Mutual Legal Assistance (MLA) Requests Explained

What is mutual legal assistance?

Mutual legal assistance (MLA) is a way in which states cooperate with each other regarding the investigation – and later the possible prosecution - of criminal offences. States make requests to each other for information and other material that will be of use in an investigation.

This tends to be information or material that cannot normally be obtained through cooperation between police forces in different countries. MLA can also be used to obtain assistance in relation to the freezing and confiscation of the proceeds of crime and in the extradition of individuals.

The increasingly global nature of crime has meant that MLA has become an important part of investigations in many countries.

An MLA request is made by a formal international Letter of Request (LOR). It is not necessary to issue an MLA request every time evidence or other information is required from abroad. But if a court order is required to obtain the evidence in the UK then it is likely that this would also be required in most other countries.

In these circumstances, an LOR is sent to a judicial authority in the relevant country that has the power to obtain that information.

When can mutual legal assistance be requested?

Mutual legal assistance can be sought whenever one state requires information – as part of an investigation – that is located within another state and cannot be obtained through routine cooperation between police forces in different countries. States can make an MLA request to another state for that information. 

Evidence that Requires an MLA Request

Evidence - and other material - in other countries that usually needs an MLA request to be made includes: 

• Account information from banks.
• Internet records and emails.
• Information about foreign convictions.
• Obtaining search and seizure orders and obtaining statements from a non-voluntary witness.

How The UK Requests MLA

The UK Central Authority (UKCA) is the organisation that coordinates MLA requests in England, Wales and Northern Ireland, apart from tax and customs criminal matters which are coordinated by HM Revenue & Customs (HMRC). All requests need to be sent to the UKCA through its online service. 

MLA requests made from the UK for evidence must be issued by a court or a designated prosecuting authority. 

The courts and designated prosecuting authorities in the UK are:

• Magistrates’ Courts, the Crown Courts and the High Court
• The Attorney General for England and Wales
• The Director of Public Prosecutions and any Crown Prosecutor
• The Director and any designated member of the Serious Fraud Office
• The Environment Agency
• The Secretary of State for Business, Innovation & Skills (in relation to their function of investigating and prosecuting offences)
• The Secretary of State for Health
• The Secretary of State for Transport
• The Secretary of State for Work and Pensions
• The District Courts and Sheriff Courts and the High Court of Justiciary
• The Lord Advocate of Scotland
• The Procurator Fiscal
• The Attorney General for Northern Ireland
• The Director of Public Prosecutions in Northern Ireland
• The Financial Services Authority
• The ACRO Criminal Records Office (ACRO)

How to Request Mutual Legal Assistance from The UK

The Process

All MLA requests made to the UK must be sent to a central authority for consideration. The UK has three central authorities, with each having its own particular responsibilities:

• The Home Office UK Central Authority (UKCA), which deals with MLA requests in England, Wales and Northern Ireland, apart from those relating to tax and fiscal customs matters.
• HM Revenue and Customs (HMRC), which manages MLA requests in England, Wales and Northern Ireland relating to tax and fiscal customs matters only.
• The Crown Office in Scotland, which manages MLA requests relating to assistance in Scotland.

The UK Home Office has produced guidance for those looking to make an MLA request to the UK which can be read here. 

It has also now made it possible to make such a request online. 

MLA Treaties

The UK has mutual legal assistance treaties with many countries. The full official list can be found here. 

MLA requests from European Union (EU) Member States to the UK have to refer to the Council of Europe’s European Convention on Mutual Assistance in Criminal Matters 1959, and its two additional protocols, which have now been supplemented by the EU-UK Trade and Cooperation Agreement. 

The European Investigation Order is an EU measure for facilitating the MLA process between participating EU Member States. But following the UK’s withdrawal from the EU on 31 January 2020, it can no longer accept EIOs.

Who can send an MLA request?

Any competent body under the law of the requesting country may issue an MLA request to the UK. In the 2023 calendar year, the UK received 5,955 requests for mutual legal assistance.

Refusal of MLA Requests

The UK will agree to most MLA requests received, providing that the request has been made in the correct way.

But the UK has the right to refuse an MLA request. This could be done if:

• The request relates to an investigation or prosecution that is politically motivated.
• Execution of the request would prejudice the sovereignty, security, public order or other essential interests of the UK.
• The person under investigation has previously been acquitted or convicted of the offence that the MLA relates to.
• The request relates to an offence that the UK regards as an offence under military law, which is not also an offence under ordinary criminal law.
• There are grounds for believing that the request has been made for the purpose of investigating, prosecuting or punishing a person because of their race, gender, sexual orientation, religion, nationality, ethnic origin or political opinions.
• The trivial nature or low value of the alleged offending or the amount of time that has passed since it was committed mean it is not appropriate to act on the request.
• Providing the data requested is not possible under UK data protection legislation.

What to include in an MLA request 

Agreements between countries may state that a standard form should be used for MLA requests.

But if this is not the case, there are certain things that any Letter of Request for MLA should contain.

The Letter of Request should:

• Be written on the headed notepaper of the organisation making the request.
• Contain a translation into the language of the country that is to receive the letter, if the initial request has not been written in that language.
• Refer to all relevant dates and / or reasons why the request needs to be treated as a matter of urgency. For example, the date of a court hearing which may make it necessary for the request to be acted on within a certain amount of time.
• Include the name of the organisation making the request, the authority that it has in its country to make the request, and the name and all contact details of the individual who is making the request.
• Provide a summary of all relevant facts of the case under investigation – and explain the connection between the evidence requested and the offence being investigated.
• Contain full details of the suspects under investigation and/or any persons of interest. This should include, if known, their full name, date of birth, address, nationality and numbers of any passport or identity cards, and any information about their connections to the country that is being sent the MLA request. It should also be explained whether any person named is a defendant, suspect, witness or victim.
• Include reference numbers or case names of any previous requests that have been sent that are linked to the current request.
• Outline the legal basis of the request – whether it is made on the basis of a bilateral or multilateral treaty, a convention or reciprocity (cooperation) between nations.
• Contain the relevant sections of the legislation relating to the offence being investigated that has led to the MLA request.
• Detail what evidence is being sought, where it is located and why this can only be obtained from the country being sent the MLA request.

Mutual Legal Assistance Challenges

While MLA requests can be of great use to authorities in many countries, they can present difficulties. The main one is the length of time it can take for MLA requests to be completed. 

MLA is a very slow way of obtaining evidence, due mainly to the need for judicial oversight in the country that receives the request and the potential for delays in the process. The UK government has said it takes an average of 12 months for an MLA request sent from the UK to the US to result in the requested information being produced. 

Such a lengthy process is far from ideal for those who are seeking the information in order to complete an investigation promptly. However, overseas production orders can offer a faster route.

What is an overseas production order (OPO)?

An overseas production order (OPO) is a new and swifter way of obtaining the disclosure of electronic data stored overseas. OPOs have the potential to bring great change to cross-border criminal investigations.

The Crime (Overseas Production Orders) Act 2019 gave UK law enforcement agencies the ability to apply to a Crown Court judge for an OPO. If an OPO is granted, it requires the specified overseas communications service provider (CSP) to provide, or allow access to, stored electronic data for the investigating and prosecuting of serious crimes.

While MLA is a request made from one state to another state, an OPO is served directly on the CSP. The CSP then has seven days to produce the data requested. The authorities in the country where the CSP receives the OPO do not have any power to review the Crown Court decision that granted the OPO. 

The time limit imposed on the recipient of the OPO and there being no supervising role for the receiving country's authorities mean that the OPO can be a far faster route to information than an MLA request. But for an OPO to be issued, there has to be an international co-operation arrangement in place between the UK and the government of the country where the data that is sought is located or controlled from. At the moment, there is only one such agreement in place - between the UK and US. 

Complying with an OPO can be difficult for the CSP that it is served upon. The CSP will need to consider issues such as whether the data is exempt from being produced due to issues such as legal privilege or confidentiality. The CSP can apply to the UK courts to have the OPO changed or revoked (which means it is cancelled). While suspects can challenge an OPO that relates to them, they are only likely to know it has been made when the relevant data is disclosed by the prosecution.

Overseas Production Orders vs Mutual Legal Assistance Requests

Overseas production orders (OPOs) and mutual legal assistance (MLA) requests are similar, as:

• They are both used by the authorities as part of an investigation that crosses national borders.
• They are both a means of obtaining information from abroad as part of such an investigation.

But there are a number of significant differences between the two:

• OPOs are a much quicker means of obtaining information.
• The use of OPOs is limited to obtaining electronic data from overseas whereas MLA requests can be used to acquire a much wider range of information.
• While an OPO is served directly on an overseas communications service provider, an MLA request is made from one state to another state.
• An OPO can only be served if there is an international cooperation agreement between the two nations involved – and at present the only one in place is between the US and UK. Whereas legal arrangements (such as treaties) that allow for MLA requests to be sent and acted upon are in place between many countries.

Conclusion

MLAs can be hugely important for authorities, who can use them to obtain information from abroad that can be of great use in an investigation. However, this can present challenges for those who are the subject of such an investigation. 

Anyone who finds themselves in such a situation will require legal advice and representation from lawyers who are fully versed in all aspects of multinational investigations and the ways that authorities in the relevant countries function. Rahman Ravelli’s lawyers are recognised internationally for their expertise and experience in such situations.