James Dawes QC

2 Harcourt Buildings

International Enquiries for the Defence

This seminar will cover

Mutual Legal Assistance (MLA)

• Police-to-Police, voluntary cooperation and private enquiries are not MLA and may be inadmissible.

• MLA is Legal or Judicial Cooperation between states.

• MLA does not, of itself require an International Treaty.

• MLA which can produce admissible evidence are:

i. European Investigation Order (EIO).

ii. International Letter of Request (ILOR) sometimes called a Commission Rogatoire.

European Investigation Order (EIO)

• The EIO derives from Art. 82 Treaty of Lisbon 2009. It was embedded in UK domestic law in the Criminal Justice (European Investigation Order) Regulations 2017.

• EIO applies to EU states save Ireland & Denmark.

• The prosecution can issue an EIO without Judicial input and at any stage in proceedings.

• The defence must apply for an EIO through a Judge but only after proceedings have been instituted.

• Will the EIO will survive Brexit?

International Letter of Request (ILOR)

• The ILOR derives from s.7 CICA 2003.

• Applies to all territories including EU states but generally used for non-EU, Ireland and Denmark.

• The prosecution can issue an ILOR without Judicial input and at any stage in proceedings.

• The defence must apply for an ILOR through a Judge but only after proceedings have been instituted.

Defence International Enquiries

• Make your own private enquiries at any stage but any fruits may be inadmissible.

• Request the prosecution make enquiries on your behalf at any stage by adding it to their MLA application.

• Applications to the Court for a Defence EIO or ILOR before proceedings have been instituted will be refused unless the regulations/statute should be read down.

• Apply to the Court for a Defence EIO or ILOR after proceedings have been instituted.

Legitimate challenges to International Evidence

• Evidence was obtained through informal channels outside MLA.

• No consent for evidential use by the Executing State.

• MLA business records: a judicial direction of unreliability. s.117(7) CJA 2003.

• Section 78 PACE.

• Defence denied timely opportunity for their own MLA rendering proceedings unfair or evidence inadmissible.

Speakers notes are available in our Past Papers Library