MLAT – are there too many cooks?

When managing mutual legal assistance treaty (MLAT) requests on a day-to-day basis, the main complaints from prosecutors and police are incredulity at how long a request may take to process, and frustration at the complexity of the process involved.  Depending on the country from which information is being sought, it can also be the case that the country holding the information is not willing or able to obtain it on behalf of another country. As noted previously, MLA involves many players in multiple steps: police and central authorities in both the requesting and the requested countries as well as sometimes judges, prosecutors and witnesses in the requested country.  The steps are generally governed by a combination of domestic laws and international treaties (either bilateral or multilateral).  Law enforcement officers are inclined to argue that MLA has too many processes and protections, while civil libertarians tend to argue that there are not enough safeguards in place.  There may be some agreement from both sides that there is not sufficient differentiation between the processes or safeguards that are necessary in some circumstances and what may be appropriate in circumstances where the information is less sensitive or the information is being shared with a trusted partner country.

In order to make the MLA system faster and less complicated, governments (and the public that they represent) need to be willing to either reduce the number of steps in the process and/or make each of the steps faster.  Many countries, including the US, have omitted the step of requiring an MLA request to be made and received through diplomatic channels.  To further reduce the number of players in a meaningful way requires a more fundamental shift in the MLA process.

The current processes require MLA requests to go through central authorities (usually the ministry of justice or equivalent).  Removing the requirement for requests to go through central authorities could reduce the number of players.  However, central authorities perform a useful role in quality controlling and triaging requests; they ensure that requests meet all of the legal requirements (both treaties and domestic law) and identify requests that need to be expedited.  This role could potentially be performed by law enforcement officers.  However, since the processes and legalities can be quite technical, there would need to be dedicated law enforcement officers with expertise in MLAT processes, which may mean that you would not actually reduce the number of players.

Another step for many MLA requests is consideration by the court in the requested country.  Court involvement is seen as a significant safeguard, recognising the intrusive nature of procedures such as search warrants and subpoenaing witnesses.  Removing this part of the process would require placing a substantial amount of trust in both the country requesting the assistance and in the law enforcement and/or justice officials in the requested country who process the requests.  Not only would it seem publicly unpalatable to reduce court involvement, it could also create the strange situation where it would be easier to obtain information for foreign law enforcement purposes than for domestic purposes.  Any ‘streamlining’ in this part of the process would certainly need to be approached carefully.

Many countries also involve the executive in some MLA requests.  For example, the minister for justice may need to approve actioning a request before officials can proceed with seeking warrants from a court.  Removing this step would require removal of some of the discretion or transfer of the discretion to an official.  MLATs usually contain broadly worded grounds for refusal such as where it would be contrary to the State’s essential interests.  Assessment of matters such as ‘essential interests’ is more appropriate for executive determination rather than judiciary.  Governments may potentially be willing to remove (or at least reduce) executive involvement for some types of requests and with some trusted partner countries.  However, it would represent a significant change in the system.

Removing any of the steps in the current MLA process would be no small matter and would need to ensure that reducing the number of players did not occur at the expense of important procedural safeguards.  There are some benefits to the involvement of each of the stakeholders in the current MLA process and any reforms need to take this into account.