In addition to the EAW and the EIO, UK prosecuting authorities highly value mutual recognition of confiscation and freezing orders. This is regulated by Framework Decision 2003/577/JHA on the execution in the EU of orders freezing property or evidence343 and Framework Decision 2006/783/JHA on the application of the principle of mutual recognition to confiscation
339 Art. 11 of the EU–US MLA Agreement and Art. 28(2) of the EU–Japan MLA Agreement.
The latter also requires the competent central authorities to hold consultations to resolve “any difficulties with regard to the execution of a request, and facilitating speedy and effective assistance under [the] Agreement” (Art. 28(1) of the EU–Japan MLA Agreement).
340 Art. 4 of the EU–Norway and Iceland MLA Agreement.
341 Art. 2(1) of the EU–Norway and Iceland MLA Agreement, which also provides for the
setting-up of a mechanism to ensure regular mutual transmission of such case law.
342 Art. 2(2) of the EU–Norway and Iceland MLA Agreement. 343 OJ L 196/45, 2.8.2003.
orders.344 The provisions of Council Framework Decision 2003/577/JHA as regards freezing orders issued for purposes of securing evidence have been replaced by the EIO Directive, for those Member States that are bound by this Directive. Thus, the rules of the 2003 Framework Decision only apply to freezing orders issued for the purpose of subsequent confiscation of property.345
In accordance with the two framework decisions, freezing and confiscation orders issued in a Member State should be speedily executed in other Member States, on the basis of a pro forma certificate annexed to the two framework decisions. The latter sets up a swift judge-to-judge procedure,346 with limited grounds for refusal or postponement.347 There is no dual criminality for the known 32 categories of crime, if the usual threshold of penalties is met.348 Yet, the implementation of the two framework decisions has not been satisfactory throughout the EU. As a consequence, the European Parliament and the Council are in the process of adopting a regulation on mutual recognition of freezing and confiscation orders,349 which will repeal the two framework decisions and will improve cross-border cooperation in this field. It will be the first EU regulation dealing with mutual recognition, and the choice of this instrument – rather than a directive – is indeed justified by the wish to iron out the discrepancies and inconsistencies that have emerged in the last decade. The regulation will also cover criminal non-conviction-based confiscation and will introduce strict time limits for the execution of freezing and confiscation orders.
344 OJ L 328/59, 24.11.2006.
345 Art. 3(1)(b) of Framework Decision 2003/577/JHA.
346 Arts 4 and 5 of Framework Decision 2003/577/JHA and Arts 4, 5 and 7 of Framework
Decision 2006/783/JHA.
347 Arts 7 and 8 of Framework Decision 2003/577/JHA and Arts 8 and 10 of Framework
Decision 2006/783/JHA.
348 Art. 3(2) of Framework Decision 2003/577/JHA and Art. 6(1) of Framework Decision
2006/783/JHA.
349 European Commission, Proposal for a Regulation of the European Parliament and of the
Council on the mutual recognition of freezing and confiscation orders, COM(2016) 819 final, 21 December 2016.
The UK transposed the two framework decisions on freezing and confiscation orders in 2014.350 The UK also opted into the draft regulation on mutual recognition of confiscation and freezing orders in July 2017, i.e. a year after the Brexit referendum, and this is “a sign that the UK would like to continue to cooperate with the EU in this area”.351 As declared by the minister of state for security, “[o]pting in at this point shows our continued positive engagement with this measure, and demonstrates our commitment to work together with our European partners to fight crime and prevent terrorism now and after we leave the European Union”.352
The CPS is the competent central authority, except for complex fraud, bribery and corruption cases, in which the Serious Fraud Office takes over the case. Senior officials at CPS interviewed for this study have praised the direct access of prosecutors to these instruments and explained that, since most of the challenges against the orders have to take place in the issuing state, the procedure of execution is often straightforward. In addition, when freezing and confiscation orders for sums above £10,000 are successfully executed in the UK, the money recovered is equally split between the UK and the requesting EU Member State. This represents a further incentive for UK authorities to make the system of mutual recognition work.353 According to the CPS, to date the UK has “restrained about £80 million on behalf of other EU countries” and has requested “about £4.5 million to be restrained on its behalf by other EU Member States”.354
According to the draft Withdrawal Agreement, the two framework decisions should continue to apply in respect of orders received before the end of the transition period by the central or the competent authority in the
350 See the written statement of Ben Wallace (Minister of State for Security), 20 July 2017. 351 Alegre et al. (2017), p. 31.
352 Written statement of Ben Wallace (Minister of State for Security), 20 July 2017.
353 See the oral evidence of A. Saunders, Director of Public Prosecutions, Crown Prosecution
Service, to the EU Home Affairs Sub-Committee of the House of Lords, “Brexit: Future UK– EU security and police cooperation inquiry”, 2 November 2016, Q58.
354 Uncorrected oral evidence of D. Price, Head of International Justice, Crown Prosecution
Service, to the Home Affairs Sub-Committee of the House of Lords’ Select Committee on the European Union, “Brexit: The proposed UK–EU security treaty”, 15 May 2018, Q104. She added, however, that there is “the big caveat there as to how much is actually realised” (ibid.).
executing state.355 There is not yet an agreement on this provision. Once the UK will have definitely left the EU, and in the absence of other arrangements, assistance in freezing and confiscation of assets could be obtained via the MLA procedures addressed in the previous section, namely:
the Council of Europe conventions, such as the 1959 MLA Convention and its Protocols, and especially the 1990 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and the 2005 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism,356 which, however, include very general and broad rules on international cooperation in the field at issue;
United Nations conventions, such as the Vienna Convention, UNTOC and UNCAC; and
bilateral agreements between the UK and third countries. In addition, some interviewees suggested that the avenue of civil actions in EU Member States, according to their own laws and procedures, may be explored on a case-by-case basis, as this was the traditional way to carry out seizures and confiscations abroad in the absence of any convention or agreement.
From the EU side, the three MLA agreements (Norway/Iceland, the US and Japan) are sometimes used to seek assistance in this field. Only the EU–Japan MLA Agreement includes a provision in that regard (Article 25), although practitioners have argued that it “is much quicker to use Interpol to freeze a bank account in Japan”.357 Some obstacles have arisen in the relationship with the US as well.358
Against this backdrop, and building on the above considerations, none of these texts provides for a system of cooperation that is comparable with the existing EU instruments. Although the number of freezing and confiscation orders is relatively limited, post-Brexit procedures are expected
355 Art. 58(1)(c) and (e) of the draft Withdrawal Agreement.
356 The 2005 Convention has not yet been implemented by seven EU Member States
(www.coe.int/en/web/conventions/full-list/-/conventions/treaty/198/signatures? p_auth=xhopTs5M).
357 “EU–Japan Day on 14 July 2016 – Final report”, Council doc. 9003/17, 11 May 2017, p. 11. 358 European Commission (2016), pp. 15 and 17.
to be longer and costlier, requests could have to be sent to and from the Home Office rather than to the CPS or the Serious Fraud Office, and so on. As the minister of state for security explained, the UK’s decision to opt into the draft regulation on mutual recognition of freezing and confiscation was necessary as “[a]sset recovery in some EU states has traditionally been difficult through mutual legal assistance routes, which are lengthy and cumbersome”.359 By the same token, our interviewees mentioned that EU prosecuting authorities sometimes become frustrated when they seek UK assistance beyond the scheme of mutual recognition, as UK legislation requires high standards to be met, such as the risk of dissipation of assets.
Therefore, one of the current top priorities for the UK prosecuting authorities is the conclusion of an EU–UK agreement that may replicate, to the largest extent possible, the existing rules on mutual recognition of freezing and confiscation orders.360
359 Written statement of Ben Wallace (Minister of State for Security), 20 July 2017. 360 See House of Lords, European Union Committee (2016), paras 147–50.
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AGENCIES AND BODIES
rexit raises a number of questions as to the future relationship that the UK will entertain with Europol and Eurojust, especially given that the ‘Lisbonisation’ of the legal framework of these two agencies has had far-reaching consequences concerning the way in which they carry out and frame their activities vis-à-vis both EU Member States and third countries.