Thanks for this from Paul Swallow a Senior Lecturer at CCCU
European Police Cooperation. The Ramifications of Brexit.
It is far too early to predict the full effects of Brexit and the impact of withdrawal negotiations on the enormous range of activities undertaken under the former ‘Third Pillar’, the ‘Police and Judicial Co-operation in Criminal Matters’ policy area, which since the Treaty of Lisbon is now considered an area of ‘shared competence’. This paper is intended to shed some light on the possible impacts of cross border police cooperation between the UK and Europe’s policing services.
Two points should be highlighted. Firstly, some of the differences between the British and European investigative and judicial models should briefly be explained. Secondly it must be set out what is meant by the term ‘European police cooperation’, and how this differs from ‘European judicial cooperation’, although as will be seen, there is considerable overlap between the two.
It should be noted that the UK’s policing and judicial models differ from those in continental Europe. In the UK, all police officers at the outset of their careers, and most volunteer Special Constables, have full policing and investigative powers. Whilst this is a complex area, it means in essence that any British police constable may arrest a suspect on suspicion, provided they have reasonable grounds to do so. In many European countries, France for example, many lower rank police officers do not have this power and may only arrest a suspect if they have caught them in the act. The power to arrest ‘on suspicion’ is conferred upon experienced or senior officers who have studied for a legal qualification allowing them to do so. Secondly, the investigative independence of the holder of the office of constable means that the police may conduct investigations independently of the Crown Prosecution Service. The final case file is often transferred to the prosecutor for advice and guidance at a very late stage.
In the European model, the judicial authorities, often represented by the state prosecutor, the ‘Parquet’ in France or the Staatsanvalt in Germany, must be consulted at an early stage, often as soon as the crime is notified. Responsibility for investigating the crime then becomes the responsibility of the judicial authority, and is no longer the duty of the police. However, the judicial authority will often instruct the police to carry out the investigation under their control.
Thus the British police have far greater investigative independence compared with their European colleagues, who are under far greater control by their respective judicial authorities.
For the purposes of this article, it is argued that cross border police cooperation often precedes at an ‘informal’ level and facilitates at a formal level international judicial cooperation. A European police agency may receive intelligence that criminal activities are underway and will usually start to investigate to test the information they have received prior to the involvement of judicial or prosecuting authorities. Should the case under consideration develop and enter a ‘judicial’ phase, the work already undertaken by those agencies will facilitate the formal cross border contact that will follow. This is explained in more detail below.
It can be seen therefore that there is considerable overlap between the police and judicial cooperation. An example of how this may evolve is that a judicial investigator in a European country may want to know what information is available abroad on a given suspect. The police may be tasked to find out, and using informal routes, will undertake those enquiries rapidly and informally, meaning the results of those enquiries cannot be used directly in court. Should any information of judicial interest be uncovered, the investigator, now aware of the facts, will then request the same information formally, for use in court, through legally agreed judicial routes, perhaps via an ‘International Letter of Request’ (ILoR). Thus informal cross border police cooperation can facilitate and hasten judicial enquiries, and hence the considerable overlap referred to above.
As indicated above, police cooperation across borders takes place regularly and widely, largely unknown to the general or academic public. It takes place at three overlapping levels. Firstly it is undertaken via a range of informal and direct information exchanges between various police officers, perhaps through liaison officers, contact points or via direct personal contact between police officers in other countries. These may be officers who have perhaps worked together in the past, or who have been introduced to each other by mutual contacts. It is not unknown for police officers in one country to ring their opposite numbers abroad (language skills permitting) to ask for or supply for information. This level of contact grew from a functional necessity from the 1960s onwards, largely due to perceived inefficiencies in Interpol, the only international policing body in existence at the time.
The second level is via a range of informal policing bodies such as the Cross Channel Intelligence Community (CCIC) or the Police Working Group on Terrorism (PWGT). The CCIC was set up in the 1970s to assist and facilitate police cooperation between French, Belgian Dutch and British police officers working in the Channel region. The PWGT was also set up in the 1970s as Interpol then refused to deal with terrorism to ensure the rapid and secure transmission of information on terrorism between thirty or so participating countries. These bodies largely grew out of the first level of police contact, where informal day to day contacts became formalised into a structure which developed and increased its capacities, perhaps by holding regular meetings and conferences and by issuing reports or statistics of relevance to police work. There are probably in the region of 50 or so such bodies, including for example the European Association of Airport and Seaport Police, NEDBEDEAGPOL, an informal body for senior police officers in Belgium, Germany and The Netherlands and the Club of Berne, an informal body for Europe’s intelligence agencies. Often the founders of these bodies cited the inability of Interpol to meet their precise policing needs.
At the third level are the large international policing bodies, most notably Interpol and Europol, both of which exist to pass and receive police information, and notably in the case of Europol, to ‘add value’ to that information by checking internal databases. Both of these agencies are useful if several countries are involved, or of the originating police officer has no contacts in the recipient’s country. Although the UK is not a member of the Schengen Accord, it does have access to the Schengen Information system. This will be discussed below.
Interpol was initially set up in 1923, again as a result of a functional need for cross border cooperation and grew into the world’s largest, and best known policing body. It does however have operational problems such as inadequate data protection which prevents some countries from sharing personal data with it, the absence of an oversight body and a reputation for lethargy. These issues are often cited as the reasons competing policing bodies were established. Europol was set up by the European Union in the 1990s and was specifically designed to avoid many of the operating difficulties which hinder Interpol.
How will Brexit affect this?
At the first level – direct, informal contact, it is unlikely that Brexit will have very little if any impact. Such informal contact developed through practical and functional need. States have rarely officially sanctioned it, but acknowledge it must take place and therefore rarely take an interest in it.
At the second level, the informal policing bodies, it is again argued that these too will be largely unaffected. A study of their development since the mid-1960s indicates that the same functional dynamics that caused their establishment still exist, and governments’ attitudes towards them are unlikely to change. As long as national governments do not intervene directly in the freedom officers currently enjoy in these informal arrangements this will not change.
For the third level, Interpol, although itself based in the EU in Lyons, France, predates and is unrelated to the European Union, and therefore Brexit will have little effect on the level of police cooperation conducted via its network.
The only international policing body whose relations with the UK would be affected by Brexit is Europol, the European policing agency based in The Hague. Brexit would of necessity require the UK’s participation to cease, and it would no longer have the automatic right to use its services. It is entirely possible that a bi-lateral agreement would be negotiated and the UK may, like the USA, post liaison officers there, and possibly may participate in conferences and the like, but the UK would not benefit from the growing role and importance of this body in facilitating police cooperation throughout the rest of the European Union. Similarly it is likely that access to the Schengen Information System would cease, and British police officers or border agencies wishing to check information held there would have to do so via more formal means.
The major impact of Brexit would of course be on judicial cooperation, especially areas developed under the auspices of the European Union such as the development of a European judicial area, the European Arrest Warrant (EAW) and the use of joint Investigative Teams (JITs) and other initiatives developed under the Tampere, Hague and Stockholm programmes. Again it is far too early to judge the impact of the loss of these initiatives, but undoubtedly there will be much to negotiate once the provisions of Article 50 ad its two-year time limit have been implemented.
But police officers cooperating across borders at the informal or intelligence levels are unlikely to be affected by Brexit.