European Criminal Law After Brexit

Abstract

The victory for the ‘Brexit’ vote in the referendum last June has sent shockwaves around Europe. The initial shock has given way for some to the realisation of the legal and constitutional complexity of untangling the UK’s relationship with the EU and re-engineering this relationship for a post-Brexit era, an era when the UK will be a third country for the EU. The legal challenges underpinning the reconfiguration of the UK’s relationship with the EU are manifold, and, in many areas of EU law, they are interwoven with a series of practical and operational challenges. One of these areas is European criminal law, where post-Brexit complexity is compounded by ongoing constitutional complexity underpinning the UK’s participation in the EU acquis while remaining an EU member state. Taking into account these complexities, this article will attempt to assess the future of European criminal law after Brexit. In order to do so, the article will focus on four main questions: what are the current constitutional complexities in the UK’s participation in European criminal law (Sections I–III)? What will be the impact of Brexit on domestic criminal law and security in the UK (Section IV)? What are the possible legal avenues for EU-UK post-Brexit co-operation in the field of criminal law (Section V)? And what, if any, will be the impact of Brexit on the shaping and development of European criminal law in the future (Section VI)? By way of conclusion (Section VII), the article will attempt to synthesise the threads and common themes arising from the preceding sections, by emphasising the continuum of legal complexity from pre-to post-Brexit developments and casting light on the paradox of the UK’s position after Brexit: if the UK wishes to continue participating in EU criminal law instruments and mechanisms, or to develop equivalent mechanisms of co-operation, the UK will have to comply with more EU instruments as a non-EU country compared to those it is bound by under its current status as an EU member state – ironically, ongoing links with the EU post-Brexit will spell the end of the UK’s current ‘pick-and-choose’ approach to European integration in criminal matters.