1. The Criminal Justice (Fraud Investigation) (Bailiwick of Guernsey) Law, 1991
The Criminal Justice (Fraud Investigation) (Bailiwick of Guernsey) Law, 1991 ("the Fraud Investigation Law") has proved a very effective tool in offering assistance to authorities in other jurisdictions. The Law gives power to HM Attorney General (within the Bailiwick of Guernsey known as HM Procureur) to require the production of documents and the provision of information in cases of serious or complex fraud.
The Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law, 1999 ("the Proceeds of Crime Law") allows the authorities in Guernsey to provide assistance to other jurisdictions in connection with investigations concerning the proceeds of crime which are not connected with Drug Trafficking.
It is essential that requests under this Law do not relate to drugs related investigations. If drug trafficking is suspected then the application must be made under the Drug Trafficking (Bailiwick of Guernsey) Law (2000).
The Proceeds of Crime Law allows for information to be obtained by way of either the service of a production order or the execution of a warrant to search premises. The usual method is by way of a production order.
The Proceeds of Crime Law does not compel anyone who receives a production order to make a formal witness statement which can be used in evidence. However, many financial institutions in the Bailiwick, do allow their representatives to make statements in a form which would be admissible before the courts in the requesting state.
Where the recipient of the order declines to make a formal witness statement and his evidence is subsequently required for the purposes of proceedings before the court of the requesting state, if the individual concerned declines an invitation to travel to give evidence, it is possible for his evidence to be taken under oath using the provisions of the Criminal Justice (International Co-operation) (Bailiwick of Guernsey) Law (2001).
The Criminal Justice (International Co-operation) (Bailiwick of Guernsey) Law, 2001 ("the International Cooperation Law") allows for sworn evidence to be taken before a court for use in another jurisdiction. The procedures under the International Co-operation Law should be used in the following circumstances:-
- if the case under investigation or before the criminal courts of the requesting jurisdiction does not relate to an allegation of serious or complex fraud, drug trafficking, money laundering or terrorism or terrorist activity; or
- if, following the provision by Guernsey of information concerning a case of serious or complex fraud, drug trafficking, money laundering or terrorism under the procedures described above sworn evidence is required before the information can be heard as evidence by the court in the requesting state.
The International Co-operation Law does not impose any restriction on the type of offence under investigation or being prosecuted in the foreign jurisdiction before assistance can be provided.
a) The procedure to be followed:
If a foreign state wishes to apply for sworn evidence to be taken before one of its courts a Letter of Request should be sent by:
- either the court or tribunal in the requesting state's jurisdiction which has control over the case in question or;
- from any other authority in the requesting state's jurisdiction which has the power to issue a Letter of Request to:-
HM Attorney General
The Chambers of the Law Officers of the Crown
St. James' Chambers
St. Peter Port
Guernsey
Channel Islands
GY1 2PA
Tel. 00 44 (0)1481 723355
Fax. 00 44 (0)1481 725439
The members of the criminal team in the Chambers of the Law Officers of the Crown are willing to give advice on how to make applications for assistance under the International Cooperation Law and to examine and comment on draft letters of request before they are formally sent.
Letters of Requests may be sent by fax but a hard copy should then follow immediately by way of post or courier.
b) The contents of a letter of request:
The Letter of Request for assistance should contain:-
(a) the details of the court or tribunal or the authority making the request. The Letter should state that the person making the request is permitted to do so;
(b) if criminal proceedings have been commenced a description of the charges should be included. However if the case is at the investigation stage, details of the charges which the person under investigation may face should be included;
(c) a summary of the facts of the case under investigation;
(d) details of the evidence required to be taken;
(e) the names of the individual or institutions whose representatives are required to give evidence;
(f) whether the prosecuting and/or defence lawyers wish to be present when the witnesses give their testimony before the court in Guernsey; and
(g) if the request should be treated as urgent, precise reasons why Guernsey resources should be deployed urgently should be given.
c) Translation of letters of request:
If the Letter of Request is not in the English language, it should be accompanied by a full English translation. If it is not possible to understand the Letter of Request, it will be returned unexecuted.
d) The conditions applicable before assistance can be provided:
Before help can be provided under the International Co-operation Law HM Attorney General must be satisfied that:
(a) an offence under the law of the requesting state has been committed or that there are reasonable grounds for suspecting that such an offence has been committed; and
(b) proceedings in respect of the offence have been instituted in the foreign jurisdiction or that an investigation into the offence is being carried on.
Even if these conditions are met HM Attorney General does have an ultimate discretion as to whether assistance is provided. If, for example, there is an investigation into an alleged criminal offence in the requesting state, but the request for assistance received by HM Attorney General does not relate in any way to the investigation, he would be entitled to exercise his ultimate discretion to decline to give assistance.
e) Fiscal Offences:
Assistance can be provided under The Criminal Justice (International Co-operation) (Bailiwick of Guernsey) Law (2001) in cases involving an investigation into fiscal offences.
f) The procedure following acceptance of a request by HM Attorney General:
If HM Attorney General agrees that assistance should be provided, he will refer it to one of the courts in the Bailiwick so that witnesses can be summoned to give their evidence. In Guernsey the court will be the Royal Court, in Alderney the Court of Alderney and in Sark the Court of the Seneschal.
The case will be assigned to a member of the criminal team in the Chambers of the Law Officers of the Crown who will arrange the date on which the evidence will be given before the court, inform the requesting state of the date and summons the witnesses required.
g) The procedure before the court:
In most cases the evidence is likely to be given in the form of an acceptable pre-written statement.
If either the prosecution or defence lawyers responsible for the case in the requesting state wish to attend when evidence is given in compliance with the request they will be allowed to question and cross-examine witnesses.
It must be understood that the presiding judge will ultimately be responsible for the procedure during the taking of evidence. The judge will be prepared to listen to argument from both the prosecution and defence so that every effort is made to take the evidence in such a way as to make it admissible before the court of the requesting state.
Any visiting Prosecutor will be accompanied in court by a lawyer from the Chambers of the Law Officers of the Crown. Usually foreign lawyers for the defence are asked to arrange that they are accompanied by a Guernsey Advocate.
In the event of no lawyers from the foreign state deciding to attend when evidence is given a lawyer from HM Attorney General's Chambers will conduct the examination of the prosecution witnesses. If a Guernsey Advocate is appointed to look after the interests of the defendant or potential defendant he will be allowed an opportunity to cross-examine the witnesses.
If evidence is not presented in the form of a pre-written statement it will be tape-recorded. If the evidence is tape-recorded a transcript will need to be prepared. The sworn witness statement or transcript of the evidence recorded on tape will be signed by the presiding judge and a court seal affixed.
h) Request for assistance by the defence:
It is possible for defendants to make applications for evidence to be taken before the Guernsey court. If a defence lawyer in the foreign state wishes to make such a request he should be advised to ask for a Letter of Request to be issued either by one of the requesting state's courts or tribunals or a person authorised to issue letters of request on behalf of the defence.
The letter should be sent to HM Attorney General.
On receipt of a letter of request HM Attorney General will follow the same procedure as he would do for a request from the prosecuting authority. A lawyer from the criminal team from the Chambers of the Law Officers of the Crown after liasing with the parties involved in the requesting state and any Advocates appointed in Guernsey will arrange the date for the court hearing. However, a Guernsey Advocate will have to be appointed by the defence lawyers in the requesting state to arrange for the summonsing of witnesses and to examine potential defence witnesses before the court.
i) The time it takes to process an application for evidence to be taken before a court:
It is hard to give a general estimate as to the time it is likely to take to process an application to take evidence before a Court. If the evidence to be taken is not too complex then the time taken will usually be relatively short particularly if an acceptable pre-written statement is prepared. In complex matters it may take several months to complete the process.
If a request is extremely urgent then this fact should be specifically drawn to the attention of the authorities in Guernsey and an explanation provided as to why it is urgent. and why a request has not been made at an earlier date. Every effort will be made to complete the procedure as quickly as possible. In order that we can deal with all requests on a timely basis it is important that a request is only categorised as urgent when it is truly urgent.
