The hidden world of mutual legal assistance
Regional tensions, populist movements and weakened multilateral institutions mean that international trust and co-operation are at a low ebb. Countries launch state-sponsored cyber-attacks and even attempt assassination on our streets. Meanwhile, out of sight and largely unscrutinised by our courts, those same countries issue written demands that the UK complies with, purely on their say so: freezing assets, handing over bank records and searching the properties of political opponents.
Welcome to the paradox of mutual legal assistance, a hidden world where nations we do not trust are permitted to deploy law enforcement powers in the UK on the presumption of respect for the rule of law.
What is mutual legal assistance?
Mutual Legal Assistance (MLA) is the formal way in which countries provide assistance to each other in connection with the investigation and prosecution of crime.
MLA is not restricted just to evidence-gathering, but also includes the use of covert investigation techniques such as surveillance and interception of communications, and the freezing and confiscation of assets. The UK is signed up to numerous treaties and conventions which oblige it to execute MLA requests from hundreds of other countries.
Thanks in part to its status as a global financial hub, the UK receives nearly 7,000 MLA requests each year.
How does MLA work?
If country A is investigating a crime and believes that there is evidence in country B, it can send an MLA request for that evidence. The request should contain a summary of the investigation explaining why country A believes the evidence is relevant. Provided country A complies with the formalities of the treaty and the summary justifies the request, country B will use its own legal powers to obtain the evidence and send it to country A.
Although procedures vary for each country, because the investigation is usually confidential, this is not an adversarial process and no notice will be given to target of the investigation. Accordingly, judicial scrutiny is minimal and opportunities to challenge the request may only arise after the event, if at all. In the UK many MLA requests, for example for mobile phone data, never even touch a court because the UK police can request the data directly from the provider and transmit it directly to the requesting country.
What is the problem?
MLA enables countries to use their law enforcement powers across international borders.
Depending on who is doing the investigating, those powers can be coercive, invasive, highly damaging and open to abuse.
Even requests for covert surveillance or a search warrant aren’t subject to independent verification of the facts in the receiving country. Unlike an extradition request, which can only be executed following full judicial consideration in adversarial proceedings, most MLA requests are accepted at face value and executed, without notice to the target, with few procedural safeguards.
Therefore, MLA depends on mutual standards, trust and assumptions of good faith which may not be justified simply because both countries are signatories to a treaty.
In reality, the UK receives hundreds of MLA requests annually from countries where the rule of law is weak and criminal justice is used for improper purposes. Some of these countries may actively be trying to harm UK interests. Nevertheless, the UK has a legal duty to execute the request and limited discretion to refuse.
Obviously, MLA works both ways, so it is in the UK’s interests to assist other countries to ensure reciprocity. That, however, is no comfort to the target of a politically or improperly motivated investigation expecting the UK legal system to protect them from injustice and abuse.
For anyone under foreign investigation, pre-empting, resisting and mitigating the effects of abusive MLA requests are important parts of any legal strategy.