Double jeopardy and Mutual Legal Assistance

Nick Vamos, UK Central Authority, Home Office

Overview

What is MLA?CICA and the role of UKCADouble jeopardy as a ground for refusalScenariosOther issues

What is MLA?Proceedings in one country, evidence in anotherFormal process of requesting and providing

evidence and other assistance in criminal proceedings

Governed by international agreements and domestic law

State-to-State relationship via competent authorities

CICA and the role of UKCACrime (International Co-operation) Act 2003 gives the

Home Secretary (via UKCA) the discretion to arrange for evidence to be obtained

Minimum statutory requirementsMust act lawfully and in interests of justiceNo obligation to accede but presumption that request will

be grantedGrounds of refusal: matter of policy not law. Home

Secretary decidesPrejudice to sovereignty, security, ordre public or other

essential interests of the requested party; double jeopardy; political motivation

Double jeopardy as a ground for refusal

UK reservation to the European MLA Convention 1959

“…the Government… reserves the right to refuse assistance of the person who is the subject of the request for assistance has been convicted or acquitted in the UK or in the third State of an offence which arises from the same conduct as that giving rise to proceedings in the requesting State in respect of that person.”

Double jeopardy as a ground for refusal

Article 10 of the draft European Investigation Order

“… the execution of the EIO would be contrary to the principle of ne bis in idem, unless the issuing authority provides an assurance that the evidence transferred as a result of an execution of an EIO shall not be used to prosecute a person whose case has been finally disposed of in another Member State for the same facts, in accordance with the conditions set out under Article 54 of the Convention of 19 June 1990 implementing the Schengen Agreement.”

UK Model MLA Treaty “…if the request relates to a person who, if proceeded against in the

Requested Party for the offence for which assistance is requested, would be entitled to be discharged on the grounds of a previous acquittal or conviction.”

Wider scope of discretionOrdre public incorporates abuse of process

jurisdiction e.g. where no final disposal or not similar facts/conduct

If futher proceedings permissible in UK then not contrary to ordre public e.g. tainted acquittals, compelling new evidence

Scenario 1

Defendant (D) convicted in the UK for importation of cocaine from country A.

Country A sends request for all evidence against D for the purpose of prosecuting him for exportation of cocaine.

Scenario 2

Defendant (D) convicted in the UK for multi-victim investment fraud in relation to property in country A.

Conviction based on specimen substantive counts covering entire offending period

Country A sends request for evidence against D for the purpose of prosecuting him for same offences in relation to victims in Country A

Scenario 3

Defendant (D) acquitted in Country A of murdering her husband by hiring a hitman

Country A send request to UK saying hitman has now provided written confession that D hired him. Paid into UK bank account so bank records requested

Scenario 4

Multi-national Company D Ltd being investigated in several countries (X, Y and Z) for corporate fraud

D Ltd reaches plea agreement with Country XCountry Y send request for evidence in UK for the

purpose of prosecuting D Ltd for offences in YD Ltd say plea agreement with X precludes further

prosecutions in Y and Z therefore UK should not assistX say plea agreement only intended to cover offences in

X

Scenario 5

UK was at war with Country A. Corporal D accused of shooting enemy soldier in circumstances that may amount to War Crime under Geneva Convention

UK police investigate, including travelling to A to gather evidence. First Treasury Counsel advises and DPP takes decision that insufficient evidence for prosecution

A send request to UK for all evidence against D for purpose of prosecuting him for War Crime. Assert universal jurisdiction under Geneva Convention on basis that D has not been prosecuted in UK

Other issues

How do we know? UK proceedings may be identified by policeCorporate fraud: pre-emptive solicitors repsMay never know!Enforcement of rightsJudicial review of UKCA, police, CourtRemedy in requesting State