Mutual Legal Assistance

Kennedy Talbot33 Chancery Lanekt@33cllaw.com

SOCA v Perry

• Perry convicted of serious fraud in Israel

• Perry in Israel; £12m in London bank accounts

• Disclosure order made and notice sent to Perry’s London house

• Perry challenge to jurisdiction of SOCA officer to issue notice

Court of Appeal (Civil Division)England

• Richards LJ – no jurisdiction – target of notice must be in UK at time of issue or thereafter

• Carnwath LJ – some limits to jurisdiction – house in London, acknowledged by solicitors - enough

• Ward LJ…..

• Joint investigations• Don’t have to finish criminal investigation• Fact that CR might mean not in PI to prosecute• Compromises but no buying off prosecution• No criminal and civil at the same time

. Comment?

• Prosecutors as claimants - a new approach to prosecuting decisions?

• S.2A of the 2002 Act and A-G’s guidance

• Consequences – re-litigation and disclosure

“The purpose of the Act is to combat cross-border unlawful conduct and I cannot accept that the legislature intended that [the authorities] should engage in this battle against international criminal activity with one hand tied behind its back. If [an officer] knows where the account holder is, why cannot the appropriate officer visit him abroad and ask him a few direct questions?”

More Formal Arrangements – History

• Territorial

• Comity

• Public matters

• Civil Foreign Tribunals Evidence Act 1856

• Treaties – 1959 European Convention – 1988 Vienna Convention – 1990 Strasbourg Convention

Current

• Crime (International Cooperation) Act 1990

• Proceeds of Crime Act 2002 (External Requests and Orders) Order 2003

General Principles

• Reciprocity

• Specialty (Gooch; BOC v Barlow)

• Costs and asset sharing

• Confidentiality (Evans v SFO)

• Requesting parties

• Discretion and refusal to assist

Types of Assistance

• Examination of witnesses and production of documents – evidence - compulsion and exceptions

• Searches

• Confidential material / banking documents

• CIO / AMO

• SFO s.2

Practical Considerations

• Participation at examinations

• Challenges to procedures – admissibility – JR – Abuse (Zardari)

• LPP and self - incrimination

Restraint and Confiscation

• Investigation

• Extent of restraint – location of assets (King)

• Legal expenses

• Investigation of merits and human rights (Al Zahat / Montgomery (no 2))

• Disclosure (Stanford)

Confiscation

• Registration and enforcement

• Procedural defences

• Rights of innocent third parties (Art. 46) and victims (Re D, 19th March 2010, HC)

• SOCA v Perry [2010] Civ 907• Gooch [1991] 1 Cr App R(S) 183• BOC v Barlow [2001] EWCA Civ 854• Govt of USA v Montgomery (no 2) [2004] 1 WLR

2241• Finnivest [1997] 1 WLR 743• Zardari (29th April 1998) DC• King v SFO [2009] 1 WLR 718• Al Zahat [2008] Lloyds Rep 390• Stanford v SFO [2010] EWCA Civ 137• Re D [2010] March 19th

• Evans v SFO [2003] 1 WLR 299