Until recently the scheme of international mutual assistance in criminal matters in Jersey could be found in five separate and diverse pieces of legislation.[1] It seems that since November 6th 2001[2] mutual assistance in criminal matters will now be rendered by Jersey pursuant to two pieces of legislation; the Criminal Justice (International Cooperation) (Jersey) Law 2001 (hereinafter “the 2001 Law”) and the Criminal Justice (International Co-operation) (Jersey) Regulations 2001[3] although the earlier legislation (with one exception[4]) has not been repealed.
While the new legislation clearly aims to cure the infirmities of the old scheme, its principal development is the incorporation into the scheme of mutual assistance of all criminal conduct, at both investigative and prosecution stage. There is no threshold for the giving of international assistance except that a Bailiff’s warrant for search and seizure may be issued under article 6, and an overseas forfeiture order may be enforced under article 7 only in respect of a “serious offence”. A “serious offence” is one for which the maximum sentence in the Island is not less than one year’s imprisonment.
As the legislation reflects the basic international standard, its provenance may be found in the European Convention on Mutual Assistance in Criminal Matters (done at Strasbourg, 1959), the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 (“the Vienna Convention”) and the European Convention on Laundering, Search Seizure and Confiscation of the Proceeds of Crime 1990. In so far as similar legislation has been enacted in the United Kingdom, it is to be found at the Criminal Justice (International Co-operation) Act 1990.
Finally, Article 8 of the 2001 Law provides that provision may be made for Rules of Court in respect of its provisions. At the date of writing, no such Rules have been made.
Service of overseas process in the Island and service of Island process overseas
Article 2 of the 2001 Law provides for service in the Island at the instance of the Attorney General or by the Viscount on the instructions of the Attorney General, of summonses or other judicial documents issued by a foreign state -
(a) a summons or other process requiring a person to appear as a defendant or witness in criminal proceedings in that country or territory (emphasis added) or
(b) a document issued by a foreign court exercising a criminal jurisdiction in that country or territory recording a decision of the court made in exercise of that jurisdiction.
The explanatory report on the 1959 European Convention on Mutual Assistance in Criminal Matters purports to define “criminal proceedings”.[5] It appears on one view of the definition that it applies only to judicial proceedings as opposed to administrative proceedings. However, on another view, the definition is not restricted to proceedings for prosecution of an offence, but also applies to any injured party claims and damages in criminal proceedings, applications for pardon or review of sentence and proceedings for compensations for persons found innocent.
Article 3 of the 2001 Law provides for the service of an Island process outside the Island in accordance with arrangements made by the Attorney General. “Island process” is defined by Article 3(1) (a) and (b) as either a summons requiring a charged person to appear before a court in the Island or a summons or order requiring a person to attend before a court in the Island to give evidence in criminal proceedings.
Neither Article 2 nor Article 3, however, provides a statutory obligation to comply with or attend pursuant to the process or order so served (c.f. Articles 2(3) and 3(2)). In particular, in respect of a summons served from the Island to another state, failure to comply therewith does not constitute contempt nor can a warrant be issued to enforce such order. The voluntary nature of Articles 2 and 3 reflects the provision of Article 8 of the European Convention on Mutual Assistance.
Overseas evidence for use in the Island (Article 4)
As asking for and receiving evidence between states in criminal investigations and proceedings is the key concept in mutual assistance, Article 4 forms one half of that concept.
Archbold[6] sets out the general rule as follows -
“At common law a deposition (taken out of the State) is inadmissible evidence in substitution for the oral evidence of the deponent except under statutory provision.”
Article 4 establishes a broad exception to that general rule, and permits -
(a) the Attorney General to issue a letter of request to foreign states in respect of an offence where proceedings have been instituted or a reasonably suspected offence is being investigated or
(b) a person charged in proceedings to apply to the Bailiff for the issuance of a letter of request to seek specified evidence.
Article 4 (4) incorporates a version of the rule of speciality in that evidence obtained by the Island’s request in the foreign state cannot without the consent of the foreign court, tribunal or authority be used for any purpose other than that specified in the request.
Article 4(6) acknowledges the Island’s courts’ discretion to exclude evidence taken pursuant to a letter of request.
The Law Enforcement Commission Report of 1974[7] identified the principal difficulty with evidence of this kind as being an inability of the accused to test the evidence by cross examination in the foreign state in the presence of both judge and jury hearing the case.
It may be that in cases where the parties consent, some form of video link evidence could be given in the foreign state where witnesses are unable or unwilling to travel.[8] The author of this article has acted on behalf of requesting states where (a) counsel for the prosecution and defence and the trial judge have travelled to the location of the evidence in the currency of the trial to take evidence in the foreign location, such evidence to be admitted to the trial on return to the foreign jurisdiction and (b) where at the request of the foreign state evidence was taken for the purposes of a trial in a foreign state. The evidence in chief was tested by cross examination on behalf of the accused and was recorded on video-tape. It was intended that the video tape of such evidence be shown to the trial judge and jury in the foreign jurisdiction although the defence reserved the right to challenge its admissibility in the trial court.
In practical terms this provision will be extremely useful at prosecution and trial stage, in particular in respect of the prosecution of financial crime in determining of the source of funds.
Lastly, it is probable that where the search of premises in a foreign state and seizure of documents thereon are deemed necessary by the Island’s investigative and judicial agencies such a request will be made pursuant to Article 4.
Evidence for criminal proceedings in overseas courts (Article 5)
Article 5 comprises the second half of the key concept of mutual assistance. Given the Island’s size and status as a major international location of funds, it is likely that the Island will be a net recipient of requests for mutual assistance. The procedure contained in Article 5 will in all probability be much used.
The Attorney General is designated the Central Authority for receipt of requests. The Attorney General may receive requests from a broad range of investigative prosecutorial and court authorities. The request may concern either criminal proceedings already instituted or a criminal investigation. Article 5(1)(c) and (d) provide that the Attorney General must be further satisfied that-
(a) an offence under the law of the requesting country has been committed or there are reasonable grounds for suspecting that such an offence has been committed; and
(b) either proceedings have been instituted in the foreign jurisdiction or an investigation into that offence is being carried on there.
Once the Attorney General is satisfied of the above criteria he may issue a notice specifying the evidence to be obtained. He may either nominate a court or the Viscount to receive that evidence.
It is thought that the notice will resemble the notice already utilised by the Attorney General pursuant to the Investigation of Fraud (Jersey) Law 1991. It is likely that in the event that a court is nominated to receive the evidence the nominated court will be the Royal Court with its attendant powers of compulsion and contempt.
Notice of the Attorney General’s application
The 2001 Law does not impose an obligation upon the Island to ensure that the suspect/accused is informed of the fact that evidence is being taken concerning his financial or other affairs. There is no such provision for notice in the various international conventions. Indeed in a protocol to the most recent EU Convention on Mutual Assistance each member has agreed to take the measures to ensure that banks positively do not disclose to the bank’s customer or other third parties the fact of the investigation or that information is being transmitted.[9]
Perhaps the best initial guidance on this issue is to be found in the judgment of Lord Bingham of Cornhill LCJ in the case of R v Zadari[10] -
“…The 1990 Act provides for co-operation between different states in the investigation and prosecution of serious international crime. Some of the suspects of the investigation will be powerful, rich, ruthless and sophisticated criminals. It is quite plain that the process envisaged by section 4 is not a trial. [emphasis added]; it is the process of gathering evidence. The use to be made of the evidence so gathered is a matter for the requesting state. If evidence taken by an English court is to be used as primary evidence in the requesting state, one would ordinarily expect, if the requesting state’s legal system is in any way analogous to our own that the requesting state would recognise the need for the suspect to have a full and fair opportunity to contest the evidence either here or in its own court. [emphasis added]. If the evidence taken in England was not to be used in evidence in the foreign state the need for a full and fair opportunity to contest the evidence in this country would be less and might not exist at all.”
It seems therefore that the English courts will require notice to be given to the suspect where the evidence sought is to constitute evidence at the trial of the accused but are less inclined to require such notice where the evidence is sought simply as a part of the evidence gathering in a criminal investigation.
Articles 6 and 8 of the European Convention on Human Rights may also provide a person investigated pursuant to Article 5 of the 2001 Law with some protection.
Reviewability of the decision to take evidence
The locus standi of an applicant to challenge a decision to issue such a notice seems beyond doubt as a result of the unequivocal ruling of Birt, Deputy Bailiff, in Acturus Properties Ltd v Attorney General.[11] In that case the Court considered the earlier cases of McMahon v Attorney General[12] and In re Sheikh Mahfouz[13]in which no objection was made to the applicants’ locus to challenge the Attorney General’s decision made pursuant to the Investigation of Fraud (Jersey) Law 1991. The court rejected an earlier English decision refusing locus standi to an applicant in somewhat analogous circumstances. Most pertinently to the issue of locus standi to challenge a decision under the 2001 Law, the Royal Court in Acturus agreed with the ruling of the Divisional Court in England in the case of R v Central Criminal Court ex parte Propend Fin. Property Ltd.[14]that an applicant had sufficient locus to challenge a decision made pursuant to the English equivalent to the 2001 Law.[15]
It seems clear from the decision of the Royal Court in Acturus that while the decisions of the Attorney General are reviewable on the normal grounds of illegality, irrationality and procedural impropriety, different considerations will apply in criminal investigations. The Royal Court held that the Attorney General is not required to disclose either his state of knowledge at the time of decision nor the grounds for his conclusion. The Court held that the onus was upon the applicant to show cause by adducing facts which cannot be reconciled with there having been reasonable grounds for the Attorney’s decision.
The grounds for the Attorney General’s decision will in all probability be contained in the letter of request. In light of the fact that the request may concern the investigative stage of the enquiry, it would not be appropriate to disclose to an applicant the contents of the letter of request. This principle was conceded by the applicant and accepted by the Court (per Tuckey LJ) in the case of Abacha v Secretary of State for the Home Department and the Federal Republic of Nigeria (interested party),[16]although it is interesting to note that in that case, the request was in fact provided to the applicant in a redacted format.
It is clear therefore that it will prove difficult to prevent an application made pursuant to Article 5.
It is to be noted that the Schedule to the 2001 Law provides that the Viscount may also take evidence on oath and has the like powers of securing attendance of witnesses as the Royal Court .
Privileges of witnesses in an application pursuant to Article 5
The Schedule to the 2001 Law also provides at paragraph 3 some important privileges for witnesses in the context of an Article 5 application.
It was held in Acturus that, while the privilege against self incrimination is inherent in the concept of a fair trial, it could not apply in that case since the procedure was simply at the investigative stage.
Scope of inquiry in respect of Article 5 application.
As regards the scope of the inquiry at the request of the foreign authority some guidance may be taken from the decision of the English Court of Appeal in R v Secretary of State for Home Department ex parte Fininvest SpA[17] where it was held that when foreign authorities were at an investigative stage the permissible area of inquiry had logically to be wider than when the criminal investigation was complete. Further, since in that case the Italian investigation was in respect of a wide ranging international fraud, the request was as precise as could be. The reverse logic of this argument is that where the foreign request concerns criminal proceedings already in being, the scope of inquiry should be restricted to evidence in respect of the offences alleged.
The issue of fiscal offences
As regards a request for assistance in respect of foreign fiscal offences, the customary rule of international law is clearly that a court would have no jurisdiction to entertain an action for enforcement either directly or indirectly of a penal, revenue or other public law of a foreign state. It seems clear therefore that in so far as an Article 5 application simply concerns the gathering of evidence, such evidence may be gathered in respect of foreign fiscal offence as to do so would not enforce a penal or revenue law of the foreign state.
The position however may be different where a request is made for the enforcement of a foreign confiscation/forfeiture order which order was made subsequent to a conviction in the foreign state for a fiscal offence.
The additional co-operation powers – Article 6
Article 6 of the 2001 Law provides that on an application by the Attorney General to the Bailiff, a search warrant may be issued for any place or building by the Bailiff where a request is made by a foreign state. The warrant may issue provided the conduct in the foreign state would, if it occurred in the Island, constitute a serious offence.[18] The difficulty here is that the form of foreign offence may simply not exist in similar form in the Island, although it is of course the conduct that matters.
Enforcement of overseas forfeiture orders – Article 7
The purpose of Article 7 is to provide for the enforcement of foreign forfeiture orders either by destruction or by forfeiture and other disposal of property.
Article 7 provides that regulations may set out the conditions and procedure for such forfeiture. The Criminal Justice (International Co-operation) (Jersey) Regulations 2001[19] have made such provision it is not however intended to examine its provisions in any detail.
Perhaps the most interesting feature of the Regulations from a practitioner’s point of view is the restraint order which may be made by the Bailiff pursuant to Regulation 4. It is clear that a restraint order may be applied for at a very early stage of the foreign investigation (see Regulation 4(3) (a) and (b)). The application is made by or on behalf of the government of the foreign country. An ex parte application may be made initially to the Bailiff in chambers providing for service on persons affected by the order. Such persons may then apply to vary or discharge the order.
The future of mutual assistance
The European Convention on Mutual Assistance 2000 adopted by the member states of the European Union in June 2000 creates additional powers and procedures not contained in the 1959 European Convention.
The 2000 Convention extends mutual assistance to a wider range of cases including those with an element of administrative penalty. The Convention provides for the spontaneous exchange of information. The Convention creates an obligation upon requested states to render assistance in the interception of communications to and from a person present in the requesting or third party state.
The Convention purports to abolish the form of specialty referred to above in that evidence received under the 2000 Convention in response to a request may be used for any other purpose for which evidence could have been sought. This would clearly allow evidence gathered in the requesting state to be used for collateral purposes and appears to this author to be a draconian provision.
The new Convention will also allow for the transfer of sentenced persons for the purpose of investigating offences.
Further developments in the future are contained in the Schengen Acquis.[20] Article 51 provides that the availability of search and seizure in a requested state may not be limited by the length of sentence applicable to the offence under investigation. Article 63 extends extradition amongst the parties to certain fiscal offences. Article 53 provides that requests may be sent directly between judicial authorities as opposed to through a Central Authority.
The 2000 Convention does not however apply to the Island. It will be interesting to see to what extent Jersey is prepared off its own bat to adopt any of these new provisions.
CONCLUSION
It has been a privilege for the author to write this article. I can only hope that the privilege so given has not been abused. In so far as is possible I have tried not to stray into areas of practice and procedure in the Island where I might have been erred.
The breadth of the powers and procedures recently enacted cannot be underestimated and, in light of the fact that in form they closely resemble the international standard, it is without doubt that over the next few years there will be a substantial increase in requests to and from the Island for mutual assistance in criminal matters.
Patrick O’Reilly is a barrister practising in Dublin, Ireland . He is the author of Commercial and Consumer Law(Butterworths Ireland 2000). He is also the author of a number of articles on international mutual assistance in both the Irish Bar Review and the Irish Criminal Law Quarterly (Round Hall, Sweet and Maxwell).
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[1] (a) Investigation of Fraud (Jersey ) Law 1991; (b) Evidence (Proceedings in Other Jurisdictions) (Jersey ) Order 1983; (c) Drugs Offences (International Co-Operation) (Jersey ) Law 1996; (d) Prevention of Terrorism (Jersey ) Law 1996; (e) Proceeds of Crime (Jersey ) Law 1999 (Part VI only)
[2] This is the operative date of the Criminal Justice (International Co-operation) (Jersey ) Law 2001
[4]The 2001 Law repeals the Drug Offences (International Co-Operation) (Jersey ) Law 1996
[6]Archbold : Pleading, Evidence and Practice in Criminal Cases (London, 1905 @ p 377)
[8] In Attorney General v Young, Royal Court , May 9th, 1998 unreported the Court allowed a witness to give evidence by satellite link where the witness was too ill to travel
[9]Article 4 of the Protocol to the Mutual Assistance Convention of the Member States of the European Union signed on October 16th, 2001 .
[10]March 11th, 1998 English unreported
[13]February 17th, 1994 unreported
[14] [1996] 2 Cr App. R 26
[15]Criminal Justice (International Co-operation) Act 1990
[16]October 18th, 2001 English unreported
[18]as defined at Article 1 of the Law.
[19] R & O 155/2001. These regulations came into force on November 6th 2001
[20]The accumulation of decisions adopted pursuant to the Schengen Agreement 1985 and the Schengen Convention 1990