteed source of criminal records for use at any stage in criminal proceedings, and for vetting people who work with children and other vulnerable individuals. The exchange of criminal records through ECRIS has become a vital component in how the UK and EU helps keep communities safe at home and across the world.

Between 2014 and 2016, the UK was in the top three most active Member States on the ECRIS. ln 2016, the UK notified Member States of more than 35,000 convictions handed down to their nationals in the UK, and responded to almost 13,500 requests for information from the EU relating to UK nationals offending in the EU.

There is currently no precedent for Member States to systematically exchange criminal records with third countries. Consequently, if the UK and the EU were to adopt an approach that was limited to existing precedents for cooperation with third countries, in the future, the UK would no longer participate in ECRIS.

Prior to ECRIS’ launch in 2012, the UK had to request information manually via email. The results were not always guaranteed and it could take months for countries to respond. This would delay the courts’ ability to take into account previous convictions when deciding on guilt, sentence or bail. lt would also make it more difficult for law enforcement agencies to put public protection measures in place when dangerous individuals transit between the UK and the EU. The associated risk to public safety is avoidable, which is why the UK assesses that both the UK and the EU would benefit from reciprocal instant access to criminal conviction information.

Prüm

Prüm supports cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal migration through information exchange for the prevention of offences and automated search and comparison of data from national DNA, fingerprint data and vehicle registration data files.

The ability of law enforcement agencies to cross-reference a wide range of sources through Prüm benefits investigations across Europe by helping to identify criminals. Prüm accelerates data exchange; it reduces hit-certification times from weeks to 15 minutes for DNA and 24 hours for fingerprints.

The UK is ready to begin exchanging data with our partners via Prüm and in the future we will be able to run automated, real-time searches against DNA, fingerprint and vehicle data. ln 2015, the UK participated in a Prüm pilot that shared approximately 2,500 DNA profiles with the Netherlands, Spain, France, and Germany, resulting in 118 hits including cases of rape, sexual assault and burglary. We have 5 million DNA profiles, which would nearly double that currently available to the Prüm community; and our 500,000 DNA stains from unsolved crimes would bring many criminals to justice.

Without access to Prüm, the UK would use an agreed exchange mechanisms via lnterpol. The volume of transactions would be limited by the decreased connectivity of datasets in lnterpol compared to PrUm, as well as the availability of resources to process data appropriately as well as the greater complexity and less timely nature of lnterpol exchange channels and processes.

Norway and lceland have concluded agreements with the EU to participate in Prüm. Switzerland and Liechtenstein are also in the process of seeking participation. [DN: Expand – would this be satisfactory for the UK if included in the new treaty].

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