Mutual Legal Assistance Guidelines

for the United Kingdom (6th Edition)

United Kingdom Central Authority

Judicial Co-operation Unit Policing Policy and Operations Directorate

Home Office 5th Floor Fry Building

2 Marsham Street London SW1P 4DF

Tel: +44 207 035 4040 Fax: +44 207 035 6985

25th February 2009

Please note that this document is hyperlinked

Contents Page no: PART I – Requests to the UK 3 Chapter 1: Introduction 3 Chapter 2: Form and content of requests to the UK 4

• Requirements 4 • Specific types of assistance

o Service of Procedural Documents 5 o Witness Evidence 6 o Third Party material held in confidence 6 Banking and Telecommunications data 6 o Search & Seizure 8 o Freezing and Confiscation of assets 9 o Civil Recovery (Non-conviction based asset confiscation) 10 o Transfer of prisoners 11 o Video & Telephone Conferencing 11 o Interception of Telecommunications 12

Chapter 3: Execution of requests in the UK 13

o Service of Procedural Documents 13 o Witness Evidence 14 o Third Party material held in confidence 14 Banking and Telecommunications data o Serious or Complex Fraud 15 o Search & Seizure 16 o Freezing of assets 17 o Transfer of prisoners 17 o Video & Telephone Conferencing 17 o Interception of Telecommunications 18

Chapter 4: Frequently asked questions (FAQ) 19-23 PART II – Requests from the UK 24 Chapter 1: Range of assistance and channels of communication 24-25 Chapter 2: Form and content of requests 26-27 Chapter 3: Other information 28 Annex A: Contact details for the Central Authorities and other relevant UK authorities 29-30 Annex B: Contact details for authorities in the Channel Islands, the Isle of Man and 31-32 the UK Overseas Territories Annex C: Statement of Intent 33 Annex D: Conducting enquiries in, or seeking assistance from, the UK: 34 Annex E: Search warrant template 35-45 Annex F: Letter of request template: UK court on behalf of a defendant 46-49 Annex G: Letter of request template: UK court on behalf of a non-designated 50-54 prosecuting authority Annex H: Method of transmission of letters of request to different states 55

2

REFERENCES IN THIS DOCUMENT TO CENTRAL AUTHORITY REFER EQUALLY TO THE UNITED KINGDOM CENTRAL AUTHORITY AT THE HOME OFFICE (UKCA), AND THE CROWN OFFICE IN SCOTLAND UNLESS OTHERWISE SPECIFIED. Part I – Requests to the UK Chapter 1: Introduction The United Kingdom Government attaches great importance to assisting investigative, prosecuting and judicial authorities in combating international crime. The UK is able to provide a full range of legal assistance in criminal matters through powers contained in Part I of the Crime (International Co-operation) Act 2003 (CICA 2003) and sections 5 & 6 of the Criminal Justice (International Co-operation) Act 1990 (CRIJICA) and other relevant domestic legislation. CICA 2003 is the UK's principal mutual legal assistance legislation. These guidelines:

• give details of the assistance that may be provided under the Acts; • give details regarding the procedures to follow when requesting assistance; • explain the role of the Central Authorities in the execution of requests for legal assistance in criminal

matters; • provide a list of frequently asked questions and answers; and • describe how the Central Authorities work in close co-operation with the UK National Central Bureau of

Interpol in dealing with international requests for assistance. General Matters Extradition matters and international co-operation between law enforcement agencies and regulatory authorities in the financial services industry are not included in these guidelines. Separate guidance on those matters can be obtained from the relevant contacts shown in ANNEX A. The UK’s Central Authorities are not responsible for judicial co-operation with the Channel Islands, the Isle of Man or the British Overseas Territories. Contact points for the competent authorities of the Islands and Territories are listed in ANNEX B. REQUESTS BETWEEN GIBRALTAR AND EUROPEAN UNION/ SCHENGEN MEMBER STATES MUST BE ROUTED VIA THE FOREIGN AND COMMONWEALTH OFFICE “POST-BOX,” DETAILS OF WHICH ARE IN ANNEX B.

3

4

Chapter 2: Form and content of requests to the UK What language may requests to the Central Authorities be made in? Requests must be made in writing in English or be submitted with an English translation. If no translation is provided the Central Authorities will ask for one and the request will remain unexecuted until the translation is received. What information should be included in requests? All relevant information must be included. This will vary according to the nature of the assistance required. Omission of any relevant information may delay execution of the request or mean that the request cannot be executed. All requests should include any information which is likely to help the Central Authorities arrange for execution of the request in accordance with the requirements of the requesting authority. Should a central or executing authority be of the opinion that further information is required the requesting authority will be given an opportunity to provide it. Essential requirements: Letters of request must include the following details -

• Details and the address of the judicial or prosecuting authority conducting the investigation or proceedings to which the request relates, and the name, telephone and fax and/or e-mail details of the responsible official(s) there.

• Full name(s) of the subject(s) of the investigation or proceedings if known1 as well as their date of birth and nationality if known.

• A summary of the facts of the offence(s) and details of the offence(s) committed or alleged (including details as to the maximum penalty permissible on conviction). The request should make clear that there are reasonable grounds for suspecting that the offence has been committed and that proceedings have been instituted in relation to the offence or, if proceedings have not been instituted, that the offence is being investigated.

• If the requesting state is relying on its extraterritorial jurisdiction in order to prosecute or investigate the offence this should be clearly stated in the request as should the basis of this jurisdiction.

• A description of the evidence or material or other assistance required, clearly stating whether original evidence or certified copies are required and if the request is for testimony whether the evidence must be given on oath or whether a statement to a law enforcement official would be sufficient.

• The purpose for which the evidence or material or other assistance is required and the relevance of the assistance to the investigation or proceedings. A nexus (direct link) must be established between the facts of the case as detailed in the request and the evidence requested. This goes further than just stating that the material is relevant to the case. In reading the case summary the executing authority should be able to anticipate what assistance is required. Why is the material relevant? How does it advance the case? What supporting evidence is already in the requesting authorities’ possession or what facts are in existence that lends support to the necessity of obtaining the evidence requested?

• The information and details contained in the appropriate paragraphs below relating to the specific type of assistance.

• YOUR REQUEST MUST BE IN ENGLISH. Additional requirements: Requests should also state, to the extent necessary and possible -

• The date of the trial or hearing and any other dates relevant for the purpose of executing the request; and any reasons why the request is urgent, for example because the accused person or suspect is in detention.

1 The UK can execute requests where the subject of the investigation is unknown at the time the request has been made e.g. a container being found to be carrying drugs, before final delivery. However, this is rare and the requesting authority must inform us of any people they later suspect of being involved in the commission of the offence.

5

• The full name, date of birth and location of any person from whom evidence is required making clear whether they are a witness or an actual or potential accused. (Please note that it is essential that UK authorities are aware of whether a person is a suspect or not as executing authorities powers vary depending on this status.)

• Details, including the telephone number and e-mail address if available, of any British law enforcement agency or officers who are familiar with the investigation (including, if relevant, the names of any UK based operations which the requesting state is aware of).

• The request should also say whether (and if so why) the presence of officers or officials of the requesting authorities is required during the execution of the request. The names of such persons and their contact details should be provided (in general, such officers or officials may observe, but not participate in, the execution of requests). Officers should not travel to the UK in connection with the execution of a request without the express permission of a central or executing authority.

• Details of any previous prosecutions or proceedings (in the Requesting State or elsewhere) against the accused person which may be relevant in assisting the central authorities in deciding whether or not double jeopardy is an issue in the case.

If the request does not comply with the above requirements it may not be possible to provide you with the assistance required. If that is the case, your request will either be returned or you will be asked to provide additional information. This may result in a delay in the execution of your request.

Specific types of assistance The following paragraphs indicate what other information should be provided in relation to specific types of assistance sought to ensure that it can be rendered as quickly and efficiently as possible. The lists below are not exhaustive. The Central Authorities can provide further advice on other forms of assistance as necessary. 1. Service of Procedural Documents Requests do not need to be served via the Central Authorities unless this is a specific requirement under a bilateral or multilateral agreement to which the requesting state and the UK are parties. However, where such documents are being served directly upon a resident in the UK it is very important that information is given in English as to the nature of the document and contact details for that person to obtain further information. The UK Central Authorities encourage direct transmission of procedural documents to UK citizens, unless this is not legally possible under the domestic law of the requesting state or under the terms of a relevant Treaty or Convention. The Central Authorities can receive documents to be served upon UK residents. Requirements:

• REQUESTING AUTHORITIES MUST GIVE THE CENTRAL AUTHORITIES AT LEAST SIX WEEKS TO SERVE ANY PROCESS WHERE THERE ARE COURT HEARINGS OR OTHER DEADLINES INVOLVED. OTHERWISE THERE IS A POSSIBILITY THAT RESPONSES WILL NOT BE RECEIVED IN TIME TO BE OF USE TO THE REQUESTING AUTHORITY;

• Originals must be provided with a translation or, if the originals cannot be provided, a translation certified as a true copy of the original;

• The identity, date of birth and location of any person on whom a summons or judgement is to be served; details of that person's connection with the proceedings and details of any particular way in which the summons or judgement should be served;

• Details of any allowances and expenses to which a person asked to appear in proceedings abroad is entitled;

• The address of the court where the proceedings are to take place; • The name and telephone number of an official of the court from whom the person asked to appear can

seek further information if necessary; and • Specific instructions as to whether the documents must be served by hand. If no such instruction is

provided the documents will be served by post. The Central Authorities must serve the witness with a notice which contains the following information:

6

o the summons imposes no obligation under UK law to comply with the process even though it is being served upon them;

o that they may wish to seek legal advice as to the consequences of non compliance with the summons under the law of the country where it was issued or made;

o they may be accorded different rights and privileges than they would receive if same proceedings took place in the UK.

HMRC is not a Central Authority for the purposes of the service of documents. 2. Witness Evidence Requests for witness evidence (testimony) to be taken by the Police

• This is the simplest and quickest method of obtaining testimony and unless the request specifically requires that evidence be given on oath (or we are dealing with a witness who refuses to give a statement voluntarily) this is the method by which requests for testimony will normally be executed.

• A list of questions to be asked should be provided if possible. • Details of the prerequisites of your procedure to be followed in taking the evidence, including any rules

on privilege which a witness or suspect may be entitled to claim. This will be complied with as far as is possible under UK law.

• Any caution or formal notification of rights which should be given to the witness under the law of the requesting State. The giving of such caution or formal notification will be complied with as far as is possible under UK law.

• Police officers are not normally authorised to administer oaths in the UK. If the evidence is required on oath a court would need to be nominated (see below).

• NOTE THAT POLICE INTERVIEWS REQUIRE THE CONSENT OF THE WITNESS OR SUSPECT. IF A WITNESS REFUSES THEN IT MAY BE POSSIBLE TO SUMMONS THEM TO A COURT TO GIVE EVIDENCE. THE POSSIBILITY OF NOMINATING A COURT IN SUCH CIRCUMSTANCES IS NOT POSSIBLE IN RESPECT OF SUSPECTS IN ENGLAND AND WALES OR NORTHERN IRELAND (see below).

Requests for witness evidence (testimony) to be taken before a court

• Where evidence is required to be taken on oath before a court in the UK this should be expressly stated in the request. Expressions such as "to hear" or "to examine" witnesses or suspects should be avoided as they have no precise meaning in UK law and will result in delay in the execution of the request whilst clarification is sought as to whether a court needs to be nominated or not. This form of obtaining testimony may also be used where witnesses refuse to give statements voluntarily due to, for example, there being a duty of confidentiality between the suspect and the witness which can only be breached by means of a court order.

• A list of questions to be asked should be provided, if possible. • Details of the requirements of your procedure to be followed in taking the evidence, including any rules

on privilege which a witness or suspect may be entitled to claim. This will be complied with as far as is possible under UK law. A person cannot be compelled to give any evidence which he could not be compelled to give in the UK or in the requesting state (where such privilege is conceded by the requesting state or court).

• Any caution or formal notification of rights which should be given to the witness or suspect under the law of the requesting State. This will be complied with as far as is possible under UK law.

• IN ENGLAND, WALES AND NORTHERN IRELAND SUSPECTS CANNOT BE COMPELLED TO ATTEND COURT

OR COERCED TO GIVE EVIDENCE UNDER OATH FOR THE PURPOSES OF MLA REQUESTS.

• IN SCOTLAND, BOTH SUSPECTS AND WITNESSES CAN BE COMPELLED TO ATTEND COURT; SUSPECTS CANNOT HOWEVER BE COMPELLED TO GIVE EVIDENCE.

3. Third party material held in confidence – Banking and Telecommunications Data

Telecommunications data (excluding interception of telecommunications)

7

The UK National Central Bureau of Interpol receives (via the UKCA and SOCA) a large number of requests for telephone subscriber information and itemised billing data. They aim to provide the information required as quickly as possible. However, there are three specific issues which may prevent them from providing the response sought. These are the legislative framework in the UK, the authorisation process which must be followed and cost. The following information may help when preparing requests for telecommunications data to the UK. LEGISLATION In order to comply with UK legislation-

• the reason why the data is required must be specified. Examples include it being in the interests of public safety, for the prevention and detection of crime or for the purpose of preventing death or injury. (This is not an exhaustive list.);

• information must be provided as to the nature of the investigation. Specific information must be provided- • as to how accessing the data will progress the investigation; • the exact date, time and place of the incident under investigation; • full details of individuals involved in the incident and the roles they played; • information concerning the source of the telephone numbers regarding which data is

requested must be provided; • Information must also be provided as to-

• why it is necessary to obtain the data and what is sought to be achieved from so obtaining it;

• why the objectives of the investigation cannot be achieved by other means; • Information must also be available to allow for consideration of the possibility of intrusion into

the privacy of third parties and allow for the detailing of plans to minimise this. AUTHORISATION PROCESS. The UK National Central Bureau of Interpol must complete a 5 page application form for each request. It can only do this if it is provided with the above information. Many cases are delayed due to their being insufficient information provided to allow for compliance with the UK’s legislation. In cases where the executing authority would be unable to comply with UK law the request may be declined. Once completed, the form must, by law, be signed and approved by two senior officers. This authorisation process can take time. COST All telecommunications data in the UK is owned by private companies. The UK National Central Bureau of Interpol may purchase this data on the behalf of requesting authorities. Prices vary from company to company. Itemised billing can be very expensive especially if it is for a long period or it is historic. The UK National Central Bureau of Interpol may in certain circumstances ask requesting authorities to limit the period for which itemised billing is requested or to justify the extended period. If the request is for telephone number subscribers for a non evidential purpose, requesting authorities are encouraged to make use of the website www.192.com . (This provides subscriber data for some UK telephone numbers.) Other material held by third parties

• The request should indicate the type of material you are seeking with sufficient clarity to enable identification of the person or entity that holds the information.

• An explanation of how this information relates to the offence described. • The time period required.

Account information held by financial institutions As there is no central record of bank accounts held in the UK, as much identifying information as possible should be given to identify the financial institution believed to be in possession of information.

8

Such a request must provide the following:

• Name of the account holder and number of the account; • The address and/or number ("sort code") of the branch of the bank where the account is held, and; • The time period over which the information is sought. (An explanation must be given for any period

that falls outside the time framework for the investigation.) Requesting authorities should be aware that the retention policies of banks vary around the 5 year mark. Evidence relating to financial institutions will usually be obtained by means of testimony given before a nominated court by a member of that institution’s staff (who will produce any relevant documents as exhibits to his or her statement) and not by means of a search warrant even if the request itself purports to be accompanied by a search warrant issued by an authority in the requesting state.

THE FOLLOWING TW0 SECTIONS APPLY ONLY TO STATES WHO WERE MEMBERS OF THE EU ON THE 1ST NOVEMBER 2006 AND PARTIES TO THE PROTOCOL TO THE EU CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS, OR OTHER STATES THAT HAVE BEEN EXPLICITLY DESIGNATED BY THE UK PARLIAMENT AND WHO CAN PROVIDE RECIPROCAL ASSISTANCE. (THE CENTRAL AUTHORITIES CAN PROVIDE INFORMATION AS TO WHICH COUNTRIES HAVE BEEN SO DESIGNATED.) Requests for information on bank accounts The request must provide the following information:

Why the requesting authority considers that the requested information is likely to be of substantial

value for the purpose of the investigation What grounds they believe that banks in the UK holds account(s) and to the extent available, which

banks may be involved Any information that will facilitate the execution of the request

Requests for information on bank accounts are subject to dual criminality. Requests for the monitoring of banking transactions The request must provide the following information:

Why it considers the information relevant for the purpose of the investigation For further information on the above two sections please refer to Chapter 4 of the Crime (International Co-operation) Act 2003. 4. Search & Seizure Searches of premises in the UK for the purposes of executing requests for mutual legal assistance are governed by the Crime (International Co-operation) Act 2003. In order to provide assistance in this way central and executing authorities must be in a position to convince a court to issue a search warrant (central and executing authorities do not have the authority to issue warrants themselves). It is not sufficient that a request is accompanied by a search warrant issued by an authority in the requesting state. The UK reserves the right to execute requests which specifically request search warrants be issued in other ways such as via the nomination of a court to take testimony. Requests for search and seizure of evidence must include (further to the general requirements set out above):

• The full address or a precise description of any place to be searched. • Details of how the place to be searched is connected with the suspected or accused person. • Any information available which indicates that the material requested may be held on computer. • Full details of the specific material or type of material to be seized (it will not usually be sufficient to

simply state “evidence relevant to the investigation”).

9

• A full description of the criminal conduct concerned. (Requests for search and seizure are subject to a need for dual criminality; i.e. they cannot be executed unless the underlying criminal conduct would be an offence under UK law if it had occurred in the UK.)

• An explanation why the material requested is considered both relevant and important evidence to the investigation or proceedings.

• Why the evidence is thought to be on the particular premises or in the possession of the particular person concerned.

• Why the material would not be produced to a UK court if the natural or legal person holding the material were ordered to do so by means of a witnesses summons. (This is to help ensure that applications to the UK courts for search warrants are successful and less likely to fail or be subject to subsequent legal challenge.)

• Appropriate undertakings for the safekeeping and return of any seized evidence. • Any other information which would be of operational use to the executing authority in connection with

the execution of the request. Please see ANNEX E for a pro-forma template that may assist overseas authorities in ensuring that they include all the relevant information needed to obtain search warrants under the law of England, Wales and Northern Ireland. The Crown Office in Scotland will give further assistance regarding obtaining search warrants in its jurisdiction. Please note there are subtle differences between the laws of England and Wales and Northern Ireland with regards to the directing of executing authorites to apply for search warrants under the Crime (International Co-operation) Act 2003 (e.g. with respect to the dual criminality test the equivalent crime in England or Wales must be an indictable offence whereas in Northern Ireland under section 16 of that Act there is a requirement that it is a “serious arrestable offence”.) 5. Restraint (Freezing) and Confiscation of Assets PLEASE NOTE THAT UNDER PART 11 OF THE PROCEEDS OF CRIME ACT 2002 THE UK MAY NOW PROVIDE RESTRAINT ASSISTANCE AT THE INVESTIGATIVE STAGE OF CRIMINAL PROCEEDINGS. (HOWEVER THE EU LEGISLATION ON THE MUTUAL RECOGNITION OF OVERSEAS FREEZING ORDERS IS NOT YET IN FORCE IN THE UK.) Requests for the restraint (freezing) of property should include:

• The name, address, nationality, date and place of birth and present location of the suspect(s)2 whose criminal conduct has given rise to anticipated confiscation or forfeiture proceedings.

• Details of the criminal investigation. • Details of the law applicable to the investigation and current evidence against the suspects. • Particulars of the property which it is intended to restrain in the United Kingdom, the persons holding it

and details of the link between the suspect and the property (this is important if the property to be restrained is held in the name of a third party such as a company or another person).

• State clearly whether prior assistance in the case (including asset tracing assistance) has been provided and, if so, give particulars of the UK enforcement or other authority involved and details of the assistance already received.

• Where applicable, details of any court orders already made in the requesting State against the suspect in respect of his or her property. If any court order has been made, a duly authenticated copy should be included with the request - that is a true copy of that order certified by a person in his or her capacity as a judge, magistrate or officer of the relevant court of the requesting State, or by an official of the Central Authority in the requesting State.

• Brief details of all known property held by the suspect outside the United Kingdom. • A certificate or statement issued by or on behalf of the requesting State's Central Authority, stating:

• that an investigation has been instituted in that country and has not concluded, or that proceedings have been instituted in the requesting State;

• that the order which it is expected the court of the requesting State will make will have the purpose of recovering property or has the purpose of ordering the forfeiture of instrumentalities of crime.

2 Suspects includes defendants for the purposes of this section

10

• that any future order that is made can be enforced outside the jurisdiction of the requesting state;

• an undertaking to serve a copy of the order once it has been made upon the suspect. Requests for confiscation or forfeiture of property in the UK should include:

• The information as outlined above for restraint applications. • An original confiscation or forfeiture order or a duly authenticated copy of the order. • A certificate or statement issued by or on behalf of the requesting State's Central Authority stating:

• that the order is in force and that neither the order nor any conviction to which it may relate is subject to appeal;

• that all or a certain amount of the sum payable under the order remains unpaid in the territory of the requesting State or that other property recoverable under the order remains un-recovered there;

• that the confiscation order has the purpose of recovering property, or the value of property received in connection with the commission of crime, or in the case of a forfeiture order has the purpose of ordering the forfeiture of instrumentalities of crime;

• where the person against whom the order was made did not appear in the proceedings, that he or she was notified of the proceedings in accordance with the requesting State's law in time to defend them;

• that the order made can be enforced outside the jurisdiction of the requesting state. The Crown Prosecution Service (who execute the majority of these requests) have informed the UKCA that for operational purposes they would prefer if such requests are self-contained and do not include requests for the taking of testimony etc. As such, if possible, we would ask that should a requesting state require restraint etc and another form of assistance that two separate requests are made to the UK. 6. Civil Recovery (Non-conviction based asset confiscation) THESE REQUESTS MUST BE SENT TO THE SECRETARY OF STATE FOR THE HOME OFFICE FOR MATTERS RELATING TO ENGLAND AND WALES OR NORTHERN IRELAND OR TO THE CIVIL RECOVERY UNIT IN THE CROWN OFFICE, SCOTLAND FOR MATTERS RELATING TO SCOTLAND. CONTACT DETAILS ARE LISTED IN ANNEX A. Civil Recovery (Non-conviction based asset forfeiture)

There is in the UK a system of civil recovery, which enables the recovery in the civil courts of assets obtained as a result of crime where there is no prosecution/conviction. There may be circumstances in which this system can be used to assist you, even if you do not have such a system in your own country. However, the UK reserves the right to refuse requests on the basis of reciprocity. There are no mandatory relevant bilateral or international agreements and so the UK retains full discretion on whether to accede to requests for assistance. These are guidelines only and further guidance can be obtained from the Home Office on +44 (0)20 7035 1559 FCT@homeoffice.gsi.gov.uk or where assets are situated in Scotland, the Civil Recovery Unit on +44 (0) 8456 066212 cocru@copfs.gsi.gov.uk

The UK will assist in requests for enforcing a non-criminal recovery order. In such cases however, the UK will not be able to assist in requests to freeze property.

The request should come through a Central Authority and originate from a court or tribunal, judicial, investigative or prosecuting authority.

The request must include:

o an original recovery order or a duly authenticated copy of the order - that is a true copy of that order certified by a person in his or her capacity as a judge, magistrate or officer of the relevant court of the requesting State, or by an official in the requesting State (with evidence that they are duly authorised to do so under their law).

A certificate or statement stating:

o that the order is in force and there is no appeal;

11

o that a certain amount of the order or property under the order remains unrecovered or not forfeited; o that the recovery order has the purpose of recovering the proceeds of crime and details of that crime.

A statement should accompany the request stating;

o that criminal proceedings with subsequent confiscation/forfeiture have been pursued or considered. Why those confiscation/forfeiture proceedings failed or were not appropriate;

o brief details as to the belief that the property or amount is or represents the proceeds of crime; o the name, address, nationality, date and place of birth and present location of any respondent in the

case if known and applicable; o details of property in the UK and the persons holding it. If unable to identify who holds the property,

brief details of the steps to establish the identity of the owner; o identification as to whether the property is the actual proceeds of crime or associated to the proceeds of

crime. Associated property may include, for example, a jointly owned house where only one owner has invested the proceeds of crime;

o that property named in the request are not subject to criminal proceedings or appeal; o any prior assistance in the case (including asset tracing) that has been provided by the UK and, if so,

give details of that assistance; o where applicable, details of any other court orders made against the property and any respondent. A

duly authenticated copy of these orders should be included with the request. 7. Transfer of prisoners Where the request is for the temporary transfer of a UK prisoner to give evidence or otherwise assist in criminal investigations or proceedings outside the UK, it should include:

• Dates on which the presence abroad of the prisoner is required, including the dates on which the court or other proceedings for which the prisoner is required will commence and are likely to be concluded;

• Information for the purpose of obtaining the prisoner's consent to the transfer and satisfying the UK authorities that arrangements will be made to keep the prisoner in secure custody such as:

• whether the prisoner will have immunity from prosecution for previous offences; • details of proposed arrangements for collecting the prisoner from and returning the prisoner to

the United Kingdom; • details of the type of secure accommodation in which the prisoner will be held in the requesting

State; • details of the type of escort available abroad to and from the secure accommodation.

Where the request is for an overseas prisoner to be transferred to the UK to assist with the requesting state’s investigation.

• Arrangements for bringing the prisoner from and returning the prisoner to the requesting jurisdiction; • Dates on which the presence of the prisoner is required in the UK; • A written copy of the prisoner's consent to the transfer.

The Central Authorities do not deal with requests for the transfer of prisoners for other purposes other than those listed above (i.e. their transfer for the purpose of serving a sentence abroad). The correct address for these type of requests is-

Foreign National and Cross Border Transfers Safer Custody and Offender Policy Group

HM Prison Service 1st Floor Fry

2 Marsham Street London

SW1P 4DP Tel: 0207 035 1541 Fax: 0870 336 9187

8. Video & Telephone3 Conferencing 3 The UK will not assist with requests to hear evidence from suspects via video conferencing.

Where the request is for evidence to be given via television link (video conference)

• Sufficient information to enable the Central Authorities to identify and contact the witness(es). • A list of questions to be asked if possible. • Details of the requirements of your procedure to be followed in taking the evidence, including any rules

on privilege which a witness may be entitled to claim. • Any caution or formal notification of rights which should be given to the witness4 under the law of the

requesting State. • Details (if known at the time) of the technical requirements for establishing the link to ensure

compatibility. • Contact details of the person in your jurisdiction who will provide technical assistance.

The UK will usually require the requesting state to reimburse all or part of the costs associated with such requests. Where the request is for evidence to be given via telephone link (telephone conference)

• Confirmation must be given that the witness has expressly agreed to give evidence via telephone link. • It must specify the name and address of the witness to be questioned. • A list of questions to be asked should be provided, if possible. • Details of the procedure to be followed in taking the evidence, including any rules on privilege which a

witness may be entitled to claim. • Any caution or formal notification of rights which should be given to the witness or suspect under the

law of the requesting State. FOR BOTH TYPES OF REQUEST THE CENTRAL AUTHORITIES WILL REQUIRE AT LEAST EIGHT (8) WEEKS NOTICE BEFORE THE HEARING DATE TO ENSURE THAT ALL THE RELEVANT ARRANGEMENTS CAN BE MADE IN TIME. The SFO is unable to designate a requesting authority to ask questions under certain of its powers if the questions are to be put via telephone or video conferencing. (More information on this is available from the SFO directly.) 9. Interception of Telecommunications PLEASE NOTE THAT THIS TYPE OF ASSISTANCE IS ONLY CURRENTLY GRANTED TO PARTIES OF THE CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS BETWEEN MEMBER STATES OF THE EUROPEAN UNION OF 29 MAY 2000. FURTHER GUIDANCE WILL BE GIVEN IF SUCH ASSISTANCE IS EXTENDED TO OTHER STATES. The requirements for this type of assistance are clearly set out in Article 18.3 of the Convention on Mutual Assistance in Criminal Matters between Member States of the European Union of 29 May 2000 and are not repeated here. Requests under article 18 for interception in Scotland are transmitted to the Crown office. The request will be considered and if approved will be passed to the appropriate authority for execution. The Lord Advocate may exercise his discretion to return the intercept material with the condition it is not used in evidence If the assistance requested is no longer required, the Central Authorities or the UK National Central Bureau of Interpol should be informed immediately so that enquiries are not made unnecessarily. (Back to Contents)

124 See 3 above.

13

Chapter 3: Execution of requests in the UK What is the role of the Central Authorities? The Central Authorities’ responsibilities include:

• Ensuring that requests for legal assistance conform with the requirements of law in the relevant part of the UK and the UK's international obligations.

• Ensuring that execution of particular requests is not inappropriate on public policy grounds (for example, requests involving double jeopardy will not be executed; there are also issues surrounding requests where the death penalty is an issue or the request is in relation to a trivial offence).

• Deciding how requests might most appropriately be executed (for example, some requests asking for search and seizure of evidence may be executed effectively by a witness producing the evidence to a court).

• Maintaining confidentiality of requests where necessary and to such an extent as is permissible by UK law.

• Ensuring, so far as possible, that assistance is provided within an appropriate time scale (for example, taking account of trial dates).

• Drawing to the attention of the courts, the police and other UK authorities or agencies requests for evidence to be obtained in the presence of foreign law enforcement officers, prosecutors or defence lawyers.

• Seeking requesting authorities' agreement to meet extra-ordinary costs of executing requests and for services such as interpreters or stenographers or for duplication of documents. (Ordinarily, the UK authorities, in accordance with established international practice, will meet costs with the exception of costs related to TV/Video link evidence and costs relating to the temporary transfer of prisoners into or out of the UK). Note: Such agreement to meet extra-ordinary costs should be sought before they are incurred.

• Transmitting evidence received to the requesting authorities when it is not returned directly (and checking whether any part of the request remains outstanding).

How are requests executed? The information below explains the ways in which requests are executed in England and Wales. Where this differs from the practice in either Scotland or Northern Ireland, this is clearly indicated. Unless otherwise specified for the purposes of this Chapter, the reference to the UKCA equally refers to the Crown Office and HM Revenue & Customs (HMRC). How are requests for service of procedural documents executed? Summonses and judgements received by the UKCA from competent authorities abroad are normally served on the persons to whom they are addressed by recorded delivery post. Where personal service is specifically requested, the UKCA may arrange for the document to be served by the police. Under law in the UK, any person to whom a summons or judgement is addressed must be given a notice explaining, as appropriate, that:

• the document does not impose any obligation under law in the UK to comply with it; • the person might wish to seek legal advice on the possible consequences under the law of the

requesting country of failure to comply, and • the person may not, as a party or witness, be accorded the same rights and privileges in the requesting

country as they would in criminal proceedings in the UK.

The person on whom a summons or judgement is served is asked to sign a receipt and return it to the UKCA to send to the requesting authority. The UKCA will advise the requesting authority whether the document has been delivered and a receipt has not been received or whether it was not possible to serve the document. REQUESTING AUTHORITIES MUST GIVE THE CENTRAL AUTHORITIES AT LEAST SIX WEEKS TO SERVE ANY PROCESS WHERE THERE ARE COURT HEARINGS INVOLVED. OTHERWISE THERE IS A POSSIBILTY THAT RESPONSES WILL NOT BE RECEIVED IN TIME TO BE OF USE TO THE REQUESTING AUTHORITY.

14

NOTE: UK LEGISLATION ALLOWS FOR PROCEDURAL DOCUMENTS TO BE SENT DIRECTLY BY THE REQUESTING STATE TO THE PERSONS IN THE UK TO WHOM THEY ARE ADDRESSED. THE UKCA ENCOURAGES DIRECT TRANSMISSION OF PROCEDURAL DOCUMENTS TO UK CITIZENS BY POST, UNLESS THIS IS NOT LEGALLY POSSIBLE UNDER THE DOMESTIC LAW OF THE REQUESTING STATE OR UNDER THE TERMS OF A RELEVANT TREATY OR CONVENTION. This type of assistance is not dealt with by HMRC. How are requests for witness evidence on oath executed? Where a request is made for evidence to be received by a court or execution of the request requires judicial authority under the law of the relevant part of the UK, the Central Authority may nominate a court to receive such of the evidence as may appear to the court to be appropriate. The court has powers to secure the attendance of the witnesses named in the request (or a supplementary request). This is the method used most frequently in England and Wales for obtaining banking evidence, telecommunications data and other third party material (see below for further information). The court has no power (other than in Scotland) to secure the attendance of suspects for the purposes of mutual legal assistance requests. Witnesses (and suspects in Scotland) may claim privilege against self-incrimination and may refuse to answer questions or produce documents. In particular, a person cannot be compelled to give evidence before the nominated court if he or she could not be compelled to give the evidence in criminal proceedings in the UK or in criminal proceedings in the requesting country. Where a witness (or suspect in Scotland) claims privilege under the law of the requesting country, evidence will not be taken if the requesting authority concedes the claim. Where the claim is not conceded, the evidence may be taken but will not be sent to the requesting authority until a court in the requesting State rules on the matter. With the agreement of the court, attorneys, law enforcement officers and other interested parties from abroad named in the request (or a supplementary request) may be present at the proceedings. Such agreement is almost always given but cannot be guaranteed. It will be for the court to decide what role, if any, such persons may play in the taking of the testimony. Under UK law, the evidence received by the court may be transmitted directly to the requesting authority without using the Central Authorities. It is also possible for the court to pass it to the Central Authorities for transmission to the requesting authority. Finally, it is also possible for the evidence to be given directly to the representative of the requesting authority if they are present at the hearing. Voluntary witness evidence If the evidence required does not need to be taken on oath, the request may be sent to the UK National Central Bureau of Interpol which may then arrange for the evidence to be obtained directly by the Police. The evidence would normally be returned to the requesting authority through Interpol channels or handed to visiting officers. Such requests can be sent to the UKCA for execution if this is a requirement of the domestic law of the requesting state or under a particular Treaty or convention. How are requests for authenticated documentary evidence, including certified banking evidence, executed? In England and Wales and in Northern Ireland, the UKCA may nominate a court to receive such of the documentary evidence as may appear to the court to be appropriate. Normally, the custodian of the documents is required by the court to make a statement on oath. This may, for example, indicate whether the documents were created in the ordinary course of business or came into the custodian's possession from a third party and whether the documents are originals or genuine copies of the originals. Such a statement is for "chain of evidence" purposes. If banking evidence is required, an official of the bank concerned normally provides the statement. The bank is under no obligation to inform the account holder that it has been ordered to disclose the information. In most cases, the nominated court will obtain the banking information without itself informing the account holder. This might not be appropriate if the account holder is a third party not complicit in the offence or if the account is administered by, for example, a firm of solicitors (professional legal advisers) or accountants. The decision whether to notify the account holder of the proceedings is entirely a matter for the court.

15

In Scotland, the normal procedure is for the Central Authority to obtain a search warrant which will be served on the holder of the documentary evidence (such as a bank) and police officers will take possession of the documentary evidence as soon as practicable. They will also take statements from the appropriate witnesses. If evidence on oath is required by the requesting State, or there is no dual criminality, the procedure described above for England and Wales will be adopted. Before an account holder is notified, the Central Authority will consult with the requesting authority to ensure that execution of the request would not breach the requesting authority confidentiality requirements. For requests made under the 2001 Protocol to the MLAC 2000 or from designated states, the Central Authority must satisfy themselves of the following matters before the request will be executed (this is in addition to our normal criteria as set out in sections 13 and 14 of the Crime (International Co-operation) Act 2003: Requests for information on bank accounts –

the person specified in the application is subject to an investigation in the country in question the investigation concerns conduct which is serious criminal conduct - this is outlined in the 2001

Protocol. Other conduct can be added by secondary legislation the conduct constitutes an offence in the UK, or would do were it to occur there the order is sought for the purposes of the investigation

Once satisfied, the Central Authority will issue a direction for a senior police or customs officer to make the application for a customer information order before a court. The judge will consider the matter and decide whether it is appropriate to grant the order. The judge can make the order against:

all financial institutions a particular description, or particular descriptions, of financial institutions a particular financial institution or particular financial institutions

The type of order will be determined by the nature of the request made. It is clear that for orders against all financial institutions to be sought, there should be sufficient information in the request justifying such action. Requests for the monitoring of bank accounts

there is an investigation in the country in question into criminal conduct the order is sought for the purposes of the investigation

Once satisfied, the Central Authority will issue a direction for a senior police or customs officer to make the application for an account monitoring order before a court. The judge will consider the matter and decide whether it is appropriate to grant the order. The judge can make the order against:

all accounts held by the person specified in the application for the order at the financial institution so specified,

a particular description, or particular descriptions, of accounts so held a particular account, or particular accounts, so held

The monitoring period will not exceed 90 days from the date of the order. SECTION 42 OF THE CRIME (INTERNATIONAL CO-OPERATION) ACT 2003 CREATES OFFENCES FOR THE DISCLOSURE OF THE FACT THAT A REQUEST FOR CUSTOMER INFORMATION OR ACCOUNT MONITORING ORDER HAS BEEN RECIEIVED, APPLIED FOR OR MADE IN PURSUANCE OF A MUTUAL LEGAL ASSISTANCE. How can requests for evidence in serious or complex fraud cases be executed? In England, Wales and Northern Ireland, the Central Authority can refer requests for assistance in serious or complex fraud cases, or any part of such a request, to the Director of the Serious Fraud Office (SFO) to obtain such of the evidence as may appear to the Director to be appropriate. Under English law, the Director must be satisfied on reasonable grounds that the criminal conduct in the requesting country involves "serious or complex fraud". Frauds involving sums less than £1 million would not normally be regarded as "serious".

16

Where necessary, the UKCA will seek written assurance from the requesting authority that any statement which might be made by a person in response to a requirement imposed by virtue of the Director's investigation powers will not be used in evidence against that person in a prosecution, unless evidence relating to it is adduced, or a question relating to it is asked in the proceedings, by or on behalf of that person. This assurance is required because witnesses do not in general have a right to refuse to answer questions where use is made of the Director’s investigation powers. The assurance is therefore an important safeguard for the witness in the event of self-incrimination. The statement may, of course, be used against the accused person(s) named in the request if that is considered appropriate in the requesting country. The SFO are unable to assist without such an assurance being in place. A failure to provide such an assurance in appropriate cases will therefore inevitably cause delays in the provision of assistance. Under English law, the evidence obtained by the SFO may either be sent directly to the requesting authority or to the Central Authority for transmission to the requesting authority. In Scotland, the Lord Advocate will decide whether the case is one of serious or complex fraud and whether the Scottish equivalent of the Director’s investigation powers should be exercised. Otherwise the procedures are very similar. Further information on what constitutes "serious or complex fraud" and what should be included in a request for legal assistance to England and Wales or Northern Ireland in cases involving serious or complex fraud may be obtained from the SFO. HMRC cannot refer requests to the SFO. How are requests for search and seizure (search warrants and production orders) executed? England and Wales The UKCA may direct a police officer to apply to a court for a search warrant or a production order. (A production order is an order of the court requiring the person(s) on whom the order is served to produce the evidence specified in the order). HM Revenue and Customs have like powers of direction in relation to indirect tax offences (e.g. VAT, excise and customs duties) and in relation to importation and exportation offences (e.g. smuggling of drugs and other items subject to customs prohibitions and restrictions), but not in relation to direct tax matters. (Note: Production orders are rarely used in mutual legal assistance requests for a number of reasons. The main reason is that given that in such circumstances it is likely that a statement on oath would also be required it is considered simpler to nominate a court at the earliest possible stage. It is therefore NOT usual practice for the UKCA to direct an executing authority to apply for a production order.) Where further information is required about the offence or the material to be seized, depending on the particular circumstances, the UKCA will inform the requesting authorities without delay. Where an application is made for a production order interested parties must by law be notified (by the UK authorities) and be given an opportunity to be represented in the court that is hearing the application. In such cases, the UKCA consults the requesting authorities to ensure that execution of the request would not breach any explicit confidentiality requirement. Notification of interested parties is not required where an application is made for a search warrant. There is no authority under English law to search for and seize, or to compel production of, any items, which are subject to "legal privilege". Legal privilege applies to legal advice communicated between lawyers and their clients, but does not apply to communications intended to further a criminal purpose. Under English law, the Police or HM Revenue & Customs may send the evidence obtained directly to the requesting authorities or to the Central Authority for transmission to the requesting authority. A template to assist in drafting requests for search warrants can be found at Annex E. Scotland The Central Authority in Scotland may direct a procurator fiscal (prosecutor) to obtain a search warrant. There is no other procedure such as that described above in respect of a production order and the process is generally more straightforward. Neither the police nor HMRC can apply for a search warrant in Scotland. Interested parties are not notified of the application for a search warrant. The concept of legal privilege applies equally in Scotland.

17

The Procurator Fiscal will instruct the police or HMRC to transmit the evidence obtained directly to the requesting authorities. How are requests for restraint (freezing) of assets executed (conviction based confiscation)? In the United Kingdom, a court order to freeze (restrain) assets may be obtained on behalf of a foreign jurisdiction once an investigation has begun. It is vital therefore that any request for the restraint of assets in the United Kingdom should provide as much detail as possible to enable the UKCA to be able to assist. Please see page 7 for further information as to the requirements. Once the assets have been identified, the request will be passed to the relevant authority for execution. They will make the appropriate applications before the Court for the assets to be restrained and will inform the requesting authority as soon as this has been done. The requesting state must serve a copy of the restraint order upon the suspect once it receives it from the UK. The UK Courts will require an acknowledgement that this has been completed otherwise the Court may discharge the order. How are requests for the temporary transfer of prisoners executed? UK law allows for the temporary transfer abroad of UK prisoners, who consent to assist with criminal investigations and proceedings. Prisoners cannot be transferred from the UK without their consent. Requests for temporary transfer of prisoners must be sent to the appropriate Central Authority. Before agreeing to the transfer the relevant Central Authority must be satisfied that the presence of the prisoner is not already required in that part of the UK for the purposes of investigations or proceedings and that the transfer would not prolong the prisoner's period of detention. Where the transfer is agreed with the requesting authority, the Central Authority arranges for:

• taking the prisoner in custody to a departure point in the UK and the delivery of the prisoner into the custody of a person representing the requesting authority;

• escorting the prisoner back to the UK by the requesting authority; and • the subsequent transfer of the prisoner in custody from the arrival point in the UK to his or her place of

detention. THE COSTS OF ESCORTING AND ACCOMMODATING PRISONERS FROM THEIR POINT OF DEPARTURE FROM THE UK TO THEIR POINT OF RETURN TO THE UK ARE PAID BY THE REQUESTING AUTHORITY. Where the request is for a prisoner overseas to be transferred to the UK for the purposes of the requesting state’s investigation, then the Central Authority will arrange for:

• taking the prisoner in custody from an arrival point in the UK; • their detention in custody while they remain the UK for the purpose of the investigation; • any other transportation required while they remain in the UK.

THE COSTS ASSOCIATED WITH THIS TYPE OF TEMPORARY TRANSFER ARE PAID BY THE REQUESTING STATE. This type of assistance cannot be authorised by HMRC

How are requests for video and telephone links (conferencing) executed? Once the request has been received and processed in the UKCA, a court will be nominated to receive the evidence. The courts, with the assistance of the UKCA and the requesting authority, will make arrangements to test the telecommunications lines before the hearing date to ensure that technology is in full working order. The evidence for both types of assistance will be taken in accordance with the law of the requesting state. For video conferencing it is possible to ask the court to summons the relevant person to compel their attendance at court. This is not possible for telephone conferencing as the person must give their express consent before this procedure can be adopted. THE COSTS ASSOCIATED WITH VIDEO LINKS ARE PAID BY THE REQUESTING STATE.

18

This type of assistance cannot be authorised by HMRC How are requests for interception of telecommunications executed? THIS TYPE OF ASSISTANCE IN ONLY AVAILABLE TO PARTIES TO THE CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS BETWEEN MEMBER STATES OF THE EUROPEAN UNION OF 29 MAY 2000. The Serious Organised Crime Agency (SOCA) International Crime Department act as the initial contact point for requests for assistance within England & Wales under Title III of that Convention. The SOCA International Crime Department houses the national bureaus of Interpol, Europol and Sirene and act as the United Kingdom electronic letter box and sorting office for ‘incoming’ and ‘outgoing’ Title III requests for assistance. The SOCA Overseas Crime Liaison Officer (OCLO) network provides an initial point of contact, advice and reference regarding how England & Wales deals with Title III requests for assistance. The SOCA OCLO network should be utilised as the initial contact point by all EU Members States Competent Authorities during their deliberations regarding proposed Title III requests for assistance. In all cases, Title III requests for assistance must comply with those provisions (for the purpose of preventing or detecting serous crime) established within Section 5 of the Regulation of Investigatory Powers Act 2000 (RIPA 2000). Article 21 allows that those costs which are incurred by Communication Service Providers (CSPs) in the executing EU Member State shall be borne by the requesting EU Member State(s). The SOCA Technical Collections Department will advise the requesting Competent Authority of the cost associated in complying with the request for assistance, and should that cost be acceptable to the requesting Competent Authority, will ensure an invoice is raised and confirm that payment has been received. (Back to Contents)

19

Chapter 4 - Frequently asked questions Range of available assistance: What is possible? The United Kingdom is able to provide a full range of legal assistance to judicial and prosecuting authorities in other countries and territories for the purposes of criminal investigations and criminal proceedings. The UK can also provide assistance in clemency proceedings and administrative investigations and prosecutions. The legal assistance that can be provided includes:

• service of summonses, judgements and other procedural documents; • obtaining witness statements on oath and authenticated documentary evidence, including banking

evidence; • use of the investigation powers of the Serious Fraud Office in London and the Crown Office in Edinburgh

in cases of serious or complex fraud; • exercise of search and seizure powers; • restraint and confiscation of proceeds of crime; • evidence via video or telephone conferencing; • bank information and account monitoring orders (in relation to certain countries); • temporary transfer of prisoners, with their consent, to assist with criminal investigations and

proceedings.

Which countries can the United Kingdom assist? The UK can assist any country or territory in the world, whether or not that country is able to assist the UK. Are international agreements required? The UK can provide most forms of legal assistance without bilateral or international agreements - but assistance in the restraint and confiscation of proceeds of crime is dependent upon a bilateral agreement or other international agreement. The UK has ratified:

• the 1959 European Convention on Mutual Assistance in Criminal Matters and its Additional Protocol of 1978;

• the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (the Vienna Convention);

• the 1990 European Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime;

• the Convention implementing the Schengen Agreement; • the Convention on Mutual Assistance in Criminal Matters between Member States of the European

Union 2000; • The United Nations Convention against Transnational Organised Crime 2000; • The United Nations Convention against Corruption 2003.

The UK has also adopted the Commonwealth Scheme Relating to Mutual Assistance in Criminal Matters and has concluded a number of bilateral treaties. If a condition is imposed on the provision of mutual legal assistance by an international Treaty, or a particular procedure to be followed is agreed under such a Treaty, the UK would expect that condition or procedure to be adhered to and the existence of that provision will inform the Secretary of State’s discretion. Does the UK require reciprocity? No, but the UK would expect assistance from countries which are parties to relevant bilateral or international agreements with the UK. Is dual criminality required? Not usually. The criminal conduct described in any request need not constitute an offence under UK law, had it occurred in the UK, except in cases involving the exercise of search and seizure powers, restraint and

20

confiscation or requests for banking evidence under the protocol to the EU convention on mutual assistance in criminal matters. We would however ask that Requesting States consider all other avenues by which they may be able to obtain assistance in cases where there is no dual criminality before issuing a letter of request. It may be that there is another route which could be used which would engage the agencies in the UK which deal with such matters domestically. Does the UK assist with requests involving fiscal offences? In general, yes. But if the request is for evidence on oath, for certified documentary evidence or for search and seizure of evidence, then one or more of the following conditions must be satisfied:

• criminal proceedings must have been instituted in the requesting country (meaning that a court has issued a summons or an arrest warrant; the defendant has been charged or indicted; or the facts alleged by the prosecutor have been put to the defendant and will be put before a trial court); and/or

• the request must come from a competent authority in a Commonwealth country or be made under an international agreement, or

• the conduct would constitute an offence of the same or similar nature under UK law had it occurred in the UK.

Which authorities can make requests to the UK? What information should be included in requests? Requests for legal assistance in criminal matters may be made by any competent court or tribunal, judicial or prosecuting authority. Requests may also be made by any other competent authority that the Central Authorities consider has the function of making requests for the purposes of criminal proceedings or criminal investigations. Such authorities may include Attorneys General, investigating judges, examining magistrates, public prosecutors and Ministries or Departments of Justice having responsibilities for criminal matters. Should the request be from an authority which the UK has not previously dealt with the UK may require conformation that that particular authority is competent to make such requests. It would be helpful if the requesting authority is of a type not included in the preceding list (i.e. a police force such as the Royal Canadian Mounted Police which has powers to issue requests of its own accord) if the request sets out the legal basis under which it has the authority to issue requests. Requests can also be made in relation to administrative investigations, proceedings, appeals in relation to administrative proceedings5 and clemency proceedings. The information that should be included in letters of request (commission rogatoires) is given in Chapter 2. Where should requests to the UK be sent? Requests for legal assistance in criminal matters may always be sent to the UKCA, who will transfer the request to the relevant executing authority. However it may be quicker, if it is known that the evidence is located in Scotland, or relates to a matter for which HMRC are competent to execute, to send the request directly to those authorities (unless this is prohibited by the domestic law of the requesting state or under the terms of a relevant Treaty or Convention). If a request covers more than one jurisdiction, there are two options: 1. The request can be sent to one of the Central Authorities, which will then copy and remit the relevant

investigations to the other central authorities. 2. The same request can be sent to each Central Authority involved with a clear reference that the other

central authorities have been contacted directly. What do the Central Authorities do? The functions of the Central Authorities are described in Chapter 3. Is it possible to submit requests to the Central Authorities through diplomatic channels? 5 In some EU States offences such as driving infractions are classified as administrative offences and are dealt with in administrative courts and by way of administrative investigations and proceedings. The UK will assist with such requests where the proceeding may give rise to proceedings before a court with jurisdiction in criminal matters.

21

Yes. Diplomatic channels, such as Embassies or High Commissions in London, may be used where required by the law and practice of the requesting country or by the relevant Treaty or Convention. However direct communication with the Central Authorities is preferred as this can help speed up the execution of requests. At what stage of investigations or proceedings should requests be sent to the Central Authorities? At any stage. In general, requests should be made as soon as the need for legal assistance is known and giving the UK authorities as much time as possible to execute the request. Delay in sending requests to the Central Authorities can result in an increase in the number of urgent cases, and delay the processing of other requests. Will the Central Authorities take account of any requirements or procedures, which are specified in requests? Yes. Testimony may be received or recorded and oaths or cautions administered in any specified form to the extent possible under the law of the part of the UK where the evidence is located. May witnesses in the UK be approached directly without informing the Central Authorities? Yes, subject to the provisions of relevant Treaties, Conventions or other international instruments, contact may be made directly by letter, fax or telephone. If the witness is willing to assist the enquiry voluntarily, an approach may be made through Interpol to record his or her statement or to the Central Authorities if testimony on oath is required. The UK authorities would expect to be made aware in advance if law enforcement officers for the requesting state are due to travel to the UK to take evidence from a voluntary witness in the UK. Should requests be made or confirmed in writing? Yes, requests should always be made in writing, addressed to the relevant Central Authority or to the UK National Central Bureau of Interpol, depending on the nature of the assistance requested. They may be sent in advance by fax or e-mail but an undertaking should be given to send the original request by airmail or courier or other method of rapid delivery within a reasonable time, normally 7 days. How long does it take to execute a request? This will depend on the nature of the request. We will take into account any reasons for urgency such as statutory time limits, pre-trial court appearances or trial dates which are clearly stated in the request. We aim to take initial action within 20 working days at which point receipt of the request will be acknowledged and the requesting authority will be provided with the name of the executing authority and its contact details. We aim to provide a progress report within six months of forwarding the request to an executing authority. Whilst every effort will be made to deal with requests in the manner stated above, requesting authorities should be aware that the following factors may cause delay to the execution of the request-

1. the complexity of the enquiries/assistance requested, 2. the lack of precision in request and the subsequent need to seek further information or clarification

from the requesting state (e.g. due to an apparent lack of nexus between the alleged criminal conduct and the evidence sought),

3. poor quality translations, 4. lack of contact details in the request such as telephone / fax numbers and email addresses, 5. availability of witnesses and court time, 6. failure to give specific undertakings when required to do so by the appropriate central or executing

authority (e.g. the SFO may require an undertaking that no statement made by any person to the Serious Fraud Office in compliance with their coercive powers, will be used against that person in a prosecution, unless evidence relating to it is adduced, or a question relating to it is asked in the proceedings, by or on behalf of that person),

7. the availability of evidence, this is particularly relevant where the evidence requested is in the hands of third parties such as banks and the evidence is “historic”,

8. requests for telephone billing can take considerable time depending on the service provider concerned (subscriber details are easier to obtain) (see section on Telecommunications),

9. availability of officers to execute the request, and 10. the impact of execution of request on an ongoing investigation.

22

May requests be sent to the Central Authorities via Interpol? Yes, but direct communication with the Central Authorities is preferred as this helps speed up execution of requests. If requests for legal assistance intended for the Central Authorities are sent through Interpol channels, they must be marked clearly for the attention of the relevant Central Authority(ies). What requests may be sent to the UK National Central Bureau of Interpol? Examples of requests that may be submitted directly to the UK National Central Bureau of Interpol without involving the Central Authorities include requests for:

• interviewing witnesses or suspects in criminal investigations where the person to be interviewed is willing to co-operate without appearing or needing to appear before a judicial authority in the UK;

• sharing of information and intelligence concerning investigations into offences which have been committed in the UK (provided that the information or intelligence is not being requested for use in proceedings);

• asset tracing enquiries; • providing details of previous convictions; • providing, for investigative purposes, details of UK telephone subscribers; • providing details of keepers of motor vehicles registered in the UK and of driving licences issued in the

UK; • obtaining medical or dental statements or records where the patient has given written consent. • Obtaining information from publicly available sources, such as for example Land Register in relation to

ownership of properties.

Such requests need not be sent to the Central Authorities unless it is a requirement of the judicial authority making the request. Requests for both legal assistance and for investigative assistance may be sent both to the Central Authorities and the UK National Central Bureau of Interpol. They will jointly co-ordinate the execution of the request. Any such requests should be clearly marked to show the request had been submitted to both authorities. May requests for legal assistance be sent direct to courts or prosecuting authorities in the UK? No. The courts in the UK have no investigative function and the prosecuting authorities, (with the exception of HMRC, the SFO and the prosecuting authorities in Scotland) do not, in general, have responsibilities for initiating enquiries on behalf of competent authorities abroad. The Central Authorities handle thousands of requests every year, and they are best placed to ensure that requests for legal assistance are dealt with speedily, efficiently and in accordance with the requirements of the requesting authorities. Requests should be sent to the Central Authorities, HMRC in customs matters or to the UK National Central Bureau of Interpol.

HMRC will directly execute requests in relation to the following offencecs:

• taxation (indirect tax only, requests relating to direct tax matters must be sent via the UKCA. The UKCA may then forward them to HMRC for execution);

• alcohol and tobacco smuggling; • evasion of duties on fuel (excise fraud); and • importation and exportation offences (e.g. drug trafficking; arms trafficking; smuggling of protected

animal and plant species; smuggling of pornography; smuggling of counterfeit goods and other offences relating to customs prohibitions and restrictions and customs duties).

May evidence be taken away by visiting judicial or investigating officers? Yes. CICA 2003 allows for evidence to be transmitted directly to the requesting authority without sending the evidence via the Central Authorities. In cases where representatives of the requesting authority are present in the UK during the execution of the request and it is appropriate to do so, the evidence can be given directly to them.

23

Are requests kept confidential? In line with established international practice, the Central Authorities do not disclose the existence or content of letters of request outside government departments or agencies or the courts or enforcement agencies in the UK. Requests are not disclosed more than is necessary to obtain the co-operation of the witness or other person concerned. In general, requests are not shown or copied to any witness or other person, nor is any witness informed of the identity of any other witness. In the event that confidentiality requirements make execution of a request difficult or impossible, the Central Authorities will consult the requesting authorities. In cases where disclosure of a request or part thereof is required by UK domestic law it will normally be the case that the requesting state will be given the opportunity to withdraw the request before disclosure to third parties is made. WHERE PUBLIC STATEMENTS ARE MADE BY AN OVERSEAS AUTHORITY ABOUT THE ASSISTANCE IT IS REQUESTING FROM THE UK, THE CENTRAL AUTHORITIES SHOULD BE NOTIFIED SO THAT THEY MAY RESPOND APPROPRIATELY TO ANY MEDIA OR PUBLIC ENQUIRIES. Where should requests for the Crown Dependencies and the UK Overseas Territories be sent? The Crown Dependencies, namely the Channel Islands (Guernsey and Jersey) and the Isle of Man, and the UK Overseas Territories6 are not part of the United Kingdom. The Crown Dependencies and the Overseas Territories are themselves wholly responsible for executing requests within their own jurisdictions (although Interpol London is the Interpol office for the Crown Dependencies and certain of the Overseas Territories7). Requests should usually be sent to the Attorney General of the Crown Dependency or Overseas Territory from where the assistance is required. The contact details for these jurisdictions can be found at Annex B. Are requests ever declined? Is there anything the Central Authorities cannot do? Experience so far has shown that requests to the Central Authorities for legal assistance are rarely declined (although it is important to note that the Central Authority does retain a discretion as to whether or not to assist). The UK may delay the execution of requests, which may prejudice ongoing UK investigations, or proceedings. The UK may decline requests that affects national security or other essential interests. No request will be declined without stating the reason or reasons why the request cannot be executed or without consulting the requesting authority and, where appropriate, inviting it to modify the request or provide suitable assurances so that assistance may be provided. The UK will also decline to execute requests where a trial in the requesting country would involve double jeopardy (ne bis in idem). If the subject of a request has been convicted or acquitted in the UK or a third country of an offence arising from the conduct described in the request, the UK will not assist the gathering of evidence for another trial of the same person for the same conduct. There are other situations where the UK may decline to assist on the grounds that such assistance would run contrary to the UK’s public policy. The UK reserves the right to prioritise the execution of requests. In such cases requests would not be treated less favourably than comparable enquiries made in the UK on behalf of its own authorities. In certain circumstances the UK may decide to refuse to execute requests relating to trivial offences. Refusal on the grounds of triviality would only be considered if the request relates an offence which, had it occurred in the UK, would either not be prosecuted or would not be the subject of an outgoing request for mutual legal assistance. How are requests for transfer of proceedings dealt with? The UK has a reservation in place with regards to the application of Article 21 of the 1959 Convention on Mutual Assistance in Criminal Matters. This means that such requests received in the UK are dealt with on a case by case basis in consultation with prosecuting authorities. Outgoing requests are sent via the UKCA to the appropriate foreign authorities. Such requests will normally be at the behest of UK prosecuting or investigative authorities. This is mainly due to the fact that the cases in which the UK has extraterritorial jurisdiction over its citizens are limited.

6 Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falklands, Gibraltar, Montserrat, St Helena and the Turks and Caicos Islands. 7 Falklands and St Helena: the other Overseas Territories host Interpol Sub-bureaux.

Part II - Requests from the UK Chapter 1 - Range of assistance and channels of communication This section of the guidelines is designed primarily to provide Courts, non–designated prosecuting authorities, Solicitors and Counsel with information on how to obtain assistance from overseas authorities. Request templates are given at Annexes F & G and are a useful starting point for drafting, although they do not need to be followed. The Central Authorities can provide further information and guidance as required. Range of assistance: What is possible? The UK courts can request all the types of assistance detailed in Part 1 Chapter 2 of these guidelines, with exception of the interception of telecommunications and telephone links:

• request the service of summonses, judgements and other procedural documents • obtain witness statements8 • obtain banking material, telecommunications data and other third party material • request the exercise of search and seizure powers • request restraint and confiscation of the proceeds of crime • obtain evidence via TV link/video-conferencing, and 9 • temporary transfer of prisoners, with their consent, to assist with criminal investigations and

proceedings Which countries may assist the United Kingdom? This will depend upon whether a particular State needs a treaty base before it may be permitted to provide assistance. The UK has ratified the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters which provides a treaty base with most Council of Europe countries. We have a number of bilateral treaties with states including the USA and Hong Kong (SAR). We are part of the Commonwealth Scheme on mutual legal assistance (the “Harare Scheme” which although not a legally binding agreement is a mutual understanding that the Commonwealth States should be able to provide similar forms of assistance to each other). We are also signatories to a number of UN Conventions, which have MLA articles. The UK’s Central Authorities can provide more assistance on this question if necessary. See Annex H. Do they require reciprocity? Again this will depend upon the Convention, Treaty or Agreement to which the UK and that State are parties or on their domestic law. However a general rule of reciprocity applies. Therefore, UK courts should not normally request any form of assistance that the UK itself could not provide if it received a like request. The UK’s Central Authorities can provide more assistance on this question if necessary. Do they require dual criminality? Again this will depend on the nature of the assistance requested and the legal base of the request e.g. treaty. As a general rule all requests for search and seizure will require dual criminality. Will they assist in fiscal offences?

8 You must bear in mind that for Civil Code States e.g. majority of EU, the concept of a witness statement may be alien to them, as many EU states do not have the same restrictions on hearsay as we do in the UK. Therefore, do not assume that overseas authorities will know how a witness statement should be drafted.

24

9 TV link evidence from abroad can now be requested for the purposes of trials on indictment, appeals to the Criminal Division of the Court of Appeal and hearings of references under section 9 of the Criminal Appeal Act 1995. In Scotland, TV link evidence can be used in all cases which are being prosecuted on indictment.

As above this will depend upon the Convention, Treaty or Agreement to which the UK and that State are parties to or, their domestic law. The UK’s Central Authorities may be able to provide more assistance on this question if necessary. Where should they be sent? Annex H lists those States that will accept direct transmission of requests from UK courts or prosecuting authorities. This means that requests can either be sent directly to the court or authority that is competent to execute the matter. Otherwise the request must be sent to one of the UK’s Central Authorities. Your request should make clear however that incoming requests must be addressed to one of the UK’s Central Authorities, not to a court or prosecuting authority. At what stage should requests be sent? As soon as possible, to avoid requests becoming urgent. May overseas witnesses be contacted directly without first referring the matter to the overseas Central Authority? This should not be undertaken without first consulting either the UK’s Central Authorities or UK representation in that state e.g. Embassies, High Commissions or the UK Liaison Magistrates. It is a criminal offence in some States for citizens to be contacted by foreign authorities before a request has been sent to a Central Authority or other recognised body in that state. May requests be sent via Interpol? Yes in cases of urgency. Are requests kept confidential? This is misleading – requests will in many countries end up on a public court file, and requests should be framed with that in mind. Yes they should be kept confidential. However, you should only request confidentiality if this is strictly necessary as this can sometimes cause difficulties for some states, especially in relation to obtaining banking evidence without notifying the account holder. Requests will in many countries end up on a public court file, and requests should be framed with that in mind. Are requests ever declined? Yes, if the request does not satisfy the requirements of any relevant treaty or the domestic law of the requested state. As with incoming requests, we would expect reasons to be given for the refusal to execute a request. What language should requests be written in? Requests should include a translation into the official language of the State assistance is being requested from (or into another language which that State has previously indicated it will accept requests in). The UKCA will usually refuse to forward requests onto foreign central authorities if they are not accompanied by such a translation. Translation costs are to be met by the requesting authority. (Back to contents)

25

26

Chapter 2– Form and content of requests Which authorities may make requests? (Apart from designated prosecuting authorities) • Courts on behalf of a defendant in criminal proceedings • Courts on behalf of a non-designated prosecuting authority (England, Wales and Northern Ireland only). Should requests be made in writing? Yes. If a requested authority agrees to accept a request via email or fax this should always be followed up in writing within 7 days. What language? This will depend on where the request is being sent as some states have more than one official language, whereas others will accept requests in a language other than their official language. The UK’s Central Authorities can provide assistance on this question if necessary. What information should be included in requests? This guidance cannot provide comprehensive information in relation to all potential measures for all overseas states, however, please see the information in Part I Chapter 2 of this guidance as a starting point. Drafting guidelines The following information relates specifically to the templates given at Annex F & G or in Scotland to the templates contained in the Act of Adjournal (Criminal Procedure Rules) 1996, as amended. Commission Rogatoire or Letter of Request? The two documents are the same but it is important to some jurisdictions to use the correct title. Commission Rogatoires are used for Civil Code jurisdictions and Letters of Request are appropriate for Common law jurisdictions. It is important in relation to Commission Rogatoires that ‘International’ is left in the title as in some jurisdictions Magistrates within the same state send each other Commission Rogatoires for evidence. The Civil Code system is normally based on territorial jurisdiction e.g. a Magistrate in the 1st arrondissement in Paris has no jurisdiction to collect evidence in Lyon and would therefore have to transmit a commission rogatoire to his colleague there to request the collection of relevant evidence. “Brief Statement of the Case” There are some important legal principles here that should be taken into consideration by the draftsperson: Dual Criminality; Certainty; Nexus; Defamation. Dual Criminality The brief statement of the case should highlight enough admissible evidence to justify the alleged offence to a minimum standard of reasonable suspicion. It is not sufficient to simply re-iterate the allegation in the charge or indictment. The summary should be factual and precise. The foreign judicial authority may need to be satisfied that a substantial case has been established and that this offence would constitute an offence in their jurisdiction especially if you are seeking the execution of search warrants. Certainty The statement should illustrate the existence of evidence in the requested country to a reasonable degree of certainty. There must be at least a reasonable probability that the evidence exists. When drafting a request a useful tip is to bear in mind that the foreign authority may need a coercive order. Imagine therefore what information would be necessary to obtain such an Order before a United Kingdom court: for example you would need to prove to the Court exactly why this particular piece of evidence sought is relevant to your case. This would be the absolute minimum that you would need to include in the request to satisfy the foreign authority to execute that part of the request.

Nexus This is establishing a direct link between the facts of the case as detailed in the request and the evidence that is held in the requested state, which you are requesting. This goes further than just stating that the material is relevant to your case as outlined above. In reading the case summary the executing authority should be able to anticipate what assistance you require. Why is the material relevant? How does it advance your case? What supporting evidence do you already possess or what facts are in existence that lend support to the necessity of obtaining the evidence you require? Requests for assistance should be clear, unambiguous and time specific - not open ended. For example, any premises to be searched should be clearly identified together with the object of the search (e.g. for relevant documents). The connection between the premises and the suspect should be clearly stated in the brief statement of the case. A request for telephone records should place limits upon the period of the records sought commensurate with the alleged offence. Defamation No direct allegation or implication of criminality by a third party should be included in the request unless justified by available evidence. Inadvertent wording in a request could give rise to an action for defamation. THAT BEING SAID, CASE SUMMARIES SHOULD BE EXACTLY THAT. A SUMMARY! NOT A RECITAL OF ALL THE EVIDENCE IN THE CASE, ONLY THAT WHICH RELATES TO EVIDENCE BEING SOUGHT AND GIVES A GENERAL BACKGROUND TO THE CASE. THE MORE COMPLEX THE CASE, THE LONGER THE SUMMARY WILL BE AND THE CLEARER IT WILL NEED TO BE. PLEASE BEAR IN MIND THAT IF THE REQUEST HAS TO BE TRANSLATED, THE MORE CONFUSING IT APPEARS IN ENGLISH THE MORE LIKELY IT IS TO REMAIN SO IN THE TRANSLATED LANGUAGE. Annexes of law These must always be included with the request and be translated if necessary. They help the requested authority to determine whether the issue of dual criminality has been satisfied. (Back to contents)

27

Chapter 3: Other information Defence requests to the USA The UK-US Mutual Legal Assistance Treaty cannot be used by UK courts as a legal base to seek the execution of a request in the US on behalf of a defendant. The following information has been kindly provided by the US authorities to assist UK Courts, Solicitors and Counsel involved in seeking evidence from the US: Initially, a defendant seeking assistance from within the United States should ascertain whether a U.S. person or entity in a position to assist will do so voluntarily. A defendant or his counsel may contact the U.S. person or entity (e.g., by letter, telephone) for this purpose. A U.S. person or entity may agree to provide assistance by, for example, travelling here to appear in proceedings, providing an affidavit for use in the proceeding, or appearing before an authorised consular officer to give an oral statement for use in the proceeding. However, a U.S. person or entity is under no obligation to provide voluntary assistance. When a defendant is unable to secure assistance on a voluntary basis, he may formally request assistance pursuant to the U.S. international assistance statute, Title 28, section 1782, of the United States Code, which is available for use in connection with both civil and criminal proceedings in foreign jurisdictions. A defendant may transmit a formal request either indirectly through the U.S. Department of State or directly to a U.S. federal district court or the U.S. government agency or officer responsible for or having control over the information at issue. The request must be addressed to a court if court orders are required to secure assistance (e.g., for testimony from a witness who is unwilling to testify or give a statement voluntarily, for records from a bank or Internet service provider that cannot produce its records without a court order). The request should be addressed to a government agency or officer for the production of government records, statements of government employees, and the like. Whether a defendant transmits a request directly or indirectly, he must identify the particular court, agency, or officer to receive the request and specify the location (mailing address) in the United States. Transmitting a request directly to a court, agency, or officer is quicker than transmitting it indirectly through the Department of State. The most effective means of transmitting a request to a court is to retain private legal counsel licensed to practice before that court and have counsel present the request to the court, A court receiving a request will determine whether to use its authority to execute it. When a court exercises its discretion in favor of execution, it will normally appoint a commissioner to collect the evidence (e.g., take testimony, procure documents). A defendant is strongly advised to obtain private legal counsel licensed to practice before the court not only to present the matter to the court, but also to serve as commissioner for the court if or to the extent that the court orders execution. A British consular officer or other representative at the British Embassy may be able to aid the defendant in identifying the following:

(1) means for obtaining assistance on a voluntary basis; (2) the appropriate court, agency, or officer in the United States to whom a request for assistance should be addressed, and; (3) private legal counsel (whether pro bono or paid legal counsel) to present the request to the court and/or serve as commissioner to the court in executing it.

(Back to Contents)

28

29

Annex A: Contact details for the Central Authorities and other relevant UK authorities United Kingdom Central Authority for mutual legal assistance (including requests for Northern Ireland)

UK Central Authority Judicial Co-operation Unit 5th Floor Fry Building 2 Marsham Street Home Office London SW1P 4DF Tel: +44 207 035 4040 Fax: +44 207 035 6985 / +44 870 336 9016 Pager: +44 7623 523523 ask for no. 657782 (24HR)

Requests for execution in Scotland (including cases of serious fraud, restraint and confiscation of assets, extradition and HMRC requests for execution in Scotland)

International Co-operation Unit Crown Office 25 Chambers Street Edinburgh EH1 1LA Tel: + 44 131 247 3435 Fax: + 44 131 226 6861 Email: icu_@copfs.gsi.gov.uk

Procedural rules regarding requests in Scotland can be found at- http://www.opsi.gov.uk/legislation/scotland/ssi2004/20040195.htm

Requests for investigative assistance UK National Central Bureau of Interpol PO Box 8000 London SE11 5EN

Contact with Interpol London should be made through the National Central Bureau of Interpol in the requesting country.

Tel (24 hours): +44 20 7238 8115 Fax: +44 20 7238 8112 Telex: 918734 Encrypted e-mail: Via X400

Requests in cases of serious or complex fraud – England, Wales and Northern Ireland Preliminary, informal enquiries may be sent to:

Serious Fraud Office Elm House 10-16 Elm Street London WC1X OBJ Tel: + 44 20 7239 7272 Fax: + 44 20 7833 5430

Serious Fraud Office Guidelines: http://www.sfo.gov.uk/international/evidence_uk.asp Advice on criminal law and procedure in England and Wales

Casework Directorate Crown Prosecution Service 50 Ludgate Hill London EC4M 7EX

30

Tel: + 44 20 7273 1382 Fax: + 44 20 7329 8171

Requests for assistance in Revenue and Customs matters (for requests to Scotland see above)

Tax and Frontiers Crime Team H M Revenue and Customs Solicitor's Office Room 2/74 100 Parliament Street London SW1A 2BQ Tel +44 207 147 3834/42 Fax +44 207 147 0433

Advice on making requests for restraint and confiscation of assets

Central Confiscation Branch Crown Prosecution Service 50 Ludgate Hill London EC4M 7EX Tel: + 44 20 7796 8283 Fax: + 44 20 7796 8270 (For Revenue and Customs matters) Asset Forfeiture Unit Solicitor's Office Revenue & Customs Prosecutions Office New King's Beam House 22 Upper Ground London SE1 9PJ Tel: + 44 0870 785 8044 Fax: + 44 870 785 8159

For Scotland please see the addresses given above

Requests for extradition of fugitives

Extradition Section Judicial Co-operation Unit 5th Floor Fry Building 2 Marsham Street Home Office London SW1P 4DF Tel: +44 207 035 1259 Fax: +44 207 035 6986

For Scotland please see the addresses given above

European Arrest Warrant cases are dealt with by: Fugitives’ Unit SOCA PO Box 8000 London SE11 5EN

Tel: +44 207 238 8115 (24 hours) Fax: +44 207 238 8112

Requests for regulatory assistance in financial services and company matters

The Financial Services Authority

(Back to Contents) Annex B: Contact details for authorities in the Channel Islands, the Isle of Man and the British Overseas Territories Requests for execution in the Channel Islands and the Isle of Man Guernsey

HM Attorney General Attorney General's Chambers St James Chambers St Peter Port Guernsey GY1 2PA Tel: + 44 1481 723355 Fax: + 44 1481 725439

Isle of Man

Attorney General's Chambers 3rd Floor , St Mary’s Court Hill Street Douglas ISLE OF MAN IM1 1EU Tel: + 44 1624 685452 Fax: + 44 1624 629162

Jersey

HM Attorney General Attorney General's Chambers Morier House St Helier Jersey JE1 1DD Tel: + 44 1534 502280 Fax: + 44 1534 502299

Requests for execution in the British Overseas Territories - (Details for any authorities not listed are obtainable from the UKCA) Anguilla

The Attorney-General The Attorney-General's Chambers The Secretariat The Valley Anguilla Tel: + 1 264 497 3044 Fax: + 1 264 497 3126

Bermuda

The Attorney-General's Chambers Global House 43 Church Street Hamilton HM12 Bermuda

31

32

Tel: + 1 441 292 2463 Fax: + 1 441 292 3608

British Virgin Islands

The Attorney-General The Attorney-General's Chambers Government of the British Virgin Islands PO Box 242 Road Town Tortola Tel: + 1 284 494 3701 Fax: + 1 284 494 6760

Cayman Islands

The Attorney-General The Attorney-General's Chambers Government Administration Building George Town, Grand Cayman Cayman Islands Tel: + 1 345 949 7900 Fax: + 1 345 949 6079

Gibraltar

Attorney-General Joshua Hassan House Secretary’s Lane Gibraltar Tel: + 350 70723 Fax: + 350 79891 N.B. Requests to and from EU/ Schengen Member States must be sent via: “UKGGLU” UK Government/ Gibraltar Liaison Unit Foreign & Commonwealth Office King Charles St London SW1H 2AH Tel: +44 20 7 008 2502 Fax: +44 207 008 3629

Montserrat

The Attorney-General The Attorney-General's Chambers #3 Farara Plaza Brades Montserrat Tel: + 1 664 491 4686 Fax: + 1 664 491 4687

Turks and Caicos Islands

The Governor Government House Grand Turk Turks and Caicos Islands

33

Tel: + 1 649 946 2308 Fax: + 1 649 946 2903

(Back to Contents)

34

Annex C: Statement of Intent The Central Authorities aim to ensure that requests for legal assistance are executed promptly, taking account of urgency, and that requesting authorities are kept informed of progress. It is envisaged that all requests received by the Central Authorities are acknowledged and that the requesting authorities are given details as to how the request will be executed and by which executing authority. In the relatively few instances where a request cannot be executed in whole or in part, the Central Authorities will provide an explanation for the no-execution and will consult with the requesting authority about whether the assistance can be provided in a different way. Where possible, the Central Authorities will give requesting authorities the contact details of the Police officer, Customs officer, court official or other person to whom the request, or part of the request, has been referred for the purposes of execution. That person may then be contacted directly by the requesting authorities. The Central Authorities will also endeavour to acknowledge and deal with any enquiries about requests sent to it as quickly as possible. When making enquiries, the reference number for the request should be quoted as this will speed up retrieval of information on the status of the request. The sooner the Central Authorities are told about any difficulties which the requesting authorities may be having with any requests, the sooner it will be able to attempt to assist in resolving the problem. Requests to the Central Authorities for evidence The central authorities will endeavour to:

• acknowledge all requests for evidence upon receipt, giving a reference number for any queries; • respond to all enquiries about the execution of requests for assistance within 10 working days of

receipt; • upon receipt of the request where the request is marked "urgent", or no later than 20 working days after

receipt in other cases, either: provide the requesting authority with the assistance sought; or inform the requesting authority of the action being taken to obtain the assistance and provide, where possible, the name(s) and other contact details of the person(s) with responsibilities for executing the request, or provide the requesting authority with a full explanation why the request cannot be executed in its entirety or in part and where possible indicate how the assistance might otherwise be obtained;

• if the requesting authority notifies the United Kingdom that it is necessary, provide within 20 working days of receipt of the notification a report on the progress of the request and, where possible, indicate by when the request will be executed and update that report on a similar time scale;

• meet all reasonable time scales for the execution of requests, including urgent requests. Requests to the Central Authorities for service of process (summonses and other procedural documents) The Central Authorities will endeavour to:

• arrange for the execution of all requests for service of summonses within 10 working days of receipt; • execute all requests for service of process in the manner requested insofar as that is compatible with

UK law, and where that is not possible provide the requesting authorities with a full explanation; • acknowledge simultaneously the receipt and the execution of requests for service of summonses

(unless it has not received signed proof of service at least 10 working days before the hearing date, in which case the acknowledgement will confirm the arrangements made to execute the request);

• acknowledge simultaneously the receipt and the execution of requests for service of judgements and other procedural documents at the same time (unless it has not received signed proof of service after 30 working days, in which case the acknowledgement will confirm the arrangements made to execute the request);

• when acknowledging requests for service of procedural documents, provide the requesting authorities with the name and other contact details of the officer who has handled the request, including telephone and fax numbers and a reference number for any queries;

(Requesting authorities are reminded that under UK legislation service by post may (if the requesting authorities domestic legislation so allows) be undertaken directly by such authorities bypassing the Central Authorities.)

(Back to Contents)

35

Annex D: Conducting Enquiries in or seeking assistance from the United Kingdom - Competencies of Central Authorities and UK National Central Bureau of Interpol The examples below are intended to indicate which of the above is more appropriate for conducting enquiries in or seeking assistance from the UK. COMPETENCIES OF THE CENTRAL AUTHORITIES INCLUDE: OF INTERPOL INCLUDE: Serving a summons or other judicial document requiring a person to appear before a judicial authority in the requesting country as a witness or defendant in criminal proceedings. Obtaining sworn evidence or other authenticated or certified evidence, including banking documentation, for use in criminal proceedings or investigations. Authenticating or certifying evidence for use in the requesting country where that evidence has already been obtained by the UK police for their own purposes. Exercise of search and seizure powers where evidence is required for use in criminal proceedings or investigations. Temporarily transferring prisoners, with their consent, overseas to appear as witnesses in criminal proceedings or to assist in criminal investigations. Actioning incoming requests for video and telephone conferencing of evidence given by witnesses and suspects. Restraint (freezing) and confiscation of proceeds of crime for both conviction and non-conviction based confiscation regimes. Requests for interception of telecommunications where this is required for evidence – THIS APPLIES ONLY TO PARTIES TO THE CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS BETWEEN MEMBER STATES OF THE EUROPEAN UNION OF 29 MAY 2000

COMPETENCIES OF THE UK NATIONAL CENTRAL BUREAU Interviewing witnesses and suspects in criminal investigations where the person is willing to co-operate without appearing before a judicial authority in the UK and where any statement made would be unsworn. Tracing assets in investigations preliminary to prosecution, particularly where the offence involves money laundering. Sharing information concerning investigations into offences, which have been committed in the UK. Obtaining medical or dental statements or records where the patient has given written consent. Obtaining official records where the holder gives consent. Providing details of previous convictions: - For the purposes of police investigations - For police intelligence purposes only – without fingerprints. Providing telecommunication service provider subscriber details (telephone companies can provide only the family name and initial of the subscriber and the address where the telephone is located). Communication service billing. Seizing and securing in the UK property stolen abroad. Police in the UK cab seize and retain property where the person in possession of it in the UK is suspected of knowing that the property is stolen. Providing passport details (all details held by the UK Passport Service can be provided including any photographs held). Providing medical samples (body orifice swabs and samples of blood, saliva, semen, hair, urine and other tissue fluids can be obtained with the consent of the person from whom the sample is required). Providing details of keepers of motor vehicles registered in UK and driving licences issued in UK. Public Company registration details. Fingerprint and DNA comparisons Tracing fugitives whose extradition is sought (where a Treaty or arrangements are in place).

(Back to contents)

36

Annex E: Search warrant template FORM FOR INCLUSION IN LETTERS OF REQUEST SEEKING THE SEARCH AND SEIZURE OF MATERIAL FROM UK PREMISES WITHOUT THE CONSENT OF THE OCCUPIER (EXCLUDING SCOTLAND) WARNING: BEFORE FILLING IN THIS FORM IT IS IMPORTANT THAT YOU READ THE FOLLOWING INFORMATION. THE FORM MUST BE COMPLETED IN ITS ENTIRETY. YOU MUST NOT CUT AND PASTE SECTIONS. IF A PARTICULAR SECTION IS NOT RELEVANT PLEASE MARK IT AS ‘NOT APPLICABLE’ The Purpose of this Form Scotland has different rules on searches from the rest of the United Kingdom. As a general rule it is more straightforward to obtain a search in Scotland. For guidance please contact the Crown Office. In the UK premises may only be searched with the consent of the occupier or person who controls them or if a search warrant is issued by a court. The circumstances in which a search warrant can be obtained under English law are very narrow. This form cannot, therefore, guarantee success in every request for a search. Instead it is offered as a means by which an overseas prosecutor or judge can provide the information necessary to obtain a search warrant in England and Wales, in the limited circumstances where this is permitted under English law. Letter of Request This form does not replace a letter of request but is a tool to help you provide the information needed to obtain a search warrant under UK law. You must submit a letter of request in order to request the use of any coercive powers in the UK, including a search. Your letter of request must include all the normal information, including the details of the person under investigation (where known), the facts of the case, information on the offence under investigation. This form is not obligatory, but seeks to assist you to provide the necessary information to succeed in your application where this possible in the circumstances and under English law. The Rules for Overseas Authorities The same strict rules apply to requests for searches from overseas authorities as apply to the authorities in England, Wales and Northern Ireland when they are investigating a domestic offence. English Law on Searches In England, Wales and Northern Ireland most searches by the police are carried out with the consent of the occupier of the premises to be searched. Where it is believed that such consent will be withheld the police have to obtain a warrant from a court enabling them to carry out the search. Under English law such a warrant can only be issued if very strict conditions are met. This is because under English law the carrying out of a search without the consent of the occupier of the premises is considered to be a very serious intrusion upon his or her liberty. Consequently searches of premises without the consent of the occupier are extremely rare and are only allowed where there is a realistic prospect of obtaining evidence relevant to the offence under investigation. The different rules applicable This form is divided into four sections. The first three ask for information to support an application for a search warrant. Section 1 must be completed in every case. In it you must give details for example of the persons to be present during the search, the premises, items to be searched for, their relevance to the investigation and the grounds for believing they are on the premises. Either Section 2 or Section 3 must also be completed. Whether you complete section 2 or 3 depends on the circumstances in which your request is made. This is because there are two different legislative provisions under which a search warrant may be applied for and they apply in different circumstances. Sections 2 and 3 seek the technical information to ensure that the conditions are met.

37

When considering the application for a search warrant the court will consider the information you have provided in sections 1 and 2 or 3. During the investigation of a indictable offence (Section 2) There is a power under UK law for a court to issue a search warrant when a “indictable offence” as defined under UK law is under investigation if the consent of the occupier or person controlling the premises cannot be obtained, is likely to be refused or if informing the person of the intended search would lead to the destruction of the material sought. The information required is set out in Section 2. After arrest or commencement of proceedings (Section 3) The second power to issue a search warrant applies in very particular circumstances:

• where there has been an arrest or proceedings have commenced; and • the offence under investigation is an “indictable offence”; and • where the premises to be searched is under the control of or occupied by the person who has been

arrested or against whom proceedings have been commenced. The information required to establish these conditions is set out in Section 3. Material that cannot be obtained in a search There are a three of categories of material to which different rules apply: • “excluded material” which includes confidential journalistic records, medical records and samples,

counselling records • “legally privileged” which includes material relating to advice provided by a solicitor to his client unless this

material is held with the intention of furthering a criminal purpose • “special procedure material” which includes other confidential business records and non-confidential

journalistic material Legally privileged material cannot be obtained by any means. “Special procedure material” and “excluded material” can be obtained by way of an application to the court for an order obliging the holder of such material to produce it at court. If you think that the material you are seeking falls into this category please contact the liaison magistrate or UK Central Authority who will advise you on the best way forward. Banking Material Banking material held by banks cannot be obtained by means of a search. It is normally obtained by summonsing a representative of the organisation to court who brings the relevant material with him or her. The “special procedure” described above can be used in appropriate circumstances. The Need for Expedition In every case where a search is requested speed is a key factor since once an offender knows that a crime has been detected there is a strong likelihood that his associates will remove all incriminating material from their premises. An English court will not issue a search warrant where there is little likelihood of incriminating articles being found on the premises. Consequently it is essential that your letter of request requesting a search is transmitted to England as quickly as possible before relevant material is likely to have been destroyed or moved. Please make direct contact with the UKCA/HMRC who can organise this. If your letter of request is sent more than a few days (at the very most) after the criminal or his associates are likely to have been aware of the detection of the crime you must justify in your application why you believe incriminating material still exists on the premises.

38

Supporting Information If a search without the consent of the occupier is requested in an international letter of request this can only be executed by the English police if they obtain a search warrant from a court. In order to do this they must make an application to the court using the information you supply to them. Under their Code of Practice the police are obliged to satisfy themselves personally of the information they supply to the court in all search warrant applications whether domestic or international. If they are not satisfied of the information, they cannot present it to the court. The police are also obliged to be able to explain why they are satisfied of the material they present, for example by providing details of its source or the documents or other material it is taken from. Very often the judge who is considering the application will ask questions about the case and how certain information is known. Consequently it is essential that you provide details of the information and evidence that you have to support your answers to this questionnaire. In addition, if you are able to attach copies of relevant documents to your completed form this will make the application more likely to succeed.

39

PLEASE ONLY COMPLETE SECTIONS 1 & 2 OR 1 & 3

(DEPENDING UPON THE STAGE IN WHICH YOU INVESTIGATION OR PROCEEDINGS HAVE REACHED)

SECTION 1 INFORMATION REQUIRED IN EVERY CASE WHERE A SEARCH WARRANT IS REQUESTED

1.1 CONTACT DETAILS

1.1.1

Please provide the name and telephone and fax number of the judge, prosecutor or police officer who can be contacted if further information is required concerning this application.

1.1.2 Please provide the name and telephone and fax number of the person who has issued the letter of request, if this is different from the person named in 1.1 above.

1.2 PERSONS TO BE PRESENT DURING THE SEARCH

1.2.1 Please provide the names of all persons (investigators, judges or prosecutors from your country) you wish to present during the search with the UK officers who will conduct the search. Please explain why these persons should be present at the search (For example if they could assist in the search for documents by identifying or translating) Only persons named in the warrant may be present when the search is conducted. It is therefore essential to provide this information at an early stage. Please note that the court will not automatically name foreign investigators in a warrant to be present during a search but if there is good reason why they should be present please include details

40

1.2 PREMISES

1.2.1 Please provide the precise postal address of the premises in respect of which search is to be applied for. Please include postcode if you have it. NB If the address given is a block of flats, or other multi-occupancy building, a search can be carried out only if the flat number is known. If any outhouses of the address are to be searched or any vehicles or boats (kept on the drive for example) please say so. Please attach to this form a copy of any documents seized in your investigation that show this address and explain their relevance to the investigation.

1.3 ITEMS TO BE SEARCHED FOR

1.3.1 Specify to the extent possible the items to be searched for. It is necessary to state which items are to be searched for, general descriptions such as “invoices relating to the fraudulent transaction” are permissible. If necessary please annex a list of all the types of items that need to be searched for. Please note: only items listed may be searched for and once these items have been found the search must stop even if certain rooms in the premises have not yet been searched.

41

1.3.2 What is the likely relevance of these items to the investigation? Please give a full explanation including, if possible, copies of documents or other evidence already gathered which supports your answer.

1.3.3 What grounds are there for believing that these items are on the premises? Please give a full explanation including, if possible, copies of documents or other evidence already gathered which supports your answer.

1.3.4 Where the application for a search does not immediately follow the commission of the offence or the arrest of the suspect, specify what grounds there are for believing that the items will still be on the premises? Please give a full explanation including, if possible, copies of documents or other evidence already gathered which supports your answer.

42

1.3.5 Do the items to be searched for consist of or include: Legally privileged material -includes communications between a legal advisor and his client. See section 4 for a full definition. Excluded material -includes medical or counselling records, medical samples, confidential journalistic material. See section 4 for full definition. Special procedure material -includes other confidential business documents and non-confidential journalistic material. See section 4 for full definition.

Yes/No Yes/No Yes/No

SECTION 2 SEARCH DURING THE INVESTIGATION OF A INDICTABLE OFFENCE WITHOUT THE CONSENT OF THE OCCUPIER

2.1 DETAILS OF THE OFFENCE The offence must fall under the definition of an “indictable offence” under English law. The following questions are to ascertain this.

2.1.1 What is/are the offence(s) under investigation or that is/are the subject of proceedings? What is the maximum sentence for each offence?

43

2.2. IMPOSSIBILITY OF SEARCH WITH CONSENT

A search warrant can only be obtained if it is necessary to conduct the search without the consent of the occupier.

2.2.1 Is it practicable to communicate with the person entitled to grant entry to the premises? Yes/No. If “no” please explain why this is the case.

2.2.2 Is it practicable to communicate with any person entitled to give access to the evidence? Yes/No. If “no” please explain why this is the case.

2.2.3 Would entry to the premises be granted without a warrant? Yes/No. If “no” please explain why this is the case.

2.2.4 Is the purpose of the search likely to be frustrated or seriously prejudiced unless a constable arriving at the premises could secure immediate access to them? Yes/No. If “yes” please explain why this is the case.

SECTION 3 SEARCH ONCE PROCEEDINGS HAVE COMMENCED OR AFTER THE ARREST OF THE SUSPECT FOR AN INDICTABLE OFFENCE WHERE THE PREMISES ARE OCCUPIED OR CONTROLLED BY THE SUSPECT

3.1 DETAILS OF INDIVIDUAL AND PROCEEDINGS

44

3.1.1 Please provide full identifying details of the person who has been arrested or against whom proceedings have been commenced? Please include full name, date of birth, passport number etc where these are known. If possible annex a copy of their passport or driving licence to this application.

3.1.2 If proceedings have been commenced what stage have they reached?

3.2 LINK BETWEEN THE PREMISES TO BE SEARCHED AND THE SUSPECT In order to obtain a search warrant under this heading the premises to be searched must be under the control of, or occupied by, the suspect.

3.2.1 Are the premises to be searched under the control of, or occupied by, a person against whom criminal proceedings have been commenced or who has been arrested in the course of a criminal investigation? Yes/No If yes, give details of link between premises and this person please explain how this is known or believed to be the case.

3.3 DETAILS OF THE OFFENCE The offence must fall under the definition of an “indictable offence” under English law. The following questions are to ascertain this.

3.3.1 Please provide full details of the offence in respect of which the suspect has been arrested or the proceedings have been commenced.

SECTION 4 DEFINITIONS

4.1 Items subject to legal privilege 1. “Items subject to legal privilege” means: (a) Communications between a professional legal adviser and his client made in

45

connection with the giving of legal advice to the client; (b) Communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client and any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purpose of such proceedings; and (c) Items enclosed with or referred to in such communications and made-

(i) in connection with the giving of legal advice; or (ii) in connection with or in contemplation of legal proceedings and for the purposes of such proceedings,

When they are in possession of a person who is entitled to possession of them. Items held with the intention of furthering a criminal purpose are not items subject to legal privilege.

4.2 Excluded material 1. “Excluded material” means: (a) Personal records which a person has acquired or created in the course of any trade, business, profession or other occupation or for the purposes of any paid or unpaid office and which he holds in confidence; (b) Human tissue or tissue fluid which has been taken for the purposes of diagnosis or medical treatment and which a person holds in confidence; (c) Journalistic material which a person holds in confidence and which consists of documents or of records other than documents. 2. “Personal records” means documentary and other records concerning an individual whether living or dead who can be identified from them and relating to- (a) His physical or mental health; (b) Spiritual counselling or assistance given or to be given to him; or (c) To counselling or assistance given or to be given to him, for the purposes of his personal welfare, by any individual who- (i) by reason of his office or occupation has responsibilities for his personal welfare; or (ii) by reason of an order of a court has responsibility for his supervision. 3. “Journalistic material” means material acquired or created for the purposes of journalism provided it is in the possession of a person who acquired or created it for the purposes of journalism. 4. A person holds material other than journalistic material in confidence if he holds it subject to an express or implied undertaking to hold it in confidence or if he holds it subject to a statutory restriction on disclosure or an obligation of secrecy contained in any enactment. 5. A person holds journalistic material in confidence if he holds it subject to such an undertaking, restriction or obligation and it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.

4.3 Special procedure material

46

1. “Special procedure material” means journalistic material other than excluded material and: (a) Material, other than items subject to legal privilege and excluded material, in the possession of a person who-

(i) Acquired it or created it in the course of any trade, business, profession or other occupation or for the purpose of any paid or unpaid office; and

(ii) Holds it subject to an express or implied undertaking to hold it in confidence or to a restriction or obligation of secrecy imposed by law.

(b) Where material is acquired-

(i) By an employee from his employer and in the course of his employment; or (ii) By a company from an associated company, It is only special procedure material immediately before the acquisition.

(c) Where material is created by an employee in the course of his employment, it is only special procedure material if it would have been special procedure material had his employer created it. (d) Where material is created by a company on behalf of an associated company, it is only special procedure material if it would have been special procedure material had the associated company created it.

(Back to Contents)

47

Annex F: Court request on behalf of the defendant TEMPLATE FOR LETTERS OF REQUEST ON BEHALF OF DEFENDANT IN ENGLAND AND WALES OR NORTHERN IRELAND Annex F does not apply in Scotland. The relevant styles/templates for Scottish requests can be found in the Act of Adjournal (Criminal Procedure Rules) 1996, as amended. Court Headed Paper/Letter head

Address of requested authority

Our ref:

Contact details of drafting lawyer

Tel: +44

Fax: +44

Email:

Date:

Sir

[INTERNATIONAL COMMISSION ROGATOIRE / LETTER OF REQUEST IN THE CASE OF ?????]

I the undersigned being a Magistrate/Judge sitting at ?????????? I have the honour to request the assistance of

the Competent Legal Authority in ?????? , in relation to certain enquiries being conducted for into [the offence

description]. I am authorised to make this request pursuant to section 7 of the Crime (International Co-

operation) Act 2003.

CONSIDERING the *[prosecution which has been instituted against] / [and the related proceedings for forfeiture

or confiscation] the following:-

SUBJECT DATE of

BIRTH PLACE of BIRTH

NATIONALITY ADDRESS

[if known] [if known]

On charges relating namely that [use wording from charge sheet or indictment where possible].

Extracts from the relevant English Law are annexed hereto.

BRIEF STATEMENT OF THE CASE

48

AND CONSIDERING

*[the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Vienna in

1988],

*[the UN Convention on Narcotic Drugs, done at New York in 1961] [with its Additional Protocol, done at New

York in 1972],

*[the UN Convention on Psychotropic Substances, done at Vienna in 1971]

*[the European Convention on Mutual Assistance in Criminal Matters, done at Strasbourg in 1959] [with

Additional Protocol done at Strasbourg in 1978],

*[the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from

Crime, done at Strasbourg in 1990],

*[The Convention on Mutual Legal Assistance in Criminal Matters between Member States of the European

Union of 29 May 2000],

*[the bilateral agreement / exchange of letters between the UK and ## of [date] ],

*[the good international relations between our countries and our common interest in the fight against crime].

I do hereby request that with the permission of the Competent Legal Authority [and with the co-operation of

?????????] the evidence detailed below may be obtained in consultation with ??????????????, and made

available to him/her.

?????????? can be contacted on telephone number: +44 ???????? or fax number: +44 ?????????? email

??????????? The evidence may be used in any criminal prosecution or other judicial proceedings connected with

the above matter.

RELEVANT RULES OF EVIDENCE - ENGLAND AND WALES

1. Witness Statements - In order to be admissible in proceedings, a witness’s statement must be signed by the

maker and dated. If the witness is under 21, his age should be given. (NB. Although such a witness statement

will be admissible at certain preliminary stages of the criminal proceedings, it will usually not be admissible at

the trial itself, and so it will very often be necessary to call the witness to give live evidence at the trial. This is

due to the operation of the hearsay rule, referred to below).

2. Hearsay - Hearsay evidence includes the testimony of a witness as to the assertions of another person, and

documents offered to prove the truth of what is asserted therein. The basic principle is that a witness must

confine his evidence to his own personal observations. In general, hearsay evidence is inadmissible in English

49

Courts. For example, a summary by a law enforcement officer of the observations made by other officers in his

team would be hearsay, and generally inadmissible.

An important exception to the hearsay rule is set out in point 3 below.

3. Business Documents - The contents of a document shall be admissible as evidence of any fact of which direct

oral evidence would be admissible, providing that the document was

1. created or received by a person in the course of a trade, business, profession or other occupation, or as

the holder of a paid or unpaid office, and

2. the information contained in the document was supplied by a person (whether or not the person who

compiled the document) who had, or may reasonably be supposed to have had, personal knowledge of

the matters dealt with.

Further conditions apply to certain special cases, in particular where the document was prepared for the

purposes of

1. pending or contemplated criminal proceedings, or

2. a criminal investigation

4. Computer Records - These are dealt with in the same manner as business records as detailed above in

paragraph 3.

5. Chain of Evidence - When witness statements refer to the physical movement of exhibits, it is necessary to

show continuity of transmission. There should be no break in the evidence of such continuity in relation to

exhibits.

Witness statements will be required dealing with the matters referred to in 3 to 5 inclusive.

ASSISTANCE REQUESTED

To have the evidence detailed below taken in a form which complies with the requirements of English Law and

Procedure:-

[* list all assistance required]

Arrangements to permit the said [name] and any other person who may accompany him/her with authority to

make enquiries on behalf of the subject(s) of this request, to be present when these enquiries are made in your

country, to advise in detail on the form in which evidence should be taken in order to comply with the

50

requirements of English Law and Procedure, and to make such physical examination of premises and property

as may be necessary for the proper presentation of the case before English Courts. [If required]

Arrangements to take witness statements from all material witnesses.

Arrangements to allow the attendance at any trial or other judicial hearing of any witnesses who have given

testimony.

Arrangements to secure any relevant exhibits and permit their copying and removal to the United Kingdom for

use at any trial or other judicial hearing.

AND it is further requested that, when forwarding evidence pursuant to this [Commission Rogatoire] / [Letter of

Request] , the appropriate authority indicates to the authorities in the United Kingdom, whether and to what

extent the evidence needs to be returned to your country at the conclusion of the proceedings in the United

Kingdom.

RECIPROCITY

I confirm that the assistance requested in paragraphs 1 - [ ] above could be obtained under the powers provided

for by the current laws of England and Wales, if in a like case a request for such assistance were made to the

authorities in England and Wales (noting that a witness cannot be compelled , under those laws, to attend court

proceedings abroad).

If you have any enquiries regarding the contents of this request please contact the case lawyer whose details are

listed at the front of this letter or ????????

I extend my thanks for such co-operation and assistance as may be extended to the bearer of this [Commission

Rogatoire] / [Letter of Request].

Yours faithfully,

Magistrate??????????

His/Her Honour Judge??????

[name of court] (Back to contents)

51

Annex G: Court request on behalf of a non-designated prosecuting authority TEMPLATE FOR REQUEST ON BEHALF OF A NON-DESIGNATED PROSECUTING AUTHORITY IN ENGLAND AND WALES OR NORTHERN IRELAND Annex G does not apply to Scotland, where there are no non-designated prosecuting authorities. Court Letter headed paper

The Competent Legal Authority

Our ref:

Drafting Lawyer:

Tel: +44

Fax: +44

E-mail:

Date:

Sir

[INTERNATIONAL COMMISSION ROGATOIRE ] [ LETTER OF REQUEST]

I the undersigned,???????? / being a Magistrate/Judge sitting at ?????????? I have the honour to request the

assistance of the Competent Legal Authority in ?????? , in relation to certain enquiries being conducted for into

[the offence description]. I am authorised to make this request pursuant to section 7 of the Crime (International

Co-operation) Act 2003.

CONSIDERING the *[prosecution which has been instituted against] / [the ongoing investigation involving] [and

the related proceedings for forfeiture or confiscation] the following:-

SUBJECT DATE of

BIRTH PLACE of BIRTH

NATIONALITY ADDRESS

[if known] [if known]

* [Which may result in charges being brought] / [On charges relating namely that [use wording from charge

sheet or indictment where possible].

Extracts from the relevant English Law are annexed hereto.

52

BRIEF STATEMENT OF THE CASE

AND CONSIDERING

*[the European Convention on Mutual Assistance in Criminal Matters, done at Strasbourg in 1959] [with

Additional Protocol done at Strasbourg in 1978]

*[the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from

Crime, done at Strasbourg in 1990],

*[The Convention on Mutual Legal Assistance in Criminal Matters between Member States of the European

Union of 29 May 2000]

*[The Scheme relating to Mutual Assistance in Criminal Matters within the Commonwealth (“The Harare

Scheme”)]

*[the bilateral agreement / exchange of letters between the UK and of [date] ],

*[the good international relations between our countries and our common interest in the fight against crime]

I do hereby request that with the permission of the Competent Legal Authority and with the co-operation of the

?????????? law enforcement authorities the evidence detailed below may be obtained in consultation with

??????????????, an Officer of ????????, and made available to him/her. ?????????? can be contacted on

telephone number: +44 ???????? or fax number: +44 ?????????? The evidence may be used in any criminal

prosecution or other judicial proceedings connected with the above matter.

RELEVANT RULES OF EVIDENCE - ENGLAND AND WALES

1. Witness Statements - In order to be admissible in proceedings, a witness’s statement must be signed by the

maker and dated. If the witness is under 21, his age should be given. (NB. Although such a witness statement

will be admissible at certain preliminary stages of the criminal proceedings, it will usually not be admissible at

the trial itself, and so it will very often be necessary to call the witness to give live evidence at the trial. This is

due to the operation of the hearsay rule, referred to below).

2. Hearsay - Hearsay evidence includes the testimony of a witness as to the assertions of another person, and

documents offered to prove the truth of what is asserted therein. The basic principle is that a witness must

confine his evidence to his own personal observations. In general, hearsay evidence is inadmissible in English

Courts. For example, a summary by a law enforcement officer of the observations made by other officers in his

team would be hearsay, and generally inadmissible.

An important exception to the hearsay rule is set out in point 3 below.

53

3. Business Documents - The contents of a document shall be admissible as evidence of any fact of which direct

oral evidence would be admissible, providing that the document was

3. created or received by a person in the course of a trade, business, profession or other occupation, or as

the holder of a paid or unpaid office, and

4. the information contained in the document was supplied by a person (whether or not the person who

compiled the document) who had, or may reasonably be supposed to have had, personal knowledge of

the matters dealt with.

Further conditions apply to certain special cases, in particular where the document was prepared for the

purposes of

3. pending or contemplated criminal proceedings, or

4. a criminal investigation

4. Computer Records - These are dealt with in the same manner as business records as detailed above in

paragraph 3.

5. Chain of Evidence - When witness statements refer to the physical movement of exhibits, it is necessary to

show continuity of transmission. There should be no break in the evidence of such continuity in relation to

exhibits.

Witness statements will be required dealing with the matters referred to in 3 to 5 inclusive.

6. Unused Material - This has been defined judicially as all material coming into the possession or control or to

the knowledge of the prosecuting authority, and which is not served on the defence as part of the prosecution

case. Thus any material held by an assisting state will constitute unused material and will be subject to the

principles outlined here. That material may be sensitive or non-sensitive. If the prosecuting authority wishes to

withhold material from the defence on the basis that it is sensitive, then the authority must make an application

to the trial judge. It is he and only he who can adjudicate on this matter. If the judge orders disclosure of

material which the prosecuting authority is unable or unwilling to disclose, the prosecution cannot continue.

ASSISTANCE REQUESTED

To have the evidence detailed below taken in a form which complies with the requirements of English Law and

Procedure:-

[list assistance required here]

54

Arrangements to permit the said [name and contact details] and any other officer who may accompany

him/her charged with the investigation of this case on behalf of ??????????????, to be present when these

enquiries are made in your country, to advise in detail on the form in which evidence should be taken in order to

comply with the requirements of English Law and Procedure, and to make such physical examination of

premises and property as may be necessary for the proper presentation of the case before English Courts.

Arrangements to take witness statements from all material witnesses.

Arrangements to allow the attendance at any trial or other judicial hearing of any witnesses who have given

testimony.

Arrangements to secure any relevant exhibits and permit their copying and removal to the United Kingdom for

use at any trial or other judicial hearing.

Arrangements to permit such other enquiries to be made, persons to be placed under surveillance, persons to be

interviewed and exhibits to be secured, the necessity for which becomes apparent in the course of the

investigation.

AND it is further requested that, in order not to prejudice the investigation, the existence and contents of this

[International Commission Rogatoire] / [Letter of Request] and any action taken in response to it, be not notified

by the competent authorities in your country to any person outside such authorities ( in particular, any of the

above subjects ), except to the extent that a request to notify such a person in any of the foregoing respects, is

contained in, or is necessarily implied by the terms of, any of the above paragraphs 1 - [ ].

*[AND it is further requested that action be taken to ensure that [a person from whom evidence is sought e.g. a

Bank] does not so notify any other person, including [any of] the above subject[s], consequent on the request[s]

for assistance at paragraph[s] [ ] above.]

*[ However, there is no objection, if your law so requires, for an interested person, including one of the above

subjects [ , ] to be informed in advance of an application to a judicial authority for access to property, pursuant

to the request[s] for assistance at paragraph[s] [ ] above

The reasons for requesting confidentiality in the above terms are that, [with the exceptions indicated above] [,] [:-

] [ JOIN UP SENTENCE IF NECESSARY]

*[ - ] if one of the above subjects or an associated party became aware of the existence or contents of this [

Commission Rogatoire ] / [ Letter of Request ] or of action taken in response to it, evidence [, in particular , ]

might be interfered with [, ] [ ; ]

55

*[-] [assets [, in particular ,] potentially liable to restraint and confiscation might be dissipated [, ] [ ; ]

and thus the investigation could be prejudiced.

* [I would especially draw your attention to the fact that ]

If it is not possible to preserve confidentiality in the above manner, please notify me prior to executing this

[Commission Rogatoire] / [Letter of Request].

AND it is further requested that, when forwarding evidence pursuant to this [Commission Rogatoire] / [Letter of

Request] , the appropriate authority indicates to the authorities in the United Kingdom, whether and to what

extent the evidence needs to be returned to your country at the conclusion of the proceedings in the United

Kingdom.

RECIPROCITY

I confirm that the assistance requested in paragraphs 1 - [ ] above could be obtained under the powers

provided for by the current laws of England and Wales, if in a like case a request for such assistance were made

to the authorities in England and Wales (noting that a witness cannot be compelled , under those laws, to attend

court proceedings abroad).

If you have any enquiries regarding the contents of this request please contact the case lawyer whose details are

listed at the front of this letter or his/her Unit Head, [list name and contact details].

I extend my thanks for such co-operation and assistance as may be extended to the bearer of this [Commission

Rogatoire] / [Letter of Request].

Yours faithfully,

Magistrate

His/Her Honour Judge?????? (Back to contents)

56

Annex H: Method of transmission of letters of request to different states EU/Schengen States that will accept direct transmission of letters of request Austria Belgium Bulgaria Cyprus Czech Republic Denmark Estonia Finland France Germany Hungary Iceland Ireland (except requests for search warrants and/or Restraint/Confiscation) Italy Latvia Lithuania Luxembourg Malta Netherlands Norway Poland Portugal Romania Slovakia Slovenia Spain Sweden EU/Schengen States that require transmission via their Central Authority Greece Ireland (Requests for search warrants and/or Restraint/Confiscation) Treaties requiring transmission via Central Authorities Commonwealth Scheme for Mutual Assistance in Criminal Matters (the Harare Scheme). The UK is a party to a number of bilateral and multilateral Treaties which include particular provision for criminal mutual legal assistance. Some of these Treaties impose certain conditions on when mutual legal assistance may be provided and set out procedures to be followed. If you require information on these Treaties contact the appropriate Central Authority for guidance. (For example requests for assistance to and from the US are required to be transmitted via the UKCA or the Crown Office.) (Back to Contents)