Opting-In and Opting-Out: Doing the Hokey Cokey with EU Policing and Judicial Cooperation

Policing and judicial cooperation across international borders is now an expectation, and within the EU, is often mandated, but the desirability of criminal justice cooperation between EU Member States and the UK is now debated. This paper examines recent UK political interventions in the field of EU criminal law. This has focused upon the so-called ‘block opt-out’ decision whereupon the UK government have to choose whether to ‘opt-out’ en masse of all unamended policing and criminal law instruments entered into prior to the 2009 Lisbon Treaty (under Article 10(1) of Protocol 36). The paper will look in particular at two EU instruments central to the ongoing and future development of EU policing and judicial cooperation: the European Arrest Warrant, and the exchange of forensic DNA profiles, fingerprints and vehicle registration details under the Prüm Treaty. While the UK government are asserting (at this point) that they are to opt back ‘in’ to the European Arrest Warrant, they are refraining from opting back in (so remaining ‘out’) of the Prüm Treaty. Examining the rationales for the use of the opt-out, and the decisions in respect of each of these instruments, the paper will ask whether the choice to ‘opt out’ can be reconciled with the aspiration of securing an EU Area of Freedom, Security and Justice, and whether it is appropriate that the UK should be doing the ‘hokey cokey’ with EU policing and judicial cooperation.