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Brexit and the Criminal Justice System – The Jury’s Out

Mike Gray, committee member of the Criminal Law Solicitors’ Association, Francis FitzGibbon QC, chair of the Criminal Bar Association and Professor Tim Wilson, Professor of Criminal Justice Policy at Northumbria University were called upon to give evidence to the House of Commons Justice Select Committee in relation to leaving the European Union and its potential impact on the Criminal Justice System.

Drawing upon both his personal experience and that of the association he was representing, Mr Gray was able to cut through the finer nuances which some of the members of the committee seemed determined to focus upon and hone in on the matters which count on a practical basis. For the most part, these matters consisted of the vast and intricate mechanisms which have evolved for the cross-border sharing of information, and the role these mechanisms play in both administering justice for the individual and safeguarding national policing and security.

In the first instance, Mr Gray was asked whether he was pro or anti-Brexit, a question which he answered by stating:

“I’d like to think that the approach which we are taking as lawyers is really quite factual, in other words, we’re accepting of the Brexit decision, the referendum, and what we’re looking at is how to facilitate that in the best way.”

This was described by committee member Keith Vaz as a ‘politicians answer’. Coming from the never less than self-assured Mr Vaz this must surely be counted as a compliment, but the answer Mr Gray gave was, in fact, probably a very polite way of saying that the question was rather a pointless one. Given that Brexit is now inevitable, Mr Gray was there to help deal with the practical implications of that inevitability. Asking whether he was happy with Brexit or not seemed a little like asking someone who is attempting to put up an umbrella whether they are for or against the concept of rain.

Nor is this simply an irritated aside. The irrelevance of the question reflects a wider issue with the post-Brexit approach to the justice system as a whole.

As Mr Gray himself put it:

“It’s disappointing that the justice debate wasn’t had sooner than now because it would have been useful for the public generally to have seen what an intricate, complicated web of cross-border co-operation we have in place and people worked hard to put in place.”

In terms of practical details, Mr Gray concurred with the CPS view that the European Arrest Warrant (EAW) is absolutely vital. As evidence for this, he pointed to the thousands of extraditions which now take place per year, and to the speed of this process when compared to the situation which existed pre-EAW, when it might take months or even years – justice delayed being, as anyone who works within the justice system knows, justice denied. He also referred the committee to the experience of Norway and Iceland, countries who had been negotiating their own equivalent of the EAW for the past decade and still hadn’t resolved the issue.

Moreover, as Mr Gray pointed out, the issue of the EAW is secondary when compared to the question of the UK’s relationship to the Court of Justice of the European Union which, as he detailed, is complicated further by the differences between aspects of our law such as the UK having an adversarial system, whilst across Europe an inquisitorial system is in place.

Other issues up for discussion included the role of SIS (Schengen Information System) 2, ECRIS (European Criminal Records Information System), Europol and Eurojust, but the varied and detailed answers given by Mr Gray returned time and again to a single relatively straightforward fact.

As he himself put it:

“Anything that improves the access to quality data across borders is important to defending citizens and upholding their rights, and bringing justice to bear, and we want that for every citizen…. (and)…. there is a huge overlap here between the rights of the citizen in terms of coming before the courts and in national security and policing.”

How much of this remains post-Brexit remains to be seen, of course, but the hope is that experts such as Mr Gray will once again be regarded as a sensible source of opinion when the new landscape of the justice system is being formed.

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