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Crime (International Co-operation) Bill [HL]


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

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Assisting overseas authorities to obtain evidence in the UK

 13    Requests for assistance from overseas authorities

     (1)    Where a request for assistance in obtaining evidence in a part of the United

Kingdom is received by the territorial authority for that part, the authority

may—

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           (a)           if the conditions in section 14 are met, arrange for the evidence to be

obtained under section 15, or

           (b)           direct that a search warrant be applied for under or by virtue of section

16 or 17 or, in relation to evidence in Scotland, 18.

     (2)    The request for assistance may be made only by—

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           (a)           a court exercising criminal jurisdiction, or a prosecuting authority, in a

country outside the United Kingdom,

           (b)           any other authority in such a country which appears to the territorial

authority to have the function of making such requests for assistance,

           (c)           any international authority mentioned in subsection (3).

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     (3)    The international authorities are—

           (a)           the International Criminal Police Organisation,

           (b)           any other body or person competent to make a request of the kind to

which this section applies under any provisions adopted under the

Treaty on European Union.

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 14    Powers to arrange for evidence to be obtained

     (1)    The territorial authority may arrange for evidence to be obtained under section

15 if the request for assistance in obtaining the evidence is made in connection

with—

           (a)           criminal proceedings instituted in a country outside the United

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Kingdom,

           (b)           a criminal investigation being carried on there, or

           (c)           clemency proceedings, or proceedings on an appeal before a court

against a decision in administrative proceedings, being carried on, or

intended to be carried on, there.

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     (2)    But in relation to criminal proceedings or a criminal investigation, the

authority may arrange for the evidence to be so obtained only if the authority

is satisfied—

           (a)           that an offence under the law of the country in question has been

committed or that there are reasonable grounds for suspecting that

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such an offence has been committed, and

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

country or that an investigation into the offence is being carried on

there.

     (3)    The territorial authority is to regard as conclusive a certificate as to the matters

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mentioned in subsection (2)(a) and (b) issued by any authority in the country

in question which appears to him to be the appropriate authority to do so.

     (4)    If it appears to the territorial authority that the request for assistance relates to

a fiscal offence in respect of which proceedings have not yet been instituted, the

authority may not arrange for the evidence to be so obtained unless—

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

    9

 

           (a)           the request is from a country which is a member of the Commonwealth

or is made pursuant to a treaty to which the United Kingdom is a party,

or

           (b)           the authority is satisfied that if the conduct constituting the offence

were to occur in a part of the United Kingdom, it would constitute an

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offence in that part.

 15    Nominating a court etc. to receive evidence

     (1)    Where the evidence is in England and Wales or Northern Ireland, the Secretary

of State may by a notice nominate a court to receive any evidence to which the

request relates which appears to the court to be appropriate for the purpose of

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giving effect to the request.

     (2)    But if it appears to the Secretary of State that the request relates to an offence

involving serious or complex fraud, he may refer the request (or any part of it)

to the Director of the Serious Fraud Office for the Director to obtain any

evidence to which the request or part relates which appears to him to be

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appropriate for the purpose of giving effect to the request or part.

     (3)    Where the evidence is in Scotland, the Lord Advocate may by a notice

nominate a court to receive any evidence to which the request relates which

appears to the court to be appropriate for the purpose of giving effect to the

request.

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     (4)    But if it appears to the Lord Advocate that the request relates to an offence

involving serious or complex fraud, he may give a direction under section 27

of the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39) (directions

applying investigatory provisions).

     (5)    Schedule 1 is to have effect in relation to proceedings before a court nominated

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under this section.

 16    Extension of statutory search powers in England and Wales and Northern

Ireland

     (1)    Part 2 of the Police and Criminal Evidence Act 1984 (c. 60) (powers of entry,

search and seizure) is to have effect as if references to serious arrestable

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offences in section 8 of, and Schedule 1 to, that Act included any conduct

which—

           (a)           constitutes an offence under the law of a country outside the United

Kingdom, and

           (b)           would, if it occurred in England and Wales, constitute a serious

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arrestable offence.

     (2)    But an application for a warrant or order by virtue of subsection (1) may be

made only—

           (a)           in pursuance of a direction given under section 13, or

           (b)           if it is an application for a warrant or order under section 8 of, or

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Schedule 1 to, that Act by a constable for the purposes of an

investigation by an international joint investigation team of which he is

a member.

     (3)    Part 3 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I.

1989/ 1341 (N.I.12)) (powers of entry, search and seizure) is to have effect as if

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

    10

 

     (3)    references to serious arrestable offences in Article 10 of, and Schedule 1 to, that

Order included any conduct which—

           (a)           constitutes an offence under the law of a country outside the United

Kingdom, and

           (b)           would, if it occurred in Northern Ireland, constitute a serious arrestable

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offence.

     (4)    But an application for a warrant or order by virtue of subsection (3) may be

made only—

           (a)           in pursuance of a direction given under section 13, or

           (b)           if it is an application for a warrant or order under Article 10 of, or

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Schedule 1 to, that Order, by a constable for the purposes of an

investigation by an international joint investigation team of which he is

a member.

     (5)    In this section, “international joint investigation team” has the meaning given

by section 88(7) of the Police Act 1996 (c. 16).

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 17    Warrants in England and Wales or Northern Ireland

     (1)    A justice of the peace may issue a warrant under this section if he is satisfied,

on an application made by a constable, that the following conditions are met.

     (2)    But an application for a warrant under subsection (1) may be made only in

pursuance of a direction given under section 13.

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     (3)    The conditions are that—

           (a)           criminal proceedings have been instituted against a person in a country

outside the United Kingdom or a person has been arrested in the course

of a criminal investigation carried on there,

           (b)           the conduct constituting the offence which is the subject of the

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proceedings or investigation would, if it occurred in England and

Wales or (as the case may be) Northern Ireland, constitute an arrestable

offence, and

           (c)           there are reasonable grounds for suspecting that there is on premises in

England and Wales or (as the case may be) Northern Ireland occupied

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or controlled by that person evidence relating to the offence.

            “Arrestable offence” has the same meaning as in the Police and Criminal

Evidence Act 1984 (c. 60) or (as the case may be) the Police and Criminal

Evidence (Northern Ireland) Order 1989 (S.I. 1989/ 1341 (N.I.12)).

     (4)    A warrant under this section may authorise a constable—

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           (a)           to enter the premises in question and search the premises to the extent

reasonably required for the purpose of discovering any evidence

relating to the offence,

           (b)           to seize and retain any evidence for which he is authorised to search.

 18    Warrants in Scotland

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     (1)    If, on an application made by the procurator fiscal, it appears to the sheriff—

           (a)           that there are reasonable grounds for suspecting that an offence under

the law of a country outside the United Kingdom has been committed,

and

 

 

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

    11

 

           (b)           that the conduct constituting the offence would, if it occurred in

Scotland, constitute an offence punishable by imprisonment ,

            the sheriff has the like power to grant warrant authorising entry, search and

seizure by any constable as he has under section 134 of the Criminal Procedure

(Scotland) Act 1995 (c. 46) in respect of any offence punishable at common law

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in Scotland.

     (2)    But an application for a warrant by virtue of subsection (1) may be made

only—

           (a)           in pursuance of a direction given under section 13, or

           (b)           if it is an application made at the request of an international joint

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investigation team for the purposes of their investigation.

            “International joint investigation team” has the meaning given by section 39(6)

of the Police (Scotland) Act 1967 (c. 77).

 19    Seized evidence

     (1)    Any evidence seized by a constable under or by virtue of section 16, 17 or 18 is

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to be sent to the court or authority which made the request for assistance.

     (2)    So far as may be necessary in order to comply with the request for assistance—

           (a)           where the evidence consists of a document, the original or a copy is to

be sent, and

           (b)           where the evidence consists of any other article, the article itself or a

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description, photograph or other representation of it is to be sent.

     (3)    This section does not apply to evidence seized under or by virtue of section

16(2)(b) or (4)(b) or 18(2)(b).

Overseas freezing orders

 20    Overseas freezing orders

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     (1)    Section 21 applies where an overseas freezing order made by a court or

authority in a participating country is received from the court or authority

which made or confirmed the order by the territorial authority for the part of

the United Kingdom in which the evidence to which the order relates is

situated.

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     (2)    An overseas freezing order is an order—

           (a)           for protecting, pending its transfer to the participating country,

evidence which is in the United Kingdom and may be used in any

proceedings or investigation in the participating country, and

           (b)           in respect of which the following requirements of this section are met.

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     (3)    The order must have been made by—

           (a)           a court exercising criminal jurisdiction in the country,

           (b)           a prosecuting authority in the country,

           (c)           any other authority in the country which appears to the territorial

authority to have the function of making such orders.

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     (4)    The order must relate to—

           (a)           criminal proceedings instituted in the participating country in respect

of a listed offence, or

 

 

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

    12

 

           (b)           a criminal investigation being carried on there into such an offence.

     (5)    The order must be accompanied by a certificate which gives the specified

information; but a certificate may be treated as giving any specified

information which is not given in it if the territorial authority has the

information in question.

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     (6)    The certificate must—

           (a)           be signed by or on behalf of the person who made or confirmed the

order,

           (b)           include a statement as to the accuracy of the information given in it,

           (c)           if it is not in English, include a translation of it into English (or, if

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appropriate, Welsh).

            The signature may be an electronic signature.

     (7)    The order must be accompanied by a request for the evidence to be sent to a

court or authority mentioned in section 13(2), unless the certificate indicates

when such a request is expected to be made.

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     (8)    References below in this Chapter to an overseas freezing order include its

accompanying certificate.

 21    Considering the order

     (1)    In relation to England and Wales and Northern Ireland, where this section

applies the Secretary of State must—

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           (a)           by a notice nominate a court in England and Wales or (as the case may

be) Northern Ireland to give effect to the overseas freezing order,

           (b)           send a copy of the overseas freezing order to the nominated court and

to the chief officer of police for the area in which the evidence is

situated,

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           (c)           tell the chief officer which court has been nominated.

     (2)    In relation to Scotland, where this section applies the Lord Advocate must—

           (a)           by a notice nominate a sheriff to give effect to the overseas freezing

order,

           (b)           send a copy of the overseas freezing order to the sheriff and to the

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procurator fiscal.

            In relation to Scotland, references below in this section and in sections 22 to 25

to the nominated court are to be read as references to the nominated sheriff.

     (3)    The nominated court is to consider the overseas freezing order on its own

initiative within a period prescribed by rules.

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     (4)    Before giving effect to the overseas freezing order, the nominated court must

give the chief officer of police or (as the case may be) the procurator fiscal an

opportunity to be heard.

     (5)    The court may decide not to give effect to the overseas freezing order only if,

in its opinion, one of the following conditions is met.

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     (6)    The first condition is that, if the person whose conduct is in question were

charged in the participating country with the offence to which the overseas

freezing order relates, he would be entitled to be discharged under any rule of

law in that country relating to previous acquittal or conviction.

 

 

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

    13

 

     (7)    The second condition is that giving effect to the overseas freezing order would

be incompatible with any of the Convention rights (within the meaning of the

Human Rights Act 1998 (c. 42)).

 22    Giving effect to the order

     (1)    The nominated court is to give effect to the overseas freezing order by issuing

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a warrant authorising a constable—

           (a)           to enter the premises to which the overseas freezing order relates and

search the premises to the extent reasonably required for the purpose

of discovering any evidence to which the order relates, and

           (b)           to seize and retain any evidence for which he is authorised to search.

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     (2)    But, in relation to England and Wales and Northern Ireland, so far as the

overseas freezing order relates to excluded material or special procedure

material the court is to give effect to the order by making a production order.

     (3)    A production order is an order for the person who appears to the court to be in

possession of the material to produce it to a constable before the end of the

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period of seven days beginning with the date of the production order or such

longer period as the production order may specify.

     (4)    The constable may take away any material produced to him under a

production order; and the material is to be treated for the purposes of section

21 of the Police and Criminal Evidence Act 1984 (c. 60) or (as the case may be)

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Article 23 of the Police and Criminal Evidence (Northern Ireland) Order 1989

(S.I. 1989/ 1341 (N.I.12)) (access and copying) as if it had been seized by the

constable.

     (5)    If a person fails to comply with a production order, the court may (whether or

not it deals with the matter as a contempt of court) issue a warrant under

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subsection (1) in respect of the material to which the production order relates.

     (6)    Section 409 of the Proceeds of Crime Act 2002 (c. 29) (jurisdiction of sheriff) has

effect for the purposes of subsection (1) as if that subsection were included in

Chapter 3 of Part 8 of that Act.

 23    Postponed effect

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     (1)    The nominated court may postpone giving effect to an overseas freezing order

in respect of any evidence—

           (a)           in order to avoid prejudicing a criminal investigation which is taking

place in the United Kingdom, or

           (b)           if, under an order made by a court in criminal proceedings in the

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United Kingdom, the evidence may not be removed from the United

Kingdom.

 24    Evidence seized under the order

     (1)    Where the overseas freezing order was accompanied by a request for the

evidence to be sent to a court or authority mentioned in section 13(2), any

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evidence seized by or produced to the constable under section 22 is to be sent

by him to that court or authority.

     (2)    In any other case—

 

 

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

    14

 

           (a)           any evidence seized by or produced to the constable under section 22 is

to be retained by him until the territorial authority notifies him that it

has received such a request or he is authorised to release it under

section 25, and

           (b)           on being notified that the territorial authority has received a request for

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the evidence to be sent to a court or authority mentioned in section

13(2), any such evidence is to be sent by him to that court or authority.

 25    Release of evidence held under the order

     (1)    On an application made by a person mentioned below, the nominated court

may authorise the release of any evidence retained by a constable under section

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24(2)(a).

     (2)    In relation to England and Wales and Northern Ireland, the persons are—

           (a)           the chief officer of police to whom a copy of the order was sent,

           (b)           the constable,

           (c)           any other person affected by the order.

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     (3)    In relation to Scotland, the persons are—

           (a)           the procurator fiscal to whom a copy of the order was sent,

           (b)           any other person affected by the order.

General

 26    Powers under warrants

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     (1)    A court in England and Wales or Northern Ireland, or a justice of the peace,

may not issue a warrant under section 17 or 22 in respect of any evidence

unless the court or justice has reasonable grounds for believing that it does not

consist of or include items subject to legal privilege, excluded material or

special procedure material.

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     (2)    Subsection (1) does not prevent a warrant being issued by virtue of section

22(5) in respect of excluded material or special procedure material.

     (3)    In Schedule 1 to the Criminal Justice and Police Act 2001 (c. 16) (powers of

seizure), in Part 1 (powers to which the additional powers in section 50

apply)—

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           (a)           paragraph 49 is omitted,

           (b)           after paragraph 73A there is inserted—

  “Crime (International Co-operation) Act 2003

               73B                      The power of seizure conferred by sections 17 and 22 of the

Crime (International Co-operation) Act 2003 (seizure of

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evidence relevant to overseas investigation or offence).”

     (4)    References in this Chapter to evidence seized by a person by virtue of or under

any provision of this Chapter include evidence seized by a person by virtue of

section 50 of the Criminal Justice and Police Act 2001 (additional powers of

seizure), if it is seized in the course of a search authorised by a warrant issued

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by virtue of or under the provision in question.

 

 

 
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