27 Oct 2015

Mutual Legal Assistance

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Mutual Legal Assistance ("MLA") is the process by which States seek and provide assistance in the investigation or prosecution of criminal offences. MLA is generally used for obtaining material that cannot be obtained through law enforcement (police to police) co-operation, such as where a request requires the use of coercive means.

Requests are made by a formal international Letter of Request ("ILOR" or "LOR"). In civil law jurisdictions these are also referred to as Commissions Rogatoires. This assistance is usually requested by courts or prosecutors and is therefore also referred to as "judicial cooperation".

What assistance can the UK Authorities provide?

Official Home Office Guidelines on Requests for Mutual Legal Assistance in Criminal Matters state:

"The UK is committed to assisting investigative, prosecuting and judicial authorities in combatting international crime and is able to provide a wide range of MLA".

The types of assistance the UK is able to provide, pursuant to an MLA Request include:

  • Asset freezing / restraint;
  • Asset forfeiture and confiscation;
  • Production Orders (e.g. for business records);
  • Search and seizure;
  • Obtaining of witness statements or sworn evidence;
  • Asset tracing (e.g. through the provision of banking evidence);
  • Account monitoring orders; and
  • Service of process.

External requests for restraint of assets

Incoming requests for restraint of assets in the UK are most commonly dealt with in accordance with the provisions of The Proceeds of Crime Act (External Requests and Orders) Order 2005 ("the POCA Order").

On receipt of a request for restraint, Article 6 of the POCA Order specifies that the Secretary of State may refer such a request to the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions or, in case of serious or complex fraud, the Director of the Serious Fraud Office to be processed.

The POCA Order specifies that all external applications for restraint are to be dealt with in the Crown Court. The Crown Court must be satisfied that there is "reasonable cause to believe" that the suspect / defendant named in a request "has benefited from criminal conduct" before an external request for asset restraint can be given effect.

The Proceeds of Crime Act 2002 ("POCA") allows the Crown Court to restrain property which represents, directly or indirectly, in whole or in part, the proceeds of criminality which took place anywhere in the world.  However, this seemingly broad power is limited in the context of external requests in two important regards:

  1. The POCA Order does not give the Crown Court jurisdiction to restrain assets outside of England and Wales, or to make a worldwide disclosure order, pursuant to a request by an overseas authority: King v Serious Fraud Office [2009] UKHL 17.
  2. Section 447(8) of The Proceeds of Crime Act 2002 ("POCA") defines "criminal property" so as to make dual criminality a further requirement before a restraint order can be granted pursuant to an external request.

Recent developments: Mutual recognition of EU freezing / confiscation orders

On 3 December 2014 the UK enacted legislation giving effect to European Council Framework Decisions on the mutual recognition of freezing and confiscation orders.

EU freezing / confiscation orders can now be transmitted directly to UK prosecuting agencies, such as the Serious Fraud Office, for execution. Owing to the operation of the mutual recognition principle the Crown Court has little discretion to refuse to give effect to such an order.

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