Mutual Legal Assistance (MLA) is a method by which countries help each other investigate or prosecute crimes, when that help cannot be obtained on a direct police-to-police basis.

The globalisation of criminal conduct, means that MLA is increasingly frequently relied upon, particularly when investigating proceeds of crime matters, and in the freezing and confiscation of assets.

The UK

The UK is party to a number of bilateral and multilateral MLA treaties. However, it can provide assistance to any country or territory in the world no matter whether or not such a treaty exists.

Where there is a treaty then the UK will expect the conditions or procedures of that agreement to be adhered to.

The UK central authorities retain a wide discretion when considering whether to accede a request. However, in practice it usually accedes to most requests received.

Requests are made by a formal international letter of request (ILOR), which may also be known as “Commissions Rogatoires”.

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. The primary UK legislation governing MLA is the Crime (International Cooperation) Act 2003 (CICA).

Types of MLA

Provided the requests meet the necessary criteria, the UK is able to provide a wide range of mutual legal assistance.

Possible forms of assistance include the service of procedural documents, testimony from witnesses, restraint and freezing of assets, communications data, exchanging criminal records and judicial records.

Informal MLA is also known as law enforcement (police-to-police) co-operation. This involves police and other law enforcement officers in a requesting state asking for the assistance of law enforcement agencies in the UK to gather information for an investigation. This can be an easier and quicker way to obtain intelligence and evidence than going through the formal MLA channel.

European Investigation Order

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.

Challenging MLAT and EIOs

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:

The conduct is not an offence in the UK.
The sentence in the requesting county in respect of the offence is less than three years imprisonment.
Assisting would run counter to the UK’s ‘essential national security interest’.
There are substantial grounds for believing that assisting would be incompatible with an individual’s rights under the Human Rights Convention rights.
There are substantial grounds to believe any assistance would be used to investigate or prosecute a person on the grounds of protected characteristics such a race or sexuality.

Expertise

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 our cross-border matters are not in the public domain, recent acknowledged cases include

Credit Suisse banker Surjan Singh in in the ‘Tuna Bond’ matters involving allegations in Mozambique and the US.
Arif Naqvi, the founder of private equity form Abraaj, in his extradition proceedings to the US.
Representing a senior executive from Autonomy in the US/UK regulatory and criminal investigation.
NewsCorp in the hacking investigation.
Representing a main board member of BAT in connection with the parallel DOJ and SFO investigations.
Representing various Hollywood A list celebrities accused of ‘Me Too’-type offences in the US and UK.