Mutual Legal Assistance and the US: a more anxious case than usual
On 14 May 2020 Metropolitan Police officers carried out two search and seizure warrants on behalf of Brazilian prosecutors investigating $5 million in alleged bribes paid to politicians in the state of Amapá in connection with a railroad contract.
This police operation provides a good example of one of the ways in which mutual legal assistance (MLA) operates between different jurisdictions.
MLA is an extremely powerful tool used by law enforcement agencies to investigate transnational crime. It is the mechanism by which states formally cooperate in criminal investigations and proceedings, and is most commonly used to request the search and seizure of material, the retention of evidence (including the testimony of witnesses) and the restraint or confiscation of assets. It is needed where voluntary procedures and police co-operation are insufficient and a domestic prosecutor has no jurisdictional power to obtain the evidence requested.
In the press release issued by the Brazilian law enforcement agency it was stated that the operation in London was conducted under a cooperation agreement signed between the two countries". The Treaty between the UK and Brazil signed on 7th April 2005, and is just one example of a number of such arrangements facilitating mutual legal assistance (MLA) between states.
The UK has signed bilateral MLA treaties with 40 other countries in addition to being a party to a number of multilateral agreements. The treaties provide a formal basis for requesting and receiving requests – such as in this case - for co-operation from another country.
The Secretary of State has a wide discretion as to whether to refuse an MLA request. The test is twofold. Firstly, is the request itself technically sufficient? Does it contain sufficient information and details to enable the UK to action the request? If it does not, the request will be returned to the requesting state with advice as to how to perfect the request.
There is a presumption that the UK will accede to MLA requests where the requirements of UK law are met. However, the Secretary of State may refuse to accede to a request:
The specific reason for refusal is never given. The UK Central Authority’s (UKCA) policy to neither confirm nor deny the existence on an MLA request has been upheld by the courts. In most cases the defence will not know about its existence until trial. Where defence representations are made in writing to the UKCA, and these can be submitted at any time, they are always considered before any decision is made as to whether to accede to the MLA request.
The UK also makes regular use of MLA. Where possible a UK prosecutor should first request evidence through informal police channels, known as Mutual Administrative Assistance (MAA). If this is not possible, they must first consider whether the UK would be willing or able to engage with the other jurisdiction. For example, co-operation with the Russian Federation and People’s Republic of China is generally considered impracticable. Additionally, it is not considered appropriate to seek the co-operation of certain countries where there are human rights concerns, for example Myanmar and North Korea. Before engaging with any country where these concerns arise the prosecutor the prosecutor must conduct a risk assessment that considers these issues.
MLA requests can only be made where there is an on-going criminal investigation and it is reasonable, necessary and proportionate for the purpose of that investigation or proceedings. The following evidence will normally require a formal MLA request: banking evidence, computer evidence, coercive measures, TV links at trial, statements from non-voluntary witnesses, confiscation and restraint of property; the following evidence will not: previous convictions, public records and statements from voluntary witnesses. This will also depend on the domestic legislation of the requested country.
In the case of EU member states (except Denmark and Ireland) traditional MLA has been replaced by the EIO (European Investigation Order) – more detail below. For Denmark and Ireland and all non-EU states, MLA takes the form of a formal International Letter of Request (ILOR) issued by a designated prosecuting authority or a Court. Both are often referred to as Commissions Rogatoires, the term used in civil jurisdictions.
The primary UK legislation is the Crime (International Cooperation) Act 2003 (CICA). Section 7 sets out the circumstances in which an ILOR can be issued and for what purposes. A designated prosecuting authority – Crown Prosecution Service , Serious Fraud Office and HM Revenue and Customs - can only issue a request if it appears to the authority that an offence has been committed or there are reasonable grounds for so believing; and the authority has instituted proceedings in respect of the offence in question or it is being investigated. Section 7 CICA can be used where there is no MLA treaty, although requests are more likely to be successful where a treaty exists.
In the UK the practical arrangements for MLA are primarily the responsibility of the UK Central Authority, a Department of the Home Office, which provides guidance both for UK and overseas law enforcement agencies.
On 31 July 2017 the EIO became the legal framework applicable to the gathering of evidence between the UK and participating EU Member States (except Denmark and Ireland). (Guidance relating to the UK can be found here.)
The UK implemented the EIO The Criminal Justice (European Investigation Order) Regulations 2017. The EIO uses a standard template and unlike ILORs imposes time limits for recognition (30 days) and execution (90 days). An EIO may be issued by a designated prosecutor or by a court in respect of evidence sought for investigations and criminal proceedings where it is necessary and proportionate for the EIO to be issued and the investigative measures sought could not be carried out in the UK. A Court is required to issue an EIO for production orders, search warrants, evidence via live link and evidence sought by a defendant (where proceedings have been instituted). See our related blog: The European Investigation Order – belatedly in force.
Under the EIO system the request is sent directly to the competent authority in the EU Member State concerned. For those countries within the scheme EIOs take the place of other forms of MLA. After 31 December 2020 existing EIOs will continue through the transition period. There will almost certainly be attempts to reach agreement on an equivalent scheme given the mutual benefit to both the UK and EU member states.
The Crime (Overseas Production Order) Act 2019 allows UK law enforcement agencies to obtain a UK court order directing a Communications Service Provider (CSP) based outside the UK to produce data stored electronically. The UK has negotiated a data access agreement with the United States, where the world’s largest CSPs are based. This will come into force some time in summer 2020. While aimed at companies such as Microsoft and Google, the definition is broad and will include all CSPs however small. There are strict rules concerning their applicability and procedures, but if successful such orders should yield results much more quickly than traditional MLA.
See our related blog: New powers to gather electronic evidence from overseas agreed.
Other forms of MLA include formal requests to transfer proceedings; requests for information in non-criminal proceedings by way of formal business letter; and the numerous EU agreements allowing for the transfer of material – such as fingerprints and vehicle registration details – via the Schengen Information System.
After Brexit MLA with EU member states will revert back to the old Council of Europe measures which are fully understood, but may result in increased costs, complexity and delays. There will be no “cliff edge” scenario as the Withdrawal Agreement includes winding down provisions in respect of MLA. Lastly, it should be noted, that there are currently discussions about whether to issue a new Protocol to the Budapest Convention on international cooperation (The Convention on Cybercrime of the Council of Europe ETS No. 185) allowing for direct access so that post-Brexit MLA will be faster.
Defendants need to be advised on the possible impact such transnational evidence gathering powers might have on their case, and those called upon to give evidence will need expert legal advice to ensure that their domestic rights are protected when complying with MLA requests.
Should you have any questions about the issues covered in this blog, please contact a member of our Criminal Law team.
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