In any cross-border investigation, invariably suspects will be located in different jurisdictions or subject to investigations by authorities from different jurisdictions, or both. BCL's Richard Sallybanks, Anoushka Warlow, and Evgeni Voznoi take a look at the key issues that can arise when acting for an individual present in the United Kingdom who is subject to criminal investigation or proceedings in one or more overseas jurisdictions, or who is facing parallel proceedings in the United Kingdom and abroad.
Cross-border cooperation
The United Kingdom might cooperate with overseas agencies or regulators in various ways when investigating or prosecuting an individual, ranging from informal 'intelligence sharing' to mutual legal assistance (MLA). The main domestic legislation governing MLA in the United Kingdom is the Crime (International Co-operation) Act 2003 (CICA), Part 1 of which deals with criminal cases.
The United Kingdom is party to a number of bilateral and multilateral MLA treaties. While it is not necessary for an MLA treaty to exist between the relevant countries for a request to be made under CICA, requests are more likely to be successful where a treaty basis exists. Cooperation with EU Member States was changed by the United Kingdom's exiting of the European Union. On 24 December 2020, the United Kingdom and the European Union signed the UK–EU Trade and Cooperation Agreement (TCA), which includes specific provisions on cooperation and MLA, and facilitates the application between EU Member States and the United Kingdom of certain previous MLA treaties and conventions. While the TCA ensures there remains a strong cooperative relationship, certain investigative tools, such as European investigation orders, can no longer be used.
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