By Stephen Rae, Publisher AMLi
AS EUROPEAN Commissioner Michel Barnier and his team negotiate with the UK side on a Brexit deal, money laundering and financial crime may not be top of the agenda for either side.
What is clear however is that if there is not a deal then much of what the EU and Britain have built up in the criminal justice co-operation and alignment space is in big danger of unravelling – and quite quickly.
As anyone who has left a workplace can testify to, change happens rapidly and within a relatively short time many organisations can be unrecognisable.
Britain is about to face the same dilemma.
The UK will be out of:
- Europol
- EuroJust
- Will not be joining the European Public Prosecutors Office
- Will not have access to the speedy European Extradition Warrant
- Is unlikely in the short term to align itself with the EU approach after the implementation of the 6th Anti-Money Laundering Directive this month
- Will have challenges accessing EU police agencies’ intelligence
A Brexit panel at the FinCrime World Forum conference Tuesday was sobering viewing. Moderator Helena Wood from RUSI was valiant as she picked out encouraging outcomes from Brexit for the law enforcement community but to be honest they were few and far between.
Former UK Serious Fraud Office (SFO) general counsel Alun Milford pointed out that being out of Europol did not mean that Interpol was going to be a quick-fix solution. Interpol, he pointed out, is after all more bureaucratic and many of its members did not necessarily share European human rights priorities.
It was suggested that while the UK would be out of official European agencies that inter-personal relationships would continue. Milford did point out that while he was still in the SFO immediately after the Brexit vote that there had been “no change at all by European counterparts in attitude or goodwill.” The emphasis was on how to make things work in practice. Of course he did point out that this was only useful to a point.
How do EU law enforcement agencies officially share information with their UK colleagues within GDPR rules after Brexit?
Separately, being outside of Eurojust means prosecutors will now not be able to work together except on agreed bilateral bases.
Andrew Penhale from Britain’s Crown Prosecution Service (CPS) said intelligence sharing between European countries, the US and UK had always been substantial and the UK was a “significant contributor.” “I do not anticipate there will be any change of approach,” he said.
He did predict problems with extraditions to and from EU countries and was spot on, if not understated, when said of fighting criminal enterprises: “We will have to be more agile in how we work to match their [criminals’] agility.”
Asked what their advice to the UK government would be, Milford pointed out the benefit of Europol Joint Investigation Teams (JITs) and said they will be missed if they are taken away. Of course JITs are now an established efficient and effective cooperation tool amongst national investigative agencies tackling cross-border crime, allowing coordination of investigations and prosecutions across several States. Is it possible Britain can still participate?
Penhale was adamant on the need for a deal with between Britain and the EU. “Without a deal we lose many mechanisms that have been deal useful to us…A deal is an absolute priority.”
And so it is.
Trade, a level playing field and of course fish are very important post Brexit.
But equally important is criminal justice alignment. Without it crime per se and financial crime in particular will find the weakness and exploit it. And that has the potential to further erode trust between the EU and the UK.
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