A nervous disposition
On 15 January 2016 the UK, Northern Ireland and China Mutual Legal Assistance (“MLA”) Treaty into criminal matters came into force, shortly after the UK, Northern Ireland and Kazakhstan MLA Treaty into criminal matters was presented to parliament. In light of the increasing move to embrace more countries into our MLA directory, we look at what mutual legal assistance is, how it works and its power to compel witness evidence.
What is it?
Mutual legal assistance is a mechanism by which states formally cooperate in criminal investigations and proceedings. It is used when voluntary procedures or transnational law enforcement cooperation/intelligence sharing alone will fail to meet the goal required. It is actioned through ‘competent authorities’ (often judicial) and cannot, in the UK, amount to a de minimis request (financial loss or gain less than £1,000 or an offence occurring 10 years prior with no explanation for the delay). Generally, such requests are made through a formal ‘Letter of Request’ or Commissions Rogatoires.
The MLA procedure can achieve the retention of evidence, search and seizure of material or the restraint or confiscation of assets – material a domestic prosecutor may, without such assistance, have no jurisdictional power to obtain. It can thus prove to be an immensely powerful tool.
MLA and the UK
The key legislation in the UK is the Crime (International Co-operation) Act 2003 which creates a worldwide mechanism for dealing with external and internal requests. However the UK is also party to a number of specific agreements setting out the formal structure for mutual legal assistance to occur within. These are either: Multilateral Agreements ratified by the UK (such as the 2000 Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (“MLAC”) or the 2003 United Nations Convention Against Corruption (“UNCAC”)); Bilateral UK MLA agreements – in place with Jordan, Malaysia, Thailand, India and Brazil; or Memoranda of Understanding.
In the UK the presumption is that such requests will be acceded to and where they are, the UK will bear the cost burden. Requests made to the UK must be in written English and are primarily dealt with by the UK Central Authority (sitting within the Home Office). Exceptions include tax and fiscal customs matters, dealt with by HM Revenue and Customs, and EU Freezing or Confiscation Orders regarding property within the UK, dealt with by prosecuting authorities (e.g. the CPS) and complex fraud, bribery and corruption cases, dealt with by the Serious Fraud Office. Unless the case concerns search and seizure or restraint/confiscation of assets, dual criminality is not a pre-requisite for the UK’s assistance.
Obtaining evidence from abroad, including live witness evidence, can often be crucial to the success of a prosecution. The UK therefore utilises its various MLA treaties and agreements to obtain such evidence. Guidance released in January 2016 states that the final decision on whether an individual enters the UK/their removal is deferred for the purpose of giving evidence in such criminal prosecutions, will be made by the Home Office. Does this mean that prosecuting authorities will have their MLA powers stifled by the Home Office refusing visas? Not quite.
The guidance starts by advising that live links, a power available to all non-defendants by virtue of s.32(1) of the Criminal Justice Act 1988, should be used as an alternative procedure where possible. The suggestion therefore being that the tax payer will foot the bill for the live link – a costly issue often preventing the defence from doing the same. Where live links are not deemed appropriate for the evidence sought to be adduced, yet the individual is unlikely to meet visa requirements, the guidance permits applications to the Home Office for a visa waiver. Only “exceptionally” would they be granted if there is a “compelling public interest” for the witness to attend. The Home Office will even permit an extended leave for a foreign visitor already in the UK if “the right application form and payment of the correct fee” is completed and made.
So, whilst the live link is the preferred option, there remains a plethora of options available to prosecuting authorities to ensure their foreign evidence is heard. Defendants need to be advised on the possible impact such transnational evidence gathering powers might have on their case. Those called upon to give evidence also need expert legal advice to ensure that their domestic rights are protected when complying with international requests. The ever-growing army of MLA treaties with far-reaching countries means getting the right advice, whichever side of the fence you fall, is crucial.
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