House of Lords - Explanatory Note
Crime (International Co-Operation) Bill [HL] - continued          House of Lords

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Clause 16: Extension of statutory search powers

57.     Subsection (1) replicates section 7(1) of the 1990 Act, which it replaces. Subsection (3) applies the provision to Northern Ireland. As with the provision in the 1990 Act, the clause enables the appropriate authorities in England & Wales (and Northern Ireland) to apply for and execute a search warrant or a production order in response to an overseas request, in the same circumstances as would be possible in relation to a domestic case, i.e. when the conduct in question would be a serious arrestable offence if committed here.

58.     Subsection (2)(b) provides that such a search warrant or production order may also be applied for and executed without an overseas request if the constable who makes the application is a member of an international joint investigation team (as defined by subsection (5)). Subsection (4)(b) provides similarly for Northern Ireland. These provisions implement Article 13(7) of MLAC which contemplates investigative measures being undertaken without such a request by seconded members of a joint investigation team in relation to the team's investigations overseas. The constable making the application for the warrant or order would have personal knowledge of the joint investigation as he would in a making such an application in a domestic investigation.

Clause 17: Warrants in England and Wales or Northern Ireland

59.     This clause replicates section 7(2) of the 1990 Act, which it replaces. It enables search warrants to be issued if the conditions in subsection (3) are satisfied. These conditions are that criminal proceedings overseas have been instituted or a person has been arrested in the course of a criminal investigation, the alleged criminal conduct would constitute an arrestable offence if it occurred in England and Wales, or Northern Ireland, and there are reasonable grounds to suspect that there is evidence relating to the offence on premises here. This clause enables the search of premises occupied or controlled by the suspect only.

Clause 18: Warrants in Scotland

60.     This clause is the Scottish equivalent to clauses 16 and 17 and it serves the same purpose as those clauses do in England, Wales and Northern Ireland, consistent with Scottish procedure for search warrants. It replaces and largely replicates sections 8(1) and (2) of the 1990 Act, with the exception of inclusion of a reference to section 134 of the Criminal Procedure (Scotland) Act 1995. It gives a sheriff the same power to issue a warrant authorising entry, search and seizure by a constable, as he would have under section 134 of the Criminal Procedure (Scotland) Act 1995. Before issuing such a warrant the sheriff must be satisfied that an offence under the law of a country outside the UK has been committed and that the conduct would have constituted an offence punishable by imprisonment if it had occurred in Scotland.

Clause 19: Seized evidence

61.     This clause deals with the treatment of any evidence that is seized under the procedures set out in clauses 16 to 18. Any evidence seized is to be sent directly to the overseas authority that made the request. This is in accordance with Article 6 of the MLAC and a departure from the procedure established by the 1990 Act. It will speed up the provision of evidence by cutting out any central involvement once the evidence has been obtained. Subsection (3) provides that this clause does not apply to evidence obtained by virtue of clause 16(2)(b) or (4)(b) in an international joint investigation.

Clause 20: Overseas freezing orders

62.     This clause implements one of the key measures set out in the Framework Decision: the requirement to execute an order to freeze evidence for its subsequent use in any proceedings or investigation in a participating country, where the order is made by a court or other authority in that country. The UK is already able to consider requests for mutual legal assistance in similar circumstances, but the FD operates the principle of mutual recognition, and requires the UK to recognise the validity of an overseas order from a participating country, subject to certain conditions, rather than consider it as a request for mutual legal assistance.

63.     Subsection (2) defines an overseas freezing order.

64.     The clause sets out the authorities competent to make overseas freezing orders, and the offences that the order must relate to. The FD applies to serious offences with a prison term of at least three years and includes terrorism, trafficking in human beings, drugs trafficking, etc.

65.     Overseas freezing orders must be accompanied by a certificate. Article 9 of the FD requires provision of a certificate, which must follow a standard format containing the details required in order that the receiving authority can execute the order. These will include for example details of the issuing authority, the person and offence under investigation, and the evidence sought.

66.     The overseas authority seeking the frozen evidence must issue a mutual legal assistance request, either simultaneously with the order, or at a later stage.

Clause 21: Considering the order

67.     This clause sets out the procedure when an overseas freezing order is received in the UK.

68.     Providing the conditions in clause 20 are met, the territorial authority (defined in clause 27 as the Secretary of State in England and Wales, and Northern Ireland, and the Lord Advocate in Scotland) must refer the order to a court for execution. There is no discretion at this stage.

69.     The clause provides for rules of court to set time limits for the court to consider the order and sets out the grounds on which the court may decide to refuse to execute an order. These relate to human rights issues and where the investigation relates to a person who would be entitled to be discharged under that country's law on grounds of being previously acquitted or previously convicted.

Clause 22: Giving effect to the order

70.     This clause sets out how an overseas freezing order will be executed in practical terms. The procedures established largely follow those provided for under the Police and Criminal Evidence Act 1984 ("PACE"), and will generally be done by issuing a domestic search warrant or, if appropriate, a production order. PACE conditions apply generally. However, PACE does not apply in Scotland, which has its own procedures in relation to search warrants.

Clause 23: Postponed effect

71.     This clause sets out circumstances (from Article 7 of the Framework Decision) in which UK authorities may postpone giving effect to freezing orders. If the decision is taken to postpone acting on a freezing order, the requesting country will be informed accordingly. If the grounds for postponement cease, the order will then be given effect under clause 22.

Clause 24: Evidence seized under freezing order

72.     This clause provides for the transmission of evidence which has been subject to a freezing order, in response to a mutual legal assistance request, or its retention by the police pending receipt of such a request.

Clause 25: Release of evidence held under the order

73.     Under this clause, the court may, in response to an application made by one of the persons listed in subsection (2), authorise the release of evidence. This would enable the persons mentioned in (2)(a) and (2)(b) for example to apply for the release of the evidence seized in the event that the overseas freezing order was withdrawn.

74.     It would also enable a third party affected by the order, for example the person whose property had been seized, to challenge the execution of the order. Substantial reasons for issuing the overseas freezing order however, can only be challenged in the country where the order originated.

Clause 26: Powers under warrants

75.     This clause relates to issuing warrants in relation to both mutual legal assistance requests under clause 17 and overseas freezing orders (clause 20).

76.     In line with PACE, subsection (1) prevents a warrant being issued if items sought are subject to legal privilege, excluded material or special procedure material as defined in PACE. In line with Schedule 1 of PACE however, excluded or special procedure material may be obtained by issuing a less intrusive production order. Warrants in respect of such material can only be sought if a production order has been obtained and has failed to produce the evidence sought.

77.     Subsection (3) makes an amendment to the Criminal Justice and Police Act 2001, providing that the additional powers of seizure in that Act will apply to seizure of evidence relevant to overseas offences or investigations under the provisions of this Bill.

Clause 27: Exercise of powers by others

78.     This clause provides for certain functions of the territorial authority to be conferred upon other authorities. This is in recognition of the MLAC requirement for direct transmission of requests. Currently, the authorities which execute requests for assistance, such as the Commissioners for Customs and Excise, do not have the power to nominate courts or issue warrants in relation to mutual legal assistance requests, although they perform much of the work of executing requests, and have to seek the authority of the Secretary of State.

79.     This clause contains an order-making power to provide that functions conferred on the territorial authority may be exercisable by the Commissioners of Customs and Excise. This would enable requests to be sent directly to Customs and fully executed by them, without recourse to the Secretary of State, and will implement the direct transmission provisions more fully.

80.     Such an order could also, in prescribed circumstances, enable Customs officers who are members of joint investigation teams to apply for and execute search warrants and production orders without a request from overseas on the same or a similar basis as constables under clause 16(2)(b) or (4)(b).

81.     Subsection (2) provides for the territorial authority to confer similar powers on other authorities in the future, should such other authorities develop a role in the execution of mutual legal assistance requests.

Clause 28: Interpretation of Chapter 2

82.     This clause explains the terms used in chapter 2. Most of these require no further explanation.

83.     Subsection (4) refers to "listed offences" under the Framework Decision. These are set out in Article 3 of the Framework Decision and include almost all forms of serious crime.

Chapter 3: Hearing Evidence through Television Links or by Telephone

Clause 29: Hearing witnesses abroad through television links

84.     Article 10 of the MLAC permits the hearing of witnesses by video link where it is neither possible nor desirable for the witness to travel from his Member State to that where his evidence is required.

85.     Outgoing requests from the UK are currently covered by the provisions contained in section 32 of the Criminal Justice Act 1988, and section 273 of the Criminal Procedure (Scotland) Act 1995, which allow the use of video links in limited circumstances. The Bill does not change the current position on the types of case when video links can be used to import evidence into UK court proceedings, although the clause makes provision to for the Secretary of State to extend this provision to other types of criminal proceedings in the future.

Clause 30: Hearing witnesses in the UK through television links

86.     This clause introduces arrangements so that, for the first time, courts can take video evidence of witnesses for transmission abroad. All requests will be sent to the Secretary of State, (or in Scotland, the Lord Advocate) who will then nominate a court where the hearing will take place. The proceedings will be subject to section 1 of the Perjury Act, (in Scotland, sections 44 to 46 of the Criminal Law (Consolidation) Scotland Act 1995 or any matter pertaining to the common law crime of perjury) and the rules on contempt of court will apply to the hearing. Although the hearing will not be a UK court proceeding, states must (in accordance with Article 10(8) of the MLAC), be able to deal with witnesses who refuse to testify or do not testify according to the truth under their domestic law, but, except for limited purposes, the evidence given before the nominated court is not to be treated as evidence given in UK proceedings.

87.     Subsection (6) makes reference to Schedule 2, which covers procedural matters such as securing attendance of witnesses, the conduct of the hearing, and privilege.

Clause 31: Hearing witnesses in the UK by telephone

88.     Article 11 of the MLAC allows for courts to hear witnesses or experts by telephone, within the scope of national law. This clause allows for the UK to respond to requests for assistance in arranging telephone hearings at the request of a participating country. All requests will be sent to the Secretary of State, (in Scotland, the Lord Advocate) who will then nominate a court where the hearing will take place. Unlike the provisions concerning evidence via television link, the witness or expert has to give his consent, in accordance with Article 11(2) of the MLAC, and subsection (3) provides that a request for a person to give evidence in this way must state that the witness is willing to give evidence. As with clause 30, proceedings will be subject to section 1 of the Perjury Act, (in Scotland, sections 44 to 46 of the Criminal Law (Consolidation) Scotland Act 1995 or any matter pertaining to the common law crime of perjury), and the rules on contempt of court will apply to the hearing, but, except for limited purposes, the evidence given before the nominated court is not to be treated as evidence given in UK proceedings. Some countries may find telephone hearings a useful means of taking routine statements from key witnesses. As UK law does not provide any scope for evidence to be heard in this way there is no provision made here for outgoing requests.

Chapter 4: Information about Banking Transactions

Information about banking transactions

89.     Clauses 32-46 implement the 2001 Protocol to the Convention on Mutual Assistance in Criminal Matters. The purpose of the Protocol is to tackle serious crime, in particular economic crime and money laundering. Countries participating in the Protocol are obliged to provide information about, and monitor, bank accounts at the request of other countries participating in the Protocol, subject to certain restrictions and conditions (which are covered in more detail below). The Protocol obliges participating countries to establish mechanisms whereby they can provide the stipulated information. The manner in which they do so is left to individual participating countries.

Clauses 32 and 33: Customer Information Orders

90.     These clauses deal with incoming requests made under Article 1 of the Protocol to identify any bank accounts in the UK relating to a person who is the subject of an investigation in an EU or other designated country.

91.     Clause 32 applies where the Secretary of State receives such a request and authorises him to direct an appropriate police officer to apply for a customer information order. A customer information order requires all or a targeted number of banks (and where appropriate other financial institutions) to provide details of any accounts held by the person who is the subject of an investigation into serious crime as specified in Article 1(3) of the Protocol. Subsection (6) provides that the definition of customer information is, to a large extent, the same as in section 364 of the Proceeds of Crime Act 2002. The scope of the Protocol is different to that of the Proceeds of Crime Act, however, which is restricted to confiscation or money laundering investigations. In practice the power will largely be used in relation to these types of investigations, but it might also be exercised in relation to other investigations into serious crime as specified in the Protocol and defined in clause 46. Subsection (8) provides that information obtained should be returned to the Secretary of State for forwarding to the overseas authority which made the request. This is different to the procedure established in clause 19 of the Bill which provides that, in general, evidence should be returned by direct channels.

Clause 33: Making, varying or discharging customer information orders

92.     This clause details the conditions which must be satisfied before a judge may make a customer information order and what an application to the judge must contain. Subsection (2) provides that the application may be made without notice (ex parte) to a judge in chambers. Subsection (4) provides for the discharge or variation of an order.

Clause 34: Offences

93.     This clause replicates section 366 of the Proceeds of Crime Act, and provides for various criminal offences connected with customer information orders. The sanctions, which are financial only, are directed at non-compliant institutions, rather than at individuals.

Clause 35 and 36: Account information orders

94.     These clauses implement Article 3 of the Protocol in relation to incoming requests. Article 3 provides for requests to be made for a specified account to be monitored during a specified period of time. Such a request might be made subsequent to an Article 1 request for bank details or in cases where the investigator already has the details of the relevant account. Account monitoring procedures were introduced in the UK under the Proceeds of Crime Act 2002, but separate provision is required in this Bill to ensure that the UK can respond to all requests that meet the Protocol requirements, which has wider scope than the Proceeds of Crime Act. The Protocol obliges all EU Member States to establish a mechanism for monitoring bank accounts.

95.     Clause 35 applies where the Secretary of State receives such a request and authorises him to direct an appropriate police officer to apply for an account information order. An account information order will require a financial institution to provide the information specified in subsection (4) (for example, details of all transactions passing through the account) during a specified period. Article 3(3) of the Protocol provides that the order shall be made with due regard for the national law of the requested Member State. Under the Proceeds of Crime Act, monitoring orders may be made for a period of up to 90 days and the same restriction will apply to Protocol requests. No limit is stated because the arrangements will be made between the relevant authorities on a case by case basis (Article 3(4) of the Protocol).

Clause 36: Making, varying or discharging account monitoring orders

96.     This clause provides the conditions which must be satisfied before a judge may make an account monitoring order in response to an overseas request, and the types of information that an application for such an order may specify. Subsection (2) provides that the application may be made without notice (ex parte) to a judge in chambers.

Clauses 37 to 41: Customer and account monitoring orders (Scotland)

97.     These clauses are the Scottish equivalents to clauses 32 to 36 for England and Wales, and Northern Ireland, and they have the same effect in Scotland as those clauses do in the rest of the United Kingdom. They differ to take account of Scottish procedure e.g. references to the procurator fiscal and the sheriff. They also refer to the equivalent Scottish parts of the Proceeds of Crime Act 2002. In Scotland, the Lord Advocate carries out the functions given to the Secretary of State in the rest of the United Kingdom.

Clause 42: Offence of disclosure

98.     This clause creates criminal offences in relation to the unlawful disclosure of information. The purpose of the clause is to ensure that financial institutions do not inform their customers of any requests for account monitoring or account information that they have received. A financial institution, or an employee of the institution is guilty of an offence if it (or he, as the case may be) discloses the types of information specified in subsection (3), and subsections (4) and (5) provide for the penalties which may be imposed if such an offence is committed.

Clause 43: Information about a person's bank account

99.     This clause makes provision for the UK to request assistance from other participating countries in obtaining details of any accounts held by a person subject to an investigation into serious criminal conduct in accordance with Article 1 of the Protocol. Whilst the general provisions of clause 7 of this Bill are relevant, special requirements apply to requests for information on bank accounts. An application may be made to a judicial authority (as defined) to make a request for assistance under this clause where a person is subject to an investigation in the UK, the person holds (or may hold) a bank account in a participating country, and the information is likely to be of substantial value to the investigation. A prosecuting authority which has been designated by order made by the Secretary of State (in Scotland, this would be the Lord Advocate or a procurator fiscal) may itself make a request for assistance under this clause if the conditions specified in subsection (3) are satisfied. Subsection (4) sets out the types of information which may be requested under this clause, and subsection (5) sets out what a request for assistance must specify.

Clause 44: Monitoring banking transactions

100.     This clause implements Article 3 for the purpose of outgoing requests from the UK to other participating countries to monitor transactions conducted on a specified account or accounts. Subsection (1) provides that an application may be made to a judicial authority (as defined in subsection (2)) to request assistance under this clause if it appears relevant to a UK investigation into criminal conduct. A prosecuting authority designated by order made by the Secretary of State (in Scotland this would be the Lord Advocate or procurator fiscal) may itself request assistance under subsection (3).

Clause 45: Sending requests for assistance

101.     This clause requires that, in general, the requests in clauses 43, and 44, must normally be transmitted via the Secretary of State, in Scotland the Lord Advocate, in contrast to the direct transmission provision introduced by clause 8. This is to enable the central authority to monitor these requests, to ensure that the detailed requirements of the Protocol are met and to assess how extensively the new powers are used. It can also monitor response to the requests. The Central Authority will monitor incoming requests in the same way.

102.     The "Central Authority" is the UK Central Authority for mutual legal assistance, which is located in the Home Office and currently receives and transmits all incoming and outgoing requests for mutual legal assistance. However, in cases of urgency, a request may be sent directly to a court in the area where the information is to be obtained.

Clause 46: Interpretation of Chapter 4

103.     The clause defines the terms used in Chapter 4. The definition of serious criminal conduct derives from Article 1 of the Protocol.

Chapter 5: Transfer of Prisoners

Clause 47: Transfer of UK prisoner to assist investigations abroad

104.     This clause provides for prisoners from the UK to be transferred to another participating country to assist with UK investigations, implementing Article 9 of the MLAC. This differs from section 5 of the 1990 Act which covers the transfer of UK prisoners to other countries at the request of the authorities of that country to assist their investigations. This new power might be used, for example, where a prisoner assisting an UK investigation could identify a site or participate in an identification parade in another participating country. It is unlikely to be used frequently. The requirement that a prisoner (or an appropriate person acting on his behalf) must give his consent before the transfer takes place (subsections (3) and (4)) is consistent with section 5 of the 1990 Act.

Clause 48: Transfer of EU etc. prisoner to assist UK investigation

105.     This clause provides for the transfer of a prisoner from a participating country to the UK in order to assist with that country's investigation. Section 6 of the 1990 Act allows overseas prisoners to be transferred at the UK's request to assist with a domestic investigation. The requirement that a prisoner must give his consent before the transfer takes place (subsections (3) and (4)) is consistent with section 6 of the 1990 Act.

Chapter 6: Supplementary

Clause 49: Rules of court

106.     This clause provides that rules of court may be made governing court practice and procedure in proceedings under Part 1 of the Bill. These are additional to the rules set out in Schedule 1 which govern the proceedings of a court nominated to receive evidence under clause 15, and Schedule 2 which govern hearings via television and telephone link under clauses 30 and 31.

Clause 50: Application to courts-martial etc.

107.     This clause extends the provisions in this Part to courts-martial proceedings. Section 11 of the 1990 Act contained a similar provision, and this provision builds on that section, taking account of the amendments made to the 1990 Act by other sections of the Bill.

1.

 
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Prepared: 20 November 2002