Globalisation Of Criminal Evidence And Changes On The Horizon Mr Philip Nolan

Author:Mr Philip Nolan
Profession:Mason Hayes & Curran

The rise of internet-based communications has complicated the ability of law enforcement to gather evidence in criminal investigations. Compounding the problem is the fact that technology companies often store users' data at a great distance from the physical location of their customers. As a result, when law enforcement is investigating crimes with a cross-border element, their powers are often curtailed by outdated or prolonged cooperation mechanisms.

With many technology companies' EU or EMEA headquarters located in Ireland, these Irish companies control the majority of the EU's electronic communications on their servers. The upcoming legislative changes in the area of cross-border access to evidence, and Irish support for these changes, are being closely watched by many, including our fellow Member States.

Outdated mechanisms for co-operation

Historically, 'letters rogatory' were the principle mechanism for sharing evidence between nations. Letters rogatory are discretionary requests made between the courts of one country to the courts of another country that are available to governments and private litigants. As investigations into complex, coordinated international crimes, such as money laundering and drug trafficking, became more common in the 1970s, countries began entering into Mutual Legal Assistance Treaties (MLATs), which established standardised procedures for the sharing of certain evidence in criminal matters.

In Ireland, matters relating to Mutual Legal Assistance are governed by the Criminal Justice (Mutual Assistance) Act 2008. Under the Act, other states' authorities can request Irish assistance in a wide range of matters. Each party to an MLAT designates a central authority (Central Authority) through which direct communications can be made; in Ireland, the Central Authority sits within the Department of Justice. However, the MLAT process was not devised to handle the growing volume and frequency of demands for electronic evidence. An oft-cited criticism of the MLAT process is that, on average, it takes 10 months for a request to be fulfilled.

E-evidence proposal

In April 2018, the European Commission proposed a legislative package, commonly referred to as "e-evidence", to make it easier for law enforcement authorities of Member States to obtain cross-border evidence. E-evidence proposes to introduce European Production and Preservation Orders, or EPOs, in criminal matters. This would allow competent authorities from one...

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