The issue of mutual legal assistance has not tended to dominate the headlines. But it seems to be on the minds of some who move in important circles.
The next head of the Organisation for Economic Cooperation and Development’s (OECD’s) working group on bribery, Daniëlle Goudriaan, takes up her position next year. But she has already made it clear that the formal process for states sharing information is too slow. She wants the OECD to play a role in bringing more urgency to the mutual legal assistance request process, in order to reduce the time between investigations commencing and prosecutions being brought.
Her sentiments are understandable. She, after all, is at the forefront of efforts to combat bribery, which is often cross-border in nature. Investigations into bribery create a need for mutual legal assistance between states. Yet, as even the most rabid anti-bribery investigator will understand, states – including their legal systems and enforcement agencies – have a myriad of responsibilities and only limited resources. Many of these responsibilities may be higher up the list of immediate priorities than a request for information and assistance from another state.
There are arguments for states having investigators and prosecutors – and even judges – that have the experience and expertise to specialise in bribery cases. Proponents of this approach would say it will ensure such complex cases are handled by those with the skills and dedication required – with the implication that mutual legal assistance would become a speedier, more cooperative process. It would be interesting, however, to see how the likes of the Serious Fraud Office (SFO) and its counterparts in other countries would react to this.
That approach could prove troublesome. But that does not detract from the argument that changes could be beneficial.
Last year, the UK Supreme Court ruled in the KBR case that the SFO could not use section 2 of the Criminal Justice Act 1987 to force KBR to hand over documentation held abroad. While the ruling cannot be viewed as a total ban on the international use of section 2 notices, it does emphasise the difficulties involved in cross-border investigations. A case that was ongoing at the same time in Canada (R v Rajaratnam) saw a court seriously reduce the effectiveness of mutual legal assistance, by ruling that section 36 of the country’s Mutual Legal Assistance in Criminal Matters Act infringed an accused’s rights to a fair trial.
While the circumstances – and the law – in the two cases vary, they are both snapshots of both the pitfalls and the importance of mutual legal assistance in cross-border investigations. Both rulings could reduce the ability to successfully prosecute, given the scope they provide for defence challenges to evidence obtained abroad. They may also vex those who, like Goudriaan, despair at the obstacles they feel are in place when it comes to seeking foreign assistance on an investigation.
The optimists, however, may pin their hopes on EPPO (the European Public Prosecutor’s Office). EPPO was set up to cooperate with the national law enforcement authorities of the participating European Union member states, as well as with the likes of Eurojust, OLAF and Europol. It also looks to benefit from mutual legal assistance arrangements with third countries and international organisations. EPPO could be seen as both the physical embodiment of mutual legal assistance and the EU’s attempt to ensure efficient direction and coordination of investigations. And yet, almost one year since it began operations, only 22 of the 27 EU states are cooperating with EPPO fully. Hungary, Poland and Sweden have decided not to join it – and Poland has already been accused of refusing to cooperate with it.
While it is early days for EPPO, it can already be viewed as a sign of both the need for cross-border cooperation and the limitations that can affect such a need. Mutual legal assistance treaties (MLATs) are likely to remain a significant part of many cross-border evidence gathering exercises. As we have mentioned, there are those who are exasperated by the seemingly slow pace or ineffectiveness of mutual legal assistance; at least in some cases.
MLATs may well result in delays to national investigations. They may also be challenged by those under investigation in third party countries. And – while many may not want to hear this – there may be no realistic way of speeding up the process without seismic changes to the law enforcement system in many countries.
But they remain a powerful tool in ensuring cooperation between international law enforcement agencies. That cooperation can – and does – bring results. Even if those results do require a frustratingly large amount of patience.
Niall Hearty of financial crime specialists Rahman Ravelli