Fixing the Mutual Legal Assistance Regime: Some Thoughts on Reform

Last week I reported that the United States was often slow to respond to requests from other nations for evidence needed to prosecute corruption cases in their courts and that as a result some cases have had to be dismissed.  I also noted that, as of spring 2013, 4500 requests awaited processing, a backlog the Justice Department blames on a shortage of personnel.  In a comment on the post. Matthew asks two questions:  1) are there other ways besides adding staff that countries can reduce the delay in responding to requests for legal assistance and 2) is the U.S. the only country with a large backlog of requests.

To the first question, the answer is “yes.”  Mutual legal assistance, the term for the process by which one country formally requests another to provide it with evidence that can be used in a criminal or civil proceeding, is still developing, and room for reforms that would streamline the process remains.  For example, to admit public records from another country showing ownership of land, motor vehicles, and the like courts in some jurisdictions require that a staff member from the public registry of the other nation appear and testify to the authenticity of the ownership document.  The jurisdiction where the registry is located often then requires a formal request for mutual legal assistance for this person to testify.

The concern with false documentation is understandable, but in an age when defense council can easily check whether a document is genuine, the burden this procedure puts on the prosecution seems clearly to outweigh the benefit.  An easy reform would be to allow the prosecution to represent that it secured the document from the registry in accordance with the procedures for obtaining public records.  If the defense has a good faith reason to question the document’s authenticity, let it do so.

Individual states could reform their evidence laws or a group of states could agree to such a reform by treaty.  The Southern African Development Coordination Conference or the Economic Community of West African States are examples of regional bodies where one would think an agreement on such a reform would be easy to realize.  This and similar questions might also be raised with one of the working groups that reports to the UNCAC’s Council of State Parties.

Shannon Cuthbertson of the Australian Attorney General’s Office describes recent amendments to Australian law and case law developments in England and Wales that have eased the process when the requesting state is a common law jurisdiction and the requested state a civil law one in “Mutual Legal Assistance in Criminal Matters: The Challenge of the Common Law Tradition,” her article from the 2012 Journal of Commonwealth Criminal Law.  These changes merit consideration by all common law countries and again could be considered in various regional forum or in the UNCAC process.

On Matthew’s question about the MLA backlog in other countries, little data is available, or at least little data is readily available.   Cutherbertson reported that Australia receives 30 plus requests a year, but she did not say how timely the responses were.  The UK says it received 3630 MLA requests in 2013, but again did not indicate whether there were any delays in responding.  Data on other nations did not turn up using a variety of web searches on different search engines.

The MLA process would seem to be an area begging for more research on ways to streamline the process. It would also appear to be one where civil society could make a contribution by compiling and publicizing data on how quickly countries respond to requests.  Law students and professors looking for new areas to investigate, what are you waiting for?  Civil society activists, what about an MLA index?

One thought on “Fixing the Mutual Legal Assistance Regime: Some Thoughts on Reform

  1. Pingback: Improving Mutual Legal Assistance: Lessons from Asia | GAB | The Global Anticorruption Blog

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