Commentary on Sections Part 1: Mutual Assistance in Criminal Matters Chapter 2: Mutual Provision of Evidence Section 13: Requests for assistance from overseas authorities
49.This section deals with handling incoming requests for assistance with obtaining evidence located in the UK.
50.Subsection (1) provides that, if the conditions set out in section 14 are satisfied, arrangements may be made for evidence to be obtained, or for an application for a warrant to be made in response to a request for assistance.
51.Subsection (2) sets out the authorities competent to make requests for mutual legal assistance. These are courts, prosecuting authorities and other authorities which have the function of making such requests - (examining magistrates, for example). Subsection (3) also provides for requests to be received from Interpol and from bodies or persons competent to make requests pursuant to agreements adopted under the Treaty on European Union. Eurojust is an example of such a body.
52.The section makes provision for requests to be received by “territorial authorities”. These are defined in section 28(9). This enables transmission to the Secretary of State, or (for Scotland) the Lord Advocate.
53.Article 6 of the MLAC envisages direct transmission of most requests, but direct transmission is difficult to apply in our domestic system where jurisdiction is based largely on function rather than geography, and where the same authorities are not necessarily competent to both issue and execute letters of request. Misdirection of requests sent directly to the wrong authority would create delays, defeating the purpose of direct transmission which is to speed up the process. The UK therefore has a special provision in the MLAC enabling it to opt out of the direct transmission requirement.
54.Section 27 of the Act enables the Treasury by order to provide for certain functions conferred on the Secretary of State or on a constable to be exercisable by HM Customs and Excise, and for the Secretary of State by order to provide for certain functions conferred on him or on a constable to be exercisable by other persons prescribed by order. This will facilitate more extensive direct transmission in the future.