5.1 Receiving an Incoming MAR
As the recipient country, it is important to send a reply to the requesting country soon after receiving their MAR to acknowledge receipt and provide contact details for the legal officer within the Central Authority dealing with the file.
The following flowchart sets out the general process that a recipient country follows after receiving a MAR from another country seeking formal assistance.
5.2 Assessing an Incoming MAR
Once an incoming MAR is received it should be assessed for compliance with your country’s MLA legislation. Each MAR should be scrutinised and then accepted or refused on a case-by-case basis. Your country’s MLA legislation is likely to contain details on what an incoming MAR must include.
As the legal officer dealing with the file, you may wish to prepare a memorandum for your decision-maker setting out your assessment and make a recommendation of whether the MAR should be accepted or refused. The information below sets out some of the key factors you should consider and include in the memorandum. In addition, the checklist at the beginning of this chapter is a useful tool to assist officers in this assessment process and to ascertain whether all the necessary information has been provided.
During the course of assessing the request, you may notice areas where the request is clearly deficient. If further information is required before a decision can be made, liaise with the requesting country to obtain the necessary information. This can be done by letter or email depending on your relationship with the requesting country and how deficient the request is.
Common deficiencies in requests include:
- has not come from the Central Authority
- does not include a summary of all relevant facts/the alleged offending
- does not include copies of the legal provisions that cover the offence and penalty
- does not clearly detail the nature of the assistance sought
- does not include a statement as to any specific or special confidentiality requirements
- does not detail any special requirements with respect to authenticating documents to be sent to the requesting country
- does not detail the time within which the country requires the assistance sought to be provided
- does not include appropriate assurances from the Central Authority
Consider and briefly address the procedural requirements as set out in your MACMA. In assessing whether your country can provide the requested assistance, you may need to consider factors such as:
- does your MACMA specify which foreign countries your country may accept a MAR from? (e.g. the MACMA may specify that MARs can only be accepted from prescribed foreign countries, bilateral treaties or countries party to a bilateral or specified multilateral conventions)
- is there an assurance of reciprocity given by the requesting country that it will entertain a similar request by your country for assistance in criminal matters
- the seriousness of the offence to which the MAR relates (you will often need to assess whether the offence meets a threshold of being a ‘serious offence’ determined by the maximum penalty), and
- the object of your legislation.
Your MACMA may also require certain information be included in an incoming MAR. For example:
- who the MAR should be made to (usually the Central Authority of your country)
- the purpose of the MARS and the nature of the assistance being sought (See more at 3.3)
- the identity of the person, agency, or authority that initiated the MAR, and
- the basis on which the foreign country is making the MAR (i.e. bilateral MA treaty or multilateral convention).
Your MACMA may also require that the MAR must be accompanied by:
- a certificate from the Central Authority of the foreign country that the request is made in respect of a criminal matter
- a description of the nature of the criminal matter and a statement setting out a summary of facts and the relevant law
- details of the procedure to be followed in giving effect to the request, including details of the form of any information to be supplied
- an explanation of any confidentiality requirements
- an explanation of any time constraints
- if the request involves a person travelling from your country to the foreign country, details of the proposed practicalities (e.g. allowances, accommodation etc), and
- any other information required to be included with the request under a treaty or other arrangement between your country and the foreign country.
Strict compliance with these requirements may not be a pre-requisite to agreeing to accept a MAR, so you may need to use your judgement in deciding whether you will insist on a particular factor or not. Regardless, you should ensure that any non-compliance with the requirements in your MACMA is identified and briefly addressed in your memorandum to the decision-maker.
Grounds for Refusal
The grounds for refusing a MAR will be set out in your legislation and are often divided into two categories: mandatory and discretionary. If a request is refused, in whole or in part, the foreign country must be formally notified and provided with reasons. Alternatively, if the decision-maker is concerned that the matter may contravene a ground/s for refusal, but does not want to refuse the request, it may be possible to grant the request subject to conditions.
The following are common mandatory or discretionary grounds for refusal:
- Political offence: requests involving offences of a political character (e.g. foreign interference)
- Discrimination: requests involving prejudice to a person on account of their colour, race, ethnic origin, sex, religion, nationality or political opinions
- Double jeopardy: requests involving previous acquittal, conviction, pardon or punishment for the same offence, act or omission
- Military offence: requests involving an offence that would amount to an offence against military law but not also an offence against ordinary criminal law
- Prejudice to sovereignty, security, or national interests: requests that, if granted, would prejudice the sovereignty, security, or national interests of your country
- Unlawful or unauthorised: requests for assistance of a kind that cannot be given under the Act or would require action that could not lawfully be taken
- Dual criminality: the request relates to conduct that, if it had occurred in your country, would not have constituted an offence against your country’s law
- Time barred: the request relates to proceedings involving forfeiture or restraint of property or the prosecution or punishment of a person, which could not have been brought in similar circumstances in your country due to a statutory time limit or any other reason
- Death penalty: the request relates to the prosecution or punishment of a person facing the death penalty in the requesting country. You may wish to consider whether your country could consent to the request if the foreign country satisfies your decision-maker that the death penalty will not be imposed or, if it is or was imposed, will not be carried out
- Where the provision of assistance could prejudice a current investigation or proceedings in a criminal matter or a proceeds of crime proceeding in your country
- Where the provision of assistance would be likely to prejudice the safety of any person (in your country or not), and/or
- Where the provision of assistance would impose an excessive burden on your country (e.g. in terms of resources, financial costs) or relates to a matter that is trivial in nature.
Unable to Assist
In some circumstances the recipient country will not be able to provide the assistance sought in a MAR. This could include situations where:
- witness details cannot be confirmed, or the witness is not located in the jurisdiction
- person does not wish to provide a voluntary witness statement or voluntarily attend court to give evidence
- insufficient time has been given for the service of documents, and/or
- the relevant court date has passed by the time the MAR was received.
In these cases, you should advise the requesting country that you are unable to provide the assistance sought. This can be done by writing a letter to the authorities from the requesting country explaining the situation, briefly outlining why you are able to assist in the particular circumstances.
5.3 Referring the Request to Law Enforcement
Refer the request to the authority that is responsible for providing assistance, usually the police. You may continue to supervise the progress of the request and liaise between the police and the requesting country with any updates or questions.
5.4 Providing Material Received in Response to MAR
In most cases any documentation obtained pursuant to the request will be returned by law enforcement to you at the Central Authority office so you can provide the material to the requesting country.
Before forwarding the material to the requesting country, it is good practice to check the documentation to ensure it complies with any evidentiary or procedural requirement of the requesting country. This may include a requirement for your Central Authority to certify or authenticate that the evidentiary material was obtained lawfully pursuant to a MAR. The requesting country may even specify a particular form of words for the recipient country’s Central Authority to attach to the material when sending it.
Depending on your MLA legislation, you may need to prepare an authorization before releasing the material to the requesting country.
If the material received includes child exploitation material, you may need to follow particular handling procedures acknowledging the sensitivity of such material.