Process and practicalities: mutual legal assistance and the investigation of transnational crime within the EU from a UK perspective, 1990-2004

Abstract

Domestic criminal law helps define State sovereign identity. Over the past fifty years some criminality has become increasingly transnational in character. In the absence of a universal criminal code (as opposed to specified international crimes), States apply municipal law to prosecute offences of a transnational nature relying on mutual legal assistanceto secure evidence located outside the prosecuting State.

A comparatively late contributor to the development of mutual legal assistance the UK now seeks to influence the work of the EU in developing a legal framework upon which to base mutual legal assistance and enhanced international law enforcement co-operation. The course of this developmentis outlined.

This thesis examines through questionnaire and interview data, investigator and prosecutor experience of mutual legal assistance mechanisms in gathering of evidence from abroad for use at trial in England and Wales. Comparisons are made with data from an earlier survey of UK police (1996) and with an evaluation of mutual legal assistance administrative mechanisms within the EU (1999-2001) in order to identify changes in investigator experiences since the EU began to drive the strategic development of regional international law enforcement co-operation with the Treaty of Amsterdam and to assess whether politicians and administrators are delivering the solutions needed by investigators working across national borders.

Set within the legislative context of the Criminal Justice (International Co-operation) Act 1990, the data indicate that neither this regime nor the emerging EU framework were addressing all practitioner concerns. Political responsesto the New York terrorist attacks of September 2001, which occurred during data gathering for this thesis, accelerated legislative construction in the UK and the EU. Updated to include discussion of these changes (some still not yet entered into force), the thesis now provides a benchmark against which to assess their impact in due course.

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