United Kingdom Country Profile - MLA in Relation to Asset Recovery

For assistance in England and Wales all formal MLA requests - Letters of Request - should be made to the UK Central Authority in the Home Office (see above: ukcentralauthority@homeoffice.gsi.gov.uk).

The UK can receive a Letter of Request provided either that a criminal offence has been committed in the requesting country or that there are reasonable grounds for suspecting that a criminal offence has been committed, and that there is an investigation in process. It is not necessary that any person should yet have been charged with committing a criminal offence, or that the requesting state should have formally commenced proceedings, although this may be necessary if you request seizure or freezing of bank accounts.

It is also possible to submit requests to the Central Authorities through diplomatic channels such as Embassies or High Commissions in London, where required by the law and practice of the requesting country. But direct communication with the Central Authorities is preferred as this can help speed up the execution of requests.

Requests for both legal assistance and for investigative assistance may also be sent both to the Central Authorities and the UK National Central Bureau of Interpol. They will jointly co-ordinate the execution of the request. Any such requests should be clearly marked to show the request had been submitted to both authorities.

As the Crown Dependencies, namely the Channel Islands (Guernsey and Jersey) and the Isle of Man, and the UK Overseas Territories are not part of the United Kingdom and the Crown Dependencies and the Overseas Territories are themselves wholly responsible for executing requests within their own jurisdictions (although Interpol London is the Interpol office for the Crown Dependencies and certain of the Overseas Territories) requests should usually be sent to the Attorney General of the Crown Dependency or Overseas Territory from where the assistance is required. A list of the relevant contact details is annexed to the end of this section.

1. What should the Letter of Request contain?

A Letter of Request should be a 'stand alone' document, in the sense that it should enable the U.K. to execute it without the need for any additional information; the omission of any relevant information will delay the execution of the request. The Letter of Request should include all relevant information in a clear and concise manner. Keep it brief and the language simple as it is more likely that it will be dealt with expeditiously.

Letters of Request must include the following details:

• Details and the address of the judicial or prosecuting authority conducting the investigation or proceedings to which the request relates, together with the name, telephone and fax and/or e-mail details of the responsible official(s) there;
• The Letter should state that the issuing authority is permitted to make requests for assistance in criminal matters to foreign authorities. The Authority requesting assistance should also cite any relevant arrangement between its country and the U.K., though assistance may be sought by a State that is not party to an arrangement with the United Kingdom.  
• Full name(s) of the subject(s) of the investigation or proceedings if known.
• The request should make clear that there are reasonable grounds for suspecting that the offence has been committed and that proceedings have been instituted in relation to the offence or, if proceedings have not been instituted, that the offence is being investigated; this is to ensure that the conduct involved in the offences under investigation would constitute a criminal offence in the U.K.
• A summary of the facts of the offence(s) and details of the offence(s) committed or alleged should be set out clearly, concisely and accurately. Ideally, the facts should demonstrate a prima facie case that each named defendant or suspect has committed the identified criminal offence/s (or that a criminal offence has been committed). This may be particularly important if the assistance sought will necessitate coercive measures as a legitimate and clear nexus between the facts and the assistance requested will have to be shown.
• A description of the evidence or material or other assistance required, clearly stating whether original evidence or certified copies are required. It is not always possible to predict all the enquiries that need to be made. For example, a witness might say something that opens up a new avenue of enquiry to be explored in the requested state. Therefore you should add a stock paragraph to the effect that such further enquiries should be made as appears necessary in the course of the investigation.
• The purposes for which the evidence or material or other assistance are required and the relevance of the assistance to the investigation or proceedings. A nexus (direct link) must be established between the facts of the case as detailed in the request and the enquiries to be made so that, having read the summary of the facts, the executing authority will understand what assistance is being sought and why.  
• This goes further than just stating that the material is relevant to the case. In reading the case summary the executing authority should be able to anticipate what assistance is required. Why is the material relevant? How does it advance the case? What supporting evidence is already in the requesting authorities’ possession or what facts are in existence that lends support to the necessity of obtaining the evidence requested? 
• The U.K. will provide the evidence in the format that has been requested, provided that this is not inconsistent with English law. The requesting state should ensure that it is clearly stated how documents are to be authenticated and what formalities or procedures are required for the evidence to be able to be used under its legal system.
• The UKCA may require as assurance or an Undertaking to be included in the Letter of Request to the effect that the information supplied will only be used for the purposes stated.  It is required by the principle of speciality to ensure that the information provided is only used for the specific purpose set out in the Letter of Request. It is therefore important to state clearly the purposes for which the assistance is sought and to attempt to cover all reasonably foreseeable purposes, for instance by using this phrase : "...for use in any criminal proceedings, trial, confiscation and enforcement proceedings." Where there are others to be arrested you could additionally request "in relation to the above named defendant(s) and other persons still to be prosecuted".

Additional requirements if relevant :

• The date of the trial or hearing and any other dates relevant for the purpose of executing the request; and any reasons why the request is urgent, for example because the accused person or suspect is in detention.
• The full name, date of birth and location of any person from whom evidence is required making clear whether they are a witness or an actual or potential accused. If available, a photograph of the person would assist.
• Details, including the telephone number, of any British law enforcement agency or officers who are familiar with the investigation (including, if relevant the names of any operations).
• The request should also say whether (and if so why) the presence of officers or officials of the requesting authorities is required during the execution of the request. The names of such persons should be provided (in general, such officers or officials may observe, but in certain circumstances may not participate in, the execution of requests).
• Details of any previous prosecutions or proceedings (in the Requesting State or elsewhere) against the accused person which may be relevant in assisting the UKCA in deciding whether or not double jeopardy is an issue in the case.
• It may be necessary to send copies of documents with the Letter of Request, particularly if these need to be shown to a witness or suspect. Remember that these will have to be translated into English.

2. Interviews with witnesses or suspects

• Voluntary Interview of a witness: where  a witness agrees to be questioned. The witness makes a written "witness statement", which he signs. This statement is not made under oath, but the witness does state that his evidence is true and that he may be prosecuted in the U.K. if it is not.
• Evidence taken on oath: the witness is summoned to a Magistrates Court and gives oral evidence under oath, which is recorded in writing, signed and certified by the Magistrate. The Magistrate may allow a representative from the requesting state to take part and ask questions in court, or he may require a written list of questions to be put to the witness in advance. As an alternative, a witness can make a written affidavit, confirming this on oath before a solicitor who certifies the statement (there is a small fee for this payable to the solicitor).
• Interview under caution: under English law, persons who are suspected of having committed a criminal offence must be warned, prior to interview, that they do not have to answer questions. English legal procedure requires a special form of 'caution' to be given if the answers are to be admitted in an English Court. Interviews of suspects or key witnesses in the U.K. are usually tape-recorded. A potential or actual defendant may agree to be interviewed by a U.K. law enforcement official or by the requesting state's agents. If he does agree, you may give him your own form of 'caution' or any warnings that your own law requires to ensure fairness. The offender must be given details of the offences you suspect him of committing and be fully informed of his position under the law of the requesting state. He is also entitled to have a solicitor present and to seek legal advice during the interview (for which the requesting state may be asked to pay).

3. Requests in relation to serious and complex fraud

In England, Wales and Northern Ireland, the Central Authority can refer requests for assistance in serious or complex fraud cases, or any part of such a request, to the Director of the Serious Fraud Office (SFO) to obtain such of the evidence as may appear to the Director to be appropriate. Under English law, the Director must be satisfied on reasonable grounds that the criminal conduct in the requesting country involves "serious or complex fraud". Frauds involving sums less than £1 million would not normally be regarded as "serious". A Letter of Request must therefore set out why the fraud is deemed to be serious and/or complex.

When using SFO's coercive powers the names of persons under investigation have usually to be declared; but where for example a fraud involving a bank or a company is under investigation there is no requirement to name a natural person, it is permissible for the SFO merely to name that company or bank. This will be relevant if the requesting state wants to keep the fact of an investigation secret.

Under the powers available to the SFO in matters of serious or complex fraud, a witness or suspect be compelled to answer questions, and is subject to criminal sanctions if he refuses. The Serious Fraud Office has statutory powers under Section 2 Criminal Justice Act 1987 to issue a notice requiring an interview and, in appropriate circumstances, an English-speaking Prosecutor from the requesting country may be authorised by the Director of the SFO to participate directly in such an interview. In all cases involving statutory interviews a special undertaking will be required from your country restricting the use to which the evidence will be put. In summary: the answers given in statutory interviews may not be used directly against the person interviewed at his criminal trial, in breach of his human rights. It should be noted that some professional witnesses, e.g. bankers, lawyers and accountants, may insist on a statutory interview if they are asked to provide confidential information about clients. As long as the witness is not later made a defendant (e.g. in cases involving money laundering), the requesting state will be able to make full use of the evidence he gives in any way allowed by its own courts. If he is later treated as a defendant, the special undertaking will apply and the requesting state will not be able to use such evidence against him.

Where necessary, the UKCA will seek written assurance in the form of the Undertakings (see below) from the requesting authority that any statement which might be made by a person in response to a requirement imposed by virtue of the Director's investigation powers will not be used in evidence against that person in a prosecution, unless evidence relating to it is adduced, or a question relating to it is asked in the proceedings, by or on behalf of that person. This assurance is required because witnesses do not in general have a right to refuse to answer questions where use is made of the Director's investigation powers. The assurance is therefore an important safeguard for the witness in the event of self-incrimination. The statement may, of course, be used against the accused person(s) named in the request if that is considered appropriate in the requesting country.

"If the United Kingdom Secretary of State for the Home Department decides to refer this Letter of Request to the Serious Fraud Office, I undertake that:-

• I. No document or other information obtained will be used other than in criminal prosecutions arising from the investigation set out in this Letter of Request, without the prior consent of the Secretary of State for the Home Department;

Additionally, where the Letter of Request requires the Serious Fraud Office to use its statutory powers to interview a person, whether as a witness or a suspect, the Undertaking at II is also required. Prosecutors in the U.K. are not allowed to use answers given by the person interviewed under statutory compulsion at his criminal trial.  If the Undertaking is not given, the person interviewed may have a 'reasonable excuse' not to answer questions.

• II. No statement made by any person to the Serious Fraud Office on foot of their coercive powers will be used against that person in a prosecution. Unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings, by or on behalf of that person.”

4. Sending the request

Requests must be made in writing in English or be submitted with an English translation. The original and two copies of the Letter of Request should be sent to the UKCA at the Home Office in London.

Below are some of the most requested actions through the MLA process in relation to asset recovery investigations:

5. Account information held by financial institutions

There is no central record of bank accounts held in the UK, therefore as much identifying information as possible should be given to identify the financial institution believed to be in possession of the requested information.

• The request must provide the following:
  
  • Name of the account holder and number of the account;
  • The address and/or number ("sort code") of the branch of the bank where the account is held, and;
• The time period over which the information is sought.
• Explanations must be given for any period that falls outside the time framework for the investigation.
• Requesting authorities should be aware that the retention policies of banks vary around the 5 year mark.

For countries who are parties to the protocol to the EU Convention on Mutual Assistance in Criminal Matters, or other states that have been explicitly designated by the UK Parliament and who can provide reciprocal assistance, for the provision of information on bank accounts a Letter of Request must state why the requesting authority considers that the requested information is likely to be of substantial value for the purpose of the investigation,  what grounds they believe that banks in the UK holds account(s) and to the extent available, which banks may be involved and provide any further information that will facilitate the execution of the request

Requests for information on bank accounts are subject to dual criminality.

6. Requests for the monitoring of banking transactions

The request must provide the following information:

• Why it considers the information relevant for the purpose of the investigation

The monitoring period will not exceed 90 days from the date of the order. Section 42 of the Crime (International Co-operation) Act 2003 creates offences for the disclosure of the fact that a request for customer information or account monitoring order has been received, applied for or made in pursuance of a mutual legal assistance. 

7. Search & Seizure

Requests for search and seizure of evidence must include:

• The full address or a precise description of any place to be searched, including any information indicating that the material may be held on computer.
• Full details of the specific material or type of material to be seized.
• Full description of the criminal conduct concerned. (Requests for search and seizure cannot be executed unless the criminal conduct would be an offence under UK law if it had occurred in the UK.)
• An explanation why the material requested is considered both relevant and important evidence to the investigation or proceedings.
• Why the evidence is thought to be on the particular premises or in the possession of the particular person concerned.
• Why the material would not be produced to a UK court if the natural or legal person holding the material were ordered to do so. (This is to help ensure that applications to the UK courts for search warrants are successful and less likely to fail or be subject to subsequent legal challenge.)
• Appropriate undertakings for the safekeeping and return of any seized evidence.

8. Freezing and Confiscation of Asset

Two pieces of secondary legislation have been introduced which allow the UK to co-operate with other countries in the freezing and confiscation/forfeiture of both the proceeds and instrumentalities of crime. These Orders also allow the UK to give effect to certain provisions of the UN Convention Against Corruption (UNCAC) and the UN Convention against Transnational Organised Crime (UNTOC).

The relevant Orders are the Proceeds Of Crime Act 2002 (External Requests And Orders) Order 2005 (S.I. 2005 No. 3181), which came into force on 31 December 2005, and the Criminal Justice (International Co-Operation) Act 1990 (Enforcement Of Overseas Forfeitures) Order 2005 (S.I. 2005 No 3180), which came into force on 1 January 2006.

Also see the Home Office Circular 4/2006 at http://www.knowledgenetwork.gov.uk/HO/circular.nsf/79755433dd36a66980256d4f004d1514/1de8cde7eaabaae38025711b004c7602?OpenDocument

Under Part 11 of the Proceeds of Crime Act 2002 the UK can now provide restraint assistance at the investigative stage of criminal proceedings.

a) Requests for the restraint (freezing) of property should include:

• The name, address, nationality, date and place of birth and present location of the suspect(s) whose criminal conduct has given rise to anticipated confiscation or forfeiture proceedings.
• Details of the criminal investigation.
• Details of the law applicable to the investigation and current evidence against the suspects.
• Particulars of the property which it is intended to restrain in the United Kingdom, the persons holding it and details of the link between the suspect and the property (this is important if the property to be restrained is held in the name of a third party such as a company or another person).
• State clearly whether prior assistance in the case (including asset tracing assistance) has been provided and, if so, give particulars of the UK enforcement or other authority involved and details of the assistance already received.
• Where applicable, details of any court orders already made in the requesting State against the suspect in respect of his or her property. If any court order has been made, a duly authenticated copy should be included with the request - that is a true copy of that order certified by a person in his or her capacity as a judge, magistrate or officer of the relevant court of the requesting State, or by an official of the Central Authority in the requesting State.
• Brief details of all known property held by the suspect outside the United Kingdom.
• A certificate or statement issued by or on behalf of the requesting State's Central Authority, stating:
  
  • that an investigation has been instituted in that country and has not concluded, or that proceedings have been instituted in the requesting State;
  • that the order which it is expected the court of the requesting State will make will have the purpose of recovering property or has the purpose of ordering the forfeiture of instrumentalities of crime.
  • that any future order that is made can be enforced outside the jurisdiction of the requesting state;
  • an undertaking to serve a copy of the order once it has been made upon the suspect.

b) Criteria in the UK for enforcement of foreign criminal confiscation orders include:

• the order must specify the assets against which enforcement is sought (although the asset can be traced if converted, for example enforcement is available against the proceeds of sale of a property named in the confiscation order); 
• the order must be based on a finding that the assets were obtained as a result of or in connection with criminal conduct (being conduct which would be an offence if committed in the United Kingdom);
• the order and the underlying conviction from which it derives must be in force and not subject to any appeal;
• the order must be compatible with the European Convention of Human Rights (scope here for defendants to cause delay pending determination of false claims that they were not given a fair trial).

Requests for enforcement are first sent to the Secretary of State for the Home Office.  She has discretion as to whether the request should be met.  Her decision will therefore be subject to challenge: either by the requesting state following an adverse decision or, more likely, by a defendant seeking to prevent enforcement.  Delaying challenges by defendants are likely: for example based on allegations of unfair trials or political motivation.

If the Secretary of State agrees, the order is passed to the U.K. authorities for enforcement (for example the Assets Recovery Agency or Serious Fraud Office).  Realised funds are returned to the state seeking to enforce the order, but may be subject to deduction of expenses, unless agreement can be reached not to do so.

c) Request for confiscation or forfeiture of property in the U.K. should include

• The information as outlined above for restraint applications.
• An original confiscation or forfeiture order or a duly authenticated copy of the order.
• A certificate or statement issued by or on behalf of the requesting State's Central Authority stating:
  
  • that the order is in force and that neither the order nor any conviction to which it may relate is subject to appeal;
  • that all or a certain amount of the sum payable under the order remains unpaid in the territory of the requesting State or that other property recoverable under the order remains un-recovered there;
  • that the confiscation order has the purpose of recovering property, or the value of property received in connection with the commission of crime, or in the case of a forfeiture order has the purpose of ordering the forfeiture of instrumentalities of crime;
  • where the person against whom the order was made did not appear in the proceedings, that he or she was notified of the proceedings in accordance with the requesting State's law in time to defend them;
  • that the order made can be enforced outside the jurisdiction of the requesting state.

9. Civil Recovery (Non-conviction based asset confiscation)

These requests must be sent to the Secretary of State for England, Wales and Northern Ireland or the civil recovery unit in the Crown Office, Scotland.

10. Civil Recovery (Non-conviction based asset forfeiture)

There is in the UK a system of civil recovery, which enables the recovery in the civil courts of assets obtained as a result of crime where there is no prosecution/conviction. There may be circumstances in which this system can be used to assist you, even if you do not have such a system in your own country. However, the UK reserves the right to refuse requests on the basis of reciprocity. There are no mandatory relevant bilateral or international agreements and so the UK retains full discretion on whether to accede to requests for assistance. These are guidelines only and further guidance can be obtained from the Home Office on +44 (0)20 7035 1559, FCT@homeoffice.gsi.gov.uk, or where assets are situated in Scotland, the Civil Recovery Unit on +44 (0)84 5606 6212, cocru@copfs.gsi.gov.uk.

The UK will assist in requests for enforcing a non-criminal recovery order. In such cases however, the UK will not be able to assist in requests to freeze property.

The request should come through a central authority and originate from a court or tribunal, judicial, investigative or prosecuting authority.

The request must include:

• an original recovery order or a duly authenticated copy of the order - that is a true copy of that order certified by a person in his or her capacity as a judge, magistrate or officer of the relevant court of the requesting State, or by an official in the requesting State (with evidence that they are duly authorised to do so under their law).

A certificate or statement stating:

• that the order is in force and there is no appeal;
• that a certain amount of the order or property under the order remains unrecovered or not forfeited;
• that the recovery order has the purpose of recovering the proceeds of crime and details of that crime.

A statement should accompany the request stating:

• that criminal proceedings with subsequent confiscation/forfeiture have been pursued or considered. Why those confiscation/forfeiture proceedings failed or were not appropriate;
• brief details as to the belief that the property or amount is or represents the proceeds of crime;
• the name, address, nationality, date and place of birth and present location of any respondent in the case if known and applicable;
• details of property in the UK and the persons holding it. If unable to identify who holds the property, brief details of the steps to establish the identity of the owner;
• identification as to whether the property is the actual proceeds of crime or associated to the proceeds of crime. Associated property may include, for example, a jointly owned house where only one owner has invested the proceeds of crime;
• that property named in the request are not subject to criminal proceedings or appeal;
• any prior assistance in the case (including asset tracing) that has been provided by the UK and, if so, give details of that assistance;
• where applicable, details of any other court orders made against the property and any respondent. A duly authenticated copy of these orders should be included with the request.

11. Contact details for authorities in the Channel Islands, the Isle of Man and the British Overseas Territories 

Guernsey

HM Attorney General, Attorney General's Chambers, St James Chambers, St Peter Port, Guernsey GY1 2PA
Tel: + 44 1481 723355
Fax: + 44 1481 725439

Isle of Man

Attorney General's Chambers, 3rd Floor, St Mary's Court, Hill Street, Douglas, ISLE OF MAN IM1 1EU
Tel: + 44 1624 685452
Fax: + 44 1624 629162

Jersey

HM Attorney General, Attorney General's Chambers, Morier House, St Helier, Jersey JE1 1DD
Tel: + 44 1534 502280
Fax: + 44 1534 502299

12. Requests for execution in the British Overseas Territories

(Details for any authorities not listed are obtainable from the UKCA)

Anguilla

The Attorney-General, The Attorney-General's Chambers, The Secretariat, The Valley, Anguilla
Tel: + 1 264 497 3044
Fax: + 1 264 497 3126

Bermuda

The Attorney-General's Chambers, Global House 43, Church Street, Hamilton HM12, Bermuda
Tel: + 1 441 292 2463
Fax: + 1 441 292 3608 32

British Virgin Islands

The Attorney-General, The Attorney-General's Chambers, Governmnet of the British Virgin Islands, PO Box 242, Road Town, Tortola
Tel: +1 284 494 3701 
Fax: +1 284 494 6760

Cayman Islands

The Attorney-General, The Attorney-General's Chambers, Government Administration Building, George Town, Grand Cayman, Cayman Islands
Tel: + 1 345 949 7900
Fax: + 1 345 949 6079

Gibraltar

Attorney-General Joshua Hassan House, Secretary's Lane, Gibraltar
Tel: + 350 70723
Fax: + 350 79891

"UKGGLU"

UK Government/Gibraltar Liaison Unit, Foreign & Commonwealth Office, King Charles St, London SW1H 2AH
Tel: +44 20 7 008 2502
Fax: +44 207 008 3629

Montserrat

The Attorney-General, The Attorney-General's Chambers, #3 Farara Plaza, Brades Montserrat
Tel: + 1 664 491 4686
Fax: + 1 664 491 4687

Turks and Caicos Islands

The Governor, Government House, Grand Turk, Turks and Caicos Islands
Tel: + 1 649 946 2308
Fax: + 1 649 946 2903