[Senate Executive Report 104-23]
[From the U.S. Government Publishing Office]
104th Congress Exec. Rept.
SENATE
2d Session 104-23
_______________________________________________________________________
TREATY WITH THE UNITED KINGDOM ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL
MATTERS
_______
July 30, 1996.--Ordered to be printed
_______________________________________________________________________
Mr. Helms, from the Committee on Foreign Relations, submitted the
following
R E P O R T
[To accompany Treaty Doc. 104-2]
The Committee on Foreign Relations to which was referred
the Treaty Between the Government of the United States of
America and the Government of the United Kingdom of Great
Britain and Northern Ireland on Mutual Legal Assistance in
Criminal Matters, signed at Washington on January 6, 1994,
together with a related exchange of notes signed the same date,
having considered the same, reports favorably thereon with two
provisos and recommends that the Senate give its advice and
consent to the ratification thereof as set forth in this report
and the accompanying resolution of ratification.
I. Purpose
Mutual Legal Assistance Treaties (MLATs) provide for the
sharing of information and evidence related to criminal
investigations and prosecutions, including drug trafficking and
narcotics-related money laundering. Both parties are obligated
to assist in the investigation, prosecution and suppression of
offenses in all forms of proceedings (criminal, civil or
administrative). Absent a treaty or executive agreement, the
customary method of formally requesting assistance has been
through letters rogatory.
II. Background
On January 6, 1994, the United States signed a treaty with
United Kingdom on mutual assistance in criminal matters and the
President transmitted the Treaty to the Senator for advice and
consent to ratification on January 23, 1995. In recent years,
the United States has signed similar MLATs with many other
countries as part of an effort to modernize the legal tools
available to law enforcement authorities in need of foreign
evidence for use in criminal cases.
States historically have been reluctant to become involved
in the enforcement of foreign penal law.\1\ This reluctance
extended to assisting foreign investigations and prosecutions
through compelling testimony or the production of documents.
Even now, the shared interest in facilitating the prosecution
of transnational crime is viewed as being outweighed at times
by unwillingness to provide information to those with different
standards of criminality and professional conduct.
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\1\ E.g., Restatement (Third) of the Foreign Relations Law of the
United States Part IV, ch. 7, subch. A, Introductory Note and Sec. 483,
Reporters' Note 2 (1987); Ellis & Pisani, The United States Treaties on
Mutual Assistance in Criminal Matters: A Comparative Analysis, 19 Int.
Lawyer 189, 191-198 (discussing history of U.S. reluctance and
evolution of cooperation) [hereinafter cited as Ellis & Pisani].
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Despite these hindrances, the need to obtain the
cooperation of foreign authorities is frequently critical to
effective criminal prosecution. Documents and other evidence of
crime often are located abroad. It is necessary to be able to
obtain materials and statements in a form that comports with
U.S. legal standards, even though these standards may not
comport with local practice. Also, assisting prosecutors for
trial is only part of how foreign authorities may assist the
enforcement process. Detecting and investigating transnational
crime require access to foreign financial records and similar
materials, while identifying the fruits of crime abroad and
having them forfeited may deter future criminal activity. It is
necessary to have the timely and discrete assistance of local
authorities.
Still, it was not until the 1960s that judicial assistance
by means of letters rogatory--requests issuing from one court
to another to assist in the administration of justice \2\--were
approved. Even then, the ability of foreign authorities to use
letters rogatory to obtain U.S. assistance was not established
firmly in case law until 1975.\3\ By this time, the United
States had negotiated and signed a mutual legal assistance
treaty with Switzerland, the first U.S. treaty of its kind.
This treaty was ratified by both countries in 1976 and entered
into force in January 1977. Since then, the United States has
negotiated more than 20 additional bilateral MLATs, 14 of which
are in force.\4\
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\2\ See In re Letter Rogatory from the Justice Court, District of
Montreal Canada, 523 F.2d 562, 564-565 (6th Cir. 1975).
\3\ Id. at 565-566.
\4\ According to the August 4, 1995, Letters of Submittal
accompanying the MLATs with Austria and Hungary, the United States has
bilateral MLATs in force with Argentina, The Bahamas, Canada, Italy,
Jamaica, Mexico, Morocco, the Netherlands, Spain, Switzerland,
Thailand, Turkey, the United Kingdom concerning the Cayman Islands, and
Uruguay. MLATs not in force but ratified by the United States include
those with Belgium, Colombia, and Panama. Signed but unratified MLATs
include the five addressed in this reports--those with Austria,
Hungary, the Republic of Korea, the Philippines, and the United
Kingdom--and one with Nigeria. Treaty Doc. 102-21, 104th Cong., 1st
Sess. v (1992).
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Absent a treaty or executive agreement, the customary
method of formally requesting assistance has been through
letters rogatory. The Deputy Assistant Attorney General of the
Criminal Division has summarized the advantages of MLATs over
letters rogatory to the House Foreign Affairs Committee as
follows:
An MLAT or executive agreement replaces the use of
letters rogatory. * * * However, treaties and executive
agreements provide, from our perspective, a much more
effective means of obtaining evidence. First, an MLAT
obligates each country to provide evidence and other
forms of assistance needed in criminal cases. Letters
rogatory, on the other hand, are executed solely as a
matter of comity. Second, an MLAT, either by itself or
in conjunction with domestic implementing legislation,
can provide a means of overcoming bank and business
secrecy laws that have in the past so often frustrated
the effective investigation of large-scale narcotics
trafficking operations. Third, in an MLAT we have the
opportunity to include procedures that will permit us
to obtain evidence in a form that will be admissible in
our courts. Fourth, our MLATs are structured to
streamline and make more effective the process of
obtaining evidence.\5\
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\5\ Worldwide Review of Status of U.S. Extradition Treaties and
Mutual Legal Assistance Treaties: Hearings Before the House Committee
on Foreign Affairs, 100th Cong., 1st Sess. 36-37 (1987) (statement of
Mark M. Richard, Deputy Assistant Attorney General, Criminal Division).
Letters rogatory and MLATs are not the only means that have
been used to obtain assistance abroad.\6\ The United States at
times has concluded executive agreements as a formal means of
obtaining limited assistance to investigate specified types of
crimes (e.g., drug trafficking) or a particular criminal scheme
(e.g., the Lockheed investigations).\7\ A separate, formal
means of obtaining evidence has been through the subpoena
power. Subpoenas potentially may be served on a citizen or
permanent resident of the United States abroad or on a domestic
U.S. branch of a business whose branches abroad possess the
desired information.\8\
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\6\ U.S. Dept. of Justice, United States Attorneys' Manual
Sec. Sec. 9-13.520 et seq. (October 1, 1988).
\7\ Id. at Sec. 9-13.523.
\8\ Id. at Sec. 9-13.525.
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Additionally, the Office of International Affairs of the
Criminal Division of the Department of Justice notes several
informal means of obtaining assistance that have been used by
law enforcement authorities in particular circumstances. These
have included informal police-to-police requests (often
accomplished through law enforcement personnel at our embassies
abroad), requests through Interpol, requests for readily
available documents through diplomatic channels, and taking
depositions of voluntary witnesses. Informal means also have
included ``[p]ersuading the authorities in the other country to
open `joint' investigations whereby the needed evidence is
obtained by their authorities and then shared with us.'' The
Justice Department also has made ``treaty type requests that,
even though no treaty is in force, the authorities in the
requested country have indicated they will accept and execute.
In some countries (e.g., Japan and Germany) the acceptance of
such requests is governed by domestic law; in others, by custom
or precedent.'' \9\
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\9\ Id. at Sec. 9-13.524.
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Like letters rogatory, executive agreements, subpoenas, and
informal assistance also have their limitations compared to
MLATs. Executive agreements have been restricted in scope and
application. Foreign governments have strongly objected to
obtaining records from within their territories through the
subpoena power.\10\ There is no assurance that informal means
will be available or that information received through them
will be admissible in court.
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\10\ Notwithstanding foreign objections, unilateral methods such as
issuing subpoenas on domestic branches may actually have promoted the
negotiation of MLATs. According to one commentator, ``the principal
incentive for many foreign governments to negotiate MLATs with the
United States was, and remains, the desire to curtail the resort by
U.S. prosecutors, police agents, and courts to unilateral,
extraterritorial means of collecting evidence from abroad.'' E.
Nadelmann, Cops Across Borders: The Internationalization of U.S.
Criminal Law Enforcement 315 (1993) [hereinafter cited as Nadelmann].
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III. Summary
a. general
Mutual legal assistance treaties generally impose
reciprocal obligations on parties to cooperate both in the
investigation and the prosecution of crime. Most, but not all,
MLATs have covered a broad range of crimes with no requirement
that a request for assistance relate to activity that would be
criminal in the requested State. The means of obtaining
evidence and testimony under MLATs also range broadly. MLATs
increasingly are extending beyond vehicles for gathering
information to include ways of denying criminals the fruits and
the instrumentalities of their crimes.
b. primary provisions
1. Types of proceedings
MLATs generally call for assistance in criminal
investigations and proceedings. This coverage often is broad
enough to encompass all aspects of a criminal prosecution, from
investigations by law enforcement agencies to grand jury
proceedings to trial preparation following formal charges to
criminal trial. Most recent MLATs also cover civil and
administrative proceedings--forfeiture proceedings, for
example--related to at least some types of prosecutions, most
frequently those involving drug trafficking. However, the scope
of some MLATs has been more circumscribed than the proposed
treaty.
The United Kingdom (UK) Treaty calls for the provision of
mutual legal assistance in proceedings (art. 1). Proceedings
covers ``proceedings related to criminal matters and includes
any measure or step taken in connection with the investigation
or prosecution of criminal offenses, including the freezing,
seizure or forfeiture of the proceeds and instrumentalities of
crime, and the imposition of fines related to a criminal
prosecution.'' In addition to criminal proceedings,
discretionary authority is given to the Central Authorities of
the parties to ``treat as proceedings for the purpose of this
Treaty such hearings before or investigations by any court,
administrative agency or administrative tribunal with respect
to the imposition of civil or administrative sanctions as may
be agreed in writing between the parties'' (art. 19).
2. Limitations on assistance
All MLATs except various types of requests from the treaty
assistance provisions. For example, judicial assistance
typically may be refused if carrying out a request would
prejudice the national security or other essential interest of
the Requested State. Requests related to political offenses
usually are excepted, as are requests related to strictly
military offenses. Unlike the extradition treaties, dual
criminality--a requirement that a request relate to acts that
are criminal in both the Requested and Requesting States--
generally is not required. Nevertheless, some treaties do
contain at least an element of a dual criminality standard.
Additionally, some treaties go beyond military and political
offenses to also except requests related to certain other types
of crimes. Requests related to tax offenses at times have been
restricted in an MLAT to offenses that are connected to other
criminal activities. Before a request is denied, a Requested
State generally is required to determine whether an otherwise
objectionable request may be fulfilled subject to conditions.
The UK MLAT states that a Requested State may refuse
assistance if the Requested Party believes that complying with
the request would impair its sovereignty, security, or other
essential interest, or would be contrary to important public
policy. A request also may be denied if it relates to an
individual who, if proceeded against in the Requested State for
conduct to which the request relates, would be entitled to be
discharged on the grounds of previous acquittal or conviction.
Assistance may be denied if a request relates to a political
offense, and assistance also may be denied if it relates to a
military offense not normally punishable under criminal law.
Before assistance may be denied, the parties are to consult to
consider whether assistance may be given subject to conditions
(art. 3).
3. Transmittal of requests
Requests under MLATs are conveyed directly through
designated Competent Authorities, which in the United States
has been the Criminal Division of the Justice Department. The
time and paperwork saved in thereby bypassing the courts and
diplomatic channels are among the main advantages of MLATs. For
example, a report by the Criminal Justice Section of the
American Bar Association has stated that the circuity of the
channel for transmitting letters rogatory and evidence obtained
under them often effectively frustrates use of letters rogatory
as a means of obtaining assistance.\11\
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\11\ American Bar Association, Criminal Justice Section, Report
(No. 109) to the House of Delegates 3 (1989 Annual Meeting in Honolulu)
(hereinafter cited as ABA Report).
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The provisions on the form and contents of requests are
contained in article 4 of the respective treaties. The proposed
MLAT requires that a request for assistance under an MLAT be in
writing, except in urgent situations (in which case a request
must be confirmed in writing later, typically within 10 days).
Among the information usually to be included in a request are
(1) the name of the authority conducting the investigation,
prosecution, or proceeding to be assisted by the request; (2) a
detailed description of the subject matter and nature of the
investigation, prosecution, or proceeding to which the request
relates, a description of the pertinent offenses; (3) a
description of the evidence or other assistance being sought;
and (4) the purpose for which the assistance is being sought.
To the extent necessary and possible, other information
that may facilitate carrying out the request also is to be
provided, including, for example, information on the
whereabouts of information or persons sought or a description
of a place or person to be searched and of objects to be
seized. Additional information may include lists of questions
to be asked, a description of procedures to be followed, and
information on allowances and expenses to be provided to an
individual who is asked to appear in the Requesting State. The
proposed UK treaty also expressly mentions providing
confidentiality requirements.
4. Execution of requests
Under the proposed treaties the Competent Authority of a
Requested State is to execute a request promptly or, when
appropriate, transmit the request to authorities having
jurisdiction within the Requested State to execute it. The
competent authorities of the Requested State are to do
everything in their power to execute the request.
Article 5 of the proposed MLAT provides that requests are
to be executed in accordance with the laws and practices of the
Requested State, unless the treaties provide otherwise. At the
same time, the method of execution specified in a request is to
be followed unless the laws of the Requested State prohibit it.
As is typical in other MLATs the proposed treaty provides that
the judicial authorities of the Requested State shall have
power to issue subpoenas, search warrants, or other orders
necessary to execute the request.
The Central Authority of a Requested State may postpone or
place conditions on the execution of a request if execution in
accordance with the request would interfere with a domestic
criminal investigation or proceeding, jeopardize the security
of a person, or place an extraordinary burden on the resources
of the Requested State.
At the request of a Requesting State, a Requested State is
to use its best efforts to keep a request and its contents
confidential. If a request cannot be executed without breaching
confidentiality, the Requested State shall so inform the
Requesting State, and the Requesting State then is given the
option to proceed nonetheless. (Provisions on keeping
information provided to a Requesting State confidential are
discussed below.)
Requested States generally bear the costs of executing a
request other than expert witness fees; interpretation,
transcription, and translation costs; and travel costs for
individuals whose presence is Requested in the Requesting State
or a third State.
5. Types of assistance
In conducting a covered proceeding, a Requesting State
commonly may obtain assistance from a Requesting State that
includes (1) the taking of testimony or statements of persons
located there; (2) service of documents; (3) execution of
requests for searches and seizures; (4) the provision of
documents and other articles of evidence; (5) locating and
identifying persons; and (6) the transfer of individuals in
order to obtain testimony or for other purposes. Also, mutual
legal assistance treaties increasingly have called for
assistance in immobilizing assets, obtaining forfeiture, giving
restitution, and collecting fines.
Taking testimony and compelled production of documents in
Requested State
The proposed MLAT permits a State to compel a person in the
Requested State to testify and produce documents there. Persons
specified in the request are to be permitted to be present and
usually have the right to question the subject of the request
directly or have questions posed in accordance with applicable
procedures of the Requested State. If a person whose testimony
is sought objects to testifying on the basis of a privilege or
other law of the Requesting State, the person nevertheless must
testify and objections are to be noted for later resolution by
authorities in the Requesting State. The UK MLAT (art. 8)
states that a person whose testimony is compelled may be
required to testify in accordance with the law of the Requested
State.
With respect to questioning a witness by a person specified
in the request, though most treaties grant a right to question,
the proposed MLAT with the UK (Art. 8) requires that the
questioning be conducted by a legal representative qualified to
appear before the courts of the Requested State.
Service of documents
Under an MLAT, a Requesting State may enlist the assistance
of the Requested State to serve documents related to or forming
part of a request to persons located in the Requested State's
territory. This obligation generally is stated as a requirement
of the Requested State to ``use its best efforts to effect
service'' (art. 13). The UK MLAT also expressly states that
service of a subpoena or other process shall not impose an
obligation under the law of the Requested State to comply with
it.
The treaties require that documents requiring a person to
appear before authorities be transmitted by ``a reasonable
time'' before the appearance. The service provisions of the
MLAT under consideration is broader than some of those under
MLATs currently in force. Provisions under some earlier MLATs
provide that a Requested State has discretion to refuse to
serve a document that compels the appearance of a person before
the authorities of the Requesting State.
Searches and seizures
MLATs compel that an item be searched for and seized in the
Requested State whenever a Requesting State provides
information that would be sufficient to justify a search and
seizure under the domestic law of the Requested State. The MLAT
authorizes conditioning or otherwise modifying compliance to
assure protection of third parties who have an interest in the
property seized. The proposed MLAT contains procedures and
forms for verifying the condition of an item when seized and
the chain of individuals through whose hands the item passed.
These provisions state that no other verification is necessary
for admissibility in the Requesting State.
In addition to showing that a search and seizure would be
justified under the law of the Requested State, the proposed UK
MLAT (art. 14) allows a request to be refused if the powers of
search and seizure could not be exercised in the Requested
State in similar circumstances with respect to the conduct
involved.
Provision of documents possessed by the Government
MLATs provide a variety of means for obtaining documents
abroad. Two means--compelled production in a Requested State by
an individual there and search and seizure--have been
mentioned. Additionally, a Requesting State generally may
obtain publicly available documents. In its discretion, a
Requested State may provide a Requesting State documents in its
possession that are not publicly available if the documents
could be made available to domestic authorities under similar
circumstances. The proposed MLAT contains provisions setting
out authentication forms.
Testimony in Requesting State
MLATs do not require the compelled appearance of a person
in a Requesting State, regardless of whether the person is in
custody or out of custody in the Requested State. Under
provisions on persons not in custody, a Requesting State may
ask a Requested State to invite a person to testify or
otherwise assist an investigation or proceeding in the
Requesting State. A request to invite a witness generally is
accompanied by a statement of the degree to which the
Requesting State will pay expenses. A Requested State is
required to invite the person Requested to appear in the
Requesting State and to inform that State promptly of the
invited witness's response.
A person in custody may not be transferred to a Requesting
State under an MLAT unless both the person and the Requested
State consent. A Requesting State is required to keep a person
transferred in custody and to return the person as soon as
possible and without requiring an extradition request for
return. The proposed UK Treaty (art. 11) states that a
transferred person may not be required to stay in the
Requesting State beyond the date on which the person would have
been released from custody in the Requested State. Persons
transferred receive credit for time spent in custody in the
Requesting State.
The proposed MLAT makes some express provision for immunity
from process and prosecution for individuals appearing in the
Requesting State in accordance with a treaty request. Under the
proposed UK MLAT (art. 11) immunity, which can apply to all
acts committed prior to departure from the Requested State, is
at the discretion of the Requesting State only for persons not
in custody. Immunity from process and prosecution expires if
the person appearing in the Requesting State stays beyond a
designated period after the person is free to leave or if the
person appearing voluntarily reenters the Requesting State
after leaving.
Immobilization of assets and forfeiture
The proposed MLAT contains a forfeiture assistance
provision. A Requesting State is permitted to enlist the
assistance of a Requested State to forfeit or otherwise seize
the fruits or instrumentalities of offenses that the Requesting
State leans are located in the Requested State. A Requested
State, in turn, may refer information provided it about fruits
and instrumentalities of crime to its authorities for
appropriate action under its domestic law and report back on
action taken by it.
More generally, the MLATs require the parties to assist
each other to the extent permitted by their respective laws in
proceedings on forfeiting the fruits and instrumentalities of
crime. While the UK MLAT (Art. 16) requires assistance in
collecting criminal fines, it is silent on assisting in victim
restitution. At the same time, it expressly calls for
assistance not only in forfeiture proceedings, but also in
proceedings on identifying, tracing, and freezing the fruits
and instrumentalities of crime. The proposed MLAT provides that
forfeited proceeds are to be disposed of under the law of the
Requested State, and if that law permits, forfeited assets or
the proceeds of their sale may be transferred to the Requesting
State.
Limitations on use
To address potential misuse of information provided, MLATs
restrict how a Requesting State may use material obtained under
them. States at times have raised concerns that MLATs could be
used to conduct ``fishing expeditions,'' under which a
Requesting State could obtain information not otherwise
accessible to it in search of activity it considers prejudicial
to its interests. Requested States also are concerned that its
own enforcement interests may be compromised if certain
information provided by them is disclosed except as is
compelled in a criminal trial. As a result, the MLAT contains a
provision requiring information be kept confidential and
limited in use to purposes stated in the request.
Article 7 of the proposed MLAT allows the Requested State
to place confidentiality and use restrictions on information
and other material. Typically, a Requested State may require
that information or evidence not be used in any investigation,
prosecution, or proceeding other than that described in the
request. Requested States also may request that information or
evidence be kept confidential, and Requesting States are to use
their best efforts to comply with the conditions of
confidentiality. Nevertheless, once information or evidence has
been made public in a Requesting State in the normal course of
the proceeding for which it was provided, it may be used
thereafter for any other purpose.
While MLATs contain confidentiality and use limits, they do
vary. Instead of requiring a Requesting State to use ``its best
efforts'' to comply with a confidentiality request, the UK MLAT
requires a Requesting State to inform the Requested State if
the request cannot be carried out without breaching
confidentiality, at which point the Requested State may
determine the extent to which the request may be executed.
Location of persons or items
In whole or in part, MLAT requests most often require the
Requested State to locate a person or item. The proposed MLAT
requires the Requested State's ``best efforts'' in locating the
person or item.
6. MLATs and defendants
International agreements frequently confer benefits on
individuals who are nationals of the State parties. Investment
and immigration opportunities, tax benefits, and assistance in
civil and commercial litigation are but some of the advantages
an individual may enjoy under an international agreement.
Nevertheless, it is clear that MLATs are intended to aid law
enforcement authorities only.
The resulting disparity between prosecution and defendant
in access to MLAT procedures has led some to question the
fairness and even the constitutionality of MLATs denying
individual rights. (The constitutional provisions most
immediately implicated by denying a defendant use of MLAT
procedures are the fifth, sixth, and fourteenth amendments.) At
the core of the legal objections compulsory process and other
effective procedures for compelling evidence abroad if those
procedures are available to the prosecution.\12\
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\12\ In its 1989 report on MLATs, the Criminal Justice Section of
the American Bar Association both strongly supported MLATs and also
recommended that ``every future MLAT should expressly permit criminal
defendants to use the treaty to obtain evidence from the Requested
country to use in their defense if they can make a showing of necessity
to the trial court.'' ABA Report at 8.
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Those opposing defendant use of MLAT procedures fear that
States would not enter into MLATs if it meant making
information available to criminals. Also, MLATs do not preclude
accused persons from using letters rogatory to obtain evidence
located in the territory of treaty partners, even though the
non-mandatory nature of letters rogatory may result in
difficulties in obtaining evidence quickly.
In its response to a question for the record by Senator
Helms on this issue the State Department stated:
There are no legal challenges to any of our existing
MLATs. It is the position of the Department of Justice
that the MLATs are clearly and unquestionably
constitutional.
In 1992, Michael Abbell, then--counsel to some
members of the Cali drug cartel, did suggest to the
Committee that MLATs should permit requests by private
persons such as defendants in criminal cases. To our
knowledge, no court has adopted the legal reasoning at
the core of that argument.
The Department of Justice believes that the MLATs before
the Committee strike the right balance between the needs of law
enforcement and the interests of the defense. The MLATs were
intended to be law enforcement tools, and were never intended
to provide benefits to the defense bar. It is not ``improper''
for MLATs to provide assistance for prosecutors and
investigators, not defense counsel, any more than it would be
improper for the FBI to conduct investigations for prosecutors
and not for defendants. The Government has the job of
assembling evidence to prove guilt beyond a reasonable doubt,
so it must have the tools to do so. The defense does not have
the same job, and therefore does not need the same tools.
None of the MLATs before the Senate provide U.S. officials
with compulsory process abroad. None of the treaties require
the treaty partner to compel its citizens to come to the United
States, and none permit any foreign Government to compel our
citizens to go abroad. Rather, the MLATs oblige each country to
assist the other to the extent permitted by their laws, and
provide a framework for that assistance. Since the Government
does not obtain compulsory process under MLATs, there is
nothing the defense is being denied.
The MLATs do not deprive criminal defendants of any rights
they currently possess to seek evidence abroad by letters
rogatory or other means. The MLATs were designed to provide
solutions to problems that our prosecutors encountered in
getting evidence from abroad. There is no reason to require
that MLATs be made available to defendants, since many of the
drawbacks encountered by prosecutors in employing letters
rogatory had largely to do with obtaining evidence before
indictment, and criminal defendants never had those problems.
Finally, it should be remembered that the defendant
frequently has far greater access to evidence abroad than does
the Government, since it is the defendant who chose to utilize
foreign institutions in the first place. For example, the
Government often needs MLATs to gain access to copies of a
defendant's foreign bank records; in such cases, the defendant
already has copies of the records, or can easily obtain them
simply by contacting the bank.
IV. Entry into Force and Termination
a. entry into force
The Treaty enters into force upon exchange of instruments
of ratification.
b. termination
The Treaty will terminate six months after notice by a
Party of an intent to terminate the Treaty.
V. Committee Action
The Committee on Foreign Relations held a public hearing on
the proposed treaty on Wednesday, July 17, 1996. The hearing
was chaired by Senator Helms. The Committee considered the
proposed treaty on July 24, 1996, and ordered the proposed
treaty favorably reported with two provisos by voice vote, with
the recommendation that the Senate give its advice and consent
to the ratification of the proposed treaty.
VI. Committee Comments
The Committee on Foreign Relations recommended favorably
the proposed treaty. The Committee believes that the proposed
treaty is in the interest of the United States and urges the
Senate to act promptly to give its advice and consent to
ratification. In 1996 and the years head, U.S. law enforcement
officers increasingly will be engaged in criminal
investigations that traverse international borders. The
Committee believes that attaining information and evidence (in
a form that comports with U.S. legal standards) related to
criminal investigations and prosecutions, including drug
trafficking and narcotics-related money laundering, is
essential to law enforcement efforts.
To cite an example of how an MLAT can benefit the U.S.
justice system, the Committee notes the response by the State
Department to Chairman Helms' question for the record regarding
how the U.S. has made use of the MLAT with Panama after its
1995 ratification:
Once recent case from the Southern District of Texas
serves as an example of the usefulness of the treaty in
the prosecution of financial crimes. In that case, the
Assistant U.S. Attorney urgently needed bank records
from Panama to verify the dates and amounts of certain
money transfers of the alleged fraud proceeds in order
to corroborate the testimony of a principal witness.
The U.S. requested the records only a short time before
they were needed in the trial, and we were pleased that
Panamanian authorities produced the records promptly.
The records were described by the prosecutor as ``the
crowning blow'' to arguments raised by the defense and
indispensable to the Government's ultimate success in
the trail.
The Committee believes that MLATs should not, however, be a
source of information that is contrary to U.S. legal
principles. To attempt to ensure the MLATs are not misused two
provisos have been added to the Committee's proposed resolution
of ratification. The first proviso reaffirms that ratification
of this treaty does not require or authorize legislation that
is prohibited by the Constitution of the United States.
Bilateral MLATs rely on relationships between sovereign
countries with unique legal systems. In as much as U.S. law is
based on the Constitution, this treaty may not require
legislation prohibited by the Constitution.
The second proviso--which is now legally binding in 11
United States MLATs--requires the U.S. to deny any request from
an MLAT partner if the information will be used to facilitate a
felony, including the production or distribution of illegal
drugs. This provision is intended to ensure that MLATs will
never serve as a tool for corrupt officials in foreign
governments to gain confidential law enforcement information
from the United States.
VII. Explanation of Proposed Treaty
The following is the Technical Analysis of the Mutual Legal
Assistance Treaty submitted to the Committee on Foreign
Relations by the Departments of State and Justice prior to the
Committee hearing to consider pending MLATs.
technical analysis of the mlat between the united states of america and
the united kingdom
On January 6, 1994, the United States and the United
Kingdom of Great Britain and Northern Ireland signed the Treaty
on Mutual Legal Assistance in Criminal Matters (``the
Treaty''). In recent years, the United States has signed
similar treaties with a number of countries as part of a highly
successful effort to modernize the legal tools available to law
enforcement authorities in need of foreign evidence for use in
criminal cases. The Treaty is expected to be a valuable weapon
in the fight against crime, especially drug trafficking, and
violent crime. The United Kingdom has already played a key role
in major cases such as the BCCI case and the Pan Am 103
investigation.
The Treaty obliges United Kingdom officials to assist
United States prosecutors and investigators in obtaining
testimony or documents in the United Kingdom, conducting
searches and seizures in the United Kingdom, transferring
persons in custody in the United Kingdom who are needed as
witnesses in the United States, and cooperating with the United
States in asset forfeiture matters. The Treaty can be used in a
wide range of criminal matters such as narcotics offenses,
money laundering, acts of terrorism, major international fraud
and tax cases.
It is not anticipated that the Treaty will require any new
implementing legislation. The United States Central Authority
expects to rely heavily on the existing authority of the
federal courts under Title 28, United States Code, Section
1782, in the execution of requests. The United Kingdom Central
Authority will implement the Treaty pursuant to the Criminal
Justice Act of 1990.
The following technical analysis of the Treaty was prepared
by the United States delegation that conducted the
negotiations.
Article 1--Scope of assistance
This article provides for assistance in proceedings for
criminal law enforcement matters. The term ``proceedings'' is
defined in article 19 and includes the entire spectrum of
activities in connection with criminal prosecution, including
any criminal trial, grand jury proceeding in the United States,
and court or administrative hearing aimed at the imposition of
civil or administrative sanctions as may be agreed upon. The
proceedings covered by the Treaty need not be strictly criminal
in nature. For example, proceedings to forfeit to the
government the proceeds of drug trafficking sometimes are civil
in nature,\13\ but it is intended that such proceedings fully
qualify for assistance under the Treaty.
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\13\ See 21 U.S.C. Sec. 881; 18 U.S.C. Sec. 1964.
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Paragraph 2 lists the major types of assistance
specifically considered by the negotiators. The items listed in
this paragraph are described in further detail in subsequent
articles. However, the list is not intended to be exclusive, as
is indicated by the word ``include'' in the first clause of the
paragraph and by subparagraph (h).
Paragraph 3 makes it clear that the Treaty sets forth the
rights and obligations between the governments of the United
States and the United Kingdom, and that the Treaty is not
intended for use by nongovernmental parties or institutions.
Thus, private parties may not invoke the Treaty to obtain
assistance or seek evidence for use in solely private matters.
This is consistent with other United States mutual legal
assistance treaties \14\ and reflects the fact that the purpose
of the Treaty is to enhance the effectiveness of criminal law
enforcement activities, and not to provide an alternative
method of evidence-gathering for others.\15\ Private litigants
in the United States may continue to seek evidence in the
United Kingdom by letters rogatory, an avenue of assistance
which the Treaty leaves undisturbed.
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\14\ See generally Ellis and Pisani, United States Treaties on
Mutual Assistance in Criminal Matters: A Comparative Analysis, 19 Int'l
Law. 189 (1985).
\15\ Thus, article 1 generally does not authorize assistance for
investigations in either Party that are not being pursued by law
enforcement authorities. This is consistent with United States case law
on mutual legal assistance, which does not permit such assistance. See
In re Letter of Request to Examine Witnesses From the Court of Queen's
Bench of Manitoba, Canada, 59 F.R.D. 625 (N.D. Cal. 1973), aff'd, 488
F.2d 511 (9th Cir. 1973).
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Paragraph 3 also states that the Treaty is not intended to
create any rights to impede execution of requests or to
suppress or exclude evidence obtained thereunder. Thus, a
person from whom records are sought may not oppose the
execution of the request by claiming that it does not comply
with the Treaty's formal requirements, such as those specified
in article 4, or the substantive requirements set out in
article 3. Therefore, there would be no basis under the Treaty
under which any evidence obtained by the United States from the
United Kingdom that could be suppressed or excluded on the
basis that the United States request somehow failed to comply
with the Treaty. This is a standard provision in our mutual
legal assistance treaties.\16\
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\16\ See Ellis and Pisani, United States Treaties on Mutual
Assistance in Criminal Matters: A Comparative Analysis, 19 Int'l Law.
211-12, 221-22 (1985); see also United States v. Johnpoll, 739 F.2d 702
(2d Cir. 1984).
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The definition of ``proceedings'' is important, as
paragraph 1 provides that the Treaty applies to investigations
and ``proceedings'' for law enforcement purposes. The Treaty
makes it clear that ``proceedings'' include any proceedings
before a criminal court, such as pre-trial hearings, trials, or
post-trial hearings. ``Proceedings'' also include the process
by which judicial authorities determine whether to formally
charge an offender, and hence include grand jury proceedings in
the United States. In article 19(2), the definition of
``proceedings'' includes any judicial or administrative action
which could result in an order directing the forfeiture of
proceeds. This provision, upon agreement of the Parties, could
include all court or administrative actions of any kinds which
would result in the forfeiture of ill-gotten gains (such as
disgorgement proceedings in securities cases).
Article 2--Central authorities
This article requires that each Party designate a ``Central
Authority'' for transmission, reception, and handling of Treaty
requests. The Central Authority of the United States would make
all requests to the United Kingdom on behalf of federal
agencies, state agencies, and local law enforcement authorities
in the United States. The United Kingdom Central Authority
would make all requests originating from its officials. The
Central Authority of the Requesting Party will exercise some
discretion as to the form, content, number, and priority of
requests.
Paragraph 2 provides that the Attorney General will be the
Central Authority for the United States, as is the case under
all other United States mutual legal assistance treaties. The
Attorney General has delegated these responsibilities to the
Assistant Attorney General in charge of the Criminal
Division.\17\ Paragraph 3 specifies that the Central Authority
for the United Kingdom shall be the Secretary of State for the
Home Department or a person designated by the Secretary of
State for purposes specified in the designation.
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\17\ 28 C.F.R. Sec. 0.64-1. The Assistant Attorney General for the
Criminal Division has in turn delegated this authority to the Deputy
Assistant Attorneys General and the Director of the Criminal Division's
Office of International Affairs, in accordance with the regulation.
Directive No. 81, 44 Fed. Reg. 18,661 (1979), as amended as 45 Fed.
Reg. 6,541 (1980); 48 Fed. Reg. 54,595 (1983). That delegation
subsequently was extended to the Deputy Directors of the Office of
International Affairs. 59 Fed. Reg. 42,160 (1994).
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The Central Authority of the Requested Party is also
responsible for receiving each request from the Requesting
Party and transmitting it to the appropriate federal or state
agency, court or other authority for execution, with a view to
ensuring that a timely response is made.
Article 3--Limitations on assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Treaty.
Paragraph 1(a) permits the Central Authority of the
Requested Party to deny a request if execution of the request
would prejudice its sovereignty, security or other essential
interests, or would be contrary to an important public policy.
In an exchange of diplomatic notes dated January 6, 1994, the
Parties agreed that the term ``important public policy'' in
paragraph 1(a) would include a Requested Party's policy of
opposing the exercise of jurisdiction which in its view is
extraterritorial and objectionable. For example, the United
Kingdom advised that what are known as ``re-export cases''
would closely scrutinized, and it was possible that assistance
for such cases would be denied under the ``important public
policy'' clause of 3(1)(a).
Paragraph 1(b) permits the Requested Party to deny
assistance under the Treaty if the target of the investigation
or the defendant in the case had previously been tried and
convicted or acquitted on the same facts outlined in the
request.\18\ This approach is similar to the concept of non bis
in idem in international extradition treaties. In an exchange
of diplomatic notes dated January 6, 1994, the Parties agreed
that paragraph 1(b) shall not affect the availability of
assistance with respect to other participants in the offense
who are not the subjects of a previous acquittal or conviction.
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\18\ A similar provision is found in the U.S.-Bahamas Treaty, June
12 & Aug. 18, 1987, art. 3(1)(c) T.I.A.S. No.--; and the U.S.-Panama
Treaty, Apr. 11, 1991, art 3(1)(c), T.I.A.S. No.--.
---------------------------------------------------------------------------
Paragraph 1(c)(i) permits the Requested Party to deny the
request if it relates to a political offense, and paragraph
1(c)(ii) permits denial if the offense is a military offense.
These restrictions are similar to those found in other mutual
legal assistance treaties. It is anticipated that the Central
Authorities will employ jurisprudence similar to that used in
the extradition context for the application of these
provisions.
Extradition treaties sometimes condition the surrender of
fugitives upon a showing of ``dual criminality,'' i.e., proof
that the facts underlying the offense charged in the Requesting
Party would also constitute an offense in the Requested Party.
The United States usually resists including such a provision in
its mutual legal assistance treaties. During the negotiations
with the United Kingdom, a dual criminality requirement was
considered but rejected. It was agreed, however, that
assistance would not be provided under the Treaty in one
specified class of offenses which is considered criminal in one
Party but not in the other. In an exchange of diplomatic notes
dated January 6, 1994, the Parties agreed that the Treaty shall
not apply to antitrust or competition law investigations or
proceedings.\19\ This agreement was reached because in the
United Kingdom, antitrust and anticompetitive policy are not
enforced by criminal sanctions, often involve sensitive issues
of national economic policy and implicate the United Kingdom's
relations with its fellow European Union member-states.
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\19\ The exchange of notes also states that the Central Authorities
may, at their discretion, treat as proceedings for the purpose of the
Treaty such individual antitrust or competition law matters, or
antitrust or competition law matters generally, as may be agreed in
writing between the Parties at a later date. The Parties also agreed
that while antitrust matters are not covered by the Treaty, assistance
in such matters may be provided under other applicable arrangements,
agreements, practices, or policies. For example, the United Kingdom may
provide assistance under the Criminal Justice (International
Cooperation) Act 1990, which permits assistance for any criminal
matter.
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Paragraph 2 is similar to article 3(2) of the United
States-Switzerland Mutual Legal Assistance Treaty, and obliges
the Requested Party to consider imposing appropriate conditions
on its assistance in lieu of denying a request outright
pursuant to paragraph 1. For example, a Party might request
information that could be used either in a routine criminal
case (which would be within the scope of the Treaty) or in a
political prosecution (which would be subject to refusal under
the Treaty's terms). This paragraph would permit the Requested
Party to provide the information on the condition that it be
used only in the routine criminal case. Naturally, the
Requested Party would notify the Requesting Party of any
proposed conditions before actually delivering the evidence in
question, thereby according the Requesting Party an opportunity
to indicate whether it is willing to accept the evidence
subject to the conditions. If the Requesting Party does accept
the evidence, it must respect the conditions specified by the
Requested Party with respect to the evidence.
Article 4--Form and contents of requests
This article is similar to article 29 of the United States-
Swiss Treaty, which, in turn, is based on article 14 of the
European Convention on Mutual Assistance in Criminal Matters.
Paragraph 1 requires that requests be in writing. If
exigent circumstances make this impracticable, it is understood
that the Central Authorities will communicate the written
request within ten days of an oral one.
Paragraph 2 lists information which is deemed crucial to
the efficient operation of the Treaty and so must be included
in each request. Paragraph 3 outlines kinds of information
which are important but not crucial, and which should be
provided ``to the extent necessary and possible.''
In keeping with the intention of the Parties that requests
be as simple and straightforward as possible, there is no
requirement under the Treaty that a request be legalized or
certified in any particular manner.
Article 5--Execution of requests
Paragraph 1 requires each Party to ``take whatever steps it
deems necessary'' to execute a request.
The Treaty contemplates that the Central Authority which
receives a request will first review the request and
immediately notify the Central Authority of the Requesting
Party if it is of the opinion that the request does not comply
with the Treaty's terms. If the request does satisfy the
Treaty's requirements and the assistance sought can be provided
by the Central Authority itself, the request will be fulfilled
immediately. If the request meets the Treaty's requirements but
its execution requires action by some other entity in the
Requested Party, the Central Authority will see to it that the
request is promptly transmitted to the correct entity for
execution.
When the United States is the Requested Party, it is
anticipated that the Central Authority will transmit most
requests to federal investigators, prosecutors, or judicial
officials for execution. A request may be transmitted to state
officials for execution, however, if the Central Authority
deems it more appropriate to do so.
Paragraph 1 authorizes and requires the federal, state, or
local agency or authority selected by the Central Authority to
take whatever action would be necessary and within its power to
execute the request. This is not intended or understood to
authorize the use of the grand jury in the United States for
the collection of evidence pursuant to a request from the
United Kingdom. Rather, it is anticipated that when a request
from the United Kingdom requires compulsory process for
execution, the Department of Justice would ask a federal court
to issue the necessary process under Title 28, United States
Code, Section 1782 and the provisions of the Treaty.
It is understood that if execution of the request entails
action by a judicial authority or administrative agency, the
Central Authority of the Requested party shall arrange for the
presentation of the request to that court or agency at no cost
to the other Party. Since the cost of retaining counsel abroad
to present and process letters rogatory is sometimes quite
high, this provision for reciprocal legal representation should
be a significant advance in international legal cooperation. It
is also understood that should the Requesting Party choose to
hire private counsel in connection with a particular request,
it is free to do so.
Paragraph 3 requires that the method of execution specified
in the request shall be followed except to the extent that the
method is incompatible with the laws and practices of the
Requested Party. This provision is necessary for the following
two reasons.
First, there are significant differences between the
procedures that must be followed by United States and United
Kingdom authorities in collecting evidence in order to
safeguard the admissibility of that evidence at trial. For
instance, United States law permits documentary evidence taken
abroad to be admitted into evidence, if duly certified and if
the defendant was given a fair opportunity to test its
authenticity.\20\ Similarly, United States courts sometimes
prefer that depositions abroad be videotaped in order to better
preserve and present to the jury the witness's demeanor. While
United Kingdom law enforcement officials do not utilize these
procedures in preparing cases for submission to United Kingdom
courts a this time, there is no legal prohibition against these
techniques being used in the United Kingdom to prepare evidence
for use in the United States.
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\20\ 18 U.S.C. Sec. 3505.
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Second, the evidence in question could be needed for
subjection to forensic examination, and sometimes the
procedures which must be followed to enhance the scientific
accuracy of such tests do not coincide with those utilized in
assembling evidence for admission into evidence at trial. The
value of such forensic examinations could be significantly
lessened--and the Requesting Party's investigation could be
hampered--if the Requested Party were to insist unnecessarily
on handling the evidence in a manner usually reserved for
evidence to be presented to its own courts.
Both delegations agreed that the Treaty's primary goal of
enhancing law enforcement could be frustrated if the Requested
Party were to insist on producing evidence in a manner which
renders the evidence inadmissible or less persuasive in the
Requesting Party. For this reason, paragraph 3 requires the
Requested Party to follow the procedure outlined in the request
to the extent that it can, even if the procedure is not that
usually employed in its own proceedings. However, if the
procedure called for in the request is unlawful in the
Requested Party (as opposed to simply unfamiliar there), the
appropriate procedure under the law applicable for
investigations or proceedings in the Requested Party will be
utilized.
Paragraph 4 states that a request for assistance need not
be executed immediately when execution would interfere with an
investigation or legal proceeding in progress in the Requested
Party. The Central Authority of the Requested Party will
determine when to apply this provision. The Central Authority
of the Requested Party may, in its discretion, take such
preliminary actions as it deems advisable to obtain or preserve
evidence which many otherwise be lost before the conclusion of
the investigation or legal proceeding taking place in that
Party. If this is done, the Requesting Party should not be
seriously disadvantaged by having to wait for the conclusion of
the proceedings in the Requested Party. This paragraph, like
article 3(2), allows the Requested Party to consider imposing
appropriate conditions on its assistance after consultation
with the Requesting Party.
Paragraph 5 requires that the Central Authority of the
Requested Party facilitate the participation in the execution
of requests any persons specified in the requests.
Paragraph 6 states that the Requested Party may request
information from the Requesting Party in order to give effect
to its request.
Paragraph 8 requires that the Central Authority of the
Requested Party promptly notify the Central Authority of the
Requesting Party of the outcome of the execution of the
request. This ensures that the Requesting party will be kept
informed of the status of the execution of its request and that
when a request is only partly executed, the Requested Party
will provide some explanation for not providing all of the
information or evidence sought.
Article 6--Costs
This article proceeds from the basic principle that the
Requested Party should bear all expenses incurred in the
execution of the request, but obliges the Requesting Party to
pay fees of private experts and allowances and expenses related
to travel, unless otherwise mutually decided in a particular
case. For example, a major case in the Requesting Party could
involve substantial (and costly) investigative efforts in the
Requested Party, while the law enforcement authorities of the
two Parties have finite resources. Therefore, paragraph 2
requires that the Central Authorities consult ``with a view to
reaching agreement'' on the conditions under which the request
shall be executed and the manner in which costs shall be
allocated'' if execution of the request requires costs or other
resources of an extraordinary nature.
Article 7--Confidentiality and limitations on use
Paragraph 1 states that upon request, the Requested Party
shall keep confidential any information that might indicate
that a request has been made or responded to. If the request
cannot be executed without breaching confidentiality (as may be
the case if execution requires a public judicial proceeding in
the Requested Party), the Requested Party shall so inform the
Requesting Party, which shall then determine the extent to
which it wishes the request to be executed.
Paragraph 2 requires that the Requesting Party refrain from
using any information provided under the Treaty for any purpose
other than stated in the request without the consent of the
Central Authority of the Requested Party.
The United Kingdom delegation expressed particular concern
that information it supplies in response to United States
requests receive the same kind of confidentiality accorded
exchanges of information via diplomatic channels, and not be
disclosed under the Freedom of Information Act. The Parties
agreed that this clause of the Treaty, as drafted, would mean
that a Requested Party would not use or disclose any
information or evidence obtained under the Treaty for any
purposes unrelated to the proceedings stated in the request
without the prior consent of the Requested Party.
If the United States government were to receive evidence
under the Treaty in one case which proved to be exculpatory to
the defendant in another case, the United States could be
obliged to share the evidence with the defendant in the second
case. 21 Therefore, in an exchange of diplomatic notes
dated January 6, 1994, the Parties agreed that paragraph 2
shall not preclude the use or disclosure of information to the
extent that there is an obligation to do so under the
Constitution or law of the Requesting Party in a criminal
prosecution. Notice of any such proposed disclosure shall be
provided by the Requested Party in advance.
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\21\ See Brady v. Maryland, 373 U.S. 83 (1963).
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Once evidence obtained under the Treaty has been revealed
to the public in a trial, that information effectively becomes
part of the public domain. The information is likely to become
a matter of common knowledge, perhaps even cited or described
in the press. When such information has been made public, it is
practically impossible for the Central Authority of the
Requesting Party to block the use of that information by third
parties. Therefore, paragraph 3 provides that once information
or evidence becomes public, the Requesting Party is free to use
it for any purpose.
Article 8--Taking testimony and producing evidence in the territory of
the Requested Party
Paragraph 1 states that a person in the Requested Party may
be compelled, if necessary,\22\ to appear and testify or
produce documents, records, of articles of evidence. The
compulsion contemplated by this article can be accomplished by
subpoena (if the Requested Party's law so provides) or any
other means available under the law of that Party. This
provision means that the procedure for executing a request
under the Treaty would have to conform with the laws of the
Requested Party. It should be stressed that it is the Treaty
that determines whether assistance is required, and local law
governs the different (if equally important) question of how
the assistance is provided.
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\22\ Use of the words ``if necessary'' appears at first glance to
make the obligation to execute a request for testimony discretionary.
However, the words ``if necessary'' were used in the Treaty in order to
make it clear that compulsory process is not required in every case.
For instance, a witness may be willing to provide the needed testimony
voluntarily. Use of the words ``may be compelled'' without the words
``if necessary'' might appear to oblige the Requested Party to issue a
subpoena or other compulsory process even if it was not necessary. The
United States and United Kingdom delegations fully intended that the
Treaty establish a mandatory obligation to arrange the production of
the requested testimony, leaving it to the Requested Party's discretion
whether to use compulsory judicial process to fulfill that obligation.
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Paragraph 2 ensures that no person would be compelled to
furnish information if the person has a right not to do so
under the law of the Requested Party. Thus, a witness
questioned in the United States pursuant to a Treaty request
from the United Kingdom is guaranteed the right to invoke any
of the testimony privileges (e.g., attorney-client, inter-
spousal) usually available in proceedings in the United States,
as well as the constitutional privilege against self-
incrimination. \23\ Of course, a witness testifying in the
United Kingdom may raise any of the similar privileges
available under United Kingdom law.
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\23\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
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Since the law is unclear on the extent to which a person in
one country may stand on a privilege available only under the
law of a foreign country, the Treaty neither requires nor
forbids the recognition in the Requested Party of privileges
existing only under the law of the Requesting Party. Paragraph
2 does require that in cases in which a witness attempts to
assert a privilege unique to the jurisprudence of the
Requesting Party, the authorities in the Requested Party will
take the desired evidence and turn it over to the Requesting
Party along with notice that it was obtained over a claim of
privilege. The applicability of the privilege can then be
determined in the Requesting Party, where the scope of the
privilege and the legislative and policy reasons underlying it
are best understood.\24\ A similar provision appears in many of
our recent mutual legal assistance treaties.
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\24\ Cf., F. & J. Dick Co. v. Bass, 295 F. Supp. 758 (N.D. Ga.
1966); Reg. v. Rathbone, Exp. Dikko, 2 W.L.R. 375 (1985).
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Paragraph 3 requires that upon request, the Central
Authority of the Requested Party must notify the Central
Authority of the Requesting Party ``in advance'' of the date
and place of the taking of testimony. Although the time period
``in advance'' is undefined, the negotiations understood that
each Party would attempt to accommodate the needs of the other
in this regard.
Advance notice is of particular importance to the United
States because our authorities sometimes rely heavily on
deposition testimony when a witness is unwilling or unable to
come to the United States to testify at trial. With assurances
of advance notice, a United States trial court can order that a
deposition take place in the United Kingdom on a date to be
specified by British authorities; the United States court may
even indicate a preferred date. The Central Authorities will
attempt to accommodate the court and will notify the court
sufficiently in advance of the depositions in order to permit
the parties to be present.
Paragraph 4 provides that interested parties, including the
defendant and defense counsel in criminal cases, may be
permitted to be present and pose questions during the taking of
testimony under this article.
Paragraph 5 states that documentary information produced
pursuant to the Treaty may be authenticated by having a
custodian of records or other qualified person complete, under
oath, a certification in a specified form. A model of the form
to be used by the United States is appended to the Treaty.
Thus, the provision establishes a procedure for authenticating
United Kingdom records for use in the United States in a manner
essentially similar to that provided for under Title 18, United
States Code, Section 3505.\25\
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\25\ It is understood that the second and third sentences of the
article provide for the admissibility of authenticated documents as
evidence without additional foundation or authentication. With respect
to the United States, this paragraph is self-executing.
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The final sentences of the article provide that the
evidence is ``admissible,'' but it will be the responsibility
of the judicial authority presiding at the trial to determine
whether the evidence should in fact be admitted. The
negotiators intended that evidentiary tests other than
authentication (e.g., relevance and materiality) will still
have to be satisfied in each case.
Article 9--Records of government agencies
This article serves to ensure speedy access to government
records, including records of the executive, judicial, and
legislative branches at the federal, state, and local levels.
Paragraph 1 obliges each Party to furnish the other copies
of publicly available records of government departments and
agencies. The term ``government departments and agencies''
includes executive, judicial, and legislative units at the
federal, state, and local levels in either Party.
Paragraph 2 provides that the Requested Party ``may'' share
with the Requested Party copies of non-public information in
its government files. The article states that the Requested
Party may only utilize its discretion to turn over information
in its files ``to the same extent and under the same
conditions'' as it would with respect to its own law
enforcement or judicial authorities. It was the intention of
the negotiators for the Central Authority of the Requested
Party to determine the extent and the nature of the conditions.
The discretionary nature of this provision is necessary because
official files in each Party contain some information that
would be available to investigative authorities in that Party,
but which justifiably would be deemed inappropriate to release
to a foreign government. Examples of instances in which
assistance might be denied under this provision would be when
disclosure of the information is barred by law in the Requested
Party or when the information requested would identify or
endanger an informant, prejudice sources of information needed
in future investigations, or reveal information which was made
available to the Requested Party in return for a promise that
it not be divulged.
Paragraph 3 states that documents provided under this
article will be authenticated pursuant to a certificate in a
form appended to the Treaty. Thus, the authentication will be
conducted in a manner similar to that required by rule 902(3),
Federal Rules of Evidence, and the records will be admissible
into evidence without additional foundation or authentication.
In discussing this article, the United States delegation
explained the significance of Title 26, United States Code,
Section 6103(k)(4), and indicated that if the negotiators
agreed that the Treaty was intended to be a vehicle by which
tax information could be provided, then the United States could
give the United Kingdom assistance when it needs information in
the possession of the Internal Revenue Service which otherwise
could not be furnished. The United Kingdom delegation responded
that the assistance it intends to grant will include tax
information in some circumstances. Therefore, the United States
delegation was satisfied that the Treaty, like the other United
States mutual legal assistance treaties, is a ``convention''
within the meaning of Title 26, United States Code, Section
6103(k)(4).
The article refers to the provision of copies of government
records, but the Requested Party would not be precluded from
delivering the original government records to the Requesting
Party, upon request, if the law in the Requested Party permits
it and if it is essential to do so.
Article 10--Personal appearance in the territory of the Requesting
Party
This article provides that upon request, the Requested
Party shall invite witnesses who are located in its territory
and needed to testify in the Requesting Party for that purpose.
An appearance in the Requesting Party under this article is not
mandatory; the invitation may be refused by the prospective
witness.
Of course, the Requesting Party would be expected to pay
the expenses of such an appearance. It is assumed that such
expenses would normally include the costs of transportation,
room, and board. When the witness is to appear in the United
States, a nominal witness fee would also be provided.
Paragraph 3 provides that a person who is in the Requesting
Party to testify or for confrontation purposes pursuant to the
Treaty shall be immune from criminal prosecution, detention or
any other restriction on personal liberty, or service of
process in a civil suit while present in the Requesting Party.
This ``safe conduct'' is limited to acts or convictions which
preceded the witness's departure from the Requested Party. It
is understood that this provision does not, of course, prevent
the prosecution of a person for perjury or any other crime
committed while in the Requesting Party.
Paragraph 4 states that the safe conduct guaranteed by this
article expires 15 days after the witness has been officially
notified that the witness's presence is no longer required, or
if the witness leaves the territory of the Requesting Party and
thereafter returns to it.
Article 11--Transfer of persons in custody
In some recent criminal cases, a need has arisen for the
testimony at a trial in one country of a witness serving a
sentence in another country. In some instances, the country
involved was willing and able to ``lend'' the witness to the
United States government, provided the witness would be
carefully guarded while here and returned at the conclusion of
the testimony.\26\ In some recent cases, the United States
government was able to arrange for federal inmates in the
United States to be transported to foreign countries to testify
in criminal proceedings there.\27\ This article calls for
mutual assistance in situations of this kind and thereby
provides an express legal basis for cooperation in these
matters. The provision is based on article 26 of the United
States-Switzerland Treaty, which is in turn based on article 11
of the European Convention on Mutual Assistance in Criminal
Matters.
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\26\ Federal law provides for this situation. See 18 U.S.C.
Sec. 3508.
\27\ For example, in September, 1986, the Justice Department and
the Drug Enforcement Administration arranged for four federal prisoners
to be transported to the United Kingdom to testify for the Crown in
Regina v. Dye, a major narcotics prosecution in Central Criminal Court
(``the Old Bailey'') in London.
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Recently, some persons in custody in the United States have
demanded permission to travel to other countries to be present
at depositions to be taken there in connection with their
criminal cases.\28\ This article addresses this situation.
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\28\ See United States v. King, 552 F.2d 833 (9th Cir. 1976)
(defendants insisted on travelling to Japan to be present at deposition
of certain witnesses in prison).
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Paragraph 2 provides express authority for the receiving
Party to maintain the person in custody throughout the person's
stay there, unless the sending Party specifically authorizes
release. The paragraph also obliges the receiving Party to
return the person in custody to the sending Party, and provides
that this return will occur as soon as circumstances permit or
as otherwise agreed to. The transfer of a prisoner under this
article requires the consent of the person involved and of the
Parties, but the prisoner need not consent to be returned to
the sending Party.
Once the receiving Party has agreed to assist the sending
Party in its investigation or proceeding pursuant to this
article, it would be inappropriate for the receiving Party to
hold the person transferred and require formal extradition
proceedings before permitting the person's return to the
sending Party. Therefore, paragraph 2(c) contemplates that
extradition proceedings will not be required before the status
quo is restored by the return of the person transferred.
Article 12--Location or identification of persons
This article provides that the Requested Party is to
ascertain the location or identity in the Requested Party of
persons (such as witnesses, potential defendants, or experts)
when such information is of importance in connection with an
investigation or proceeding covered by the Treaty. The Treaty
requires only that the Requested Party make ``best efforts'' to
locate or identify such persons.
Article 13--Service of documents
This article creates an obligation on the part of the
Central Authority of the Requested Party to arrange for or
effect the service of summonses, complaints, subpoenas, or
other legal documents at the request of the Central Authority
of the Requesting Party.
It is expected that when the United States is the Requested
Party, service under the Treaty will be made by registered mail
(in the absence of a request by the United Kingdom to follow
any other specified procedure for service) and by the United
States Marshals Service in instances when personal service is
requested.
It is anticipated that this article will facilitate service
of subpoenas on United States citizens located in the United
Kingdom pursuant to United States law.\29\
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\29\ See 28 U.S.C. Sec. 1783.
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Paragraph 3 states that when the document to be served
calls for the appearance of a person in the Requesting Party,
the document must be transmitted by the Requesting Party to the
Requested Party by a reasonable time before the scheduled
appearance. Thus, if the United States were to ask the United
Kingdom to serve a subpoena issued pursuant to Title 28, United
States Code, Section 1783 on a United States citizen in the
United Kingdom, the request would have to be submitted well in
advance of the hearing or trial at which the citizen is
expected to appear. This is to allow sufficient time for
service to be effected and for the person to make arrangements
for the appearance.
Paragraph 4 requires that proof of service be returned to
the Requesting Party.
Article 14--Search and seizure
It is sometimes in the interests of justice for one Party
to ask another to search for, secure, and deliver articles or
objects needed as evidence or for other purposes. United States
courts can and do execute such requests under Title 28, United
States Code, Section 1782.\30\ The United Kingdom delegation
felt that such requests could be carried out under current
United Kingdom law if made by letters rogatory.
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\30\ See, e.g.,United States ex rel. Public Prosecutor of
Rotterdam, Netherlands v. Van Aalst, Case No. 84-67-Misc-018 (M.D.
Fla., Orlando Div.).
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This article creates a framework for handling such
requests. Pursuant to paragraph 1's requirement that the
request include ``information justifying such action under the
laws of the Requested Party,'' a request to the United States
from the United Kingdom will have to be supported by probable
cause for the search. A United States request to the United
Kingdom would have to satisfy the corresponding evidentiary
standard there. It is contemplated that the request would be
carried out in strict accordance with the law of the Requested
Party.
Paragraph 2 allows the Central Authority of the Requested
Party to refuse a request for search and seizure if it
necessitates actions that would not be legally exercisable in
the Requested Party in similar circumstances.
Paragraph 3 is designed to ensure that a record is kept of
articles seized and delivered under the Treaty. This provision
effectively requires that detailed and reliable records be kept
regarding the condition of the article at the time of the
seizure and the chain of custody between the time of seizure
and time of delivery to the Requesting Party.
The article also requires that the certificates prepared
for this purpose be admissible at trial without additional
authentication. This is intended to avoid the burden, expense,
and inconvenience to the Requested Party of sending its
officials to the Requesting Party to provide testimony
concerning authentication and the chain of custody every time
evidence produced pursuant to this article is introduced. the
fact that the certificates are admissible without additional
authentication leaves the trier of fact free to accord the
certificates such weight as is due.
Paragraph 4 states that the Requested Party need not
surrender any articles it has seized unless it is satisfied
that any interests of third parties therein are adequately
protected. This article is similar to provisions in many United
States extradition treaties.\31\
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\31\ See, e.g., United States-Canada Extradition Treaty, Dec. 3,
1971, art. 15, 27 U.S. T. 983, T.I.A.S. No. 8237.
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Article 15--Return of documents and articles
This article provides that any documents, records or
articles of evidence furnished under the Treaty must be
returned to the Requested Party unless such return is waived by
the Requested Party. Documents or items provided to the United
States pursuant to a Treaty request therefore must be returned
to the United Kingdom once they are no longer needed here,
unless authorities in the United Kingdom give permission for a
different disposition. The negotiators anticipated that unless
original records or articles of some intrinsic value were
provided, the Requested Party will routinely waive return, but
this is a matter best left to development of practice.
Article 16--Assistance in forfeiture proceedings
A primary goal of the Treaty is to enhance the efforts of
both Parties in the war against narcotics trafficking. One
major strategy in drug enforcement by United States authorities
is to seize and confiscate the money, property, and other
proceeds of drug trafficking.
This article is designed to further that strategy.
Paragraph 1 states that the Parties shall aid one another in
proceedings involving the identification, tracing, seizure or
forfeiture of the proceeds and instrumentalities of crime. The
traditional rule was that no country was obliged to aid another
in the execution of penal laws respecting enforcement of fines
or forfeiture of criminal assets. However, this rule is
gradually changing, at least in instances in which the foreign
country's laws are designed to provide redress to individual
victims, or when the foreign country has already perfected its
title to the assets it claims.\32\ Moreover, any country is
always free to assume a treaty obligation broader than a
customary international obligation. In article 16, the Parties
agree to aid one another, upon request, in proceedings
involving the identification, tracing, seizure and forfeiture
of illegally obtained assets, in restoring illegally obtained
funds or articles to their rightful owners, and in the
collection of fines imposed at sentencing. The term ``proceeds
and instrumentalities'' would include items such as money,
vessels, or other valuables either used in the commission of
the offense or obtained as a result of the offense.
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\32\ See, e.g., Mutual Assistance in Criminal Matters: A
Commonwealth Perspective at 32-34 (prepared by Dr. David Chaikin and
Commonwealth Secretariat for meeting of Commonwealth Law Ministers,
Colombo, Sri Lanka, Feb. 14-18, 1985).
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Thus, if the law of the Requested Party enables it to seize
assets in aid of a proceeding in the Requesting Party or to
enforce a judgment of forfeiture or fine levied in the
Requesting Party, the Treaty requires the Requested Party to do
so. The article does not mandate institution of forfeiture
proceedings in either Party against property identified by the
other Party if the relevant prosecutive authorities do not deem
it proper to do so.
Paragraph 2 states that one Part may notify the other of
the location of assets in its territory which may be
forfeitable or otherwise subject to seizure. Upon receipt of
notice under this article, the Central Authority of the Party
in which the proceeds are located may take whatever action is
appropriate under the law of that Party. For instance, if the
assets in question are located in the United States and were
obtained as a result of a fraud in the United Kingdom, they may
be seized in aid of a prosecution under Title 18, United States
Code, Section 2314,\33\ or may be made subject to a temporary
restraining order in anticipation of a civil action for the
return of the assets to the lawful owner. If the assets are
located in the United Kingdom, we expect similar action may be
taken pursuant to United Kingdom law.\34\ If the assets in
question are the fruit of drug trafficking, it is anticipated
that the Parties will move quickly and expeditiously to freeze
them and ensure their confiscation.
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\33\ This statute makes it an offense to transport money or
valuables in interstate or foreign commerce knowing that they were
obtained by fraud in the United States or abroad. 18 U.S.C. Sec. 2314.
\34\ Under some circumstances, English common law at the present
time permits this to be done. See Mareva Compania Naviera SA v. Int'l
Bulkcarriers SA, All ER 213 (1980), Bankers Trust Co. v. Shapira, 1
W.L.R. 1274 (1980).
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Paragraph 3 provides for the disposition of forfeited
proceeds or property. Such disposition shall be in accordance
with the law of the Requested Party. The Requested Party may
keep the forfeited assets or the proceeds thereof or share them
with the Requesting Party.
United States law permits the transfer of forfeited
property or a portion of the proceeds of the sale thereof to
any foreign country that participated directly or indirectly in
the seizure or forfeiture of the property.\35\ The amount
transferred generally reflects the contribution of the foreign
government in the law enforcement activity that led to the
seizure or forfeiture of the property under United States law.
United States sharing statutes require that the transfer
recommended by the Attorney General or the Secretary of the
Treasury be authorized in an international agreement between
the United States and the foreign country and be agreed to by
the Secretary of State. Article 16 is intended to authorize and
provide for the transfer of forfeited assets or the proceeds of
such assets to the United Kingdom pursuant to United States
sharing statutes.
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\35\ E.g., 18 U.S.C. Sec. 981(i)(1).
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Title 18, United States Code, Section 981(a)(1)(B) also
permits the forfeiture to the United States of property ``which
represents the proceeds of an offense against a foreign nation
involving the manufacture, importation, sale, or distribution
of a controlled substance (as such term is defined for the
purposes of the Controlled Substances Act) within whose
jurisdiction such offense or activity would be punishable by
death or imprisonment for a term exceeding one year and which
would be punishable by imprisonment for a term exceeding one
year if such act of activity had occurred within the
jurisdiction of the United States.'' The United States
delegation intended that article 16 will permit full
implementation of this legislation.
Article 17--Compatibility with other arrangements
This article provides that the Parties are free to provide
assistance pursuant to other international agreements or
arrangements or other agreements or practices which may be
applicable between the two Parties. It also provides that the
Treaty shall not be deemed to prevent recourse to any
assistance available under the internal laws of either Party.
Thus, the Treaty leaves the law of the United States and the
United Kingdom on letters rogatory completely undisturbed and
does not alter any pre-existing agreements concerning
assistance.
On such agreement discussed by the Parties is the Agreement
Concerning the Investigation of Drug Trafficking Offenses and
the Seizure and Forfeiture of Proceeds and Instrumentalities of
Drug Trafficking, done at London February 9, 1989, which is
also known as ``the Drug Agreement.'' Since the Drug Agreement
was intended as an interim measure pending negotiation of this
Treaty, article 16 of the Drug Agreement states that it will
terminate when the Treaty enters into force. Both the United
States and the United Kingdom, however, now prefer that the
Drug Agreement remain in effect. Therefore, in a January 6,
1994, exchange of diplomatic notes, United States and the
United Kingdom representatives indicated their governments'
desires that the Drug Agreement remain in force notwithstanding
the entry into force of the Treaty. The Parties also amended
the Drug Agreement by deleting the passage which would
otherwise require its expiration.
Article 18--Consultation
Paragraph 1 calls upon the Parties to consult on the
implementation of the Treaty, either generally or with respect
to particular requests for assistance. Experience has shown
that as the Central Authorities of mutual assistance treaties
work together, they learn practical ways to make implementation
of the treaties more effective. A similar requirement is found
in other mutual legal assistance treaties.
Paragraph 1 indicates that consultations maybe particularly
appropriate when ``in the opinion of either Party or Central
Authority, the expenses or other resources required for
implementation of this Treaty are of an extraordinary nature.*
* *'' Article 6(2) provides for consultations if the execution
of any individual request might require extraordinary costs or
other resources on the part of the Requested Party. The United
Kingdom delegation was concerned, however, that situations
might arise in which no single request, standing alone, is
unreasonable, but one Party receives such a large volume of
requests from the other Party that an untenable administrative
burden is imposed. The United States delegation did not agree
that either Party should be able to deny requests on this basis
but did agree that consultations between the Central
Authorities would be appropriate in such circumstances.
Paragraph 1 also indicates that consultations may be
appropriate if the Requested Party's execution of the request
might place it in conflict with its obligations under other
bilateral or multilateral arrangements. The United Kingdom
requested this provision because it is a member-state of the
European Union (EU), and its obligations to its fellow EU
member-states are continually evolving pursuant to EU
directives. This provision ensures discussions and
consultations between the Parties should those obligations
appear inconsistent with the terms of the Treaty.
Paragraph 2 is similar to article 17(3) of the United
States-Cayman Islands Mutual Legal Assistance Treaty. It
provides that neither Party shall enforce any compulsory
measures requiring an action to be performed by a person
located in the territory of the other Party unless the Party
contemplating such enforcement has first exhausted the
procedures established in paragraphs 3 and 4.\36\ In an
exchange of diplomatic notes dated January 6, 1994, the Parties
agreed on a definition of ``compulsory measures.'' \37\
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\36\ This provision is somewhat broader than article 17(3) of the
United States-Cayman Islands Treaty, which deals only with compulsory
measures relating to the production of documents. See U.S.-Cayman
Islands Mutual Legal Assistance Treaty, July 3, 1986, art. 17(3),
T.I.A.S. No. --.
\37\ The exchange of notes provides that ``compulsory measures''
(including, in the case of the United States, a grant jury subpoena)
are those measures that require an action to be performed by any person
located in the territory of the Party not issuing the measure and that
fall within one of the following categories:
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(i) any measure for the production of evidence located in the
territory of the Party not issuing the measure;
(ii) any measure relating to assets in the territory of the
Party not issuing the measure; or
(iii) any measure compelling a natural person who is in the
territory of one Party to make a personal appearance in the
territory of the other Party unless:
(a) the Party compelling the appearance has lawfully
obtained jurisdiction over that person; or
(b) the person is a national of the Party compelling
the appearance,
without prejudice to whether a Party objects to these
compulsory measures or the jurisdiction claimed by the other
Party. The Central Authorities may add to or amend these
categories as may be agreed to in writing between the Parties.
Paragraphs 3 and 4 require that the Central Authority of a
Party intending to enforce a compulsory measure inform the
other Central Authority, which may request formal consultations
regarding the matter. If such a request is made, the Central
Authorities shall consult in an effort to determine whether the
Treaty could be used to obtain the needed evidence without
enforcement of the compulsory measure. The Central Authorities
shall also consider other means of resolving the matter, such
as introducing different evidence to prove the fact at issue,
or employing such other agreements or arrangements as may be
applicable.
Paragraph 5 places strict time limits on this consultation
process. If the Central Authority proposing to enforce a
compulsory measure receives a request from the other Central
Authority for consultations on the matter, it may not enforce
the measure for 60 days after receipt of the request for
consultations. If the consultations are unsuccessful, or if the
delay in enforcing the measure is jeopardizing the successful
completion of the proceedings in the Party proposing to enforce
the compulsory measure, written notice to this effect may be
given, and the consultation obligations under the Treaty shall
terminate 21 days after the date of such notice.
Paragraph 6 states that even in those cases in which the
Parties' obligations under this article have been fulfilled,
each Party shall continue to exercise moderation and restraint.
This is similar to obligations undertaken in the exchange of
notes dated July 3, 1986, which accompanied the United States-
Cayman Islands Treaty. The requirement of ``moderation and
restraint'' contemplated in this paragraph is not meant to
imply that the United States will forego the right to
unilaterally enforce compulsory measures that are not
foreclosed by the Treaty itself. It is intended to signal that
both Parties maintain open lines of communication and continue
to work together even when the time limits on consultation have
expired.
Both delegations viewed article 18 as a useful vehicle for
minimizing conflict over investigatory techniques and perceived
extraterritorial process without prejudice to the principles of
either Party. The United Kingdom delegation was concerned that
the article does not go as far as it would have wished, since
it does not constrain the issuance and enforcement of
compulsory measures. The United States was unable to agree to
restrictions only regarding the issuance of compulsory
measures.
Therefore, in an exchange of diplomatic notes dated January
6, 1994, the government of the United States, in the spirit of
cooperation, mutual respect and good will, and in the interests
of facilitating the cooperative use of the Treaty with respect
to criminal offenses that fall within its scope, and of
avoiding measures which could result in conflicts between our
respective laws, policies, or national interests, informed the
government of the United Kingdom that upon Senate advice and
consent to ratification of the Treaty, the United States
Department of Justice will take the following measures to
reduce the potential for conflict in this regard:
(1) instruct all federal prosecutors not to seek
grand jury or trial subpoenas for the production of
evidence located in the United Kingdom in any matter
covered by the Treaty, unless the United States Central
Authority has concluded that the provisions of article
18 have been satisfied;
(2) instruct all federal prosecutors not to enforce
any grand jury subpoenas, trial subpoenas,
administrative subpoenas or agency summonses that seek
evidence located in the United Kingdom in any matter
covered by the Treaty, unless the provisions of article
18 have been satisfied;
(3) use its best efforts to coordinate the issuance
of administrative subpoenas or summonses by other
agencies for evidence located in the United Kingdom in
any matter covered by the Treaty, by advising all
United States government agencies not to seek such
process without consultation and coordination with the
United States Central Authority; and
(4) use its best efforts to bring sensitivity to
other matters which may involve potential conflicts
over any matter covered by the Treaty, and to encourage
the careful screening and evaluation of such matters
before actions are taken.
It was also agreed that the Central Authority of each Party
will undertake to discuss with the other any case brought to
its attention involving an exercise of jurisdiction with
respect to criminal matters falling within the Treaty which may
result in the production of evidence located in the territory
of the other Party, with a view to resolving any differences in
a mutually satisfactory manner.
Article 19--Definitions
This article defines the term ``proceedings'' for purposes
of the Treaty. It specifies that ``proceedings'' relate to
criminal matters, and include any measure or step taken in
connection with the investigation or prosecution of criminal
offenses. The term also includes the freezing, seizure, or
forfeiture of the proceeds and instrumentalities of criminal
offenses and the imposition of fines related to criminal
prosecutions.
In the United States, prosecutors may pursue in rem
forfeiture with respect to crimes such as drug trafficking, and
such proceedings may be civil or administrative in nature. The
term ``proceedings'' for purposes of the Treaty includes such
civil or administrative forfeiture proceedings that relate to a
criminal matter.
Article 19 further provides that the Central Authorities
may at their discretion treat as ``proceedings'' for purposes
of the Treaty such hearings before or investigations by any
court, administrative agency, or administrative tribunal with
respect to the imposition of civil or administrative sanctions
as may be agreed to in writing between the Parties. This
provision was agreed to because in both the United States and
the United Kingdom, swift and efficient civil or administrative
sanctions sometimes are as much an integral part of combatting
criminal behavior as actual criminal prosecution. For instance,
efforts to illegally manipulate the securities markets can be
addressed by a criminal investigation of the manipulator, or by
an administrative action to halt the relevant trading, or a
civil action to disgorge unlawfully obtained profits. Other
examples include an administrative action to cancel the
driver's license of a person convicted of drunk driving, or an
attempt to disbar a lawyer who defrauded clients.
The Securities and Exchange Commission (SEC) and the
Commodities Futures Trading Commission (CFTC) were concerned
that their investigations involving conduct that might fairly
be described as criminal be eligible for coverage under this
provision of the Treaty. The United Kingdom agreed to this.
However, the SEC and CFTC did not want their civil and
administrative proceedings to be covered by the Treaty's
exclusivity and first-resort provisions under article 18
without their consent. Therefore, it was agreed that a civil or
administrative matter before the SEC or CFTC will be covered by
the Treaty only if both Central Authorities agree to this under
paragraph 2, and only when that agreement has been confirmed
via diplomatic channels.
Article 20--Territorial application
This article provides that with respect to the United
Kingdom, the Treaty shall apply to England, Wales, Scotland,
Northern Ireland, the Isle of Man, the Channel Islands, and any
other territory whose foreign policy is the responsibility of
the United Kingdom \38\ and to which the Treaty shall have been
extended by agreement between the Parties. This article gives
either Party the right to terminate such extension agreements
upon six months notice. The mutual legal assistance treaty
between the United States and the United Kingdom regarding the
Cayman Islands was subsequently extended to several other
United Kingdom dependent territories in the Caribbean. It is
possible that the Parties may agree to extend the Treaty in a
similar fashion.
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\38\ An example of such a territory is Bermuda.
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Article 21--Ratification and entry into force
This article contains standard language concerning the
procedures for the exchange of the instruments of ratification
and the entry into force of the Treaty.
Article 22--Termination
This article contains the standard provision in mutual
legal assistance treaties concerning the procedure for
terminating the Treaty. Either Party must provide six months
notice of an intent to terminate the Treaty.
VIII. Text of the Resolution of Ratification
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of The Treaty Between the Government of the United
States of America and the Government of the United Kingdom of
Great Britain and Northern Ireland on Mutual Legal Assistance
in Criminal Matters, signed at Washington on January 6, 1994,
together with a Related Exchange of Notes signed the same date.
The Senate's advice and consent is subject to the following two
provisos, which shall not be included in the instrument of
ratification to be signed by the President:
Nothing in the Treaty requires or authorizes
legislation or other action by the United States of
America that is prohibited by the Constitution of the
United States as interpreted by the United States.
Pursuant to the rights of the United States under
this Treaty to deny requests which prejudice its
essential public policy or interest, the United States
shall deny a request for assistance when the Central
Authority, after consultation with all appropriate
intelligence, anti-narcotic, and foreign policy
agencies, has specific information that a senior
government official who will have access to information
to be provided under this Treaty is engaged in a
felony, including the facilitation of the production or
distribution of illegal drugs.