Getting Evidence Out of China for a UK Criminal Case: MLA, Blocking Rules and the Lawful Private Routes

You have a UK criminal matter — an SFO investigation, a private prosecution, a contested confiscation, or a defence brief — and the documents, witnesses or server logs you need sit in mainland China. Before instructing anyone in Shanghai or Beijing to "just go and get it", you need to understand that since 2018 the PRC has had a hard statutory line on what can and cannot be done. Getting it wrong exposes the China-side custodian, and potentially your client, to criminal liability in the PRC.

This note sets out, for UK criminal litigation and investigations counsel, how cross-border evidence-gathering for criminal matters actually works in and out of China.

The governing statute: the International Criminal Judicial Assistance Law (2018)

The PRC International Criminal Judicial Assistance Law (国际刑事司法协助法), effective 26 October 2018, is the controlling instrument. Its scope is broad. It covers service of documents, taking of evidence, location of persons, freezing and confiscation of assets, transfer of sentenced persons and related matters, where the foreign request is in a criminal case.

Two features matter to UK counsel:

• Channel monopoly. Article 4 makes clear that criminal judicial assistance between China and foreign states must go through the designated channels — for the UK, the Ministry of Justice or, depending on subject matter, the Supreme People's Procuratorate, with the Ministry of Foreign Affairs as treaty communication channel. Direct approaches by foreign authorities or foreign counsel to Chinese institutions, courts, prosecutors or police are not permitted.
• A genuine blocking provision. Article 4, paragraph 3 prohibits any institution, organisation or individual within the PRC from providing evidence materials or assistance specified in the Law to a foreign country without the approval of the competent PRC authorities. This is the operative "China blocking statute" for evidence in foreign criminal proceedings, and it is enforced.

The practical effect: a Chinese subsidiary, employee, accountant or e-discovery vendor in China who hands over documents to a UK prosecutor, UK defence team or foreign regulator in a criminal matter without PRC approval is in breach of PRC law. So is the foreign lawyer who induces them to do so on PRC soil.

The UK–China MLA treaty route — what it really achieves

The UK and the PRC are parties to the Treaty between the United Kingdom of Great Britain and Northern Ireland and the People's Republic of China on Mutual Legal Assistance in Criminal Matters, signed in 1998 and in force since 2002. The treaty is the route for compelled evidence.

What it can deliver in principle: service of process; taking witness statements; production of bank, corporate and accounting records; search and seizure; identification and tracing of proceeds; freezing and confiscation cooperation.

What UK counsel should realistically expect:

1. Timing measured in many months, often more than a year. A well-drafted Letter of Request, transmitted through the UK Central Authority (UKCA) at the Home Office to the PRC Ministry of Justice, will be triaged, translated into Chinese, allocated to the relevant provincial public security or procuratorial body, and executed under PRC procedure. Eighteen months is not unusual; complex or politically sensitive requests take longer or stall.
2. Discretionary refusal. The PRC may refuse on grounds including sovereignty, security, public interest, dual criminality, political offence, military offence, and where execution would prejudice an ongoing PRC investigation. Tax offences and matters touching state-owned enterprises attract more scrutiny.
3. PRC-form evidence. Evidence comes back in the form and manner produced under PRC procedure: officially certified, in Chinese, with PRC procedural framing. Live cross-examination of a Chinese witness in a UK courtroom is not on the menu; a deposition before a PRC official, with PRC limits on the questions asked, is.
4. Use limitations. The PRC will normally attach specialty conditions — the material is to be used only for the specific criminal proceedings identified in the request.

The treaty route is therefore necessary for any compulsory measure, but it is slow and it is not a substitute for the work that needs to happen in parallel.

Data export: the Data Security Law overlay

Even private, voluntary cooperation does not escape PRC data rules. Article 36 of the Data Security Law (2021) prohibits any organisation or individual in the PRC from providing data stored within the PRC to any foreign judicial or law-enforcement authority without the approval of the competent PRC authorities. Article 41 of the Personal Information Protection Law (2021) imposes the parallel prohibition for personal information.

These provisions matter even where you are not asking the PRC state for anything. A UK-listed group conducting an internal investigation, an e-discovery exercise pulling emails off a Shanghai server, or a witness emailing bank statements to London — each can fall within these prohibitions if the underlying purpose is to feed a foreign criminal or regulatory process. Penalties under the Data Security Law and the Personal Information Protection Law are administrative and, in serious cases, criminal.

For UK investigations counsel running internal reviews, this means the China data review must be conducted onshore in China by PRC-qualified personnel, with carefully scoped extraction, anonymisation and approval mechanics built in before anything crosses the border.

What remains lawfully available: the private avenues

The picture is not that nothing can be done outside MLA. Several routes remain open and are routinely used by Eugen Law Firm for UK counsel:

• Notarised evidence (公证). Publicly available material — corporate registry records from the National Enterprise Credit Information Publicity System, court records that are public, website content, WeChat exchanges accessible to a party, real estate registry extracts — can be captured and notarised by a PRC notary. The notarial deed is highly credible and travels well into UK proceedings with apostille (since China joined the Apostille Convention in November 2023).
• Voluntary witness statements. A witness in China who is willing to speak can give a voluntary written statement. It must be obtained in a way that does not involve PRC compulsion, does not involve any foreign official acting on PRC soil, and does not extract material that the witness is independently barred from disclosing (state secrets, work secrets, personal information of third parties, data caught by Article 36 DSL).
• Documents already lawfully in the witness's possession. A Chinese citizen or company in possession of their own documents can, as a matter of PRC law, generally choose to share them, subject always to the data and secrecy overlays above.
• Open-source and corporate due diligence. Litigation records on China Judgments Online, enforcement blacklists, IP registrations and customs filings are obtainable and notarisable.
• Hague Evidence Convention in civil-adjacent matters — not available for criminal proceedings, but worth flagging where a parallel civil track exists.

What is not lawfully available: approaching PRC police, prosecutors, judges or banks directly; deploying UK investigators to take statements inside China; instructing PRC employees of a foreign-controlled company to download and transmit server data for use in a UK criminal case without PRC approval; or paying a "fixer" to obtain bank records.

Parallel PRC proceedings: a separate problem

Where your client is also under investigation in China — common in bribery, fraud, IP, export-control and sanctions-adjacent cases — the calculus changes again. PRC investigations under the Criminal Procedure Law (2018 Amendment) operate on tight detention timelines, and material disclosed by the client to UK authorities can land back in China through informal channels. Counsel should coordinate PRC defence strategy and UK strategy from day one, including on privilege (note that legal professional privilege in the UK sense is not recognised in PRC criminal investigations).

Practical checklist for instructing solicitors

When you instruct China counsel on a criminal-evidence project, be ready to provide:

• A clear statement of the UK proceedings, the offences alleged, and the evidential gap.
• The list of custodians, locations and data types in China.
• Whether the client controls the China entity, and the employment status of relevant individuals.
• Any parallel PRC investigation, regulatory contact or detention.
• A realistic timeline — and a willingness to run the MLA track and the private track in parallel.

FAQ

How long does an MLA request from the UK to China actually take? Plan for 12 to 24 months from submission to receipt of usable evidence, longer where the request is contested or touches sensitive sectors. Anything urgent in the UK timetable should not depend solely on the MLA channel.

Can a UK firm send investigators to interview a witness in Shanghai? No. Investigative activity by foreign personnel on PRC soil for use in foreign criminal proceedings risks breaching the International Criminal Judicial Assistance Law and, if data is involved, the Data Security Law. Voluntary statements should be taken by PRC-qualified counsel and structured appropriately.

Does the China blocking statute apply to internal investigations by a UK-listed group? Yes, where the purpose is to feed material to a foreign criminal or law-enforcement authority. Article 36 of the Data Security Law and Article 41 of the Personal Information Protection Law require PRC approval before such data leaves China, and the 2018 Law captures evidence destined for foreign criminal proceedings.

Is notarised evidence from China admissible in English criminal proceedings? Notarial deeds, apostilled since November 2023, are routinely accepted as authentic documentary evidence in UK proceedings. Their evidential weight is a matter for the UK court, but their authenticity foundation is strong and the route avoids the blocking-statute problem.

How Eugen Law Firm assists

Eugen Law Firm acts as China counsel to UK criminal litigation and investigations teams on evidence-gathering, parallel PRC proceedings and data-export compliance. We design and execute the lawful private track — notarised evidence, voluntary witness statements, onshore data review — while liaising on the MLA track, and we represent clients facing parallel PRC criminal exposure. For confidential discussion of a specific matter, please contact [email protected].