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Judicial Co-operation Unit
Organised and International Crime Directorate
Home Office
London SW1H 9AT
October 1999
Guidelines from the Serious Fraud Office are also available. To view
these please follow the link at the bottom of the page.
Chapter 1: Introduction
Chapter 2: Range of assistance and channels
of communication
Chapter 3: Form and content of requests
to the UK
Chapter 4: Execution of requests in
the UK
Chapter 5: Home
Office Code of Practice
Annex A:
Conducting enquiries in, or seeking assistance from, the UK: The competencies
of the Home Office (UK Central Authority) and the National Criminal Intelligence
Service (UK National Central Bureau of Interpol)
Annex B:
The Home Office Code of Practice
Annex C:
Contact details for the Home Office (UK Central Authority) and other relevant
UK authorities
Annex D:
Contact details for authorities in the Channel Islands, the Isle of Man
and the UK Overseas Territories
The United Kingdom Government attaches great importance to assisting
judicial and prosecuting authorities in other countries in combating national
and international crime.
The UK is able to provide a full range of legal assistance in criminal
matters to judicial and prosecuting authorities in other countries under
Part I of the Criminal Justice (International Co-operation) Act 1990,
the UK's principal mutual legal assistance legislation.
These guidelines:
- give details of the assistance that can be provided under the Act
and the procedures to follow when requesting assistance;
- explain the important role of the Judicial Co-operation Unit of the
Home Office, in the execution of requests for legal assistance in criminal
matters; and
- describe how the Home Office, as the UK Central Authority, works
in close co-operation with the UK National Central Bureau of Interpol,
which is part of the UK's National Criminal Intelligence Service (NCIS).
The Home Office staff working exclusively on requests for legal assistance
and are fully conversant with mutual legal assistance law and practice.
The Home Office works to very high professional standards. These are reflected
in its published Code of Practice, included in these guidelines.
Extradition matters and international co-operation between, for example,
Customs services, tax administrations 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 contact shown
in Annex C.
The Home Office is not responsible for judicial co-operation with
the Channel Islands, the Isle of Man or the UK Overseas Territories. Contact
points for the competent authorities of the Islands and Territories are
listed in Annex D.
Contents
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 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, and
- 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:
- 1959 European Convention on Mutual Assistance in Criminal Matters
and its Additional Protocol;
- the 1990 European Convention on Laundering, Search, Seizure and Confiscation
of the Proceeds from Crime, and
- the 1988 United Nations Convention against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances (the Vienna Convention).
The UK has also adopted the Commonwealth Scheme Relating to Mutual Assistance
in Criminal Matters. 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 or use of the special
investigation powers of the Serious Fraud Office (in Scotland, the Crown
Office) in cases of serious or complex fraud.
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, for search and seizure of evidence or would involve
use of the investigation powers of the Serious Fraud Office (in Scotland,
the Crown Office), 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);
- 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? Details of the authorities which may submit
requests for legal assistance to the UK and what information should be
included in letters of request (commissions rogatoires) are given in Chapter
3.
Where should requests to the UK be sent?
Requests for legal assistance in criminal matters must be sent to the
Home Office.
What does the Home Office do?
The functions of the Home Office as UK Central Authority are described
in Chapter 4.
Is it possible to submit requests to the Home Office through diplomatic
channels?
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.
But direct communication with the Home Office 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 Home Office?
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 Home
Office can result in an increase in the number of urgent cases, and delay
the processing of other requests.
Requests for restraint (freezing) and confiscation of the proceeds of
crime may only be considered where proceedings have been instituted or
where it is certified when proceedings are to be instituted.
Will the Home Office 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 UK law.
May witnesses in the UK be approached directly without informing the
Home Office?
Yes. 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 Home
Office if testimony on oath is required.
How long does it take to execute a request?
This will depend on the circumstances of the request. Requesting authorities
are kept informed of progress by the Home Office, in accordance with its
Code of Practice, and provided with details of the officer(s) responsible
for executing the request. These arrangements help ensure that timely
assistance is provided.
Any reasons for urgency such as statutory time limits, pre-trial court
appearances or trial dates should be clearly stated in all requests.
May requests be sent to the Home Office via Interpol?
Yes, but direct communication with the Home Office is preferred as this
helps speed up execution of requests. If requests for legal assistance
intended for the Home Office are sent through Interpol channels, they
must be marked clearly for the attention of the Home Office.
What assistance does the Home Office, as UK Central Authority, provide
which the NCIS, as UK National Central Bureau of Interpol, does not?
The respective competencies of the Home Office and the NCIS are set out
in Annex A.
What requests may be sent to the UK National Central Bureau of Interpol
at the NCIS?
Examples of requests that may be submitted directly to the UK National
Central Bureau of Interpol without involving the Home Office 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.
Such requests need not be sent to the Home Office 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 Home Office and the UK National Central Bureau of Interpol.
The 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 do not, in general, have responsibilities for initiating enquiries
on behalf of competent authorities abroad. The Home Office handles thousands
of requests every year, and is 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 always be sent to the Home Office or to the UK National
Central Bureau of Interpol at the NCIS.
May evidence be taken away by visiting judicial or investigating officers?
Under law in the UK, all evidence received by a court or seized by a
UK investigator must be sent to the Home Office for transmission to the
requesting authorities abroad. Once received by the Home Office the evidence
may be handed to visiting officials directly or sent to the requesting
central or judicial authority.
Are requests kept confidential?
In line with established international practice, the Home Office does
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 Home Office consults the requesting authorities.
Where public statements are made by authorities about the assistance
they are requesting from the UK, the Home Office should be notified so
that it may respond appropriately to any media or public enquiries.
Where should requests for Scotland and Northern Ireland be sent?
The UK comprises three separate jurisdictions: England and Wales; Scotland;
and Northern Ireland. All requests to the UK for assistance in criminal
matters should be sent to the Home Office or the UK National Central Bureau
of Interpol at NCIS irrespective of from where in the UK the assistance
is required. But preliminary, informal enquiries about how to make requests
intended for execution in Scotland may be made direct to the Crown Office
in Edinburgh.
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 Territories1 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 Territories2).
Requests should usually be sent to the Attorney General of the Crown Dependency
or Overseas Territory from where the assistance is required.
1 Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falklands,
Gibraltar, Monserrat, St Helena and the Turks and Caicos Islands.
2 Falklands and St Helena: the other Overseas Territories host Interpol
Sub-bureaux.
Are requests ever declined? Is there anything the Home Office cannot
do?
Experience so far has shown that requests to the Home Office for legal
assistance are rarely declined. However, the UK may decline requests the
execution of which may prejudice UK investigations, proceedings, 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 so that assistance may be provided.
The UK will decline to execute requests where a trial in the requesting
country would involve double-jeopardy (non 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.
The Home Office cannot facilitate requests for interception of communications
for evidential purposes. This is because UK law, section 9 of the Interception
of Communications Act 1985, does not permit intercept material lawfully
obtained by warrant to be adduced in evidence. Interception is an important
intelligence development tool and requests for assistance with intelligence
development can be considered by NCIS.
Contents
Which authorities may make requests to the UK?
Requests for legal assistance in criminal matters may made by any competent
court or tribunal, judicial or prosecuting authority. Requests may also
be made by any other competent authority that the Home Office considers
has the function of making requests for the purposes of criminal proceedings
or criminal investigations. Such authorities include Attorneys General,
investigating judges, examining magistrates, public prosecutors and Ministries
or Departments of Justice having responsibilities for criminal matters.
Should requests be made or confirmed in writing?
Yes, requests should always be made in writing, addressed to the Home
Office or to the UK National Central Bureau of Interpol, depending on
the nature of the assistance requested (see Annex A). 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.
What language may requests to the Home Office be made in?
Requests must be made in writing in English or be submitted with an English
translation. If no translation is provided the Home Office will ask for
one.
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.
Wherever possible all requests should include:
- Any information which is likely to help the Home Office arrange for
execution of the request in accordance with the requirements of the
requesting authority.
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 details of the responsible official(s)
there.
- Full name(s) of the subject(s) of the investigation or proceedings.
- A summary of the facts of the offence(s) and details of the offence(s)
committed or alleged. Where evidence is required, 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.
- A description of the evidence or material or other assistance required,
clearly stating whether original evidence or certified copies are required.
- The purpose for which the evidence or material or other assistance
is required and the relevance of the assistance to the investigation
or proceedings.
Requests should also state, to the extent necessary and possible:
- The date of the trial or hearing and any other dates relevant for
the purposes of executing the request; and any reasons why the request
is urgent, for example because the accused person or suspect is in detention.
- The full name, date of birth and location of any person from whom
evidence is required making clear whether there are a witness or an
actual or potential accused.
- Available information on the identity and whereabouts of any person
to be located.
- Details, including the telephone number, of any British law enforcement
officer who is familiar with the investigation.
- The request should also say whether and why the presence of
officers or officials of the requesting authorities is required during
the execution of the request. The names of such persons should be provided
(in general, such officers or officials may observe, but may not participate
in, the execution of requests).
Requests for service of summonses, judgements and other procedural documents
should include:
- The original document(s) with a translation or, if the original documents
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 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; and the name and telephone number
of an official of the court from whom the person asked to appear can
seek further information if necessary.
Requests for witness evidence (testimony), should include:
- 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. For the
avoidance of doubt the requesting authority should set out as clearly
as possible the conditions under which any interview or examination
should be conducted.
- A list of questions to be asked.
- Details of the procedure to be followed in taking the evidence, including
any rules on privilege which a witness or suspect 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.
- If banking evidence is required, the request must provide the name
or number of the account and the address or number ("Sort Code") of
the branch of the bank where the account is held. This detail is required
because there is no central record of bank accounts held in the UK.
Requests for search and seizure of evidence should include:
- The full address or a precise description of any place to be searched;
full details of the specific material or type of material to be seized
and a full description of the criminal conduct concerned. (Requests
for search and seizure cannot be executed unless the criminal conduct
would be a serious 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 and 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. (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.
Requests for the restraint (freezing) of property should include:
- The name, address, nationality, date and place of birth and present
location of the defendant(s) or person(s) whose criminal conduct has
given rise to civil confiscation proceedings.
- Details of the offence with which the defendant has been, or is about
to be, charged (or the civil action brought or about to be brought).
- Details of the law applicable to the charges and the evidence against
the defendant.
- 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 defendant 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 defendant 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 defendant outside
the United Kingdom.
- A certificate issued by or on behalf of the requesting State's
Central Authority stating:
- that proceedings have been instituted in that country and have
not been concluded, or that proceedings are to be instituted in the
requesting State and, if so, when;
- that the confiscation order which it is expected the court of the
requesting State will make will have the purpose of recovering property,
or the value of property, received in connection with drug trafficking
or other serious crime (or, in the case of a forfeiture order, has
the purpose of ordering the forfeiture of instrumentalities of crime).
Requests for confiscation of property in the UK should include:
- Information as in requests for restraint.
- An original confiscation order or a duly authenticated copy
of the confiscation order.
- A certificate issued by or on behalf of the requesting State's
Central Authority stating:
- that the confiscation 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 unrecovered there;
- that the confiscation order has the purpose of recovering property,
or the value of property obtained in connection with drug trafficking
or other serious crime (or in the case of a forfeiture order has the
purpose of ordering the forfeiture of instrumentalities of crime);
- and, where the person against whom the confiscation 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.
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.
The above list is not exhaustive. The Home Office can provide further advice
if necessary.
If the assistance requested ceases to be required, the Home Office
or the UK National Central Bureau of Interpol should be informed immediately
so that enquiries are not made unnecessarily.
Contents
What is the role of the Home Office?
The Home Office's responsibilities include:
- Ensuring that requests for legal assistance conform with the requirements
of law in the UK and the UK's international obligations (for example,
requests for legal assistance must come from a competent authority and
be for the purposes of criminal investigations or proceedings).
- Ensuring that execution of requests is not inappropriate on public
policy grounds (for example, requests involving double jeopardy will
not be executed).
- 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.
- 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
and agencies requests that evidence be obtained in the presence of foreign
police or customs officers or prosecutors or defence lawyer
- 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, costs will
be met by the UK authorities, in accordance with established international
practice).
- Passing evidence received to the requesting authorities (and checking
whether any part of the request remains outstanding).
How are requests executed? The information below explains the
ways requests in which are executed in England and Wales. (Requests seeking
assistance from Scotland or Northern Ireland are sent by the Home Office
to the Crown Office or the Northern Ireland Office for execution, although
the laws and practices in those parts of the UK are similar to those in
England and Wales.)
How are requests for service of summonses and judgements executed?
Summonses and judgements received by the Home Office from competent authorities
abroad are normally served on the persons to whom they are addressed by
recorded delivery post. Where personal service is requested, the Home
Office arranges 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 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 Home Office to send to the requesting authority. The
Home Office 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. How are requests for evidence
on oath executed?
Where a request is made for evidence to be received by a court in the
UK or the execution of the request requires judicial authority under UK
law, the Home Office 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 and suspects named in the
request.
Witnesses and suspects may claim privilege against self-incrimination
and 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 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 if a court in the requesting
State rules that the claim to privilege is justified.
With the agreement of the UK court, attorneys, law enforcement officers
and other interested parties from abroad named in the request (or
a supplementary request) may observe the proceedings. Such agreement is
almost always given.
Under UK law the evidence received by the court must be furnished
to the Home Office to transmit to the requesting authority. It is possible
for the evidence to be received directly from the Home Office by hand
or, in urgent cases, for a Home Office official to be present at the court
to receive the evidence and pass it directly to the representative of
the requesting authority.
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 and the evidence would normally be returned to the requested authorities
through Interpol channels or handed to visiting officers.
How are requests for authenticated documentary evidence, including
certified banking evidence, executed?
The Home Office 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, the statement is normally provided by
an official of the bank concerned.
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.
Before an account holder is notified, the Home Office consults with the
requesting authority to ensure that execution of the request would not
breach the requesting authority confidentiality requirements.
Under UK law, the evidence received by the court must be sent
to the Home Office for transmission to the requesting authority.
How can requests for evidence in serious or complex fraud cases be
executed?
The Home Office can refer requests for assistance in serious or complex
fraud, or any part of such a request, to the Director of the Serious Fraud
Office to obtain such of the evidence as may appear to the Director
to be appropriate. Under law in the UK, 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".
Before referring a request to the Director, the Home Office will seek
a 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, without the consent of the Home Office. This assurance is
required because witnesses do not in general have a right to refuse to
answer questions where use is made of the Serious Fraud Office'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.
Under UK law, the evidence obtained by the Serious Fraud Office must
be sent by the Director to the Home Office for transmission to the requesting
authority.
Further information on what constitutes "serious or complex fraud" and
what should be included in a request for legal assistance in cases involving
serious or complex fraud may be obtained from the Serious Fraud Office
(in Scotland, the Crown Office).
How can requests for search and seizure (search warrants and production
orders) executed?
The Home Office may direct police or Customs 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).
Where further information is required about the offence or the material
to be seized, depending on the particular circumstances, the Home Office
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 Home Office consults the requesting authorities to ensure that
execution of the request would not breach any explicit confidentiality
requirement of the requesting authority. Notification of interested parties
is not required where an application is made for a search warrant.
There is no authority under UK 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 UK law, the evidence obtained must be sent by the police
or Customs to the Home Office for transmission to the requesting authorities
abroad.
How are requests for restraint (freezing) of assets executed?
In the United Kingdom, a court order to freeze (restrain) assets may
be obtained on behalf of a designated foreign jurisdiction when court
proceedings which may lead to a confiscation order have been or are about
to be instituted there; or if a confiscation order has already been made.
It is vital therefore that any request for the restraint of assets in
the United Kingdom should make clear whether a confiscation order has
been made; and, if not, whether proceedings which may lead to confiscation
have been instituted in the requesting state or, if not, when they expect
to begin.
UK law enables a restraint or freezing order to be obtained on behalf
of another country in our High Court only where that country has been
designated by subsidiary legislation. Normally, a country will be designated
for assistance in relation to drug assets when it ratifies the 1988 UN
(Vienna) Drugs Convention; or for assistance in relation to the proceeds
of all crimes when it ratifies the 1990 Council of Europe (Strasbourg)
Confiscation or when a bilateral confiscation agreement with the UK is
in place.
The Home Office will authorise a relevant prosecuting authority to represent
the requesting Government in the High Court proceedings. Applications
to the High Court in international restraint and confiscation cases are
dealt with in England and Wales by two prosecuting authorities. They are
the Central Confiscation Branch of the Crown Prosecution Service and the
Asset Forfeiture Unit of HM Customs and Excise. As a general rule, the
Central Confiscation Branch of the Crown Prosecution Service will deal
with any restraint or confiscation request where a police officer has
carried out the preliminary asset tracing enquiries in this country. The
Home Office can advise which office might be appropriate in a particular
case.
UK law requires that certain UK court orders, including restraint orders,
should be served personally on the defendant and/or interested parties.
Where the High Court grants a restraint order on behalf of a foreign Government,
the order will normally need to be channelled through the Home Office,
for service on the appropriate person(s) abroad.
Where a restraint order is granted on behalf of another government, the
Home Office will confirm this fact in writing, and request that such service
be effected as specified in the order. The requesting country will be
asked to complete and return to the Home Office a memorandum of service.
It is important that the Home Office receives the completed memorandum
quickly since delays could affect the High Court's willingness to continue
the order. It is helpful if the completed memorandum is received within
two weeks of its despatch and that in the event of unavoidable delay,
an advance copy is sent to the Home Office by fax.
How are requests for temporary transfer abroad of UK prisoners executed?
UK law allows for the temporary transfer abroad of UK prisoners, including
remand 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 Home Office.
The Home Office must be satisfied before agreeing to the transfer that
the presence of the prisoner is not already required in 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 Home
Office arranges for:
- the taking of 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;
- the escorting of 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 borne by the requesting
authority.
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The Home Office aims to ensure that requests for legal assistance are
executed promptly, taking account of urgency, and that requesting authorities
are kept informed of progress.
All requests received by the Home Office are acknowledged and the requesting
authorities are given the name and contact details of the person in the
Home Office responsible for co-ordinating its execution. As soon as possible,
the Home Office will inform the requesting authority how the request is
to be executed. In the relatively few instances where a request cannot
be executed in whole or in part, the Home Office will provide an explanation
and consult with the requesting authority about whether the assistance
can be provided in a different way.
Where possible, the Home Office will give requesting authorities the
contact details of the police or Customs officer or court official or
other person to whom the request, or part of the request, has been referred
for the purposes of executing the request. That person may then be
contacted directly by the requesting authorities.
Any enquiries about requests that have been sent to the Home Office are
also acknowledged and dealt with as quickly as possible. When making enquiries,
the Home Office's reference number for the request should be quoted as
this speeds up retrieval of information on the status of the request.
The sooner the Home Office is told about any difficulties which the requesting
authorities may be having with any requests, the sooner the Home Office
is able to reassure the requesting authorities that the matter is being
dealt with.
The Home Office has published a Code of Practice. This is a set of standards
that the Home Office applies in dealing with requests for legal assistance.
The standards are closely monitored. The Code is set out at Annex B.
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The Competencies of the Home OFfice (UK Central Authority) AND NCIS
(UK National Central Bureau of Interpol)
The examples below are intended to indicate whether the Home Office,
as UK Central Authority for mutual assistance in criminal matters, or
the UK National Central Bureau of Interpol (Interpol London) at the UK
National Criminal Intelligence Service, is more appropriate for conducting
enquiries in or seeking assistance from the UK.
| COMPETENCIES OF THE
HOME OFFICE INCLUDE: |
COMPETENCIES OF THE
UK NATIONAL CENTRAL BUREAU 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, to the
requesting country to appear as witnesses in criminal proceedings
or to assist in criminal investigations. |
Interviewing witnesses and suspects in criminal
investigations where the person to be interviewed 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 with the requesting country 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.
Providing details of previous convictions:
- for the purposes of police investigations, vetting applicants
for employment in law enforcement or for work with access to children
or suitability for owning firearms and holding gambling licences
- when provided with a copy of the person's fingerprints.
- for police intelligence purposes only - without fingerprints.
Providing telephone subscriber details (UK telephone companies
can provide only the family name and the initial of the subscriber
and the address where the telephone is located).
Seizing and securing in the UK property stolen abroad. Police in
the UK can 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
Agency 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 the
UK and of driving licences issued in the UK. |
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Requests to the United Kingdom for evidence
The Home Office, being the central authority for the United Kingdom in
mutual legal assistance in criminal matters, will:
- acknowledge all requests for evidence upon receipt, giving the name
of the Home Office officer handling the request, his or her telephone
and fax numbers and 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 with 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;
- endeavour to meet all reasonable time scales for the execution of
requests, including urgent requests.
Requests to the United Kingdom for service of process (summonses and
other procedural documents) The Home Office will:
- 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 the Home Office 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 the Home Office 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 in the Home Office who has handled the request, including
telephone and fax numbers and a reference number for any queries.
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Requests for legal assistance
Mutual Legal Assistance Section
Judicial Co-operation Unit
Home Office
50 Queen Anne's Gate
London SW1H 9AT
Tel: +44 20 7273 2437
Fax: +44 20 7273 4400/4584
The Judicial Co-operation Unit at the Home Office has a round-the-clock
answer phone facility and may be contacted out-of-hours by dialling: +44
1523 523523 (an operator will take the call who should be given pager
number 657782 and a message which will be relayed to the legal assistance
duty officer).
Requests for investigative assistance
UK National Central Bureau of Interpol (Interpol London)
National Criminal Intelligence Service
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 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
Requests for execution in Scotland Preliminary, informal enquiries
may be sent to:
Fraud and Specialist Services Unit
Crown Office
25 Chambers Street
Edinburgh EH1 1LA
Tel: + 44 131 226 2626
Fax: + 44 131 226 6861
Advice on UK criminal law and procedure
Casework Directorate
Crown Prosecution Service
50 Ludgate Hill
London EC4M 7EX
Tel: + 44 20 7273 1382
Fax: + 44 20 7329 8171
Requests for administrative assistance in Customs matters
HM Customs & Excise
International Criminal Division
Solicitor's Office
New King's Beam House
22 Upper Ground
London SE1 9PJ
Tel: + 44 20 7865 5167
Fax: + 44 20 7865 5654
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
Asset Forfeiture Unit
Solicitor's Office
HM Customs and Excise
New King's Beam House
22 Upper Ground
London SE1 9PJ
Tel: + 44 20 7865 5187
Fax: + 44 20 7865 5902
Requests for extradition of fugitives
Extradition Section
Judicial Co-operation Unit
Home Office
50 Queen Anne's Gate
London SW1H 9AT
Tel: + 44 20 7273 3991
Fax: + 44 20 7273 2496
Requests for administrative assistance in revenue tax matters
Inland Revenue
Solicitor's Office
Somerset House
London WC2R 1LB
Tel: + 44 20 7438 7091
Fax: + 44 20 7438 6246
Requests for regulatory assistance in companies matters
Department of Trade & Industry
Investigations & Enforcement Directorate
10 Victoria Street
London SW1 ONN
Tel: + 44 20 7215 3021
Fax: + 44 20 7215 3115
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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
2nd Floor New Wing
Victory House
Douglas
ISLE OF MAN
IM1 3PP
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 UK Overseas Territories
(details of authorities not listed are obtainable from the Home Office)
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
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
Attorney-General's Department
17 Town Range
Gibraltar
Tel: + 350 70723
Fax: + 350 79891
Montserrat
The Attorney-General
The Attorney-General's Chambers
PO Box 129
Olveston
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
Tel: + 1 649 946 2308
Fax: + 1 649 946 2903
Contents
Guidelines
from the Serious Fraud Office
|
