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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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 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

situated, or

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

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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

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

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(1).

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

           (a)           the International Criminal Police Organisation, or

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

adopted under the Treaty on European Union,

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            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

under section 7.

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

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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

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

be returned.

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     (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

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

have regard—

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           (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

the parties to the proceedings to be legally represented when the

evidence was being obtained.

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     (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

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

authority for receiving requests of the kind in question.

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 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)—

 

 

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

    7

 

           (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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           (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.

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     (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.

 

 

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

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            The signature may be an electronic signature.

 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—

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           (a)           the person who applied for the order,

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

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

    10

 

     (1)    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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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.

 

 

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

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            “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—

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

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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

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

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           (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

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

Scotland, constitute an offence punishable by imprisonment ,

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            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

in Scotland.

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

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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

investigation team for the purposes of their investigation.

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

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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

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

the territorial authority for forwarding to that court or authority.

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     (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

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

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     (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

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

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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

 

 

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

    12

 

     (1)    the United Kingdom in which the evidence to which the order relates is

situated.

     (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

5

proceedings or investigation in the participating country, and

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

     (3)    The order must have been made by—

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

           (b)           a prosecuting authority in the country,

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

authority to have the function of making such orders.

     (4)    The order must relate to—

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

of a listed offence, or

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           (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 court or authority which 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

25

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,

 

 

 
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