3.1 What is MLA?


MLA is the process countries use to provide and obtain formal government-to-government assistance in criminal investigations and prosecutions where evidence or proceeds of crime are in a different country. Most countries have specific legislation governing the MLA process within that country, often called the Mutual Assistance in Criminal Matters Act (“MACMA”). MLA is based on the principle of reciprocity. Mutual Assistance requests (MARs) may be made under country’s’ MLA legislation and also pursuant to bilateral MLA treaties or multilateral agreements, including international conventions such as the Council of Europe Convention on Cybercrime (Budapest Convention), United Nations Convention against Transnational Organised Crime (UNTOC), United Nations Convention against Corruption (UNCAC) and the Revised Scheme Relating to Mutual Legal Assistance in Criminal Matters within the Commonwealth (the Harare Scheme).

MLA legislation varies from country-to-country, but frequently includes a catch-all clause specifying that it does not limit the provision of other types of country-to-country assistance (see for example Fiji s4 MACMA; Tonga s5 MACMA). This clause means that types of assistance not specifically listed in the legislation can still be provided. A country may impose limits on the extent to which a catch-all clause can fill the gaps in MLA legislation.

For example, New Zealand takes the approach that coercive or court sanctioned powers need to be expressly provided for in legislation. Accordingly, the catch-all clause in New Zealand’s MACMA can be used to authorise MARs involving non-coercive powers only (such as requests to interview witnesses on a voluntary basis and requests for information available without requiring a search warrant). These requests tend not to involve much of an intrusion on privacy or use of domestic resources.

3.2 Central Authorities

Each country should have a designated ‘Central Authority’ through which formal MLA requests are directed and dealt with. Most countries will not accept MARs made directly by law enforcement officials, prosecutors or judges, and expect requests to come through the designated Central Authority.

Central Authority contact details for PILON members, Canada, UK and US can be found in the country profiles in Chapter 6 on the relevant Central Authority website or on the UNODC Online Directory of Central Authorities (available to central authorities and government agencies with a user account).

The International Institute for Justice and the Rule of Law Good Practices for Central Authorities are designed to guide the important work of these institutions and set forth the institutional, legal and practical considerations needed to create and support durable legal institutions. The top ten good practices are:

  1. Each country should establish and designate a single Central Authority to facilitate international cooperation in criminal matters through MLA and extradition.
  2. A Central Authority should be adequately resourced and properly staffed with specialized and well‐trained legal experts so that it may carry out its functions effectively.
  3. A Central Authority should be able to communicate directly with other Central Authorities.
  4. A Central Authority should be able to transmit and receive MLA requests directly to and from other Central Authorities.
  5. A Central Authority should maintain confidentiality of MLA and extradition requests to protect the integrity of investigations and prosecutions.
  6. A Central Authority should be empowered to take action on or coordinate the execution of requests from and to international counterparts for MLA.
  7. A Central Authority should serve to ensure that requests for MLA from domestic law enforcement and judicial authorities are sufficient and comply with the terms of the applicable law, treaty or convention before such requests are transmitted.
  8. A Central Authority should be able to facilitate the judicial aspect of extradition requests and follow the status of such requests.
  9. A Central Authority should be able to ensure that extradition requests from domestic law enforcement and judicial authorities are sufficient and comply with the terms of the applicable law, treaty or convention before such requests are transmitted.
  10. A Central Authority should not serve to inhibit other informal cooperation by and/or between governmental law enforcement entities.

3.3 Common Types of Assistance

This section sets out the common types of assistance that are requested in a MAR. Officers in a Central Authority will be responsible for progressing both ‘outgoing’ and ‘incoming’ MARs. Understanding the different types of assistance is an important part of MLA to be able to facilitate your domestic law enforcement obtaining assistance from another country (outgoing); as well as facilitate a request from another country to obtain assistance from your country (incoming).

For the purpose of this section, Country A is the requesting country making an outgoing request and Country B is the recipient country receiving an incoming request.

Locating or Identifying a Person

Where Country A sends a MAR seeking assistance in locating or identifying a person, the relevant clause in Country B’s MLA legislation is likely to require that:

  • the MAR relates to a criminal matter in Country A, and
  • there are reasonable grounds for believing that the person to whom the request relates:
    • is in Country B, and
    • is/might be involved with, give evidence in court, or provide assistance relevant to, the criminal matter.

This is not a very exacting test to meet. To determine that the person is actually in Country B by contacting the agency responsible for monitoring border movements such as customs.

Service of Process

A MAR may request assistance in arranging service of process (i.e. documents). The test for this type of assistance is unlikely to be onerous and is usually satisfied if there are reasonable grounds for believing that the person to be served is in Country B. Country B can probably instruct police to serve the person and then arrange for the police officer to provide an affidavit of service to be sent back to Country A. Service of process on a person can likely be done even when no court proceedings have begun and regardless of the seriousness of the offence.

Executing a Search Warrant or Production Order

Often information needed for an investigation or prosecution in Country A is held in another country (i.e. Country B). In the digital age, it is increasingly common for information to be located in another country. Information could include bank records, company registration records, telephone records, internet records (e.g. email, social media posts, and subscriber details), computers, physical documents or objects. Often electronic evidence will be held by a communication service provider based in the US (e.g. Facebook, Google).

If the information sought by Country A is subject to a reasonable expectation of privacy (which most of those listed above are), it will probably need to be obtained by a coercive power – usually a search warrant or production order. Where a search warrant is required to obtain evidence or information requested in a MAR, Country B will have to satisfy the test for a search warrant as set out in Country B’s MLA legislation. The test to authorize and issue a search warrant is likely to mirror the test for requesting a search warrant in Country B’s domestic criminal procedure legislation. This test often requires there to be “reasonable grounds to believe” an article or thing relevant to the criminal matter is in Country B. Be aware that the country receiving the MAR (i.e. Country B) will be bound by its own test to obtain a search warrant in order to provide the assistance.

Most countries will have a high threshold for obtaining information by search warrant. For example:

  • New Zealand has a “reasonable grounds to believe” test to obtain a search warrant. This means there must be an objective and credible basis for thinking a search will discover the items identified in the warrant. There must be more than surmise or suspicion that something is inherently likely.
  • United States has a “probable cause” test for obtaining a search warrant. This is similar to the “reasonable grounds to believe” test but has a higher threshold and can be challenging to meet.
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To assist Country B to meet the requisite test and obtain a search warrant, the MAR from Country A should clearly outline what particular evidence is sought, the reasons for believing the evidence is in the place where it is sought, and the link between the evidence sought and the offence. Unless this can be clearly shown, it may be difficult for the recipient country to obtain the necessary search warrant or production order from the court and provide the assistance requested.

Requests for electronic data should include a specific date range for the information sought, and reasons why those dates have been identified. Date ranges should correlate to the alleged offending, and not be a broad ‘fishing expedition’.

Requests for bank or financial records should identify the nature of the records, the name and location of the institution where the records are located, the account number, and a date range for the information sought, with reasons why those dates have been identified.

Obtaining Evidence from Witnesses

In many criminal prosecutions the critical evidence that decides the case is that obtained from witnesses, either voluntarily or by compulsion. ‘Witnesses’ should be read broadly here and could include those who saw the offence take place, the victim, an expert or, in some cases, even the suspect or defendant. If the person asked to give evidence is the suspect or defendant it is likely they will be considered competent, but not compellable, to give evidence. In other words, a defendant can give evidence voluntarily, but cannot be compelled. This is because the common law privilege against self-incrimination provides that a person cannot be required to give information that would tend to incriminate him or herself.

Where a witness refuses to give evidence (either in person or by providing a voluntary statement), it may be open to Country A to request that Country B compel the witness to do so, often by summonsing the witness to provide evidence before the court in Country B.

Domestic legislation usually sets out the process for taking evidence – whether it is to be taken before a court, or by way of a written statement (e.g. a sworn or affirmed affidavit) – but may not expressly provide for taking voluntary evidence.

Taking evidence in court (testimony in person or via video link)

Country A may request that a witness located or resident in Country B give evidence in court either in person or by video link. Both of these options can become expensive and if it appears that costs involved will be excessive, countries may discuss whether Country A is able meet some, or all, of the costs.

Giving evidence in person would involve the witness travelling to Country A in order to give evidence in court. Frequently the requesting country will provide an undertaking to meet the witness’s travel expenses in this type of case. Domestic legislation will usually set out any other relevant conditions, such as that the witness has freely consented to attend, and that the person will be returned to the original country in accordance with agreed arrangements.

Alternatively, Country A may request that the witness give evidence via video link from Country B, and that this be facilitated by Country B. Depending on Country A’s domestic legal requirements, Country A may require the witness to give evidence via video link from a court in Country B to a court in Country A. However, it may be sufficient for the witness to give evidence via a video link platform. If permitted under both Country A and B’s respective domestic legislation, this can be a much simpler and more cost-effective solution. The requesting country, Country A, may need to consider whether counsel from Country B can be present and actively participate in the court hearing (e.g. conduct the examination of the witness), or whether counsel from Country A will examine the witness (e.g. either in person by travelling to Country B, or via video link).

Depending on the respective countries’ legislation, it may also be possible for Country A to request evidence from a prisoner in Country B either by travelling in person or via video link. The former may present significant logistical challenges.

Voluntary Witness Statement

MARs requesting a voluntary statement from a witness are very common. If agreeable to both countries, a request for a voluntary witness statement may be dealt with informally outside of the MLA process on a police-to-police basis. However, sometimes Country A may require the formal MLA process to be followed to ensure the evidence will be admissible in accordance with their own domestic procedural requirements. In such a case, Country B can execute the MAR by liaising with their police to interview the witness and obtain a statement.

If Country A requires a voluntary witness statement, the following details should be included in the MAR:

Material Lawfully Obtained

Country A may make a request for material that was previously lawfully obtained by Country B’s law enforcement in its own domestic investigation, where Country B is still lawfully in possession of that material. This can often be useful when Country A’s law enforcement becomes aware that a foreign law enforcement agency has previously, or concurrently, carried out investigations involving the same suspect or offence and may have material to assist. This material may be shared on an informal police-to-police basis or through intelligence channels, however, may need to be formally requested through MLA in order for that material to be admissible in court.

For example, in Australia, s13A of the MACMA deals with requests made from foreign countries for material lawfully obtained by Australian law enforcement agencies (such as the Australian Federal Police) pursuant to an investigation or proceeding.

Assistance Related to Proceeds of Crime

Another common form of assistance may be when Country A needs assistance with the restraint and recovery of the proceeds of crime from Country B. The process for this will usually be set out in both countries’ MAR legislation. It is likely the regime will allow for assistance at four stages of the confiscation process:

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Country A may request that Country B obtains an examination order, a production order, or a search warrant on its behalf.

Country A may request Country B to obtain an interim foreign restraining order, or to register a foreign restraining order.

Country A may request Country B’s authorities to authorize the Commissioner of Police to make an application for registration of the foreign forfeiture order to the relevant court. This stage is also referred to as confiscation.

Unlike the other stages in the confiscation process, it is possible that the assistance that Country B provides at the disposal stage may not be prescribed by legislation.