Anchoring the need to revise cross-border access to e-evidence

Abstract

: In April 2018 the European Commission presented an e-evidence package including a Proposal for a Regulation on a European Production and Preservation Orders for electronic evidence in criminal matters and a Proposal for a Directive on the appointment of legal representatives. The e-evidence package was accompanied by an impact assessment. This assessment asserts that e-evidence is requested in half of all investigations (first premise), that the mutual legal assistance treaties (MLAT) system is an inefficient channel for that purpose (second premise), and that as a result, two thirds of crimes cannot be effectively investigated (third premise). I challenge the empirical soundness of these three findings and argue that the percentages and figures used frame the problem fundamentally on technical and efficiency grounds. There is no reference to the political and economic motivations behind the promotion of a policy shift from MLAT to direct cooperation, which in my view, is the fourth and lost premise.