Mutual Legal Assistance in Cyberspace
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Transcript Mutual Legal Assistance in Cyberspace
Nick Vamos, UK Central Authority, Home Office
Overview
What is MLA?
CICA and the role of UKCA
Double jeopardy as a ground for refusal
Scenarios
Other issues
What is MLA?
Proceedings in one country, evidence in another
Formal process of requesting and providing
evidence and other assistance in criminal
proceedings
Governed by international agreements and
domestic law
State-to-State relationship via competent
authorities
CICA and the role of UKCA
Crime (International Co-operation) Act 2003 gives the Home
Secretary (via UKCA) the discretion to arrange for evidence
to be obtained
Minimum statutory requirements
Must act lawfully and in interests of justice
No obligation to accede but presumption that request will
be granted
Grounds of refusal: matter of policy not law. Home
Secretary decides
Prejudice to sovereignty, security, ordre public or other
essential interests of the requested party; double jeopardy;
political motivation
Double jeopardy as a ground
for refusal
UK reservation to the European MLA Convention 1959
“…the Government… reserves the right to refuse assistance of
the person who is the subject of the request for assistance has
been convicted or acquitted in the UK or in the third State of an
offence which arises from the same conduct as that giving rise
to proceedings in the requesting State in respect of that
person.”
Double jeopardy as a ground
for refusal
Article 10 of the draft European Investigation Order
“… the execution of the EIO would be contrary to the principle of ne bis in
idem, unless the issuing authority provides an assurance that the evidence
transferred as a result of an execution of an EIO shall not be used to
prosecute a person whose case has been finally disposed of in another
Member State for the same facts, in accordance with the conditions set out
under Article 54 of the Convention of 19 June 1990 implementing the
Schengen Agreement.”
UK Model MLA Treaty
“…if the request relates to a person who, if proceeded against in the
Requested Party for the offence for which assistance is requested, would be
entitled to be discharged on the grounds of a previous acquittal or
conviction.”
Wider scope of discretion
Ordre public incorporates abuse of process
jurisdiction e.g. where no final disposal or not similar
facts/conduct
If futher proceedings permissible in UK then not
contrary to ordre public e.g. tainted acquittals,
compelling new evidence
Scenario 1
Defendant (D) convicted in the UK for importation of
cocaine from country A.
Country A sends request for all evidence against D for the
purpose of prosecuting him for exportation of cocaine.
Scenario 2
Defendant (D) convicted in the UK for multi-victim
investment fraud in relation to property in country A.
Conviction based on specimen substantive counts
covering entire offending period
Country A sends request for evidence against D for the
purpose of prosecuting him for same offences in relation
to victims in Country A
Scenario 3
Defendant (D) acquitted in Country A of murdering her
husband by hiring a hitman
Country A send request to UK saying hitman has now
provided written confession that D hired him. Paid into
UK bank account so bank records requested
Scenario 4
Multi-national Company D Ltd being investigated in
several countries (X, Y and Z) for corporate fraud
D Ltd reaches plea agreement with Country X
Country Y send request for evidence in UK for the
purpose of prosecuting D Ltd for offences in Y
D Ltd say plea agreement with X precludes further
prosecutions in Y and Z therefore UK should not assist
X say plea agreement only intended to cover offences in X
Scenario 5
UK was at war with Country A. Corporal D accused of
shooting enemy soldier in circumstances that may
amount to War Crime under Geneva Convention
UK police investigate, including travelling to A to gather
evidence. First Treasury Counsel advises and DPP takes
decision that insufficient evidence for prosecution
A send request to UK for all evidence against D for
purpose of prosecuting him for War Crime. Assert
universal jurisdiction under Geneva Convention on basis
that D has not been prosecuted in UK
Other issues
How do we know?
UK proceedings may be identified by police
Corporate fraud: pre-emptive solicitors reps
May never know!
Enforcement of rights
Judicial review of UKCA, police, Court
Remedy in requesting State