Can mutual legal assistance stand the pace?

Mutual legal assistance (MLA) is a slow process.  A fast mutual assistance request is completed within six months.  Governments, prosecutors and law enforcement agencies are overloaded with requests for assistance, which must be prioritised according to whether they are time critical and the seriousness of the crime to which the request relates.

By and large, mutual legal assistance is used in circumstances where the material cannot be obtained any other way.  Mutual legal assistance is paper-intensive.  A request for assistance must include all the information required by domestic law as well as any applicable treaty and must be made by the requesting State’s Central Authority (usually after consultation with their prosecuting or investigating bodies).  The request is transmitted to the other State’s Central Authority who assesses the request and refers it to the police or prosecuting body in the relevant locality.  Depending on the nature of the request, executing the request may require the issuing of search warrants, location of witnesses, or other time-consuming processes.  Once the material is obtained, it must once again be transmitted back through the Central Authorities.  While this level of formality is time-consuming, it is part of the rationale underpinning MLA.  Conducting the process through a formal government-to-government channel is intended to give all parties some level of comfort that the information has been obtained through appropriate means and that the continuity of the chain of evidence has not been broken.

A large amount of material can be shared between countries through less formal means, such as cooperation between police forces, customs agencies or immigration departments.  These methods are the front line tool for law enforcement officers because they are flexible and rapid. However, there are circumstances in which the information cannot be shared on an agency-to-agency basis and must instead be obtained through the formal government-to-government process of mutual legal assistance.  Broadly speaking, there are two main circumstances in which it may be necessary to use the formal MLA process rather than agency-to-agency processes:

  1. the material is needed for use as evidence in court; or
  2. the material can only be obtained using a compulsory procedure.

In the first circumstance, whether or not a formal MLA request is necessary depends on the evidence laws of the country where the prosecution is occurring.  For example, in Australia, section 24 of the Foreign Evidence Act 1994 allows for foreign evidence to be admitted if, amongst other requirements, it has been obtained in response to a request for mutual legal assistance.  Without this type of provision, an individual with direct knowledge of the matter at issue would have to be able to appear in court to provide testimony – when the evidence is located abroad, this can clearly be impractical.

The second main reason why an MLA request may be necessary is where obtaining the material requires some sort of compulsory procedure.  For example, an MLA request may be necessary if the material needs to be obtained under search warrant or a reluctant witness needs to be subpoenaed to testify.  Often, countries will only conduct these sorts of procedures for a foreign investigation or prosecution if a formal MLA request has been received.

Increasingly, the information that is sought in MLA requests is time sensitive.  This is particularly common in matters involving proceeds of crime because money can move so quickly between bank accounts or be divested into different assets.  MLA can be used to restrain or forfeit the proceeds or instruments of crime, usually by registering a foreign court’s restraint or forfeiture order.  When these matters are time critical, the MLA process can move surprisingly quickly, with orders made by a court in one country often being registered by the court of another country the following day.  So, when a matter is extremely time critical, MLA can be used quickly and effectively.  However, actioning an MLA request within such a tight timeframe requires a concerted effort from the central authorities, prosecutors, courts and law enforcement officers.  This level of focus and commitment of resources cannot be invested in every MLA request.  International cooperation is an important aspect of a State’s strategy to combat crime.  However, when resources are scarce, some level of priority must be given to investigating and prosecuting crimes within a State’s own borders.

It is this paper-intensive process and lack of resources, together with the complications of working with foreign languages and unfamiliar legal systems that mean that MLA requests can drag on for years.  As the volume of MLA requests seems to be growing exponentially every year, this problem is only going to get worse.  This is particularly pertinent in the context of online records.  Online records often need to be obtained through an MLA request as the data is often stored in a different country from where the user resides.  Requests for e-mails and social networking posts have increased dramatically in the past four or five years and, as cloud computing gathers speed, it seems likely that the number of MLA requests for online records will continue to grow.  Mutual legal assistance is a system that is under pressure and the challenge is to see how well a mid-20th century process can adapt to modern time and volume demands.

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