Uneasy Relationships: the UK, the European Union and Criminal Law

It may come as a surprise to find a legal post on a science blog. Even within the field of social sciences, Law is usually considered a domain of politicians and legislators who do and undo according to their ideological positions. Although this may be partially true, social scientists –economists, political scientists, criminologists– and lawyers are increasingly concerned not only with how laws are applied, but also with law-making issues. We try to introduce a clear analysis based on empirical evidence, whenever available, which is an unusual practice in politics – but someone has to do it!

In today’s global society, different parts of the world increasingly resemble each other. Regardless of the national territory where we live, we all share many life habits and customs. Consequently, the laws of the different countries are also getting closer, either spontaneously or by the influence of other states or supranational organizations. Within our environment, the European Union (EU) has been an important promoter of the harmonisation of laws of the different Member States. First, only in financial and commercial matters. Then, in more and more areas of social reality, trying to find common solutions to shared problems.

For years now, the EU has tried to harmonise some parts of national criminal legislation, particularly with regards to crimes with a cross-border dimension. Traditionally, Criminal Law has been the most sacred part of the States’ order, which jealously protected it from external interventions. Nevertheless, this scenario was left behind years ago, and now national sovereignty is an old-fashioned concept. Thus, nowadays the EU has a significant influence on national criminal policy, which does not mean that countries have lost the competence to stablish crimes, penalties, police regulations, procedures, etc.. Whether they like it or not, however, Member States must respect and transpose the criminal laws approved in Europe. This means that the States must frequently modify their criminal and procedural norms, raising several problems – which are different in each country. As part of the research I carried out for my doctoral thesis, I paid close attention to these interesting questions focused on Spain, where such harmonising practices are not yet satisfactory. However, I still have one last question: what are other EU countries doing? Honestly, answering this question is not easy. A comparative law study of this scale requires broad international networks and research groups and funding – both quite scarce today.

In 2019, thanks to the SRUK/CERU mobility program “On the move”, I had the opportunity to spend a three-month stay at Queen Mary University of London, where I continued this research line at a postdoctoral stage. The main aim was to study the activity of the United Kingdom towards the European criminal norms. On a legal level, this country is very interesting because of its broad legislative culture –the British Parliament is a good example–, its very different legal tradition –Common Law–, and its strident Euroscepticism. Therefore, during my internship in the UK, I became involved in answering two questions that may also interest the reader.

The first question was the following: what has been the impact of the EU the criminal policy in the UK? Well, it is undeniable that the UK never liked the EU that much, and it was always reluctant to allow their intervention in its legal system. Not even in criminal law? Well, I may say that it depends. In fact, from the ’90s to 2009, the UK was quite involved in EU criminal law, especially in cooperation in criminal matters. However, in the negotiations of the Lisbon Treaty, the UK wanted to show its strength and achieved a privileged position over European Law. In 2014, this allowed the UK to stop applying European criminal norms in its legal system, except those that it voluntarily decided to maintain. Since then, the UK has been allowed to select which standards to apply and which not (Opt-in/Opt-out); a great privilege that most of the other Members never had. This was a setback for the creation of a common area of ​​cooperation in criminal matters in the EU. However, it ended up not being that serious because, at least, the UK did not remove the existing EU-influenced legislation. In addition, it decided to participate in the most relevant European criminal norms: those about police and court and those that facilitate the extradition of convicted or detained persons, the exchange of evidences and information, databases of suspects, DNA lists, passenger lists, etc. Of course, we still need to know how European norms have been applied to and adapted in this country, that is, to what extent has English Criminal Law really been europeanized. In fact, it is surprising how little academic attention has been paid to this!

The second question focuses on a recurrent uncertain issue: what will the situation in the UK be after Brexit? In principle, once outside the EU and after the transitional period, the United Kingdom will completely exclude itself from all EU legislation, including criminal norms, except for those that have been transposed -incorporated by means of a national law- and, therefore, are now part of the English Law. Nevertheless, in that situation, the UK would also leave the European investigation and cooperation networks in criminal matters. This drastic decision entails turning their Criminal Law system into a dead letter from the very moment criminals cross a border. It would have to elaborate cooperation agreements with the other 27 countries, which could take years! It is clear that neither the UK nor the EU want this to happen and that the solution lies in reaching agreements at least on judicial and police cooperation. The future effectiveness of criminal law in this country, but also that of the European criminal system itself, will largely depend on the success of these negotiations, which are still in the air. In addition, as a third State, the UK will continue to be indirectly bound by EU criminal legislation, even if it is through specific conventions or agreements, as it happens with Switzerland.

Thanks to my research stay, I could access various sources of information and contact specialists in the field who guided me in the maze of English Criminal Law. As a result, I have managed to write a manuscript – which I hope to publish soon – where I compare the troubled application of EU Criminal law in the UK and in Spain.

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By Noelia Corral Maraver, visiting lecturer at the University of Málaga.

More information:

1. Sánchez, M. (2018).
2. Ambos, K. (2017).
3. Baker, E. (2018).
4. Post “Brexit and its consequences for cooperation in criminal matters”. Written by Brière, C. (2020).
5. Davidson, R. (2017).
6. Mitsilegas, V. (2017).
7. Mitsilegas, V. (2016).
8. Vidmar, J. (2018).
9. Report “The End of the Transitional Period for Police and Criminal Justice Measures Adopted before the Lisbon Treaty. Who Monitors Trust in the European Justice Area?”. Source: European Parliament (2014).
10. Book “An unavoidable choice: More or less EU control over UK policing and criminal law”. Written by Booth, S. (2012).
11. Press release “EU Withdrawala Bill: A guide to the Brexit repeal legislation”. Source: BBC (2017). 
12. Press release “MPs reject harmonisation of EU criminal law”. Source: BBC (2014).