Extraterritoriality: The UK Perspective

28.1 Overview

English criminal law applies to all persons who come within the territory of England and Wales. In addition, there are now a number of mechanisms that enable UK authorities to investigate and prosecute offences committed overseas.

In the context of economic crime, the past three decades have seen a sustained legislative policy of extending the jurisdiction of the UK authorities. For certain economic crimes, authorities may bring prosecutions in the United Kingdom notwithstanding that all the relevant criminal conduct occurred overseas. The most obvious example is the Bribery Act 2010 (the Act), which we discuss further below. In line with the United Kingdom’s extension of its jurisdictional reach, the authorities have increased their coordination and co-operation with other countries’ prosecutors. The trend towards greater cross-border information sharing and coordinated investigations is likely to continue in accordance with ongoing domestic and international obligations.[2] The courts have also shown a willingness to endorse that trend. In the KBR case,[3] the High Court held that information notices issued by the Serious Fraud Office (SFO) under section 2 of the Criminal Justice Act 1988 can have extraterritorial effect where a ‘sufficient connection’ exists between an overseas company and England and Wales. In particular, the court observed that SFO investigations should not be ‘frustrated or stymied’ on the basis that evidence may be held on computer systems located outside the jurisdiction. In April 2019, the Supreme Court granted KBR permission to challenge that decision, and the appeal is yet to be heard. This chapter provides an overview of the extraterritorial aspects of UK law regarding economic crime.

28.2 The Bribery Act 2010

In overview, the Act came into force on 1 July 2011 and created offences of (1) offering, promising or giving a bribe and (2) requesting, agreeing to receive or accepting a bribe either in the United Kingdom or abroad, in the public or private sectors, more specifically:

  • sections 1 and 2 – bribing another person (active bribery) and being bribed (passive bribery);
  • section 6 – bribery of a foreign public official; and
  • section 7 – failure of commercial organisations to prevent bribery.

Each of the above offences has extraterritorial application, as outlined below.

28.2.1Offences under sections 1, 2 and 6

UK prosecutors may pursue an offence under sections 1, 2 or 6, even where no act or omission forming part of that offence took place in the United Kingdom. This is the position provided that:

  • a person’s acts or omissions outside the United Kingdom would form part of such an offence if they had occurred in the United Kingdom;[4] and
  • the person has a ‘close connection with the United Kingdom’.[5]

A ‘close connection with the United Kingdom’ is defined in the Act and includes British citizens and UK companies.[6]

Considering a hypothetical example helps to demonstrate this broad jurisdictional scope of the Act. Assume that one Mr John Smith was born and raised in the United Kingdom, and, following university, he moved to live and work in Latin America. While Mr Smith has lived overseas for, say, 10 years, he has retained British citizenship. Mr Smith is a business consultant in the oil and gas sector, and one of his key clients is an energy company based in India. Assume also that Mr Smith bribed a person in, say, Mexico, and did so in the course of his services to the Indian company, and in so doing he intended that he would obtain or retain business (in Mexico) for the Indian company. Even where none of Mr Smith’s conduct made any contact with the United Kingdom, he would be at risk of criminal prosecution in the United Kingdom because he was a British citizen at the time of the offence, and therefore had a ‘close connection’ to the United Kingdom as defined by section 12(3) of the Act. In practice, of course, a prosecutor would need to consider carefully whether proceedings against Mr Smith would ultimately be in the public interest both in itself and as part of a wider prosecution strategy against others; in this case, for example, the Indian company if it had been carrying on business in the United Kingdom.[7]

28.2.2Corporate offence under section 7

This offence is committed by a ‘relevant commercial organisation’ if a person associated with the organisation (an associated person)[8] bribes another person intending to obtain or retain business, or an advantage in the conduct of business, for the organisation. In those circumstances, the organisation’s only defence to the strict liability offence is to show that it had ‘adequate procedures’ in place designed to prevent bribery on its behalf.[9]

A ‘relevant commercial organisation’ includes a company or partnership (wherever incorporated) that carries on any part of its business in the United Kingdom. On the basis of information in the public domain currently, the courts are yet to consider a case where it is disputed that a commercial organisation indicted under section 7 was carrying on business within the United Kingdom.[10] Until the courts hear argument on that specific point, practitioners continue to refer to the Ministry of Justice guidance regarding the corporate offence. That guidance recommends a ‘common sense approach’ and notes that a ‘demonstrable business presence’ is required. Neither having the company’s shares listed on the London Stock Exchange nor having a UK subsidiary would necessarily mean that a foreign company is carrying on business for the purposes of section 7 of the Act.[11]

For a high-profile application of the concept of an associated person, the case of Sweett Group PLC[12] (2015), the SFO’s first corporate conviction under section 7, is instructive. The defendant, a UK company, pleaded guilty to failing to take reasonable steps to prevent the bribery of a non-UK national in the United Arab Emirates by a Sweett Group subsidiary in Cyprus (Cyril Sweett International Limited); the bribe being paid to secure a contract relating to construction of a £63 million hotel in Dubai. Sweett agreed with the SFO’s contention, via plea, that its subsidiary was an ‘associated person’ under the Act, and the court was satisfied that the bribes were intended to obtain an advantage in the conduct of business for Sweett. A financial penalty, taking into account the guilty plea, of £2.25 million was levied against Sweett.[13]

It is irrelevant whether the acts or omissions forming part of the section 7 offence took place in the United Kingdom or elsewhere.[14] Therefore, it is possible for either of the following scenarios to form the factual basis for a section 7 offence:

  • any business formed or incorporated in the United Kingdom, where the bribery is conducted entirely outside the United Kingdom by an associated person who has no connection with the United Kingdom and who is performing services outside the United Kingdom; and
  • any business formed or incorporated outside the United Kingdom, but that carries on part of its business in the United Kingdom, where the bribery is conducted entirely outside the United Kingdom by an associated person who has no connection with the United Kingdom and who is performing services outside the United Kingdom.

In January 2020, the SFO agreed a record-breaking deferred prosecution agreement (DPA) with Airbus SE. The DPA charges Airbus with five counts of the failure to prevent offence across five jurisdictions.[15] The DPA will be in force until 31 January 2023 and is thought to be the first co-ordinated settlement agreement between the UK, US and French authorities. It is also the world’s largest resolution for bribery, amounting to a total penalty of almost €3.6 billion, €991 million of which was to be paid to the SFO as disgorgement of profits, a fine and the SFO’s legal and investigative costs.[16]

When advising companies on self-reporting to the authorities, practitioners should be aware of the practical risks to confidentiality. Bringing material located abroad into the jurisdiction of England and Wales may lead to legal arguments relating to its collateral use in subsequent civil or regulatory proceedings, as in Omers Administration Corporation and others v Tesco Plc.[17] While that case related to documents held in England and Wales, the High Court ordered that documents provided to Tesco by the SFO during negotiations for a deferred prosecution agreement should be disclosed by Tesco in a separate and subsequent civil action, brought by its shareholders. Companies and their advisers should note the implications of this in relation to bringing documents into the jurisdiction or providing documents, at least voluntarily, to the SFO, or other authority, in circumstances where that information may then be disclosed (1) by the SFO to the subjects of its relevant investigations, and (2) subsequently, to third parties through any relevant, separate civil proceedings brought against the subjects under SFO scrutiny.

28.3 The Proceeds of Crime Act 2002

28.3.1Money laundering offences under Part 7

Money laundering has a broad meaning under UK law. The money laundering regime is designed to tackle the routes through which the proceeds of criminal activity are handled. The principal offences are found in sections 327 to 329 of the Proceeds of Crime Act 2002 (POCA), being:

  • concealing, disguising, converting, transferring or removing from the United Kingdom, any criminal property (section 327);
  • entering or becoming concerned in arrangements that one knows or suspects facilitate the acquisition, use, etc., of criminal property (section 328); and
  • acquiring, using or possessing criminal property (section 329).

Property is ‘criminal property’ if it represents a person’s benefit from criminal conduct; in turn, ‘criminal conduct’ is conduct that either is an offence in the United Kingdom or would be an offence if it had taken place within the United Kingdom.[18] Although the prosecution must adduce evidence of a predicate offence from which the proceeds of crime emanate, a prosecutor need not prove the type of predicate offence in every instance. Instead, the prosecutor will need to provide the court with detailed particulars explaining why the property that is the subject of the money laundering offence should be regarded as criminal in origin, and that evidence should be sufficiently potent to demonstrate that the only reasonable inference is that the property arose from criminality.

The location of the underlying criminal conduct is immaterial. Instead, the pertinent issue is whether the conduct would constitute a criminal offence in the United Kingdom had it occurred here. This principle was confirmed by the Court of Appeal in 2014 in the case of R v. Rogers,[19] which served to emphasise the wide scope of the money laundering regime. Mr Rogers, a UK citizen resident in Spain, permitted money generated by a fraudulent scheme in the United Kingdom to be paid into a Spanish bank account that he controlled, and allowed another person, the scheme’s principal, to withdraw money from that account. Mr Rogers was convicted under section 327(1)(c) of POCA of converting criminal property. He subsequently appealed against that conviction, arguing that the court did not have jurisdiction to hear Part 7 offences against a non-UK resident where the relevant conduct occurred entirely outside the United Kingdom.

In dismissing the appeal, the court expressly considered the wording of section 340(11)(d) of POCA, that money laundering is an act that would constitute an offence under sections 327, 328 or 329 if done in the United Kingdom, and concluded that the language clearly indicated that Parliament had intended for the Part 7 offences to be extraterritorial in effect. The court went on to state that, even if they were wrong on that interpretation of the statute, the modern approach to jurisdiction required ‘an adjustment to the circumstances of international criminality’, and noted: ‘The offence of money laundering is par excellence an offence that is no respecter of national boundaries. It would be surprising indeed if Parliament had not intended the Act to have extra-territorial effect (as we have found it did).’[20]

In light of this extraterritorial effect, the court was able to establish a sufficient jurisdictional nexus to try Mr Rogers on the basis that the acts that led to the property becoming criminal property for the purposes of POCA plainly took place, and had an impact on victims, in the United Kingdom, and that the laundering of the proceeds by Mr Rogers in Spain was directly linked to those acts in the United Kingdom. The court added that this was:

not a case where the conversion of criminal property relates to the mechanics of a fraud which took place in Spain and which impacted upon Spanish victims. In those circumstances our courts would not claim jurisdiction. But in this case when the significant part of the criminality underlying the case took place in England, including the continued deprivation of the victims of their monies, there is no reasonable basis for withholding jurisdiction[21]

The court’s decision in Rogers makes plain that UK persons based overseas, including, for example, professional legal or tax advisers, face the risk of criminal liability in the United Kingdom for money laundering offences committed wholly overseas. Rogers and subsequent cases indicate that a person may be guilty of a money laundering offence under sections 327 to 329 of POCA in circumstances where both the predicate offending (i.e., the criminality that gives rise to the existence of proceeds of crime) and the laundering of the criminal property take place outside the territory of the United Kingdom.[22]

There exists a limited exception described as the ‘overseas conduct defence’. A person will not be liable under sections 327 to 329 if:

  • he or she knew or reasonably believed that the relevant criminal conduct occurred abroad; and
  • that relevant criminal conduct was not, when it took place, unlawful under the criminal law of that other country.[23]

The ‘overseas conduct defence’, however, does not apply to conduct that (despite being legal under local law) would constitute an offence punishable by a maximum sentence of imprisonment over 12 months in the United Kingdom if it had occurred in the United Kingdom.[24] In practice, therefore, most cases (e.g., bribery, corporate fraud, tax evasion) relevant to readers will remain squarely within the wide extraterritorial scope of POCA.

28.3.2Civil recovery orders under Part 5

Separately, the civil recovery regime set out in POCA[25] enables UK prosecutors to seek orders from the High Court to recover property that either is or represents property obtained through unlawful conduct. As applications for civil recovery orders and property freezing orders are determined through civil, not criminal, proceedings before the High Court, the standard of proof is the balance of probabilities. The High Court may issue such an order against any person or property wherever domiciled or situated, if there is or has been a connection between the facts of the case and any part of the United Kingdom.[26] Combined with the wide jurisdictional scope of the definition of ‘unlawful conduct’,[27] civil recovery orders are a powerful and attractive tool in the hands of UK prosecutors. While foreign courts did not traditionally recognise the enforceability of these orders against assets in their jurisdictions, a relatively recent case saw the United Kingdom’s National Crime Agency (NCA) succeed in persuading the Luxembourg court to enforce an order against a UK person’s bank accounts in that jurisdiction.[28] This was the first time that a foreign court had enforced a civil recovery order, permitting the NCA to recover unlawful property held entirely outside the United Kingdom. Authorities in Uzbekistan have not taken a similarly collaborative approach to UK civil recovery efforts overseas. The authorities are alleged to have been obstructive and to have restricted access to Gulnara Karimova (daughter of the former president of Uzbekistan), on whom the SFO is attempting to serve a civil recovery order. As a result, a High Court judge has granted the SFO an additional six months to allow for service of the order.[29]

An additional civil recovery power became available to the NCA and other UK prosecutors in late January 2018.[30] On application to the High Court, prosecutors[31] can seek an unexplained wealth order (UWO) against any persons (whether or not UK domiciled) regarding their property, irrespective of that property’s location. In summary, a UWO is available where:

  • there is reasonable cause to believe the respondent holds specific property valued at or above £50,000;
  • there are reasonable grounds to suspect that the respondent’s known income is insufficient to acquire that property; and
  • either the respondent is a ‘politically exposed person’ or there is reasonable suspicion that the respondent (or a person connected to him or her) is or has been involved in serious crime in the United Kingdom or abroad.

Where granted, the UWO compels the respondent to explain the nature of their interest in the property, and to explain how they obtained it. Failure to do so creates a presumption that the property was obtained unlawfully, and it is therefore a valid target for civil recovery proceedings under Part 5 of POCA.

The respondent, namely the person who holds or obtains the relevant property, ‘includes any body corporate, whether incorporated or formed under the law of a part of the United Kingdom or in a country or territory outside the United Kingdom’.[32] By express cross-reference to section 414 of POCA,[33] it is clear that ‘property is all property wherever situated’.

Where a UWO is granted against property outside the United Kingdom, and the UK prosecutor believes there is a risk of dissipation or frustration by concealing the relevant assets, that prosecutor may make a formal request for assistance from the other country’s government.[34] Since their introduction in early 2018, and at the time of writing, the NCA has secured UWOs in five separate cases.[35]

In the widely reported case of National Crime Agency v. Mrs A,[36] Zamira Hajiyeva, the wife of a jailed Azerbaijani banker, appealed against two UWOs. Her appeal argued that the NCA’s application was predicated on the conviction of her husband for fraud and embezzlement, following an unfair trial in Azerbaijan. Dismissing her appeal, the Court of Appeal held that she had been lawfully targeted by the NCA and that her husband’s conviction was only one of the strands relied on in the NCA’s application.

In June 2020, the NCA encountered its first setback when the Court of Appeal ruled that it had ‘no real prospect’ of succeeding in overturning the High Court’s decision in April 2020 in NCA v. Baker and Others,[37] which ordered the discharge of three UWOs obtained by the NCA against Nurali Aliyev, the grandson of former Kazakh president, Nursultan Nazarbayev. In its ruling,[38] the Court of Appeal found that the case presented by the NCA was ‘flawed by inadequate investigation into some obvious lines of enquiry’.[39] The decision is an instructive example of the court’s approach to robust scrutiny of UWO applications.

28.4 Tax evasion and the Criminal Finances Act 2017

The Criminal Finances Act 2017 also introduced a new corporate offence focused on tax evasion. As with the Bribery Act’s corporate offence, this represents another significant departure from the traditional ‘directing mind’ identification doctrine for corporate criminal liability under English law.

Part 3 of the Criminal Finances Act 2017 creates two corporate offences of failure to prevent the facilitation of tax evasion. The offences are modelled on section 7 of the Bribery Act 2010 and apply to both domestic and overseas tax evasion. The offences are:

  • failure to prevent the facilitation of UK tax evasion offences (section 45): a company or partnership is guilty of an offence if a person commits a UK tax evasion facilitation offence when acting in the capacity of a person associated with that company or partnership;[40] and
  • failure to prevent the facilitation of foreign tax evasion offences (section 46): a company or partnership is guilty of an offence if at any time a person commits a foreign tax evasion facilitation offence when acting in the capacity of a person associated with that company or partnership, and any of the following conditions is satisfied:
  • the relevant body is incorporated or formed in the United Kingdom;
  • the relevant body carries on business or part of a business in the United Kingdom; or
  • any conduct constituting part of the foreign tax evasion facilitation offence took place in the United Kingdom.[41]

If the offence took place outside the jurisdiction, however, UK prosecutors must still prove to the criminal standard that both the taxpayer and the associated person committed an offence. The prosecutor will also need to prove dual criminality of the conduct. The offences consist of three component parts. First, the prosecution must prove criminal evasion by a taxpayer; and there must have been dishonest[42] facilitation of tax evasion by an associated person.[43] Where these two components are satisfied, the relevant body is criminally liable (unless it can show that it had ‘reasonable preventative procedures’ in place, or that it was unreasonable to expect the company to have had such procedures in place).

A ‘relevant body’ is a company or a partnership, wherever it may be incorporated or formed.[44] A ‘person associated’ with the relevant body is an employee, an agent or any other person performing services for or on behalf of that relevant body.[45] Again, this is broadly comparable to the concepts in the Bribery Act. Section 46 of the Criminal Finances Act 2017 provides that a company or partnership that carries on business in the United Kingdom will commit an offence if a ‘person associated’ with it commits a ‘foreign tax evasion facilitation offence’, unless the company or partnership had reasonable procedures in place to prevent the facilitation offence. A foreign tax evasion facilitation offence means conduct that amounts to:

an offence under the law of a foreign country . . . relates to the commission by another person of a foreign tax evasion offence under the law of that country, and . . . would, if the foreign tax evasion offence were a UK tax evasion offence, amount to a UK tax evasion facilitation offence[46]

28.5 Financial sanctions

While they are driven by geopolitical issues, international sanctions have direct practical and legal consequences for businesses of all shapes and sizes. The use of international sanctions has grown over recent years, particularly in relation to the military conflicts in Ukraine and Syria.

Financial sanctions restrict the provision of financial services, or access to global capital markets, or both. More specifically, those restrictions can include bans on investments in a particular country, or the denial of banking relationships. Trade sanctions restrict the trading of certain products or commodities (e.g., arms, oil and diamonds) from targeted countries (e.g., Iran, Russia and Syria) and control the export of certain products (e.g., military or dual-use items) to targeted countries. A decision by the European Court of Justice, which upheld the EU sanctions against Russia regarding its annexation of Crimea in 2014, demonstrates the rationale in practice.[47]

For the purposes of this chapter, we focus on financial sanctions.[48] The UK legal framework regarding financial sanctions is not currently contained in any one particular statute. Instead, the United Kingdom uses secondary legislation to implement various sanctions programmes made by the United Nations Security Council and the European Union. Despite Brexit, EU sanctions continued to apply in the United Kingdom during the transition period.[49] From 1 January 2021, the United Kingdom will implement its sanctions via the Sanctions and Anti-Money Laundering Act 2018 (SAMLA).[50]

In July 2020, the UK government announced the implementation of the UK Global Human Rights Sanctions Regulations 2020[51] (the Regulations), pursuant to SAMLA. The Regulations are notable in that under them the United Kingdom has imposed its own sanctions against persons involved in violations of human rights for the first time.

The Regulations empower the Foreign Secretary to designate persons (whether or not UK persons) according to specific criteria and impose asset freezes and travel bans on them.[52] However, the Regulations do not empower the government to designate persons involved in bribery and corruption.

While legal commentators have broadly welcomed the Regulations, they have also advised caution as regards the breadth of the Regulations given the serious implications for those who find themselves designated. For example, in contrast to defendants in criminal proceedings, designated individuals and corporations will be unable to challenge their designated status and prove themselves innocent in the same way.

The United Kingdom may also issue domestic financial sanctions under certain specific statutes, such as the Terrorist Asset-Freezing Act 2010.[53] The specific restrictions imposed by any one set of financial sanctions (e.g., those relating to Russia’s involvement in Ukraine) will vary in each case. Those advising businesses concerned about liability should carefully review the text of the specific statutory instrument, and the underlying EU regulation, in each case. Broadly, however, UK financial sanctions impose criminal liability for a person who:

  • makes funds or economic resources available, whether directly or indirectly, to a designated person;
  • deals with funds or economic resources belonging to or controlled by a designated person; or
  • acts in a way, whether directly or indirectly, to circumvent the relevant financial sanction prohibitions.[54]

Financial sanctions also carry positive reporting obligations for financial services firms. Where a firm detects relevant information, for example that a customer or counterparty is a designated person, the firm must notify the Office of Financial Sanctions Implementation (OFSI), which is part of HM Treasury.[55]

While the jurisdictional scope of UK financial sanctions is broad, they do require some element of UK nexus. The sanctions apply to:

  • anybody present in the United Kingdom, namely all persons (natural and legal) ‘who are within or undertake activities within the UK’s territory’; and
  • all UK nationals and all UK legal entities (including branches, and the UK subsidiaries of foreign companies), wherever they may be in the world and irrespective of where their activities occur.[56]

In its guidance, OFSI emphasised that establishing a UK nexus would be determined by the facts in each case, and that it would not seek to ‘artificially bring something within UK authority that does not clearly and naturally come under it’.[57] This may provide some degree of comfort to foreign businesses with no UK footprint. Most recently, the new Sanctions and Anti-Money Laundering Act 2018, which is not yet fully in force, provides for sanctions being imposed regarding (1) conduct within UK jurisdiction by any person and (2) conduct anywhere in the world but only if the conduct is by a ‘United Kingdom person’.[58]

The Policing and Crime Act 2017 introduced a wider range of enforcement options, specifically (1) making sanctions offences eligible for consideration for a deferred prosecution agreement,[59] (2) making sanctions offences eligible for (civil) Serious Crime Prevention Orders under the Serious Crime Act 2007[60] and (3) empowering OFSI to impose (civil) financial penalties.[61] These developments are all consistent with the general trend in UK law since the Bribery Act 2010 came into effect towards increased enforcement against companies, including for misconduct overseas. In April 2020, OFSI announced that it had imposed a blockbuster £20.4 million penalty on Standard Chartered for breaches of EU ‘sectoral sanctions’ on Russian companies in the banking, oil and defence sectors. This case is by far OFSI’s largest and most significant sanctions enforcement action to date and suggests a sea change in its approach to enforcement.[62]

28.6 Conspiracy

Readers will be familiar with cases involving suspected or alleged conspiracies to commit substantive offences. When considering conspiracy in the economic crime context, practitioners should be aware of the interplay between (1) common law conspiracy to defraud, (2) the conspiracy offence in section 1A Criminal Law Act 1977, and (3) the Fraud Act 2006, whose extraterritorial reach is specified by the Criminal Justice Act 1993 (as amended).

28.6.1Common law conspiracy to defraud

Common law conspiracy to defraud is one of the very few remaining common law conspiracy offences, section 5 of the Criminal Law Act 1977 having replaced all others with a general statutory offence. Statute has made clear that a person charged with conspiracy to defraud may be liable irrespective of whether he or she became a co-conspirator in England or whether any act in relation to the conspiracy occurred in England.[63]

28.6.2Statutory conspiracy to commit offences abroad

The Criminal Justice Act 1987 provides that a prosecutor may pursue common law conspiracy to defraud even in circumstances where the substantive offence would be covered by a specific statute.[64] However, in many cases, ranging from Innospec Limited[65] in 2010 to the attempted prosecution of Barclays Bank regarding Qatar and the recent convictions of a number of former Unaoil executives for bribery offences in Iraq,[66] the SFO has relied on section 1(1) of the Criminal Law Act 1977 to bring charges of conspiracy to commit offences.[67]

In 1998, the Criminal Law Act 1977 was amended to provide expressly for a discrete offence of conspiracy to commit criminal offences outside the jurisdiction.[68] By section 1A of the Act, a conspiracy may involve the doing of an act in a place outside England and Wales that constitutes an offence in that other jurisdiction. The purpose of section 1A was to extend existing UK law, and to give the English courts extraterritorial jurisdiction in relation to a conspiracy (1) partly formed or carried out in England and Wales, and (2) where the object was the commission of a foreign offence (where there is an equivalent offence in England and Wales). This section only applies, however, where four nexus conditions are satisfied.[69]

Similarly, the Fraud Act 2006 has expressly broad extraterritorial application.[70] Put simply, where any element of a statutory fraud offence[71] occurs within England and Wales, the court will have jurisdiction to try a defendant whether or not he or she was in the jurisdiction at any material time, and whether or not he or she was a British citizen at the time.

28.6.3Inchoate offences

Separately, practitioners should not overlook the inchoate offences of encouraging or assisting others in the commission of offences. The Serious Crime Act 2007 includes statutory inchoate offences (under sections 44 to 46) of encouraging or assisting the commission of offences; these have extraterritorial application in certain circumstances.[72]

28.7 Mutual legal assistance, cross-border production and the extraterritorial authority of UK enforcement agencies

Mutual legal assistance (MLA) allows a state to seek co-operation from another state in the investigation or prosecution of criminal offences via a formal letter of request.[73]

The framework governing the United Kingdom’s approach to MLA is contained in a number of instruments, primarily the Crime (International Co-operation) Act 2003 (CICA), the European Convention on Mutual Legal Assistance in Criminal Matters 2000, and various bilateral and multilateral treaties (for example, with the United States in 1994, with Brazil in 2005 and with India in 1995). The UK Home Office Central Authority[74] is primarily tasked with receiving, and acceding to, MLA requests.[75]

Outgoing MLA requests (i.e., those from the United Kingdom to a foreign state) seeking evidence must be issued by a court or a designated prosecuting authority.[76]

Evidence obtained from or by the United Kingdom pursuant to an MLA request cannot be used for any purpose other than that specified in the request without consent of the foreign authority.

In practice, persons subject to a request from a foreign authority, whether formal or informal, should ensure that they do not disclose material that is legally privileged, and ensure they take all appropriate steps to protect their rights under UK law, including as to the privilege against self-incrimination. For example, one method of MLA to foreign states is to compel witnesses to attend court.[77] Importantly, however, a witness cannot be compelled to give evidence where he or she could not otherwise be compelled to testify under either UK law or that of the requesting state.[78]

In cases of concurrent or overlapping jurisdiction, prosecutors are encouraged to meet with their counterparts from overseas to discuss the relevant factors, such as the location and interests of witnesses and whether the prosecution can be appropriately split into separate cases.[79]

Mutual legal assistance is not, of course, the only avenue for UK authorities to extend their information-gathering overseas. In February 2019, the Court of Appeal decided the case of Jimenez.[80] The Court held that Her Majesty’s Revenue and Customs (HMRC) was entitled to serve an ‘information notice’[81] on a British individual resident overseas to obtain information about his tax position. Mr Jimenez, a UK national resident in the United Arab Emirates, challenged service of that notice at his address in Dubai. HMRC had served the notice as part of its investigation into Mr Jimenez’s tax affairs. In 2017, the High Court quashed the notice on the basis that Schedule 36 of the Finance Act 2008 was silent as to its extraterritorial effect. The Court of Appeal subsequently overturned that decision on the basis that the purpose of Schedule 36 is to prevent tax evasion, which is often cross-border in nature and, in the absence of any express restriction on the geographical effect, the legislation must confer effective investigatory powers on HMRC. In short, the Court of Appeal held that Parliament intended that specific information-gathering power should be available for investigating the UK tax position of relevant persons resident overseas.[82]

The Crime (Overseas Production Orders) Act 2019 introduced a new information gathering tool for UK law enforcement agencies. Since data is increasingly managed, processed and stored by entities located outside the United Kingdom, the Act enables specified investigative agencies[83] to apply to a Crown Court judge for an overseas production order (OPO). An OPO enables electronic data directly from an overseas communications service provider. The government has stated that this will be subject to robust judicial oversight, and that there are existing statutory protections for legally privileged or journalistic material.

The United Kingdom has entered into a data access agreement with the United States[84] that will enable UK law enforcement agencies to request electronic data, via warrant, from US tech companies, speeding up the investigation and prosecution of serious criminals and replacing the existing MLA regime. The Investigatory Powers Commissioner, Sir Brian Leveson, has been appointed to oversee the UK–US bilateral agreement when it comes into force in late 2020.

28.7.1 UK requests from within the European Union

Customarily much of the cross-border co-operation between authorities is informal, relying on established relationships whether directly between states or through organisations such as Interpol and Europol.[85] The European Union has embarked on a programme of reform, resulting in the European investigation order (EIO)[86] and in the proposed European production and preservation orders (EPOs). The United Kingdom opted out of the proposals on EPOs, but it elected to adopt the EIO regime.

The purpose of the EIO[87] is to make it easier for authorities in one Member State to obtain evidence from others through the mutual recognition principle. In contrast to MLA, following a validly issued EIO, a Member State must conduct the investigative measures specified by the order (subject to certain exceptions). Those measures may include the transfer of prisoners for the purposes of investigations, the hearing of witnesses by video link and covert investigation. An EIO may only be issued where there is ‘dual criminality’ in the receiving and executing countries.[88]

At the time of writing (during the Brexit transition period), the United Kingdom had continued to participate in the EIO regime.[89] However, in the absence of a deal with the European Union, the United Kingdom was set to lose access to EIOs on 1 January 2021.

In February 2020 the UK government published a paper[90] (the Paper) setting out its approach to negotiations with the European Union. The Paper confirms that the United Kingdom ‘stands ready to discuss an agreement on law enforcement and judicial cooperation in criminal matters, to the extent it is in both parties’ interests’.[91] Among other things, the Paper concludes that an agreement between the United Kingdom and the European Union should provide for the fast and effective exchange of criminal records data in criminal matters. It also sets out the United Kingdom’s intentions in relation to the exchange of DNA, fingerprints, vehicle registration data and real-time alerts on wanted persons.

28.7.2 Extradition and the European arrest warrant

Currently, the Extradition Act 2003 sets out the relevant UK legal framework. Extradition between EU Member States is governed by the European arrest warrant (EAW), which is based on principles of mutual trust and aims for speedy extradition proceedings.

During the Brexit transition period, EAWs continued to be issued and executed by the United Kingdom and were set to do so until 31 December 2020. However, the Withdrawal Agreement allowed EU Member States to refuse to surrender their nationals to the United Kingdom, pursuant to an EAW, during the transition period.[92] In these circumstances, the United Kingdom could reciprocate by refusing to extradite UK nationals to EU Member States that exercise this option.[93]

At the time of writing, the United Kingdom had not agreed new arrangements with EU Member States to maintain an appropriate degree of co-operation. The UK government’s Paper confirmed that the country was not seeking to participate in the EAW regime as part of its future relationship with the European Union, noting that any agreement should provide for fast-track extradition arrangements, based on the EU’s Surrender Agreement with Norway and Iceland, but with further safeguards for individuals beyond those in the EAW.[94]

A return to the previous regime, under the 1957 Council of Europe Convention on Extradition, appeared to be the default position in the absence of an agreement. The House of Lords concluded in a report[95] that ‘[f]alling back on the 1957 Council of Europe Convention on Extradition would significantly slow down extradition proceedings, since it would mean going back to making routine extradition requests – as well as resolving disputes about extradition requests – through diplomatic channels’.[96]

With the above exceptions, Brexit is unlikely to affect extradition arrangements with category 2 territories as designated by the Extradition Act 2003 (countries with international extradition arrangements other than the EAW, such as the United States).

28.7.3Transparency of corporate ownership

Among other things, one of the primary purposes of SAMLA was to curb money laundering in British overseas territories such as the British Virgin Islands (BVI), the Cayman Islands and the Crown dependencies.[97] Part 2 of SAMLA[98] includes provisions for the detection of money laundering and terrorist financing through the public availability of beneficial ownership registers in overseas territories.

While there has been momentum towards establishing such registers,[99] some overseas territories have resisted the change at a political level. In particular, the government of Bermuda has opposed the register, arguing that the imposition of the register is an affront to the constitutional standing of Bermuda, while other territories have resisted the change on economic grounds. The UK government, however, was set to push forward with an Order in Council in December 2020 requiring all overseas territories to establish public registers.[100]

28.7.4European Financial and Economic Crime Centre

In June 2020, Europol[101] launched the European Financial and Economic Crime Centre (EFECC) in response to the growing economic and financial crime threats posed by the covid-19 pandemic.

The EFECC will concentrate all financial intelligence and economic crime capabilities into a single entity, to reinforce operational effectiveness and increase operational visibility in financial crime investigations. The EFECC will support European cross-border investigations in a number of fields, including money laundering, corruption, counterfeiting and different categories of fraud. It will also work with the newly established European Public Prosecutor’s Office[102] to support investigations into crimes that affect the financial interests of the European Union.

Although the EFECC’s primary purpose is to deter, prevent and prosecute criminals, it also intends to target offenders to deprive them of funds generated from illicit conduct.[103]


Footnotes

[1] Anupreet Amole is a partner, Aisling O’Sullivan is an associate, and Francesca Cassidy-Taylor is a graduate of the Chartered Institute of Legal Executives, at Brown Rudnick LLP. The authors thank Chloë Kealey of the firm for her assistance with this chapter.

[2] For example, the Common Reporting Standard (formally the Standard for Automatic Exchange of Financial Account Information) is an OECD initiative aimed at hindering tax evasion and money laundering. As of May 2020, there are over 100 signatories to the CRS (https://www.oecd.org/tax/automatic-exchange/international-framework-for-the-crs/). Similarly, the trend towards transparency is evident in recent statutory provision for implementing a register of beneficial owners of overseas corporate entities – see s.9 of the Criminal Finances Act 2017 and s.51 of the Sanctions and Anti-Money Laundering Act 2018.

[3] R (on the application of KBR, Inc) v. The Director of the Serious Fraud Office [2018] EWHC 2368 (Admin).

[4] s.12(2)(b).

[5] s.12(2)(c).

[6] s.12(4). A person has a close connection with the United Kingdom if, and only if, the person was one of the following at the time the acts or omissions concerned were done or made: a body incorporated under the law of any part of the United Kingdom, a British overseas territories citizen, a British national overseas, a British overseas citizen, a person who under the British Nationality Act 1981 is a British subject, a British protected person under the British Nationality Act 1981, an individual ordinarily resident in the United Kingdom, or a Scottish partnership.

[7] Note that pursuant to s.14 of the Act, if a section 1, 2 or 6 offence was committed with the ‘consent or connivance’ of a ‘senior officer’ of a body corporate, or a person purporting to act in such a capacity, the senior officer (and the body corporate) is guilty of an offence.

[8] An ‘associated person’ is defined in the Act as a person who performs services for or on behalf of the company in any capacity (i.e., an employee, agent or subsidiary), which is to be determined by reference to all the relevant circumstances and not merely the nature of his or her relationship with the company. It is worth bearing in mind that a section 7 offence will be committed only if the associated person intended to obtain or retain business or an advantage in the conduct of business for the relevant organisation.

[9] s.7 of the Act. Although ‘adequate procedures’ is not defined in the Act, the Ministry of Justice’s guidance (March 2011) broadly outlines what businesses need to demonstrate to mount a successful ‘adequate procedures’ defence, for example proper risk-assessment procedures, due-diligence protocols and top-level commitment.

[10] The section 7 offence is in addition to, and does not displace, liability that might arise under the Act where the commercial organisation itself commits an offence by virtue of the common law ‘identification’ principle. For more information on the common law ‘identification principle’ see the Introduction of this book.

[11] Ministry of Justice Guidance to the Bribery Act 2010 (March 2011), paras. 34 to 36.

[13] This figure comprised a £1.4 million fine, a confiscation order of £850,000 and an order for costs to the SFO of £95,000.

[14] s.12(5) Bribery Act 2010.

[15] Ghana, Indonesia, Malaysia, Sri Lanka and Taiwan.

[16] Another instance in which a company accepted charges of failure to prevent bribery, contrary to section 7 was seen in October 2019, when the SFO agreed a DPA with Güralp Systems Ltd (GSL). The DPA also covered the offence of conspiracy to make corrupt payments, contrary to section 1 of the Criminal Law Act 1971. The terms of the agreement required GSL to pay over £2 million and to co-operate with the SFO to ensure compliance with the Bribery Act.

[17] Omers Administration Corporation and others v. Tesco Plc [2019] EWHC 109 (Ch).

[18] s.340(2) and (3) POCA 2002.

[19] [2014] EWCA Crim 1680. This case was applied in Jedinak v. Czech Republic [2016] EWHC 3525 (Admin) and followed in Sulaiman v. France [2016] EWHC 2868 (Admin).

20 R v. Rogers (Bradley) and others [2014] EWCA Crim 1680 (per Treacy LJ) at p. 1026, paras. 52 and 54.

[21] Ibid. (per Treacy LJ) at pp. 1026 to 1027 at para. 55.

[22] Sulaiman v. Tribunal de Grande Instance [2016] EWHC 2868 (Admin) in which Dingemans J confirmed that Rogers is ‘binding’ authority ‘for the proposition that offences of money laundering extend to extraterritorial actions’ (at [18]) and Jedinak v. District Court in Pardubice [2016] EWHC 3525. The implication of these decisions is that, while Rogers suggests that cases where both the predicate offence and the money laundering offence take place overseas might be decided differently, in fact in cases decided subsequent to Rogers this has not been the case. In Jedinak, despite the arguments by the defence that ‘the court was clearly to an extent motivated by the recognition that some part of the offending [in Rogers] (and indeed the damage cause by the offending) impacted on this country and nationals of this country’, the court held that ‘it is clear in my judgment that the decision relating to the possible extra-territorial effect of the money laundering offences was independent of that’.

[23] ss.327(2A), 328(3) and 329(2A) POCA 2002.

[24] The Proceeds of Crime Act 2002 (Money Laundering: Exceptions to Overseas Conduct Defence) Order 2006.

[25] Part 5 of POCA 2002.

[26] s.282A POCA 2002, inserted by s.48 of the Crime and Courts Act 2013 following the UK Supreme Court decision in Perry v. SOCA [2012] UKSC 35. s.282A and Schedule 7A POCA have retrospective effect – see para. 7(7) of Schedule 7A POCA.

[27] Defined as (1) conduct within the United Kingdom that is unlawful under UK criminal law or (2) conduct outside the United Kingdom that is unlawful in that other country and would have been unlawful in the United Kingdom, had it occurred here. This is, therefore, a dual criminality test. The recent insertion of a new s.241A POCA 2002 (by s.13 of the Criminal Finances Act 2017) adds ‘gross human rights abuse or violation’ to the definition of unlawful conduct for the purposes of Part 5 POCA (civil recovery). This was the first time the United Kingdom targeted assets held anywhere in the world owned by those involved in repressive regimes; this follows the approach in the United States to a statute known as the Magnitsky Act of 2012. See Section 28.5.

[28] National Crime Agency v. Azam [May 2015], District Court of Luxembourg.

[29] Serious Fraud Office v. Karimova [2020] 6 WLUK.

[30] See Part 1 of the Criminal Finances Act 2017, which amends POCA.

[31] Under section 362A (7) of POCA, enforcement agencies permitted to apply for a UWO include the National Crime Agency, the Serious Fraud Office, HM Revenue and Customs, the Financial Conduct Authority and the Director of Public Prosecutions.

[32] s.362H(5) POCA, inserted by s.1 Criminal Finances Act 2017.

[33] s.362H(6) POCA, inserted by s.1 Criminal Finances Act 2017.

[34] s.362S POCA, inserted by s.3 Criminal Finances Act 2017.

[35] At the time of writing, the NCA has successfully defended two UWOs: National Crime Agency v. Hajiyeva [2020] EWCA Civ 108; and National Crime Agency v. Mansoor Hussain and others [2020] EWHC 432 (Admin).

[36] [2020] EWCA Civ 108.

[37] [2020] EWHC 822 (Admin). The NCA sought orders to compel four offshore companies to explain the source of funds used to buy five London homes for £80 million which, it claims, were purchased using illicit funds generated by Mr Aliyev’s late father.

[39] Ibid.

[40] The UK tax offence will be investigated by Her Majesty’s Revenue and Customs (HMRC), with prosecutions brought by the Crown Prosecution Service.

[41] s.46(2).

[42] The test for dishonesty must now be viewed in light of the Supreme Court’s decision in Ivey v. Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 which disapproved the second limb of the well-known test in R v. Ghosh [1982] EWCA Crim 2. Although the observations of the court were technically obiter, the Court of Appeal (Criminal Division) has indicated that Ivey correctly reflects the law – see R v. Pabon [2018] EWCA Crim 420. The test in Ivey was recently affirmed in Barton and Booth v. R [2020] EWCA Crim 575.

[43] The ruling of the Court of Appeal in Barton and Booth v. R [2020] EWCA Crim 575 in April 2020, in endorsing Ivey, affirmed that the test for dishonesty should be judged by reference to society’s standards rather than the defendant’s understanding of those standards. The ruling renders organisations and their senior executives or employees more vulnerable to conviction when charged in cases involving fraud and other dishonesty-related offences.

[44] s.44(2) and (3).

[45] s.44(4).

[46] s.44(6).

[47] PJSC Rosneft Oil Company v. Her Majesty’s Treasury and Others, Case C-72/15, 28 March 2017.

[48] For trade sanctions, see the Export Control Act 2002 (and the related Export Control Order 2008) and the Customs and Excise Management Act 1979. The Customs and Excise Management Act 1979 imposes criminal liability where a person exports goods from the United Kingdom ‘when the exportation or shipment is or would be contrary to any prohibition or restriction for the time being in force’. The Export Control Order 2008 imposes those restrictions. The ECO 2008 specifies a three-tier categorisation of goods, with Category A products including items designed for torture; Category B including arms and ammunition; and Category C being items that have a dual civil/military use. See Part 4 and Schedule 1 of the ECO 2008. Trade sanctions apply to (1) anybody present in the United Kingdom, i.e., all persons (natural and legal); (2) all UK subjects anywhere in the world; and (3) any legal entity incorporated under UK law.

[49] From 11pm on 31 January to 11pm on 31 December 2020. UN sanctions will continue to be implemented during the same period.

[50] The United Kingdom may enact new autonomous sanctions regimes during the transition period through regulations made under SAMLA. However, afterwards the United Kingdom may alter the extent to which current EU sanctions programmes apply in the United Kingdom. A number of regulations have been enacted under SAMLA that mirror sanctions measures currently in force in the United Kingdom under EU Regulations. Those enactments merely give the new measures an independent statutory footing under UK law. These regulations will not come into force fully until 1 January 2021.

[52] The designation criteria in Regulation 6(3) are broadly defined and include anyone who ‘is responsible for or engages in’ human rights abuses; ‘facilitates, incites, promotes or provides support for such an activity’; ‘provides financial services, or makes available funds, economic resources, goods or technology, knowing or having reasonable cause to suspect that those financial services, funds, economic resources, goods or technology will or may contribute to such an activity’; ‘provides financial services, or makes available funds, economic resources, goods or technology to a person [responsible for or engaged in human rights abuse]’; who ‘profits financially or obtains any other benefit from an activity’ violating human rights.

[53] The other relevant UK statutes, which also take a broad jurisdictional approach, are the Counter-Terrorism Act 2008 and the Anti-terrorism, Crime and Security Act 2001.

[54] Office of Financial Sanctions Implementation, Financial Sanctions: Guidance, March 2018, p. 12. The maximum term of imprisonment was recently increased from two to seven years – see ss.144 and 145 of the Policing and Crime Act 2017 (PCA 2017).

[55] Office of Financial Sanctions Implementation, Financial Sanctions: Guidance, March 2018, p. 18.

[56] Office of Financial Sanctions Implementation, Financial Sanctions: Guidance, March 2018, p. 7.

[57] Office of Financial Sanctions Implementation, Monetary penalties for breaches of financial sanctions: Guidance, May 2018, p. 12.

[58] s.21 Sanctions and Anti-Money Laundering Act 2018.

[59] s.150 of PCA 2017.

[60] s.151 of PCA 2017.

[61] s.146 of PCA 2017.

[62] Office of Financial Sanctions Implementation, HM Treasury, Report of Penalty for Breach of Financial Sanctions Regulations (section 149(2) PACA2017 report) Imposition of Monetary Penalty – Standard Chartered Bank,https://assets.publishing.service.gov.uk/government/uploads/system/.

[63] s.3(2) Criminal Justice Act 1993.

[64] s.12 Criminal Justice 1987, which retained the offence at common law of conspiracy to defraud – see s.5(2) Criminal Law Act 1977.

[65] The charge against Innospec Ltd was that between February 2002 and December 2006, the company, through various agents, engaged in systematic and large-scale corruption of senior government officials of Indonesia to secure contracts for the supply of a fuel additive, tetraethyl lead (TEL). The corrupt behaviour took the form of bribes, totalling approximately US$8 million. The seriousness of the corruption was aggravated by the fact that Innospec Ltd’s behaviour was aimed at blocking legislative moves to ban TEL, owing to environmental and public health concerns. The company pleaded guilty to conspiracy contrary to s.1 of the Criminal Law Act 1977 and was fined US$12.7 million.

[67] In R v. Turner, Kerrison, Papachristos and Jennings in 2014 (and the subsequent appeal SFO v. Papachristos and Kerrison [2014] EWCA Crim 1863), four former executives of Innospec were convicted and imprisoned for conspiracy offences in relation to their roles in bribing state officials in Indonesia and Iraq in order to secure contracts from the governments of those countries for the supply of products produced by Innospec Ltd.

[68] Inserted by the Criminal Justice (Terrorism and Conspiracy) Act 1998, s.5.

[69] The conditions set out in s.1A(6), Criminal Law Act 1977 are: pursuit of the agreed conduct would involve an act by one or more of the parties outside the United Kingdom; that act is an offence under local law in that other country; the agreement would be a conspiracy (within section 1(1) CLA 1977) but for the fact that the offence would not be an offence triable in England and Wales if committed in accordance with the parties’ intentions; and a party to the agreement, whether directly or via an agent, did anything in England and Wales regarding formation of the agreement before its formation, became a party to it in England and Wales, or did or omitted anything in England and Wales pursuant to the agreement. Where those conditions are satisfied, the prosecutor may pursue conspiracy charges under section 1A, referring to the offence as being a conspiracy to commit the underlying substantive offence (e.g., drug trafficking or people smuggling) but for the fact that it was not triable in England and Wales.

[70] Part 1 of the Criminal Justice Act 1993 as amended by the Fraud Act 2006 (Schedule 1).

[71] Being fraud by false representation (s.2), fraud by failing to disclose information (s.3), or fraud by abuse of position (s.4 Fraud Act 2006).

[72] Through operation of s.52 of, and the conditions specified in Schedule 4 to, the Serious Crime Act 2007.

[73] While MLA is used for gathering and exchanging information, and requesting and providing assistance in obtaining evidence located abroad, extradition is the legal process by which an individual is transferred from one state to another for the purposes of being tried or serving a sentence already imposed. The Extradition Act 2003 sets out the UK extradition legal framework. MLA is generally not appropriate if the material can be obtained directly via law enforcement co-operation for intelligence purposes or if the material otherwise is admissible in that form.

[74] If the request relates to tax and fiscal customs matters, the competent authority is HMRC.

[75] There are exceptions such as EU freezing orders for property, which need to be sent directly to the relevant UK prosecuting authority.

[76] The Director and any designated member of the Serious Fraud Office, the Financial Conduct Authority and the Bank of England are examples of designated prosecuting authorities.

[77] s.15 CICA 2003.

[78] Schedule 1 CICA 2003.

[79] Where a case touches on issues of US jurisdiction, which has wide extraterritorial application, the UK prosecutor will need to consider the Attorney General’s long-standing agreement with the US Department of Justice, and the related guidance (January 2007), which requires consultation and regular liaison from the outset of a relevant investigation.

[80] R (on the application of Tony Michael Jimenez) v. First Tier Tax Tribunal (Tax Chamber) and HMRC [2019] EWCA Civ 51.

[81] Pursuant to para. 1 of Schedule 36 to the Finance Act 2008.

[82] The Court also dismissed Mr Jimenez’s argument that HMRC’s conduct amounted to an exercise of UK official acts in the territory of another sovereign state. The Court held that service of the information notice did not seek to impose any criminal liability on a foreign national, and did not offend against the territorial sovereignty of the United Arab Emirates. Interestingly, in the leading judgment given by Lord Justice Patten noted that: ‘the more recent decision[s] of the Supreme Court in Bilta and the Divisional Court in KBR confirm that the jurisdiction to serve a notice requiring the provision of information from a person resident abroad or even to impose liability on the recipient will not raise eyebrows where they serve to protect a sufficient national interest. In my view, the present case falls squarely within that category of case’.

[83] These include the SFO, the NCA, police, HMRC and the Financial Conduct Authority.

[84] Agreement on Access to Electronic Data for the Purpose of Countering Serious Crime [CS USA No.6/2019] (the Agreement) (https://www.gov.uk/government/publications/ukusa-agreement-on-access-to-electronic-data-for-the-purpose-of-countering-serious-crime-cs-usa-no62019), accessed on 21 July 2020. The Agreement is facilitated by the Crime (Overseas Production Orders) Act 2019.

[85] For example, see the NCA website regarding its international co-operation.

[86] Directive 2014/41/EU was implemented in England and Wales by the Criminal Justice (European Investigation Order) Regulations 2017, which came into force on 31 July 2017.

[87] To apply for an EIO, an investigator in England and Wales must do so either to a ‘designated public prosecutor’, or by applying to a Magistrates’ Court or the Crown Court, depending on the type of investigative measure sought. Defendants in criminal proceedings may also apply for an EIO from a judicial authority (any justice of the peace or judge). Irrespective of who is making the application, the public prosecutor or judicial authority must be satisfied that an offence has been committed, or there are reasonable grounds for suspecting that an offence has been committed, and proceedings have begun in respect of the offence, or it is being investigated.

[88] Broad exceptions to this principle (including offence categories such as terrorism, and human trafficking) that mirror the exceptions in the current scheme exist.

[89] Pursuant to Article 62 (1)( l) of the Withdrawal Agreement.

[90] HM Government, The Future Relationship with the EU, The UK’s Approach to Negotiations (February 2011), available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/868874/The_Future_Relationship_with_the_EU.pdf.

[91] Ibid. at para. 28.

[92] Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, at Article 185 (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/840655/Agreement_on_the_withdrawal_of_the_United_Kingdom_of_Great_Britain_and_Northern_Ireland_from_the_European_Union_and_the_European_Atomic_Energy_Community.pdf), last accessed 21 July 2020. Some EU Member States have constitutional rules that prohibit the extradition of their own nationals to countries outside the EU.

[93] Germany, Austria and Slovenia have confirmed that they will not extradite their own nationals to the United Kingdom during the transition period. Accordingly, if a national from one of these countries commits a crime in the United Kingdom and subsequently leaves the country, it will not be possible to prosecute them unless law enforcement agencies in those countries choose to do so. See ‘Declaration by the European Union made in accordance with the third paragraph of Article 185 of the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community’ (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:22020X0131(01)), last accessed 22 July 2020.

[94] Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, at para 51 (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/840655/Agreement_on_the_withdrawal_of_the_United_Kingdom_of_Great_Britain_and_Northern_Ireland_from_the_European_Union_and_the_European_Atomic_Energy_Community.pdf), last accessed 21 July 2020.

[95] European Union Committee, ‘Brexit: judicial oversight of the European Arrest Warrant’, (6th Report of Session 17–19, HL Paper 16).

[96] Ibid., at para. 73.

[97] Guernsey, the Isle of Man and Jersey.

[98] ss.49-50.

[99] For example, the Cayman Islands and Bermuda have committed to providing beneficial ownership registers by 2022.

[100] Some territories, such as the Cayman Islands, have reacted positively, declaring they will be compliant with a fully transparent company ownership register by 2022. Jersey, Guernsey and the Isle of Man have jointly made a similar commitment for public registers by 2023.

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