The global nature of modern business means complex criminal and regulatory investigations are increasingly likely to involve law enforcement agencies from several jurisdictions.
Being caught up in a domestic criminal investigation can be daunting. The international aspect can make it more so. It can be hard work to navigate an unfamiliar criminal justice system, with lawyers in more than one country often speaking different languages.
Securing a successful outcome in any cross-border matter is likely to involve a careful analysis of the situation in each jurisdiction alongside careful consideration of local customs and practise, as well as awareness of the legal and political relationships between each country.
Success in these matters requires a responsive, tightly managed, multi-disciplined and coordinated team.
Mutual legal assistance is the formal process by which a law enforcement agency based in one country may seek to obtain assistance from another. This may include gathering documentary evidence such as banking records and interviewing witnesses. In some instances, MLA will be done on an informal basis.
The UK has Mutual Legal Assistance treaties (MLAT) with most countries. While the exact nature of these treaties can vary, the process by which they are enacted is broadly the same.
While the response of overseas agencies to UK requests for help can vary, a successful MLAT request to the UK authorities will general result in the swift provision of investigatory help.
Introduced into law in 2017 the European Investigation Order (EIO) established the legal framework applicable to the gathering and transfer of evidence between the UK and participating EU Member States (which are all Member States except the Republic of Ireland and Denmark). The UK implemented the EIO under The Criminal Justice (European Investigation Order) Regulations 2017.
The EIO is effectively a swifter and more efficient way by which a country can achieve MLA. It uses a standard form and obliges the recipient country to recognise the EIO request within 30 days, and to have executed it within 90 days.
EIOs are issued by a designated prosecutor or by a court and they may be used to obtain evidence both for investigations and for criminal proceedings.
It is possible to successfully challenge both MLAT and EIO requests. Depending on the circumstance this may be done in the UK or overseas.
Examples of the types of challenge that may exist include:
Hickman & Rose has extensive experience representing people and companies facing multi-jurisdiction investigations.
We have built a trusted network of expert lawyers, enquiry agents and reputational experts in the most important jurisdictions worldwide. Co-ordinated from London, our network can respond immediately to an urgent international legal challenge. We provide advice that is swift, practical, commercially and politically sensitive and strategic.
While many of the cross-border matters we are not in the public domain, recent acknowledged cases include: