4.1 Drafting a MAR
The preferable way of formatting a MAR is by way of letter with subheadings. It is important to provide as much relevant detail as possible.
A template for drafting a MAR is available here.
Suggested MAR Format
Briefly outline the purpose of MAR (i.e. the offence and type of assistance sought).
Provide a short statement on the current status of the matter (i.e. investigation stage, charges laid, relevant court dates). It is important to indicate any time constraints in relation to providing the assistance.
Provide a full summary of the background, investigation and evidence of the alleged offending. You do not need to include actual evidence with the request. However, it would be useful if you summarised the facts in narrative form. There should be sufficient detail that it is clear to anyone reading the request what has occurred and what the allegations are. The facts presented in the MAR need to be relevant to the specific matter – think about the information that the foreign country needs in order to provide the requested assistance and consider whether any information provided by the instructing agency could be omitted. It is important to be as clear and simple as possible and avoid technical jargon where possible.
You should need to explain how law enforcement has learned about the facts you are providing (e.g. whether evidence was obtained by search warrant, or through witness interviews or expert analysis).
Where the MAR will require the exercise of coercive powers, sufficient information will be required for the recipient country to obtain any necessary court orders. For example, if needing to meet the legal threshold of ‘probable cause’ in the US in order for a court to issue a warrant, ensure you provide information to satisfy that threshold.
Indicate the offence that is being investigated or prosecuted and the maximum penalty for that offence. It is helpful to identify how the evidence is required from the recipient country to establish a particular aspect or element of the offence.
Include a copy of the offence provisions from your legislation as an annexure to the MAR. Where the relevant penalty is contained or explained in separate provision/s, also attach these.
Subject of Investigation or Prosecution
Provide details of the suspect or accused (i.e. full name, date of birth, nationality, current location, passport number, any known alias).
This is the most vital part of the request. Clearly outline the particular assistance that is required and how the evidence sought is relevant to the investigation or prosecution. If the request involves contacting, serving process, or interviewing people in the recipient Country Be sure to include their contact details, a copy of any information to be given to them, and/or a list of any questions to be asked.
Further information on commonly sought types of assistance can be found in 3.3.
Clearly set out any special requirements of the requesting country (e.g. form of statement, particular signature or jurat requirements). It is helpful to provide templates (e.g. template business records affidavit) to the recipient country for witnesses, company employees and law enforcement/government officials showing the formal requirements for affidavits to be admissible in your courts. These templates can be annexures to the MAR.
State what action is required by the recipient country once they have obtained the information sought. You must consider who you need statements/affidavits from to accompany any documents obtained, and any particular requirements. It is recommended including a template affidavit with your MAR showing the formal requirements for affidavits to be admissible in your courts. The template affidavits can usually be adapted for most MARs.
Transmission of Material Obtained
Include instructions on where and how the material obtained should be sent. Generally, the material will be couriered to the Central Authority of the recipient country and will then be forwarded to the requesting country.
Where material comprises CSAM, it may be a prohibited import under your country’s law. In this case, the requesting country may need to seek an importation certificate and send this to the recipient Country Before the recipient country sends the material to the requesting country.
Subject to the requirements of the requesting country’s law, it may be appropriate to ask that the MAR and any information obtained pursuant to it be kept confidential, other than from appropriate law enforcement agencies. Specify if there are particular reasons for confidentiality. Note there are specific confidentiality requirements for MARs made to the US (See US country profile in Chapter 6 for further information).
If you are working to any particular court date or other deadline, it is important that you say so. Requests for urgency should be saved for genuinely urgent matters. Central Authorities receive a large number of MARs and can usually only prioritise genuinely urgent requests (e.g. the trial is about to start or when an investigation will be jeopardized if evidence is not obtained quickly). It is worth noting that many countries do not consider ‘urgency’ to include where the requesting country has failed to make the request in a timely manner.
Most countries require a range of assurances from a requesting country regarding the purpose of the evidence obtained from the request. You will likely need to provide an assurance that the evidence will only be used for the purposes of the criminal prosecution and investigation to which the request relates. A range of other assurances are also standard and may be set out in your legislation and may be set out in the relevant treaty obligations which govern the request. The recipient country will let you know if they require any further assurances under their domestic law or a treaty.
Use of Information
Any information obtained from another country can usually only be used for the purpose stated in the request, unless permission is given for it to be used for another purpose. In other words, if the information is also relevant to a different criminal matter, permission will need to be given by the recipient country for the information to be used for that other matter.
You should provide an assurance that your country could provide assistance of the type you are requesting if the recipient country made a similar request to your country. Before providing that assurance, consider whether you really can provide the type of assistance you are requesting. If there are gaps in your legislation meaning you cannot provide certain sorts of assistance (e.g. surveillance warrants) you will not be able to provide an assurance of reciprocity and it may mean the recipient country cannot provide this type of assistance to you. Most countries require an assurance of reciprocity before they will agree to provide assistance.
State the contact details of your country’s Central Authority and the instructing agency contact. While correspondence from the recipient Country About the MAR should generally be addressed to your Central Authority to ensure MLA processes are properly adhered to, it is also often helpful for the recipient country to be able to liaise directly with the requesting agency’s contacts when making arrangements about operational matters.
Where you have already had direct contact with an official or relevant person (such as a foreign witness) in the recipient country, it is often helpful to identify them as being someone who can provide the recipient Central Authority with information or assistance about the matter.
4.2 Sending the MAR and Related Procedural Matters
Send the MAR with a short cover letter to the relevant Central Authority. It is good practice to simultaneously send a copy of the MAR to your instructing agency for their records, so they are aware the MAR is now with the recipient country for processing.
MARs are sent to the Central Authority of the foreign country. Some countries may require MARs to be sent through diplomatic channels though most will accept MARs by email. You should check country specific requirements or preferences with the relevant Central Authority.
Contact details can be found in Chapter 6 Pt 1 – Chapter 6 Pt 3, 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).
Send your request as soon as possible! Depending on the nature of the request and the recipient country, obtaining a response may take many months and requests for electronic evidence from the US can often take up to a year or more. While you can request urgency, this should be reserved for the most serious and genuinely pressing cases.
You can often seek comments on a draft MAR from the recipient country’s Central Authority before sending through the final version – in fact, most central authorities strongly encourage this! This is particularly the case for requests seeking the enforcement of proceeds of crime action. Certain countries, including Australia, can provide preliminary advice on a foreign restraint or forfeiture order to determine whether it can be enforced. Doing this will often avoid a lot of back and forth asking questions or seeking clarification on details and will save time.
The recipient country will contact you with any queries once they have received the request.
The requesting country is required to translate the MAR into the language of the recipient country. Check with the recipient country in advance to confirm what languages they will accept. You will also need to clarify which domestic agency is paying for the translation (i.e. the instructing agency, the Central Authority or another agency), noting it should be done by an official translator.
Generally, the recipient Country Bears the costs of responding to a request. There are some associated costs the requesting country will cover, in particular any costs of translating the request into the language of the recipient country (if required), and associated costs for a witness to travel to the recipient country to give evidence. Bilateral MA treaties often prescribe how the costs of executing the request are to be apportioned between the requesting and recipient countries.
4.3 Material Obtained from Recipient Country
Once the recipient country has actioned the MAR it will have material to send to the requesting country Central Authority. On receipt of the material, you should assess whether the material is in a format that will be admissible to your courts.
Some things to think about in assessing the material are:
- does the material obtained include material that was not requested in the MAR?
- are translations needed?
- does the material need to be certified? (i.e. certify or authenticate that the evidentiary material was obtained lawfully pursuant to a MAR)
- if certification or sealing of the material is requested, are there any internal requirements in order for the material to be admissible?