Chapter 20
The ability of defendants to use MACMA

The Harare Scheme

20.6Like MACMA, the Scheme Relating to Mutual Legal Assistance in Criminal Matters Within the Commonwealth (Harare Scheme) does not expressly refer to the right of defendants to make a request for assistance. Commentary on the Scheme and discussions of the Commonwealth Law Ministers, who were responsible for drafting the Harare Scheme, indicate, however, that it does permit defence requests if the request is made through an appropriate state authority.

20.7Commentary on the Harare Scheme published in 1995 noted that, in some circumstances, a court could request assistance at the prompting of the defendant. However, the commentator said that “it was thought inappropriate to give the defence itself the right to use the Scheme, which is designed essentially for cooperation between official bodies”.898
20.8In 1999, the Commonwealth Law Ministers adopted a recommendation that:899

Court based [mutual legal assistance] channels should be available equally to defence and prosecution and that every country accepted that requests for assistance made by courts on the motion of the defence should, in the interests of justice, be responded to.

20.9This issue was again considered by the Commonwealth Law Ministers in 2002.900 They agreed that defendants should have the right to access the mutual legal assistance process, and an amendment “to make specific reference to the right of the defence to make such requests” was proposed.901 The Ministers, however, were concerned that the actual proposed amendment provided an unqualified right of defence access, which could “place enormous pressure on already overburdened mutual assistance systems”.902
20.10The Ministers concluded that no amendment was necessary and instead considered that the Scheme already provided avenues for defence requests. Defendants could request assistance through the prosecution and, where that was not appropriate, seek an order from a judicial authority for a request to be presented.903 This “filtered” process for defence requests was preferred. It offered “a pragmatic mechanism through which equality of arms could be achieved without allowing unregulated access that could lead to abuse”.904
20.11Despite the Ministers’ conclusion, some uncertainty remains. The Ministers emphasised the role of judicial organs as providing an avenue for defence assistance. In the past, the Scheme explicitly permitted that a request may be initiated by a judicial authority, in addition to a law enforcement agency and public prosecution.905 This express reference was removed in 2011. The Scheme instead now provides that: “[a] request under the Scheme shall, to the extent possible: (a) specify the agency or authority initiating the request …”.906

20.12While this makes the ability of a judicial authority to request defence assistance less explicit, it is likely that “agency or authority” would nevertheless include “judicial authority”, hence the Ministers’ conclusion likely still stands.

The Scheme’s purpose

20.13A 2011 amendment to the Scheme’s purpose may further suggest that it applies to defendants. Prior to the 2011 amendments, paragraph [1(1)] stated that the Scheme’s purpose was to “increase the level and scope of assistance rendered between Commonwealth Governments”. However, the Scheme’s purpose is now:907

… to encourage and enable countries to co-operate with each other to the widest extent possible for the purposes of criminal matters in accordance with this Scheme and their respective domestic laws.

20.14The purpose of the 2011 Scheme is wider and, at least partly, rebuts the argument that the Harare Scheme is solely about cooperation between governments.

898David McClean “Scheme Relating to Mutual Assistance in Criminal Matters within the Commonwealth with a Details Commentary” in William Gilmore (ed) Mutual Assistance in Business and Criminal Matters (Cambridge University Press, Cambridge, 1995) 112 at 117.
899Commonwealth Secretariat Report of the Oxford Conference on International Cooperation in Criminal Matters (1999) at 8, as cited in Robert Currie “Human Rights and international mutual legal assistance: Resolving the tension” (2000) 11 Crim LF 143 at 171.
900As explained in Kimberly Prost “Cooperation in Penal Matters in the Commonwealth” in M Cherif Bassiouni (ed) International Criminal Law Multilateral and Bilateral Enforcement Mechanisms (Brill, Leiden, 2008) vol 2 413 at 426.
901Prost, above n 900, at 426.
902Prost, above n 900, at 426.
903Prost, above n 900, at 426.
904Prost, above n 900, at 426.
905Scheme Relating to Mutual Legal Assistance in Criminal Matters Within the Commonwealth including amendments made by Law Ministers in April 1990, November 2002 and October 2005 at [6(1)].
906Scheme Relating to Mutual Assistance in Criminal Matters within the Commonwealth including amendments made by Law Ministers in April 1990, November 2002, October 2005 and July 2011 [Harare Scheme] at [4(1)(a)].
907Harare Scheme, above n 906, at [1(1)].