The impact of Brexit on the Criminal Justice System

by Edward Fenner, Barrister

The impact of Brexit on the Criminal Justice System

When Great Britain voted to leave the European Union in June last year, few would have predicted the long, protracted discussions between politicians, which apparently have so far led to precious little certainty. The Law Society and Bar Council have both published papers recently dealing with the impact of Brexit on the legal sector. But what of the impact specifically on the Criminal Justice System? By its nature, it is difficult to predict the full impact, particularly when it seems there is no settled plan for Brexit.

International criminal law

In terms of joint co-operation between European Justice agencies there is a direct impact on the European Arrest Warrant, Europol, The European Investigation Order, The Schengen Information System and Eurojust. In short, these mechanisms and organisations allow for the execution of arrest warrants and extradition of suspects between European countries, the joint investigation and prosecution of cross-border criminal activities and the sharing of key information on witnesses, suspects and intelligence.

There is precedent for non-EU countries being a part of these systems. Norway actively engages in and is a part of a number of these organisations.

Domestically, both public and private bodies have recently urged the government to maintain an agreement in some form within all these mechanisms. Furthermore with the recent increase in the prosecution of people-trafficking cases and other cross-border initiatives, it is hard to see the government failing to maintain these arrangements in some form or another.

Human Rights

What about the impact on Human Rights legislation? When the Human Rights Act was introduced in 1998, it was met with scepticism by some practitioners and judges. I remember appearing in front of some judges who choked at my submissions arising from the Act. In one case a Judge told me that ‘Human Rights have no place in my court’. Nineteen years later that attitude thankfully is largely extinct.

The simple answer to the question is that there will be no impact on the Act as a result of Brexit. The European Court of Human Rights (ECHR), which sits in Strasbourg, is an entirely separate entity to the European Court of Justice (ECJ), which sits in Luxembourg. The latter deals entirely with matters of EU Law and it is from the ECJ that Britain will withdraw after rescinding its membership of the EU.

Domestic criminal law

What impact will Brexit have on domestic criminal law? Again the answer is very simple and short, none. Criminal legislation dealing with the due process, trying and sentencing of defendants is a matter for each individual state within the EU. This is particularly relevant for Britain due to our adversarial justice system and use of juries. Even those criminal offences that enforce EU legislation are enshrined within domestic law and will not suddenly disappear following Brexit. Furthermore, with the settled intent of parliament being to continue the underlying EU regulations to provide stability and enshrining them within a Brexit Bill, there will be no change.

Brexit may impact on the ability of the ability of the prosecution to properly investigate cross-border crimes, seek the extradition of suspects and use courts in the EU for video-link evidence. But it is unlikely to have any effect on the day-to-day running of the criminal courts and their due process.