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Other Bills before Parliament

Crime (International Co-operation) Bill [HL]


Crime (International Co-operation) Bill [HL]
Part 1 — Mutual assistance in criminal matters
Chapter 1 — Mutual service of process etc.

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A

Bill

To

Make provision for furthering co-operation with other countries in respect of

criminal proceedings and investigations; to extend jurisdiction to deal with

terrorist acts or threats outside the United Kingdom; to amend section 5 of the

Forgery and Counterfeiting Act 1981 and make corresponding provision in

relation to Scotland; and for connected purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and

consent of the Lords Spiritual and Temporal, and Commons, in this present

Parliament assembled, and by the authority of the same, as follows:—

Part 1

Mutual assistance in criminal matters

Chapter 1

Mutual service of process etc.

Service of overseas process in the UK

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 1     Service of overseas process

     (1)    The power conferred by subsection (3) is exercisable where the Secretary of

State receives any process or other document to which this section applies from

the government of, or other authority in, a country outside the United

Kingdom, together with a request for the process or document to be served on

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a person in the United Kingdom.

     (2)    This section applies—

           (a)           to any process issued or made in that country for the purposes of

criminal proceedings,

           (b)           to any document issued or made by an administrative authority in that

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country in administrative proceedings recording a decision of the

authority,

 
HL Bill 553/2
 
 

Crime (International Co-operation) Bill [HL]
Part 1 — Mutual assistance in criminal matters
Chapter 1 — Mutual service of process etc.

    2

 

           (c)           to any process issued or made for the purposes of any proceedings on

an appeal before a court in that country against a decision in

administrative proceedings,

           (d)           to any document issued or made by an authority in that country for the

purposes of clemency proceedings.

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     (3)    The Secretary of State may cause the process or document to be served by post

or, if the request is for personal service, direct the chief officer of police for the

area in which that person appears to be to cause it to be personally served on

him.

     (4)    In relation to any process or document to be served in Scotland, references in

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this section to the Secretary of State are to be read as references to the Lord

Advocate.

 2     Service of overseas process: supplementary

     (1)    Subsections (2) and (3) apply to any process served in a part of the United

Kingdom by virtue of section 1 requiring a person to appear as a party or

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attend as a witness.

     (2)    No obligation under the law of that part to comply with the process is imposed

by virtue of its service.

     (3)    The process must be accompanied by a notice—

           (a)           stating the effect of subsection (2),

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           (b)           indicating that the person on whom it is served may wish to seek advice

as to the possible consequences of his failing to comply with the process

under the law of the country where it was issued or made, and

           (c)           indicating that under that law he may not be accorded the same rights

and privileges as a witness as would be accorded to him in proceedings

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in the part of the United Kingdom in which the process is served.

     (4)    Where a chief officer of police causes any process or document to be served

under section 1, he must at once—

           (a)           tell the Secretary of State (or, as the case may be, the Lord Advocate)

when and how it was served, and

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           (b)           (if possible) provide him with a receipt signed by the person on whom

it was served.

     (5)    Where the chief officer of police is unable to cause any process or document to

be served as directed, he must at once inform the Secretary of State (or, as the

case may be, the Lord Advocate) of that fact and of the reason.

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Service of UK process abroad

 3     General requirements for service of process

     (1)    This section applies to any process issued or made for the purposes of criminal

proceedings by a court in England and Wales or Northern Ireland.

     (2)    The process may be issued or made in spite of the fact that the person on whom

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it is to be served is outside the United Kingdom.

 

 

Crime (International Co-operation) Bill [HL]
Part 1 — Mutual assistance in criminal matters
Chapter 1 — Mutual service of process etc.

    3

 

     (3)    Where the process is to be served outside the United Kingdom and the person

at whose request it is issued or made believes that the person on whom it is to

be served does not understand English, he must—

           (a)           inform the court of that fact, and

           (b)           provide the court with a copy of the process, or of so much of it as is

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material, translated into an appropriate language.

     (4)    Process served outside the United Kingdom requiring a person to appear as a

party or attend as a witness—

           (a)           must not include notice of a penalty,

           (b)           must be accompanied by a notice giving any information required to be

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given by rules of court.

     (5)    If process requiring a person to appear as a party or attend as a witness is

served outside the United Kingdom, no obligation to comply with the process

under the law of the part of the United Kingdom in which the process is issued

or made is imposed by virtue of the service.

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     (6)    Accordingly, failure to comply with the process does not constitute contempt

of court and is not a ground for issuing a warrant to secure the attendance of

the person in question.

     (7)    But the process may subsequently be served on the person in question in the

United Kingdom (with the usual consequences for non-compliance).

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 4     Service of process otherwise than by post

     (1)    Process to which section 3 applies may, instead of being served by post, be

served on a person outside the United Kingdom in accordance with

arrangements made by the Secretary of State.

     (2)    But where the person is in a participating country, the process may be served

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in accordance with those arrangements only if one of the following conditions

is met.

     (3)    The conditions are—

           (a)           that the correct address of the person is unknown,

           (b)           that it has not been possible to serve the process by post,

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           (c)           that there are good reasons for thinking that service by post will not be

effective or is inappropriate.

 5     General requirements for effecting Scottish citation etc.

     (1)    This section applies to any citation for the purposes of criminal proceedings in

Scotland and to any document issued there for such purposes by the

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prosecutor or by the court.

     (2)    The citation may proceed or document be issued in spite of the fact that the

person against whom it is to be effected or on whom it is to be served is outside

the United Kingdom.

     (3)    Where the citation is to be effected or the document to be served outside the

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United Kingdom and the person at whose request that is to happen believes

that the person against whom it is to be effected or on whom it is to be served

does not understand English, he must—

           (a)           inform the court of that fact, and

 

 

Crime (International Co-operation) Bill [HL]
Part 1 — Mutual assistance in criminal matters
Chapter 2 — Mutual provision of evidence

    4

 

           (b)           provide the court with a copy of the citation or document (or, in the case

of a document, so much of it as is material) translated into an

appropriate language.

     (4)    A citation effected outside the United Kingdom—

           (a)           must not include notice of a penalty,

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           (b)           must be accompanied by a notice giving any information required to be

given by rules of court.

     (5)    If a citation is effected outside the United Kingdom, no obligation under the

law of Scotland to comply with the citation is imposed by virtue of its being so

effected.

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     (6)    Accordingly, failure to comply with the citation does not constitute contempt

of court and is not a ground for issuing a warrant to secure the attendance of

the person in question or for imposing any penalty.

     (7)    But the citation may subsequently be effected against the person in question in

the United Kingdom (with the usual consequences for non-compliance).

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 6     Effecting Scottish citation etc. otherwise than by post

     (1)    A citation or document to which section 5 applies may, instead of being

effected or served by post, be effected against or served on a person outside the

United Kingdom in accordance with arrangements made by the Lord

Advocate.

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     (2)    But where the person is in a participating country, the citation may be effected

or document served in accordance with those arrangements only if one of the

following conditions is met.

     (3)    The conditions are—

           (a)           that the correct address of the person is unknown,

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           (b)           that it has not been possible to effect the citation or serve the document

by post,

           (c)           that there are good reasons for thinking that citation or (as the case may

be) service by post will not be effective or is inappropriate.

Chapter 2

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Mutual provision of evidence

Assistance in obtaining evidence abroad

 7     Requests for assistance in obtaining evidence abroad

     (1)    If it appears to a judicial authority in the United Kingdom on an application

made by a person mentioned in subsection (3)—

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           (a)           that an offence has been committed or that there are reasonable

grounds for suspecting that an offence has been committed, and

           (b)           that proceedings in respect of the offence have been instituted or that

the offence is being investigated,

            the judicial authority may request assistance under this section.

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Crime (International Co-operation) Bill [HL]
Part 1 — Mutual assistance in criminal matters
Chapter 2 — Mutual provision of evidence

    5

 

     (2)    The assistance that may be requested under this section is assistance in

obtaining outside the United Kingdom any evidence specified in the request

for use in the proceedings or investigation.

     (3)    The application may be made—

           (a)           in relation to England and Wales and Northern Ireland, by a

5

prosecuting authority,

           (b)           in relation to Scotland, by the Lord Advocate or a procurator fiscal,

           (c)           where proceedings have been instituted, by the person charged in those

proceedings.

     (4)    The judicial authorities are—

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           (a)           in relation to England and Wales, any judge or justice of the peace,

           (b)           in relation to Scotland, any judge of the High Court or sheriff,

           (c)           in relation to Northern Ireland, any judge or resident magistrate.

     (5)    In relation to England and Wales or Northern Ireland, a designated

prosecuting authority may itself request assistance under this section if—

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           (a)           it appears to the authority that an offence has been committed or that

there are reasonable grounds for suspecting that an offence has been

committed, and

           (b)           the authority has instituted proceedings in respect of the offence in

question or it is being investigated.

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            “Designated” means designated by an order made by the Secretary of State.

     (6)    In relation to Scotland, the Lord Advocate or a procurator fiscal may himself

request assistance under this section if it appears to him—

           (a)           that an offence has been committed or that there are reasonable

grounds for suspecting that an offence has been committed, and

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           (b)           that proceedings in respect of the offence have been instituted or that

the offence is being investigated.

     (7)    If a request for assistance under this section is made in reliance on Article 2 of

the 2001 Protocol (requests for information on banking transactions) in

connection with the investigation of an offence, the request must state the

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grounds on which the person making the request considers the evidence

specified in it to be relevant for the purposes of the investigation.

 8     Sending requests for assistance

     (1)    A request for assistance under section 7 may be sent—

           (a)           to a court exercising jurisdiction in the place where the evidence is

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situated, or

           (b)           to any authority recognised by the government of the country in

question as the appropriate authority for receiving requests of that

kind.

     (2)    Alternatively, if it is a request by a judicial authority or a designated

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prosecuting authority it may be sent to the Secretary of State (in Scotland, the

Lord Advocate) for forwarding to a court or authority mentioned in subsection

(1).

     (3)    In cases of urgency, a request for assistance may be sent to—

           (a)           the International Criminal Police Organisation, or

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Crime (International Co-operation) Bill [HL]
Part 1 — Mutual assistance in criminal matters
Chapter 2 — Mutual provision of evidence

    6

 

           (b)           any body or person competent to receive it under any provisions

adopted under the Treaty on European Union,

            for forwarding to any court or authority mentioned in subsection (1).

 9     Use of evidence obtained

     (1)           This section applies to evidence obtained pursuant to a request for assistance

5

under section 7.

     (2)    The evidence may not without the consent of the appropriate overseas

authority be used for any purpose other than that specified in the request.

     (3)    When the evidence is no longer required for that purpose (or for any other

purpose for which such consent has been obtained), it must be returned to the

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appropriate overseas authority, unless that authority indicates that it need not

be returned.

     (4)           In exercising the discretion conferred by section 25 of the Criminal Justice Act

1988 (c. 33) or Article 5 of the Criminal Justice (Evidence, Etc.) (Northern

Ireland) Order 1988 (S.I. 1988/ 1847 (N.I. 17)) (exclusion of evidence otherwise

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admissible) in relation to a statement contained in the evidence, the court must

have regard—

           (a)           to whether it was possible to challenge the statement by questioning the

person who made it, and

           (b)           if proceedings have been instituted, to whether the local law allowed

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the parties to the proceedings to be legally represented when the

evidence was being obtained.

     (5)           In Scotland, the evidence may be received in evidence without being sworn to

by witnesses, so far as that may be done without unfairness to either party.

     (6)    In this section, the appropriate overseas authority means the authority

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recognised by the government of the country in question as the appropriate

authority for receiving requests of the kind in question.

 10    Domestic freezing orders

     (1)    If it appears to a judicial authority in the United Kingdom, on an application

made by a person mentioned in subsection (4)—

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           (a)           that proceedings in respect of a listed offence have been instituted or

such an offence is being investigated,

           (b)           that there are reasonable grounds to believe that there is evidence in a

participating country which satisfies the requirements of subsection

(3), and

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           (c)           that a request has been made, or will be made, under section 7 for the

evidence to be sent to the authority making the request,

            the judicial authority may make a domestic freezing order in respect of the

evidence.

     (2)    A domestic freezing order is an order for protecting evidence which is in the

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participating country pending its transfer to the United Kingdom.

     (3)    The requirements are that the evidence—

           (a)           is on premises specified in the application in the participating country,

           (b)           is likely to be of substantial value (whether by itself or together with

other evidence) to the proceedings or investigation,

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Crime (International Co-operation) Bill [HL]
Part 1 — Mutual assistance in criminal matters
Chapter 2 — Mutual provision of evidence

    7

 

           (c)           is likely to be admissible in evidence at a trial for the offence, and

           (d)           does not consist of or include items subject to legal privilege.

     (4)    The application may be made—

           (a)           in relation to England and Wales and Northern Ireland, by a constable,

           (b)           in relation to Scotland, by the Lord Advocate or a procurator fiscal.

5

     (5)    The judicial authorities are—

           (a)           in relation to England and Wales, any judge or justice of the peace,

           (b)           in relation to Scotland, any judge of the High Court or sheriff,

           (c)           in relation to Northern Ireland, any judge or resident magistrate.

     (6)    This section does not prejudice the generality of the power to make a request

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for assistance under section 7.

 11    Sending freezing orders

     (1)    A domestic freezing order made in England and Wales or Northern Ireland is

to be sent to the Secretary of State for forwarding to—

           (a)           a court exercising jurisdiction in the place where the evidence is

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situated, or

           (b)           any authority recognised by the government of the country in question

as the appropriate authority for receiving orders of that kind.

     (2)    A domestic freezing order made in Scotland is to be sent to the Lord Advocate

for forwarding to such a court or authority.

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     (3)    The order must be accompanied by a certificate giving the specified

information and, unless the certificate indicates when the judicial authority

expects such a request to be made, by a request under section 7 for the evidence

to be sent to the authority making the request.

     (4)    The certificate must include a translation of it into an appropriate language of

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the participating country (if that language is not English).

     (5)    The certificate must be signed by or on behalf of the judicial authority who

made the order and must include a statement as to the accuracy of the

information given in it.

            The signature may be an electronic signature.

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 12    Variation or revocation of freezing orders

     (1)    The judicial authority that made a domestic freezing order may vary or revoke

it on an application by a person mentioned below.

     (2)    The persons are—

           (a)           the person who applied for the order,

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           (b)           in relation to England and Wales and Northern Ireland, a prosecuting

authority,

           (c)           in relation to Scotland, the Lord Advocate,

           (d)           any other person affected by the order.

 

 

 
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