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July 15, 2016

Prior to 23 June 2016, a number of articles were published dealing with the potential impact in event that the electorate voted to leave. Now that the hypothetical has become reality, it is worth considering anew what the vote may mean for criminal practitioners. Such consideration can only ever be conjecture given the early stage of the process. Indeed, it is such an early stage that advice is still being proffered as to whether the result of the referendum is binding or merely advisory. But working on the worst-case scenario and assuming that, having given the people the choice the result has to be given effect, then what are the implications?

Because the UK had a veto in respect of EU laws relating to policing and criminal law prior to 1 December 2009, as well as an opt-in in relation to new laws passed after that date, it has been very selective in relation to the laws it has adopted in this area. That means that hardly any of our substantive criminal law stems from the EU. The areas where the UK has adopted EU directives include those in respect of offences relating to people trafficking and child sexual abuse. The UK is also a signatory to the European Arrest Warrant as well as directives regulating the gathering of evidence, the protection of witnesses and the forfeiture and confiscation of assets.

Having voted to wrestle power back into the hands of the UK Government, it is clear that replacing such directives with an Act of Parliament would mean that it could not be enforced in any of the other EU countries. That would obviously have an effect on areas as extradition, where, according to information provided by the Government website, under the European Arrest Warrant extradition from the UK has risen from just 60 to 7,000 per year. To maintain that figure would clearly require negotiation with the EU.

It would also affect our access to the EU system on the exchange of criminal records. Under the current system, criminal records checks of foreign nationals by the UK are an everyday occurrence. To enable such checks to be undertaken in the future would again require specific treaty negotiation. But the benefit of being part of the EU is that the standard of recording and retention of such records is standardised. Such a requirement can obviously not be imposed on a non-member and so the EU may be reluctant to enter into a treaty of that kind with a Country that they cannot regulate. The effect of being allowed to become a part of that particular club is likely to be that whenever the EU member states amend or update their systems the UK would be required to do the same.

The reality is that being a member of the EU has benefitted the UK significantly in terms of cooperation in respect of the areas highlighted above. If that is to continue, it will require lengthy, specialist negotiation and potentially, accepting the same rules that the UK signed up to before simply under a different guise.

In the meantime, the legislators and civil servants have to grapple with the knotty question of which areas of the EU law to replace by Acts of Parliament. That task will be monumental, time consuming and expensive. Whether it is done, as has been suggested by replacing every EU directive by an Act of Parliament, and then weeding out those that are no longer necessary or by doing the sifting first, it will mean that those employed in that task will be so for very many years to come, potentially at the cost of more, much needed legislation.

But it is the cost that is likely to be most telling for criminal practitioners. If negotiating a post-Brexit landscape is going to be as expensive as is currently believed, it is likely that the Criminal Justice System will bear the brunt of any resulting cuts and as we know only too well from the very recent past, that may very well be one cut too far.

Sarah Regan