MUTUAL LEGAL ASSISTANCE

EFTA00022206 Dataset 8 96 pages Download original PDF
A7 MUTUAL LEGAL ASSISTANCE IN CASES OF FRAUD A. Introduction A.7.01 (a) Relationship between international agreements on mutual assistance and domestic legislation A.7.03 (b) International developments A.7.06 (i) European Convention on Mutual Assistance in Criminal Matters A.7.09 (ii) Commonwealth Scheme Relating to Mutual Assistance in Criminal Matters 1986 A.7.12 (iii) United Nations Convention against Corruption A.7.14 (c) EU developments A.7.16 (i) The Schengen Convention A.7.19 (ii) Convention on Mutual Assistance in Criminal Matters between EU Member States and its Protocol A.7.26 (iii) Council Framework Decision on the execution in the EU of orders freezing property or evidence A.7.31 (iv) The Council Framework Decision 20081978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters A.7.35 (v) The European Investigation Order A.7.36 (vi) Other mutual recognition initiatives A.7.39 (vii) Council Framework Decision 2001/ 413/JHA of 28 May 2001 on Combating Fraud and Counterfeiting Non-cash Means of Payment A.7.41 (viii) Agreement on Mutual Legal Assistance between the EU and the US A.7.43 (d) UK mutual assistance legislation in outline A.7.55 (i) Crime (International Co-operation) Act 2003 A.7.55 (1) Commencement A.7.57 Fraud A-7001 EFTA00022206 Chapter A7: Mutual Legal Assistance in Cases of Fraud (ii) Proceeds of Crime 2002 (External Requests and Orders) Order 2005 (e) The UK Central Authority (f) The Serious Fraud Office (g) HM Revenue and Customs (h) UK Border Agency (UKBA) (i) The National Crime Agency (j) Letters of request and commissions regaroires A.7.58 A.7.60 A.7.102 A.7.106 A.7.109 A.7.110 A.7.115 B. UK Requests to Foreign States for Assistance A.7.116 (a) Persons able to request assistance A.7.117 (i) Requests by a judicial authority on the application of a prosecuting authority or the defendant A.7.117 (I)) Meaning of 'evidence A.7.122 (c) Procedure for obtaining a letter of request from a judicial authority A.7.123 (d) Transmission of the request under the Crime (International Co-operation) Act 2003, section 8 A.7.126 (e) Execution of the request and transmission of the evidence to the UK A.7.130 (f) Permitted use, admissibility, and return of the evidence A.7.133 (i) Restrictions on collateral use A.7.133 (ii) Admissibility A.7.135 (iii) Return of evidence to the requested state A.7.136 (g) Hearing witnesses abroad by television link A.7.137 (h) Requests to foreign states to freeze evidence A.7.140 (i) Conditions for issuing a domestic freezingorder A.7.143 (ii) Transmission of the domestic freezing order A.7.147 (iii) Amending or revoking a freezing order A.7.203 (i) Requests for foreign bank information A.7.204 (i) Requests for information about a person's bank account (Crime (International Co-operation) Act 2003, section 43) A.7.205 (ii) Monitoring banking transactions (Crime (International Co-operation) Act 2003, section 44) A.7.211 (iii) Sending requests under the Crime (International Co-operation) Act 2003, sections 43 and 44 A.7.215 C. Requests by Foreign States to the UK for Assistance in Providing Evidence (a) Introduction (b) Requests from foreign states for assistance in obtaining evidence A.7.216 A.7.216 A.7.217 A-7002 release 13/Jul 19 EFTA00022207 Chapter A7: Mutual Legal Assistance in Cases of Fraud (i) Incoming requests for assistance: initial steps A.7.219 (1) The overseas authorities which may request assistance A.7.222 (2) The decision whether or not to grant assistance: general A.7.223 (3) Disclosure of the letter of request A.7.229 (ii) Proceedings before a nominated court A.7.232 (1) Conditions for granting assistance under the Crime (International Co-operation) Act 2003, section 15 A.7.232 (2) The hearing A.7.235 (3) Forwarding the evidence to the foreign state A.7.301 (iii) Referring a request to the Serious Fraud Office under the Crime (International Co-operation) Act 2003, section 15(2) A.7.302 (1) The Serious Fraud Office's powers under s 2 of the Criminal Justice Act 1987 A.7.306 (2) Interviews under the Criminal Justice Act 1987, section 2(2) A.7.309 (3) Notices under the Criminal Justice Act 1987, section 2(3) A.7.314 (4) Search warrants under the Criminal Justice Act 1987, section 2(4) A.7.317 (5) Privilege against self-incrimination in mutual assistance proceedings A.7.327 (iv) Use of search warrants to give assistance to a foreign state A.7.328 (1) Warrants under section 8 of the Police and Criminal Evidence Act 1984 A.7.333 (2) Production orders and warrants under section 9 of, and Schedule 1 to, the Police and Criminal Evidence Act 1984 A.7.339 (3) Use of the powers in Part 2 of the Police and Criminal Evidence Act 1984 following a request for mutual assistance A.7.406 (4) Warrants under section 17 of the Crime (International Co-operation) Act 2003 A.7. 410 (5) Giving the direction under the Crime (International Co-operation) Act 2003, section 13 A.7.415 (v) Transmission of the evidence A.7.417 (1) Use of the evidence in the requesting state A.7.424 (vi) Hearing evidence from the UK by television or telephone link A.7.426 (1) Television links A.7.427 Fraud A-7003 EFTA00022208 Chapter A7: Mutual Legal Assistance in Cases of Fraud (2) Telephone links A.7.432 (3) Overseas requests to freeze evidence in the UK A.7.439 (vii) Receiving an overseas freezing order A.7.441 (viii) Nominating a court A.7.444 (ix) Giving effect to the overseas freezing order A.7.447 (x) Evidence seized under the order A.7.503 (xi) Release of evidence held under the order A.7.505 (c) Requests for UK bank transaction information A.7.508 (i) Request for customer information from a UK financial institution A.7.509 (I) Receipt of request A.7.509 (2) Making, varying, and discharging a customer information order A.7.518 (ii) Requests to the UK to monitor bank accounts A.7.521 (I) Request for an account monitoring order A.7.522 (2) Making, varying, or discharging account monitoring orders A.7.528 (3) The offence of disclosure in relation to customer information orders and account monitoring orders A.7.533 D. Mutual Legal Assistance in Relation to Restraint and Confiscation A.7.538 (a) Introduction A.7.538 (b) Requests by the UK for assistance in relation to restrain and confiscation A.7.541 (i) Requests by the UK for assistance in restraining property abroad and enforcing confiscation orders A.7.542 (1) The conditions in the Police and Criminal Evidence Act 1984, section 40 A.7.549 (2) Temporal limitations in respect of requests for assistance A.7.606 (3) Contents of the request A.7.607 (ii) Requests for assistance in evidence gathering in connection with potential restraint and confiscation A.7.608 (c) Foreign requests to the UK for assistance with restraint and confiscation A.7.612 (i) Introduction A.7.612 (ii) Commencement and temporal scope of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 A.7.615 (iii) Definitions A.7.619 (iv) Reference of an external request by the Secretary of State A.7.620 A-7004 release 13/Jul 19 EFTA00022209 Chapter A7: Mutual Legal Assistance in Cases of Fraud (v) The Crown Court's power to make a restraint order at the request of a foreign state A.7.624 (1) The Article 7 conditions A.7.627 (2) Procedure A.7.630 (vi) The Crown Court's power to enforce an external order A.7.637 (1) Conditions for giving effect to an external order A.7.640 (vii) Orders which may be made in addition to and in aid of restraint orders and external orders A.7.650 (viii) Confiscation orders: orders which may be made by a UK court A.7.704 (ix) The procedure for enforcing foreign orders in the UK A.7.707 (x) Remitting confiscated property to the requesting state A.7.710 (d) Foreign requests for assistance in gathering evidence in relation to confiscation A.7.714 (i) Investigations using powers in the Crime (International Co-operation) Act 2003 A.7.714 (ii) Investigations using powers in the Proceeds of Crime Act 2002 A.7.715 E. Mutual Enforcement within the UK A.7.719 Fraud A-7005 EFTA00022210 A-7006 release 13/Jul 19 EFTA00022211 A. Introduction [A.7.03] A. Introduction This chapter examines the means by which the UK assists and seeks the assistance of foreign A.7.01 states+ in the investigation and prosecution of fraud and related offences.2 In this chapter the term 'foreign state' includes the Channel Islands. the Isle of Man. and British Overseas Territories, which are responsible themselves for providing mum] assistance in response to requests from ocher countries. 2 But note that the Crime (International Co-operation) Act 2003 (CICA) also permits the UK to provide assistance in relation CO administrative proceedings and demency proceedi ng,s in foreign states. There arc also statutory powers enabling foreign states to seek assistance in relation to financial and regulatory matters under the Companies Act 1989 and the Financial Services and Markets Act 2000. Part 1 of the Regulation of Investigatory Powers Act 2000 contains provisions relating to mutual assistance in the interception of communications. There are also a range of provisions for the exchange of information in tax matters. see eg the European Administrative Cooperation (Taxation) Regulations 2012. SI 2012/ 3062. The two principal pieces of legislation+ in this field are: A.7.02 • the Crime (International Co-operation) Act 2003 (CICA 2003). CICA 2003 contains provisions allowing the UK to seek and provide assistance in a number of ways, including the provision of evidence and information; the service of process, the enforcement of foreign driving disqualifications, and other related matters? CICA 2003 repealed the Criminal Justice (International Cooperation) Act 1990 however ss 5, 6, 9, and 10 of the 1990 Act remain in force; • the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (the POCA Order); enables the UK to restrain assets at the request of foreign states and also to enforce external confiscation orders! 1 The enforcement of foreign judgments in civil proceedings is outside the scope of this work. For a recent analysis of the provisions concerning enforcement of foreign orders in insolvency proceedings. and the Foreign Judgments (Reciprocal Enforcement) Act 1933 and s 426 of the Insolvency Act 1986. see New Cap Reinsurance Corporation Ltd (in liquidation) v Grant 120121 Ch 538. CA. 2 The provisions of CICA 2003 relating to service of process and driving disqualifications are not covered in this chapter. For further details. see C Nicholls, C Montgomery and IS Knowles. The Law of Extradition and Mutual Assistance (3rd edn, 2013), chs 22 and 23. 3 SI 2005/3181, Made under POCA. 4 Part 3 of the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) Order 2005 (SI 2005/3180) contains similar powers enabling forfeiture of the instrumentalities of crime at the request of foreign states, as to which see generally Malabu Oil and Gas Ltd v Dimes, of -Public Prosecutions (20161 Lloyd's Rep FC 108. (a) Relationship between international agreements on mutual assistance and domestic legislation The development of mutual assistance legislation in the UK has primarily been driven by A.7.03 mutual legal assistance treaties and other international agreements. These instruments had the effect of requiring the UK to adapt its laws so as to enable it to honour its international obligations. It is thus convenient to consider these agreements first before describing the domestic legislation. Fraud A-7007 EFTA00022212 [A.7.04] Chapter A7: Mutual Legal Assistance in Cases of Fraud A.7.04 However, unlike in respect of extradition, it should be noted at the outset that the domestic mutual assistance scheme does not require the existence of a treaty as a pre-condition for the granting of mutual assistance. The UK is able, in general, to offer assistance to any state whether or not that country is able to reciprocally assist the UK, and whether or not there is a bilateral or multilateral agreement in place.' 1 Mutual Legal Attittante Guidelines for the United Kingdom (12th edn. Home Office. March 2015). p 5. A.7.05 Mutual legal assistance treaties therefore have a dual role to play in the mutual assistance process. First, they can be used as an aid to the interpretation of relevant legislation.' In particular, parts of the CICA 2003 give effect to international agreements and framework decisions, and these domestic provisions fall to be interpreted in light of the international instrument to which they give effect.2 Secondly, the Secretary of State and the court must take into account treaty provisions when considering the extent to which assistance should be granted under the CICA 2003 or other legislation? Arlan. Unreported. 10 June 1996 (CA): see also Enander s, Governor offirr Majesty's Prison Brixton(2005) EWHC 3036 (Admin). pare 29-30. 2 Oaks, v High Court ofMadrid 120071 2 AC 31; Pupino (2006) QB 83, ECJ. The difficulty identified in Auange vStvedith Prosecution Authority 12012) 2 AC 471. pans 201-221. so far as pre-Treaty of Lisbon EU instruments enacted under Title VI TEU are concerned, has since been solved: Om v Loral Court ofSureatm, Romania 12016) 1 WLR 3344; Goluthounki v Poland12016) 1 WLR 2665. pars 46. 3 R vSeartaryofState ex p Fininvett Spa (199711 WLR 743. 758. See also R v 12008) EWCA Crim 3062. (b) International developments A.7.06 Among the most important multilateral conventions and agreements in relation to mutual assistance ratified by the UK are the Council of Europe's Convention on Mutual Assistance in Criminal Matters 1959' (the 'European Convention on Mutual Assistance in Criminal Matters) and its First and Second Additional Protocols? the Council of Europe's Conven- tion on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime 1990;3 and the Commonwealth Scheme (the 'Harare Scheme')fi ETS No 30. 2 ETS No 99 and ETS No 182. The second Additional Protocol came into force in the UK on 1 October 2010. 3 ETS No 141. There is also a Council of Europe Convention on the Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (CETS No 198). which the UK ratified in 2015. 4 Scheme Relating DO Mutual Assistance in Criminal Matters within the Commonwealth, Commonwealth Secretariat. London, LMN (86) 13. See the updated scheme, Revised Scheme Relating to Mutual Legal Assistance in Criminal Matters within the Commonwealth. including amendments made by Law Ministers in April 1990. November 2002, October 2005 and July 2011 ehttp://thecommonwealth.org/ sitcsidefaultifiles/Icey_reform_pdfs/P15370_14_ROL_Model_Leg_Mutual_Legal_Assince.pdf>. The UK has also ratified the UN Convention against Transnational Organised Crime 2000 and the UN Convention Against Corruption 2003. A.7.07 There have also been a number of important developments at EU level, including the Schengen Convention' the EU Convention on Mutual Assistance in Criminal Matters and its Protocol? and most recently the development of mutual recognition initiatives to facilitate speedier mutual legal assistance. However, the referendum on the United A-7008 release 13/Jul 19 EFTA00022213 A. Introduction [A.7.11] Kingdom's membership of the European Union, held on 23 June 2016, led to a decision to withdraw from EU membership. Notice of intention to leave the EU ('Brexit) was served under Art 50 TEL) on 29 March 2017. Withdrawal was due to take effect on 29 March 2019 but at the date of writing had been postponed. Consequently, the UK's continued participation in EU mutual recognition instruments remains the subject of significant uncertainty (see pan A.7.17).3 OJ L 239. 22.09.2000, p 19. 2 OJ C 197, 12.07.2000. p 3 and OJ C 326, 21.11.2001. 3 See, eg. the House of Lords. European Union Committee. 'Brexit: Judicial Oversight of the European Arrest Warrant', 6th Report of Session 2017-19. The UK is also a signatory to a number of bilateral mutual legal assistance treaties.' Among A.7.08 these are the Mutual Legal Assistance Treaty with the US, which entered into force on 12 February 1996. The Foreign Office maintains a list of all bilateral agreements. 2 I Often referred to as an 'MIST'. 2 See <http://www.fco.gov.ulden/publications-and-documents/treatieulists-treatiestbilateral-mutual- legal>. (if European Convention on Mutual Assistance in Criminal Matters One of the first international instruments to respond to the effects of cross-border criminal A.7.09 activity was the European Convention on Mutual Assistance in Criminal Matters) Although this opened for signature in 1959, it was not ratified by the UK until 1991 when the Criminal Justice (International Cooperation) Act 1990 came into force. Art 3(1) of the Convention provides that: The requested Party shall execute in the manner provided for by its law any letters rogatory relating to a criminal matter and addressed to it by the judicial authorities of the requesting Party for the purpose of procuring evidence or transmitting articles to be produced in evidence, records or documents. ETS No 30. See generally. D McClean, International Cooperation in Civil and Criminal Matters (2012). p 170. The Additional Protocol to the Convention, which opened for signature in 1978, contains A.7.10 provisions intended to relax the Convention's restrictions on assistance in relation to fiscal offences. The Second Additional Protocol facilitates the exchange or disclosure of infor- mation by broadening the range of situations in which mutual assistance may be requested and by making the provision of assistance easier, quicker and more flexible. This includes the creation of joint investigation teams (JIT),I I Ankle 20. The European Convention on Mutual Assistance in Criminal Matters was an important A.7.11 achievement for its time in its recognition of the necessity for specific instruments for cooperation in evidence gathering. However, like all new instruments, it had limitations. Perhaps the most notable was that the Convention was designed to operate amongst states of like legal tradition, namely the civil law states of Europe, and it was geared towards legal systems where criminal prosecutions were under the control of an investigating judge. Fraud A-7009 EFTA00022214 (A.7.12) Chapter A7: Mutual Legal Assistance in Cases of Fraud (ii) Commonwealth Scheme Relating to Mutual Assistance in Criminal Matters 1986 A.7.12 The Commonwealth Scheme was adopted by Commonwealth Law Ministers in Harare, Zimbabwe, in August 19861 and has been amended since in 2002, 2005, and 2011. It is not treaty-based and depends for its effective operation on the passage by all members of the Commonwealth of domestic legislation, including legislation to enable the exercise of powers and functions by their law enforcement and curial bodies on behalf of other Commonwealth countries. 1 Scheme Relating to Mutual Assistance in Criminal Matters within the Commonwealth. Common- wealth Secretariat. London. DAN (86) 13. See generally. D McClean, International Cooperation in Civil anti Criminal Mitten (2012), p 177 and the Office of Civil and Criminal Justice Reform. Commonwealth Se/temp for International Cooperation in Criminally:atter:. Commonwealth Secretariat (2017). The most recent version of the Scheme can be found at ehttp://thecommonwealth.oresitesidefaultifilesikey_ reform_pdfs./P15370_14_ROL_Model_Leg_Mutual_Legal_Assince.pdf>. A.7.13 The Commonwealth Scheme provides for a wider range of assistance than its Council of Europe counterpart and recognises the common law independence of the police in conducting investigations, as well as a non-judicial prosecutor exercising a prosecutorial discretion. The types of assistance envisaged by the Scheme include: • obtaining and taking of evidence; • making available records and other documents; • facilitating the appearance of witnesses (including persons in custody) provided such persons consent; • interception of telecommunications and postal items; • covert electronic surveillance; • the use of live video links in the course of investigations and judicial procedures; • asset recovery; and • issuing of process for compulsory measures including search and seizure. (iii) United Nations Convention against Corruption' A.7.14 The Convention was adopted by the General Assembly by resolution 5814 of 31 October 2003. 1 See ehttplfwvomunodc.orgidocumentshreaties./UNCAOPublications./Conventiord08-50026_E. pdf >. A.7.15 The principal aim of the Convention is to prevent corruption from occurring. The Convention requires countries to establish criminal and other offences to cover a wide range of acts of corruption, if these are not already crimes under domestic law. Chapter IV of the Convention deals with international cooperation consequent to that. Countries agreed to cooperate with one another in every aspect of the fight against corruption, including prevention, investigation, and the prosecution of offenders. Countries are bound by the Convention to render specific forms of mutual legal assistance in gathering and transferring evidence for use in court, and to extradite offenders. Countries are also A-7010 release 13/Jul 19 EFTA00022215 A. Introduction [A.7.17] required to undertake measures which will support the tracing, freezing, seizure, and confiscation of the proceeds of corruption.' I See generally C Nicholls er 21. Comrption and Miswe of Public Office (3rd edn. 2017). (c) EU developments In October 1999 at Tampere, the European Council adopted a legislative approach called A.7.16 mutual recognition as the cornerstone ofjudicial cooperation in the EU. This followed the institutional changes brought about by the Treaty of Amsterdam.' Mutual recognition presents a significant departure from existing mutual assistance procedures. 2 The tradi- tional 'request principle' for mutual assistance entails requests being addressed from executive to executive through their national ministries. Such requests could be refused on a wide variety of domestic discretionary principles including specialty,3 double criminal- ity," the political offence exceptions and the bar on extraditing nationals.' However, this made outcomes slow, cumbersome, and often unreliable. Mutual recognition has been embraced to change this by leaving decision-making predominantly with the judiciary. Under mutual recognition, judicial decisions by one EU state can be implemented in another with limited grounds for refusal and without any real consideration of the processes by which these decisions were reached.' This inevitably impacts on the individual by permitting their direct exposure to other European criminal justice systems. I 1997 OJ O340/1. 2 See Madarel. 'Surrendering' the Fugitive—The European Arrest Warrant and the United Kingdom. JoCL 71 (362) 2007. 3 The specialty principle generally acts as a bar on an extradited person being prosecuted for anything other than the offence for which s/he was extradited. 4 This is the principle that extradition or mutual assistance will be refused for acts that are not also defined as crimes in the jurisdiction dealing with the request. 5 This exception is a general baron the extradition of alleged offenders who are sought for political activity and is aimed at preventing persecution. 6 This bar has its basis in the link between allegiance and protection between state and its nationals, the right of a state to prosecute and punish its own nationals, and in a distrust of other criminal justice systems. 7 Peers. 'Mutual Recognition and Criminal Law Has the Council got it wrong?' CMLR 41:5-36 (2004). p.10. The mutual recognition agenda sought to revolutionise mutual legal assistance within the A.7.16A EU as legal instruments progressively replaced traditional mutual legal assistance conven- tions. To date there have been a number of EU initiatives in the area of criminal mutual assistance that have had an important impact on the UK's domestic legislation, including CICA 2003. However, the legal situation has recently become complicated. Protocol 36 of the Treaty of A.7.17 Lisbon permitted the UK Government to decide by 31 May 2014 whether it intended to continue to be bound by unamended, pre-Lisbon EU police and criminal justice (PCJ) measures. This allowed the UK to withdraw from these measures before they became subject to the jurisdiction of the Court ofJustice of the European Union and the European Commission's enforcement powers. Under Art 10(4) of Protocol 36, the UK indicated it Fraud A-7011 EFTA00022216 (A.7.18] Chapter A7: Mutual Legal Assistance in Cases of Fraud was withdrawing from all such measures with effect from 1 December 2014. It then set out its intention to opt back into 35 selected measures. The measures included many mutual recognition instruments and a number of other key instruments (eg legislation establishing Europol and Eurojust and legislation on joint investigation teams and criminal records). Twenty-nine measures, including Europol, Eurojust, and joint investigation teams were eventually re-joined. For a while, therefore, normality was resumed.' However, the UK's subsequent decision to withdraw from the EU leaves numerous issues pertaining to the future status of these instruments to be addressed within the exit negotiations. 2 The UK Government has identified 'cooperating in the fight against crime and terrorism' as one of its twelve guiding principles in the 'Break negotiations? But there is no guarantee as yet that an effective legal framework for mutual recognition of judgments can be maintained, there being no precedents for many of the arrangements which need to be put in place. A significant potential stumblingblock is the role of the Court ofJustice of the EU (CJEU). As taking `control of our own laws' was a core motivator behind the decision to leave the EU, any CJEU jurisdiction in relation to UK cooperation arrangements will remain highly contentious. 6 Possible alternative models of cooperation may potentially be found in the extradition agreement negotiated by Iceland and Norway with the EU.6 This requires the parties to 'keep under review' the development of the case law of the CJEU and the domestic courts of Iceland and Norway. Agreement on these issues is yet to be reached. 1 The whole episode also served to resolve the legal problems identified in Autry v Sure/lib Prosecution Authority [2012) 2 WLR 1275AC 471. pares 201-221: see above. n 9. 2 For general discussion on these issues. see V Mitsilegas, 'European Criminal Law without the United Kingdom? The Triple Paradox of Brexit' (2018) NJECL. 8(4). 437-38 and R Davidson, 'Brexit and Criminal Justice: The Future of the UK's Cooperation Relationship with the EU' [2017) Crim L R 5. 3 HM Government. `The United Kingdom's Exit From, and New Partnership with, the European Union (February 2017), Cm 9417. 4 See the House of Lords, European Union Committee. 'Brexir: Future UK—EU Security and Mice Cooperation'. 7th Report of Session 2016-17. HL Paper 77. pans 87. 5 See 'Theresa May's Brexit Speech in Full'. Mr Telegraph. 17 January 2017. 6 Council Decision 2014/835 of 27 November 2014 on the conclusion of the Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway [20141 OJ L34311. A.7.18 The UK Government has noted that, following the UK's withdrawal from the EU, the UK will be a `third country' (external country) in its dealings with the Union. It has suggested: One option for haute EU—UK cooperation in this area would be to limit cooperation to those areas where a precedent for cooperation between the EU and third countries already exists. While this would be one possible approach, it would result in a limited patchwork of cooperation falling well short of current capabilities. It would also fall short of current channels used to assess the strategic threats facing European countries—threats that will still be shared after the UK withdraws from the EUA piecemeal approach to future UK—EU cooperation would therefore have more limited value, and would risk creating operational gaps for both the UK and for its European partners, increasing the risk for citizens across Europe.' A-7012 release 13/Jul 19 EFTA00022217 A. Introduction [A.7.21] At the time of writing, the future of mutual legal assistance in the criminal sphere between the UK and the EU remains extremely uncertain. With that caveat, we outline in s (i) below the EU mutual legal assistance scheme in which the UK participates, as it currently stands. 1 HM Government, 'Security, Law Enforcement and Criminal Justice: A Future Partnership'. 18 Septem- ber 2017. pan 35. (I) The Schengen Convention+ France, Germany, Belgium, Luxembourg, and the Netherlands agreed on 14 June 1985 to A.7.19 sign an agreement on the gradual abolition of checks at their common borders. This became known as the Schengen Agreement, after the name of the town in Luxembourg where it was signed. I See generally. D McClean. International Cooperation in Civil and Criminal Masters (2012), p 157. The Convention Implementing the Schengen Convention was signed in June 1990 and A.7.20 came into effect in March 1995.' By that time, other EU Member States had joined the initial signatories of this inter-governmental agreement, which was signed outside the EU framework because of a lack of agreement in relation to competence in the areas of border control. The Convention has 142 articles providing measures for creating a common area ofjustice and security, following abolition of common borders. Its key aims are to facilitate free movement within participating states; to improve police cooperation; to extend the provision of mutual legal assistance between signatory states; and to improve access to the Schengen Information System (515). 1 01 L 239. 22.09.2000, p 19. The SIS was set up to allow police forces and consular agents from the Schengen countries A.7.21 to access data on specific individuals (ie criminals wanted for arrest or extradition, missing persons, third-country nationals to be refused entry, etc) and on goods which have been lost or stolen. The data related to persons may include data on: persons wanted for arrest for extradition purposes; aliens for whom an alert has been issued for the purposes of refusing entry; and missing persons or on persons needing temporary police protection, among other things. A second technical version of this system PS II) entered into operation on 9 April 2013. It has enhanced functionalities, such as the possibility to use biometrics, new types of alerts, the possibility to link different alerts (such as an alert on a person and a vehicle) and a facility for direct queries on the system. It also ensures stronger data protection.' It is a database of 'real-time alerts about individuals and objects of interest to EU law enforcement agencies.2 Each participating country has a SIRENE (Supplementary Information Request at the National Entry) Bureau, to provide supplementary informa- tion and coordinate activities. The UK connected to SIS II in April 2015.3At the time of writing most information about persons of interest to law enforcement within the EU are dealt with by SIS II. The most likely replacement for the system when and if the UK leaves the 515 is the Interpol system of notifications. Fraud A-7013 EFTA00022218 [A.7.22] Chapter A7: Mutual Legal Assistance in Cases of Fraud 1 See the Council Decision of IS February 2008 on the trials for the second generation Schengen Information System (SIS II) OJ L 57, 1.3.2008. 2 House of Lords, European Union Committee. 'Brain. Future UK-EU Security and Police Coopera- tion', 7th Report of Session 2016-17, HL Paper 77. pan 87. 3 See House of Lords European Union Committee. 'Blain Future UK—EU Security and Police Coop- eration, 7th Report. session 2016-17, para 8. A.7.22 The 1985 Schengen Agreement and the Convention implementing it, and the decisions and declarations adopted by the Schengen bodies are known collectively as the Schengen acquit. The texts are available on the Europa websitei They were made part of the acquit communautaire 2 by Protocol 2 to the Treaty of Amsterdam. 3 Requests from the UK to participate in some aspects of the Schengen acquit (the police and judicial cooperation elements—the UK does not participate in the frontier control elements) led to two Council Decisions (Council Decision 2000/365/EC 4 and Council Decision 2004/926/EC 5). 1 See ehap://ec.europa.eufjusticelcriminaLflawfindex_en.htm>. 2 This is the entirety of legislation. legal acts and court decisions which constitute the body of EU law. 3 Protocol No 2, Treaty on European Union, integrating the Schengen acquit into the framework of the European Union. 01 L 340. 10 November 1997. 4 OJ L 31. 1.6.2000. 5 OJ L 393/70, 31.12.2004. A.7.23 Protocol 19 to the Treaty on the Functioning of the European Union (TFEU) integrated the Schengen acquit into the framework of the European Union.' Art 4 to Protocol 19 provides that the UK may request to take part in some or all provisions of the Schengen acquit. Art 5 of Protocol 19 provides that the UK is deemed to opt in to measures building on parts of the acquit in which it participates unless, within three months of the publication of the proposal or initiative, it notifies the Council that it does not wish to take part in the measure—'an opt-out'. If the UK does not opt out within that three-month period, it is automatically bound. If the UK opts out, the Commission and Council can decide to eject the UK from all or part of the rest of Schengen to the extent considered necessary if such non-participation seriously affects the practical operability of the system but the Protocol states explicitly that it must seek to retain the UK's widest possible participation. 2 1 OJ C 326, 26.10.2012. 2 See chttps://www.gov.uldgovemment/uploads/system/uploadsfattachment_datafftle/206474/Final... opt-in_webpage_update.pdf>. A.7.24 Key provisions of the Schengen Convention that are implemented by the UK through CICA 2003 include: • the continuation of surveillance by law enforcement officers if the subject crosses into another Member State (so-Sled 'hot surveillance):1 • the extended provision of mutual legal assistance to include, in addition to ordinary criminal proceedings, clemency proceedings and administrative proceedings; 2 • the sending of procedural documents directly by post rather than via central authorities; • the designation of a supervisory authority to carry out independent supervision of national data files from the SIS? Article 40. 2 Article 49. A-7014 release 13/Jul 19 EFTA00022219 A. Introduction [A.7.28] 3 Ankle 52. 4 Ankle 114. Access to the S1S after withdrawal from the EU will be a complex issue for Brexit A.7.25 negotiations. There is no precedent for providing such access to a country which is neither a Member State nor a Schengen country. Any future agreement on UK access will doubtless require the UK to continue to apply standards consistent with EU data protection legislation. There is equally no precedent on which the UK could rely to argue for continued access to SIS 11.1 1 See evidence of Security Commissioner Julian King to the House of Commons Home Affairs Commit- tee, 28 February 2017. according to which outside of non-EU Schengen countries there are no precedents for third countries accessing those information-sharing platforms (Q92). (ii) Convention on Mutual Assistance in Criminal Matters between EU Member States and its Protocol On 29 May 2000 the EU Council of Ministers adopted the Convention on Mutual A.7.26 Assistance in Criminal Matters.' The Convention did not enter force until 2005. Art 1 of the Convention explains that its purpose is to supplement the provisions between Member States of inter alia the the Council of Europe's 1959 Convention on Mutual Assistance in Criminal Matters and its Additional Protocol, and the mutual assistance provisions of the Schengen Convention. The EU Convention does not affect the application of more favourable provisions in bilateral or multilateral agreements between Member States or criminal mutual assistance arrangements agreed2 on the basis of uniform legislation or other special arrangements. 1 OJ 197. 12.07.2000. p 3. See Explanatory Report on the Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member SUMS of the European Union. OJ C 379. 29.12.2000. p 7. 2 As provided for in the Council of Europe's European Convention on Mutual Assistance in Criminal Matters. Art 26(4). Thus the EU Convention aims to encourage and modernise cooperation between judicial, A.7.27 police, and customs authorities within the EU as well as with Norway and Iceland by supplementing provisions in existing legal instruments and facilitating their application. The state receiving a request must in principle comply with the formalities and procedures initiated by the requesting state. Forms of assistance provided for by the Convention include: A.7.28 • the handing over of objects that have been stolen or obtained by other criminal means and that are found in another Member State; • hearings by video or telephone; • the setting up of a joint investigation team by two or more EU Member States for a specific purpose and for a limited period of time, as well as joint covert investigations; • requests for the interception of telecommunications. Fraud A-7015 EFTA00022220 (A.7.29] Chapter A7: Mutual Legal Assistance in Cases of Fraud A.7.29 The 2001 Protocol to the EU Convention' deals with requests for banking information and is implemented by Chapter 4 of Part 1 of CICA 2003. C 326. 21.11.2001. p I. See Explanatory Report to the Protocol co the 2000 Convention on mutual assistance in criminal matters between the Member Sures of the European Union, OJ C 257, 24.10.2002. p 1. A.7.30 The European Investigation Order Directive has effectively superseded many of the Convention's provisions (at para A.7.36 below). However, as noted above (para A.7.17), once the withdrawal process under Art 50 (including any transitional period) is complete, some EU law measures, including the EU Convention on Mutual Assistance in Criminal Matters and the European Investigation Order Directive, will be terminated unless UK third-country access is successfully negotiated. The EU allows third-state participation in some of its mutual legal assistance arrangements.' An alternative to negotiating third-state access to the network of existing MLA agreements would be a UK—EU MLA treaty.2 Again, the role of the CJEU would be highly contentious. I See. eg, Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the application of certain provisions of the Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member Sures of the European Union and the 2001 Protocol thereto 120001 OJ L26. 2 See ft Davidson, 'Smut and Criminal Justice: The Future of the UK'sCooperation Relationship with the EU' [2017) Crim L R 5. 387. (iii) Council Framework Decision on the execution in the EU of orders freezing property or evidence A.7.31 After the Framework Decision on the European Arrest Warrant, the European Council first extended the mutual recognition principle to mutual legal assistance matters with the Framework Decision on pre-trial orders freezing property or evidence.This was adopted by the EU Council of Ministers on 22 July 2003 on an initiative by Belgium, France, and Sweden. Its purpose is to establish the rules under which a Member State is to recognise and execute in its territory a freezing order issued by a judicial authority of another Member State in the framework of criminal proceedings. I 20031577/J14A. 22 July 2003: OJ L 196, 2.08.2003. A.7.32 A 'freezing order' means any measure taken by a judicial authority in a Member State to prevent the destruction, transformation, displacement, etc of property. The evidence to which the Framework Decision applies includes objects, documents, or data which could be produced as evidence in criminal proceedings. A.7.33 The Framework Decision (2003/577/JHA) was given effect to in Pan 1 of CICA 2003' and by the Crime and Courts Act 2013 (which replaces the Serious Organised Crime & Police Act 2005). However, the scheme remained restricted to the freezing phase, such that a freezing order still needed to be accompanied by a separate MIA request for the subsequent transfer of the evidence to the issuing state. Because of this need to resort to co-existing MLA arrangements in any event, the 2003 scheme was seldom used in practice. A-7016 release 13/Jul 19 EFTA00022221 A. Introduction [A.7.35] CICA 2003, ss 10-12 and ss 20-27. CICA 2003 also gives effect to the EU Munn] Assistance Convention 2000 (12 July 2000) (the Convention established by the Council in accordance with An 34 of the Treaty on European Union. on Mutual Assistance in Criminal Matters between the Member SLIM of the European Union (OJ C 197, 12/07/2000 p 0003-0023)) and the Protocol to the 2000 Convention (21 November 2001) (the Protocol to the Convention on Marital Assistance in Criminal Matters between the Member States of the European Union (OJ C 326, 21/11/2001 p0001-0008)). CICA 2003 also implements other EU legislation, including the Convention 981C 216/01 on Driving Disqualifications (as to which, see aLso S.I. 3010 of 2008; The Mutual Recognition of Driving Disqualifications (Great Britain and Ireland) Regulations 2008). A Regulation on the Mutual Recognition of Freezing and Confiscation Orders has been A.7.34 proposed to replace and further develop this existing mutual recognition framework (the 2003 Framework Decision and the Council Framework Decision (2006/783/HA) on the application of the principle of mutual recognition to confiscation orders)) The proposed Regulation aims to create 'a uniform and more effective legal instrument to improve cross-border asset recovery'. 2 It is intended to resolve the issues caused by the implemen- tation of existing instruments. The draft Regulation covers a wider range of confiscation such as non-conviction -based confiscation (including some preventative confiscation). It also standardizes procedures to improve efficiency. On 8 December 2017, the Council agreed a general approach on the proposal.3 The UK has indicated it wishes to opt in but this initiative, like other mutual recognition instruments, will be affected when and if the UK withdraws from the EU. I Framework Decision 2006/783/JHA on the application of the principle of mutual recognition to confiscation orders, OJ L 328. 24.11.2006. 2 Proposal for a Regulation of the European Parliament and of the Council on the mutual recognition of freezing and confiscation orders—General approach, Council Document 15104117, 8 December 2017. 3 ibid. (iv) The Council Framework Decision 2008/978IJHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters In late 2008, the Framework Decision on the European Evidence Warrant (EEW) was A.7.35 finalised. The main purpose of the proposal was to consolidate the disparate schemes and to accelerate and simplify the process of gathering and transmitting evidence in criminal cases with a cross-border element. A simple form was to be sent between Member States' authorities, including an order from the 'issuing state' (the state which sends the form) for the 'executing state' to carry out certain activities. The EEW extended the mutual recognition principle of the European Arrest Warrant to the transfer of limited types of 'object kb documents and data' among Member States in criminal proceedings.' However, the EEW remained flawed as an effective cross-border instrument. It was only applicable to evidence already in existence and therefore restricted the spectrum of judicial cooperation in criminal matters with respect to such evidence. Because of its limited scope, competent authorities were free to use the new regime or to use co-existing MLA procedures in any case applicable to evidence falling outside of the scope of the EEW. The EEW specifically excluded 'real time evidence such as the interviewing or taking of statements from suspects, witnesses or victims, the interception of communications, the taking of DNA or bodily samples, evidence gathered as a result of ongoing monitoring or surveillance, or Fraud A-7017 EFTA00022222 [A.7.36] Chapter A7: Mutual Legal Assistance in Cases of Fraud evidence that required analysis to be conducted? The EEW took eight years to come into being and its difficult history highlights the problems of pursuing prosecution initiatives in this area. Even before it could be implemented it was overtaken by a new proposal for a Directive on the European Investigation Order (EIO). The EIO has now effectively replaced the EEW. I The EEW is limited to obtaining those 'object(s), documents and data from another member state that are already in existence—Art 1(1). See J.R. Spencer. 'The Probkms of Trans-border Evidence and European Initiatives to Resolve Them'. Gnabrielge Yearbook of European Lego! Studies. Vol. 9, Oxford: Hart Publishing. 2007, pp 477. 478. 2 Article 4(2). (v) The European Investigation Order A.7.36 As noted, almost as soon after the EEW had been agreed, the EU's Stockholm Programme on the Area of Freedom Security and Justice issued a commitment to replace the EEW with a proposal for a 'comprehensive instrument for the transfer of all forms of evidence.' The Stockholm Programme referred to the existing mutual legal assistance system as 'frag- mented', complaining that the present arrangements permitted access to only limited categories of evidence with a large number of grounds for refusal.2 Asa result, a compre- hensive mutual recognition initiative has now been produced—the European Investigation Order (E1O).3 I European Council, Stockholm Programme—An open and secure Europe serving and protecting citizens. OJ C 115/01.4.5.2010.: see also the European Commission, Communication on delivering an Area of Freedom. Security and Justice for Europe's Citizens: Action plan implementing the Stockholm Programme, COM(2010) 171. Brussels. 2010(a), para. 3.1.1. 2 European Commission. 'Making it easier to obtain evidence in criminal mallets from one Member State to another and ensuring its admissibility', Memo/09/497. BrusseLs, 11 November 2009(2). 3 Directive 2014141/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters, OJ L130/1, 1.5.2014. A.7.37 The EIO Directive provides for a Member State to 'have one or several specific investigative measure(s) carried out in another Member State to obtain evidence'. The key elements of the Directive include a standardized format for requests; the application of the principle of mutual recognition to requests, together with timeframes for responding to requests. It also prescribes the grounds for refusal (eg Art 11(1)(f) of the Directive permits a refusal to execute an EIO on human rights grounds). Amongst other investigative measures, the Directive enables the Executing State to: • temporarily transfer persons held in custody for further investigation; • summon witnesses to court to provide evidence by video conference at a hearing; • transfer evidence already in the possession of the Executing State; and • undertake certain covert investigations and intercept telecommunications. The Directive does not apply to Schengen cross-border surveillance by police officers under the Schengen Convention, or to the setting up of joint investigation teams and the gathering of evidence within such a team. A-7018 release 13/Jul 19 EFTA00022223 A. Introduction (A.7.391 The EIO replaces the EEW and most other mutual legal assistance measures with a scheme applicable to all investigative measures and is intended to be the sole legal instrument regulating the exchange of evidence and mutual legal assistance between EU Member States. The scheme differs from the old framework in two crucial respects: first, it removes some of the key protections attached to substantive provisions; and second, it operates by way of mutual recognition.' Member States had until 22 May 2017 to implement the Directive into domestic law. The UK opted into the Directive under Protocol 21 of the TFEU and transposed it via the Criminal Justice (European Investigation Order) Regula- tions 20172 with effect from 31 July 2017. (The UK General Election accounted for the delay in transposition.) The Explanatory Memorandum to the Regulations explains: 'It [the Directive] largely relies on existing law enforcement tools such as search warrants and production orders, which broadly aligns with existing procedures under the Crime (Inter- national Cooperation) Act 2003.'3 It also explains that, where there is currently no need for court involvement in domestic cases, ElOs will normally be made or validated by a designate