Individuals in Cross-Border Investigations or Proceedings: The UK Perspective

17.1 Introduction

In any cross-border investigation, invariably suspects will be located in different jurisdictions, subject to investigations by authorities from different jurisdictions, or both.

This chapter looks at the key issues that can arise when acting for an individual present in the United Kingdom and subject to criminal investigation or proceedings here and in one or more overseas jurisdictions.²

17.2 Cross-border co-operation

The United Kingdom might co-operate with overseas agencies or regulators in various ways when investigating or prosecuting an individual, ranging from informal ‘intelligence sharing’ to mutual legal assistance (MLA). The main domestic legislation governing MLA in the United Kingdom is the Crime (International Co-operation) Act 2003 (CICA), Part 1 of which deals with criminal cases.

The United Kingdom is party to a number of bilateral and multilateral MLA treaties. While it is not necessary for an MLA treaty to exist between the relevant countries for a request to be made under CICA, requests are more likely to be successful where a treaty basis exists. Before the United Kingdom’s exit from the European Union, there was concern over how co-operation with EU Member States would be governed following Brexit. On 24 December 2020, the United Kingdom and the European Union signed the UK-EU Trade and Co-operation Agreement (TCA), which includes specific provisions on co-operation and MLA, and facilitates the application between EU Member States and the United Kingdom of certain previous MLA treaties and conventions.³ While the TCA ensures there remains a strong co-operative relationship, certain investigative tools, such as European investigation orders,⁴ can no longer be used.⁵

MLA requests are usually made to the UK Central Authority (UKCA)⁶ through a formal international letter of request. The UK Home Office has published detailed guidance on how foreign authorities can make such requests.⁷ MLA requests will only be considered appropriate, however, when the request is for evidence (and not intelligence).⁸

A formal MLA request is not required where overseas police and other law enforcement agencies request assistance directly from their UK counterparts. A number of UK agencies⁹ can receive direct requests, and often this form of co-operation (also known as mutual administrative assistance) is governed by data sharing agreements or memoranda of understanding.

In some instances, cross-border co-operation may extend to the establishment of a joint investigation team (JIT) between investigating agencies in more than one country.¹⁰ Creating a JIT is another way information or evidence can be shared without the need for MLA.

17.3 Practical issues

17.3.1 Asset freezing and restraint

During a cross-border investigation, an overseas authority may use law enforcement co-operation to identify and trace an individual’s assets in the United Kingdom¹¹ and seek to freeze or restrain those assets. The Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (the 2005 Order) sets out the provisions for the United Kingdom to respond to and co-operate with other countries in freezing and confiscating assets.¹² Under section 444(1)(a) of the Proceeds of Crime Act 2002 (POCA), property in the United Kingdom can be frozen in accordance with an external request relating to proceedings for the recovery of criminal proceeds.¹³

In the first instance, external requests will be addressed to the Secretary of State for the Home Department (SSHD) who will in turn refer the matter to the relevant UK authority.¹⁴ The relevant authority will then apply to the Crown Court for the assets to be restrained. For the Court to give effect to an external request the property in England and Wales must be identified, a criminal investigation or proceedings relating to the relevant offence must have commenced in the requesting state and there must be reasonable cause to believe that the alleged offender has benefited from their criminal conduct.¹⁵ Furthermore, under section 447(8) of POCA, the criminal conduct must meet the dual criminality requirement, in that it must also amount to an offence in the United Kingdom, or would do so if it occurred here.

Where the Court is satisfied that these conditions are met, it may make a restraint order prohibiting a person from dealing with the property identified in the external request, subject to certain exceptions.¹⁶ A restraint order must be served on the suspect and any other person affected by it, and the Court will require confirmation that this has been done.

It is likely that any banks or financial institutions in the United Kingdom to which the individual is connected will be served with a copy of the restraint order to freeze any assets (ensuring that they remain available for confiscation).

17.3.2 Account monitoring orders

CICA implemented the 2001 Protocol to the Convention on Mutual Assistance in Criminal Matters (the 2001 Protocol), which created obligations for participating countries to respond to requests from overseas authorities for assistance locating bank accounts or to provide banking information relating to criminal investigations.¹⁷ The requirements of the 2001 Protocol now appear within Article 661 of the TCA in like terms. Account monitoring orders under CICA only apply to an investigation by a ‘participating country’ into serious criminal conduct.¹⁸

Account monitoring orders were first introduced in the United Kingdom under POCA. However, separate provisions were created under CICA to ensure that the United Kingdom could meet the wider requirements of the 2001 Protocol.

Where the SSHD receives a request from an overseas authority, they may direct a senior police officer to apply, or arrange for a constable to apply, for an account monitoring order.¹⁹ A judge can make an account monitoring order for up to 90 days where satisfied that there is an investigation into criminal conduct in the country in question and that the order is sought for the purposes of that investigation.²⁰ Applications can be made, without notice, to a judge in chambers.²¹ The court may discharge or vary an account monitoring order, but not on an application by the account holder.²²

An account monitoring order can also be requested under Part 5 of the Proceeds of Crime (External Investigations) Order 2014 for the purposes of a criminal investigation²³ or criminal proceedings.²⁴ The request must demonstrate reasonable grounds for believing that the account information requested is of substantial value to the overseas investigation, and that it is in the public interest for it to be provided.²⁵

17.3.3 Confiscation and forfeiture

Under the 2005 Order, property within the United Kingdom may be subject to confiscation proceedings following the receipt of an external order.²⁶

Upon receipt of an authenticated external order, the SSHD may refer it to the relevant UK authority²⁷ to process and make an application to the Crown Court.²⁸ The Court will give effect to an external order where certain conditions are met. Those conditions are that:

• the external order was made following a conviction of the person named in the order, and no appeal is outstanding;
• the external order is in force and there is no appeal outstanding;
• giving effect to the order would not be incompatible with the Convention rights²⁹ of the individual concerned; and
• the property is not subject to charges under the provisions set out in Article 21(6) of the 2005 Order.³⁰

Where the Crown Court decides to give effect to an external order, it must register it and provide for notice of the registration to be given to any person affected by it, who may apply to vary the order so that it applies to different property.³¹

Under Article 26 of the 2005 Order, the amount ordered to be paid is due on the date notice is given to the affected person. The Crown Court has discretion to allow for more time to pay.³²

17.3.4 Interviews

An individual suspected of criminal activity who is resident or present in the United Kingdom and whom the UK authorities wish to question in connection with a domestic investigation will be interviewed ‘under caution’. This is usually done voluntarily unless it is considered necessary to arrest the individual and there are legitimate reasons for doing so.³³ The interview will be conducted in accordance with the procedures laid down in the Police and Criminal Evidence Act 1984 (PACE) and the accompanying Code C. The suspect has a number of rights, including the right to have a UK lawyer present.³⁴

The question of whether the interview is admissible in proceedings in any other jurisdiction will depend on the laws of that country. This means that, in cross-border investigations, serious consideration must be given before any interview in the United Kingdom as to whether a suspect’s answers (or silence) may be admissible in any other investigating jurisdiction and, if so, the appropriate strategy to adopt.

When a suspect is resident in the United Kingdom, but is wanted for questioning by an overseas authority, the individual (or their legal advisers) may be approached with a request that the suspect travel to the requesting state for interview voluntarily.

In the absence of any such request, or if it is refused, the requesting authority can request via MLA that a statement be taken from the suspect on a voluntary basis. Alternatively, where the evidence needs to be taken on oath, or where the suspect refuses to co-operate, the request can be for the suspect to be compelled to attend court for questioning. Once before the court, the suspect can be questioned under oath, but retains the right against self-incrimination and may refuse to answer any question.³⁵

If a suspect consents to giving the overseas authority a statement voluntarily, or answers questions in court, this is likely to be admissible in any future proceedings in the requesting jurisdiction (subject to the applicable local law). Again, the question of whether statements are also admissible in proceedings in any other jurisdiction will depend on local laws, and serious consideration must be given to the implications.

Where the requesting state seeks to obtain evidence from a witness who is not a suspect in an investigation, the same MLA procedures can be used.

However, if it is believed that the witness will be unwilling to assist other than by compulsion, and assuming that the investigation is into a serious or complex fraud, or bribery or corruption, of the type that would fall under the remit of the Serious Fraud Office (SFO), an MLA request can be made to direct the SFO to obtain such evidence from the individual using its compulsory section 2 powers.³⁶ Answers obtained via this process (noting that a failure to comply with a compulsory power such as section 2 can amount to a separate criminal offence) are not generally admissible as evidence against the interviewee in criminal proceedings,³⁷ although they will inform the rest of the investigation.

Before granting the request, the requesting authority will be expected to provide an undertaking that any statement, or the contents of any interview, given by an individual pursuant to a compulsory section 2 notice will not be used in evidence against that person in any subsequent prosecution.³⁸

Practitioners should also consider the potential use by other jurisdictions of information provided in the United Kingdom by witnesses pursuant to authorities’ compulsory powers; for example, the use of compelled testimony, obtained in the United Kingdom, in criminal proceedings in the United States would likely amount to a breach of an individual’s privilege against self-incrimination.³⁹

17.3.5 Search and seizure

Under section 16 of CICA, an overseas authority can request the search or seizure of property in the United Kingdom. However, a request will not be granted automatically, even if a search warrant has been issued in the requesting country.

In the first instance, the UK authorities may choose to implement the request less invasively, such as by seeking the production of documents. Where the UK authorities accede to the request, an application must be made to the court for a warrant to be granted.

Under section 17 of CICA, a court in England and Wales may only issue a warrant at the request of an overseas authority if satisfied that (1) criminal proceedings have been instituted, or a person has been arrested during the course of a criminal investigation, outside the United Kingdom, (2) the offence at issue would constitute an indictable offence in England or Wales, and (3) there are reasonable grounds to suspect that the premises in question are occupied or controlled by that person and contain evidence relating to the offence.⁴⁰

An application for a search warrant must be supported by a written document, known as an information, setting out the factual basis on which the warrant is sought. Since search warrant applications are made ex parte, the officer making the application must furnish the court with the full facts at their disposal (including those that militate against the granting of a warrant).⁴¹

Where a warrant is granted, an officer from the executing UK authority may enter the property to seize and retain the evidence particularised in the warrant. All search warrants executed in the United Kingdom must comply with the requirements of PACE and the accompanying Code B.⁴² This includes a requirement to provide the occupier of the premises with a copy of the warrant. Failure to comply with the relevant requirements may leave the warrant vulnerable to challenge by way of judicial review.

Where evidence is seized under CICA, either the original or a copy will be sent via the UKCA to the requesting territory.⁴³ However, further considerations will apply in the event that the material seized is subject to legal professional privilege or constitutes ‘special procedure material’.⁴⁴

An individual may, however, hold privileged material belonging not only to themselves, but also to their current or former employer (such as legal advice given to the company or material generated during an internal investigation).⁴⁵ If such material is seized, the company benefiting from the privilege may wish to make representations to the authority receiving the material.

17.3.6 Production of documents

In cross-border investigations involving financial crime, the most common mechanism to compel individuals to provide information, whether by answering questions in interview or by producing documents, is through the SFO’s powers under section 2 of the Criminal Justice Act 1987.⁴⁶

In the recent case of R (KBR Inc) v. Serious Fraud Office,⁴⁷ the Supreme Court held that section 2 powers do not have extra­territorial effect; consequently, section 2 powers cannot be used to compel a foreign company that does not carry on business in the United Kingdom or have a UK presence to produce documents held outside the country. However, the position in respect of documents held overseas may be different where the recipient of a section 2 notice is a UK-registered company or a foreign company with a presence in the United Kingdom or carrying on business in the United Kingdom, or where an individual’s conduct abroad is concerned. Consideration should be given early in any cross-border investigation to what documents an individual possesses (whether in hard copy or electronically) and where they are held.

In addition, under section 20 of CICA, a participating country may request a freezing order in relation to evidence (this does not extend to property or money). Once evidence has been frozen it must be retained until instructions have been received to transfer that evidence to the requesting state, or to release it.⁴⁸

Under the Crime (Overseas Production Orders) Act 2019, ‘appropriate officers’⁴⁹ can apply to the Crown Court for an overseas production order⁵⁰ requiring a person based overseas in a country that is party to, or participates in, a ‘designated international co-operation arrangement’ to produce or give access to ‘electronic data’⁵¹ in his or her possession or control regardless of where it is stored. On 3 October 2019, the United Kingdom signed its first designated agreement with the United States pursuant to the US Clarifying Lawful Overseas Use of Data Act 2018.⁵² This is the only country with whom the United Kingdom has signed a designated international co-operation agreement. However, the system is not yet fully operational.

17.4 Extradition

In cross-border criminal investigations, suspects are often resident outside the jurisdiction conducting the investigation.⁵³ As such, a critical question will be whether, and how, they may be subjected to extradition. The answer lies in the legislation of, and arrangements between, the requesting and requested states.

Since the United Kingdom’s exit from the European Union, extradition between the two is governed by Title VII to Part 3 of the TCA⁵⁴ and its obligations are implemented through the Extradition Act 2003 (the 2003 Act) as amended. The relevant ‘surrender’ provisions of the TCA replace the previous European Arrest Warrant (EAW) Framework but, for anyone arrested (or provisionally arrested) in the United Kingdom before 11pm on 31 December 2020 pursuant to an EAW, the extradition process will continue to follow the previous EAW Framework and the 2003 Act in its unamended form.⁵⁵ If an EAW was issued before 1 January 2021 but the requested person was not arrested before this date, the EAW will be treated as a Part 1 warrant as detailed below.

The 2003 Act is divided into two parts. Part 1 applies to requests made by ‘category 1 territories’ (EU Member States and Gibraltar) through the TCA procedure.⁵⁶ Part 2 applies to requests made by ‘category 2 territories’, namely those other countries with which the United Kingdom has extradition relations.⁵⁷

17.4.1 Extradition from the UK – category 1 territories

Title VII to Part 3 of the TCA largely mirrors the EAW Framework and, therefore, Part 1 of the 2003 Act remains a fast-track procedure allowing the requesting state to secure the return of a requested person quickly and effectively.

The National Crime Agency certifies a Part 1 warrant on receipt from the requesting state before liaising with the Crown Prosecution Service (CPS) for advice on the validity and content of the request.

The requesting state must identify the offence or offences that the requested person is accused of committing and confirm that the Part 1 warrant is issued with a view to his or her arrest and extradition for the purpose of prosecution or, where the requested person has been convicted, for the purpose of being sentenced or to serve a sentence already passed. The information must include details such as the requested person’s identity and particulars of the alleged offence or conviction. Failure to comply with these requirements invalidates the Part 1 warrant.⁵⁸

Following the certification of the Part 1 warrant, it may be executed and the requested person arrested⁵⁹ (provisional arrest may also be carried out if there are reasonable grounds for believing a Part 1 warrant has been or will be issued by a competent authority).⁶⁰

On arrest, the individual will initially be taken to a police station and held there under the provisions of PACE and the accompanying Code C. The individual has various rights, including the right to have someone informed of the arrest, the right to free independent legal advice and the right to consult privately with a solicitor. A formal custody record will be opened, but the individual will not be interviewed as it is not the role of the police to investigate the offence. However, given the significance of identification to the extradition process, finger­prints, non-intimate samples and photographs may be obtained in accordance with PACE Code D.⁶¹

Following the requested person’s arrest and initial detention, they must be brought before a court⁶² ‘as soon as practicable’ for an initial hearing and fixing of the extradition hearing within the next 21 days.⁶³ Depending on the day and time of the arrest, this requirement can mean that the individual spends only hours in police detention before being brought before the court although, if arrested at the weekend, it can mean spending up to two nights in police custody.

At the extradition hearing, the judge must be satisfied that the alleged conduct constitutes an extraditable offence⁶⁴ and that no bar to extradition applies. If the judge orders extradition, and in the absence of any appeal, the requested person must be extradited within 10 days of the order, or later if agreed with the requesting state.⁶⁵

Either party may appeal the judge’s decision to the High Court.⁶⁶ Thereafter, an appeal may be made to the Supreme Court if the matter concerns a point of law of general public importance.⁶⁷

17.4.2 Extradition from the UK – category 2 territories

Part 2 of the 2003 Act provides for the extradition to those territories not in category 1 with which the United Kingdom has bilateral or multilateral extradition treaties.⁶⁸ These territories are usually required to provide prima facie evidence of the case against the requested person unless they are signatories to the European Convention on Extradition,⁶⁹ or the United States, New Zealand, Australia or Canada.

If a requested person’s extradition is sought so that the person stands trial, the request must be certified by the SSHD as being valid before being sent to the appropriate judge.⁷⁰ The judge then considers whether there are reasonable grounds to issue an arrest warrant,⁷¹ which include that the evidence produced would justify the issue of a warrant for the individual’s arrest if it were a domestic case.⁷²

Once an arrest warrant has been issued and executed, the requested person must be brought before the magistrates’ court as soon as practicable.⁷³ Unless the requested person consents to extradition, the court will fix a date for the extradition hearing, usually within two months, and decide whether to grant bail.⁷⁴

At the extradition hearing, the judge must first consider the sufficiency of the extradition request and supporting documentation. If the documents do not meet the requirements set out in section 78(2) of the 2003 Act, the judge must discharge the person whose extradition is sought.⁷⁵ Where the judge is satisfied that the requirements have been met, they will consider whether the person before the court is the requested person, the offences specified are extraditable and copies of the documents have been served on the person.⁷⁶ In cases where prima facie evidence must be provided, the judge must then decide if the evidence supporting the request is ‘sufficient to make a case’.⁷⁷

If the judge is satisfied that all the conditions have been met, and that no bars to extradition exist, the matter is referred to the SSHD for a decision whether to extradite. Representations may be made by the requested person to the SSHD for consideration.

The judge’s decision to refer may be appealed within 14 days of the date of the decision and thereafter appeals may be lodged with the High Court or, if appropriate, the Supreme Court.

17.4.3 Extradition from the UK – other territories

For countries that are neither category 1 nor category 2 territories, section 194 of the 2003 Act allows the SSHD to certify that ‘special extradition’ arrangements have been made between the United Kingdom and that country for the extradition of a person. These special arrangements must comply with the 2003 Act’s Part 2 procedures.

In addition, a territory party to an international convention to which the United Kingdom is also a party may, under section 193, be designated a territory to which Part 2 applies.⁷⁸

17.4.4 Bars to extradition

Under the 2003 Act, a properly issued extradition request will be honoured, unless one of the bars to extradition applies.

Sections 11 and 79 of the 2003 Act set out specific bars to extradition for Part 1 and Part 2 requests, respectively. These include the rule against double jeopardy, extraneous considerations and the passage of time.

In addition to the specific bars, there are a number of general bars, as detailed below.

17.4.4.1 The human rights bar

Under sections 21, 21A (Part 1 cases) and 87 (Part 2 cases), the judge must determine ‘whether extradition would be compatible with the requested person’s Convention rights’ within the meaning of the Human Rights Act 1998.⁷⁹ A request may be refused where it is shown that there are substantial grounds to believe that the requested person, if extradited, faces a ‘real risk of exposure to inhuman or degrading treatment or punishment’⁸⁰ contrary to Article 3 of the European Convention on Human Rights (ECHR) (for example, in relation to prison conditions in the requesting state); or that the interference with the private and family lives of the requested person, and members of his or her family, outweighs the public interest in extradition.⁸¹ Arguments under Article 5 (the right to liberty and security)⁸² and Article 6 (right to a fair trial)⁸³ of the ECHR can also be raised under the human rights bar.

17.4.4.2 The proportionality bar

This bar applies to Part 1 cases only.⁸⁴ When considering a request, the judge may consider the seriousness of the alleged conduct, the likely penalty to be imposed and whether there are alternatives to extradition.

17.4.4.3 The forum bar

The forum bar provides that extradition may be barred if it would not be in the interests of justice.⁸⁵ This will be considered where the nature of the criminal conduct means that the alleged offence could potentially be prosecuted in more than one country, and is particularly relevant to parallel or cross-border investigations. It was introduced into the 2003 Act by the Crime and Courts Act 2013 as a result of concern, in particular in the context of extraditions to the United States, and has been in force as a bar to extradition since October 2013.

Extradition would not be in the interests of justice if the judge decides that a substantial measure of the criminal activity took place in the United Kingdom having regard to ‘specified matters’. The specified matters include consideration of:

• where most of the loss or harm occurred or was intended to occur;
• the interests of any victims;
• any belief of a prosecutor that the United Kingdom is not the most appropriate jurisdiction in which to prosecute;
• desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction;
• and the requested person’s connections with the United Kingdom.⁸⁶

The forum bar has been successfully invoked on several occasions concerning extradition to the United States (Love, Scott, McDaid and Taylor)⁸⁷ but the court has more recently rejected a forum bar argument advanced in the high-profile extradition proceedings relating to Mike Lynch, who is sought for trial in the United States in relation to fraud charges (although this decision is subject to appeal).

17.5 Settlement considerations

The scope for an individual to settle cross-border investigations or proceedings is in practice limited and will realistically arise either in circumstances where the individual can obtain an immunity from prosecution or where his or her co-operation in one jurisdiction (whether or not involving a guilty plea) effectively resolves the investigations in other jurisdictions.

Sections 71 to 75 of the Serious Organised Crime and Police Act 2005 set out the statutory framework in which an individual may enter into such an agreement with a UK prosecutor.⁸⁸

Under section 71, a designated prosecutor⁸⁹ may grant a suspect immunity from prosecution subject to certain conditions which, if breached, will ordinarily result in the immunity being revoked. These conditions invariably require a suspect’s full co-operation with the prosecuting authority in the United Kingdom (and, where applicable, with overseas authorities).

Whereas section 71 grants immunity from prosecution, section 73 requires an individual to plead guilty to the offence, but enables the court to take into consideration the assistance the individual has provided to the authorities. This will often result in a substantial reduction in sentence.⁹⁰ A section 73 agreement is often referred to as a ‘co-operating defendant’ agreement and, in practice, in cross-border investigations will require the individual to co-operate also with overseas authorities.

Unlike in other jurisdictions, a deferred prosecution agreement (DPA) can only be concluded between the SFO or CPS⁹¹ and a suspect corporate entity; there is no provision for an individual to enter into a DPA.⁹² The use to which the SFO or CPS can put the information it obtains during the DPA negotiations against others, including individuals employed by the corporate entity, is unrestricted.⁹³ This means that an employee suspect is at risk of having his or her position compromised as a result of the employer’s co-operation.⁹⁴

If a corporate entity with which the client is connected enters into a DPA, the client may be named in the published statement of facts that underpins the DPA. A third party does not have to be notified that he or she may be so named and the terms of a DPA and the supporting statement of facts cannot be altered or modified once approved by the court.⁹⁵

If there are existing or anticipated criminal proceedings against individuals, relevant names will be anonymised, or restrictions will be imposed on the publication of the statement of facts,⁹⁶ to avoid the risk of the DPA causing prejudice to those proceedings.

17.6 Reputational considerations

Throughout parallel or cross-border investigations or proceedings, those representing an individual must always consider the potential impact on the client’s reputation. Matters are complicated where the individual may have a low profile in one jurisdiction, but be well known in another, or, despite having a low media profile, may have become embroiled in a highly public investigation.

Associated issues can arise where the individual is included in a due diligence database, such as World Check or World Compliance. Entry in these databases, which are largely based on open source (and sometimes unreliable) material, can have a profound effect on an individual’s ability to access financial services, but representations can sometimes be made to seek to amend a client’s profile.

As regards criminal investigations, the UK courts have affirmed that, as a starting point, a suspect should not be named by the press.⁹⁷ However, in the context of cross-border investigations, different jurisdictions will have different rules on publishing a suspect’s identity such that an individual who avoids having their details published by the UK press may nevertheless find themselves named overseas. Furthermore, different considerations will apply where, for example, an individual is charged in a criminal investigation (as opposed to being merely under suspicion) or, in the context of FCA proceedings, ‘identified’ in corporate decision notices.⁹⁸

Footnotes

¹ Richard Sallybanks is a partner, and Anoushka Warlow and Alex Swan are senior associates at BCL Solicitors LLP. The authors would like to thank Greta Barkle (associate) and Evgeni Voznoi (legal assistant) for their assistance in updating this chapter.

² Whereas England and Wales have a common legal system, there are certain substantive and procedural differences in the Scottish and Northern Irish systems. This chapter focuses on the English and Welsh legal system.

³ In particular, the 1959 European Convention on Mutual Assistance in Criminal Matters, the 1978 Additional Protocol to the European Mutual Assistance Convention and the 2001 Second Additional Protocol to the European Mutual Assistance Convention.

⁴ A European investigation order is made by a judicial authority in one EU Member State to have specific investigative measures carried out in another. Its purpose is to facilitate and speed up assistance in criminal investigations provided between Member States.

⁵ In addition, the United Kingdom no longer has access to the Schengen Information System or the European Criminal Records Information System.

⁶ The UKCA is the Home Office department responsible for receiving, acceding to and ensuring the execution of MLA requests in England, Wales and Northern Ireland. Her Majesty’s Revenue and Customs (HMRC) is responsible for MLA requests in England, Wales and Northern Ireland relating to tax and fiscal customs matters. The Crown Office is responsible for MLA requests in Scotland, including devolved Scottish matters.

⁷ https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/415038/MLA_Guidelines_2015.pdf. Following Brexit, the provisions of the EU Framework Decisions 2003/577/JHA (on Mutual Recognition of Freezing Orders) and 2006/783/JHA (on Mutual Recognition of Confiscation Orders) and the replacement Regulation 2018/1805 no longer apply to the UK. As such, requests for assistance from or to EU Member States in relation to restraint and confiscation should be made under the provisions of Title XI of Part 3 of the UK–EU Trade and Cooperation Agreement.

⁸ Crime (International Co-operation) Act 2003, s.7(2).

⁹ These are: the UK Liaison Bureau at Europol via the National Crime Agency (although the United Kingdom is no longer a member of Europol following Brexit, the UK’s ongoing co-operation with Europol is provided for within Title V of Part 3 of the UK–EU Trade and Cooperation Agreement); Interpol via the National Crime Agency; UK Visas and Immigration; HMRC; Police Services; Financial Intelligence Units; Asset Recovery Offices.

¹⁰ Police Act 1996, s.88, (as amended by sections 103 and 104 of the Police Reform Act 2002), and the International Joint Investigation Teams (International Agreements) (EU Exit) Order 2019/274.

¹¹ Any information concerning asset tracing should be sought through police co-operation and financial intelligence units before an MLA request is made. The Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005, at Articles 202 to 207, governs how property or sums of money specified in external orders may be traced and recovered.

¹² The Order is made in exercise of the powers conferred under Proceeds of Crime Act 2002, ss.444 and 459(2).

¹³ An external request is a request by an overseas authority to prohibit dealing with property identified in the request: Proceeds of Crime Act 2002, s.447(1).

¹⁴ The relevant authority will be the Director of the National Crime Agency or the Director of Public Prosecutions and, in respect of offences involving serious or complex fraud or bribery, the Director of the Serious Fraud Office: Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005, Article 6.

¹⁵ Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005, Article 7.

¹⁶ ibid., Article 8.

¹⁷ Crime (International Co-operation) Act 2003, ss.32 to 36.

¹⁸ Participating countries for this purpose include Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Ireland, Italy, Latvia, Lithuania, Malta, the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United States.

¹⁹ An account monitoring order is made by a judge to enable transactions on a particular account to be monitored for a specified period: Crime (International Co-operation) Act 2003, s.35.

²⁰ Crime (International Co-operation) Act 2003, s.36.

²¹ ibid.

²² ibid.

²³ Provided that the investigation falls within a confiscation investigation or a civil recovery investigation.

²⁴ Proceeds of Crime Act 2002,Part 8, .

²⁵ Proceeds of Crime (External Investigations) Order 2014, Article 30, .

²⁶ An external order is made by an overseas court where property is found, or believed to have been obtained, as a result of, or in connection with, criminal conduct: Proceeds of Crime Act 2002, s.447(2)(b).

²⁷ The relevant authority will be the Director of the National Crime Agency or the Director of Public Prosecutions, and, in respect of offences involving serious or complex fraud or bribery, the Director of the Serious Fraud Office: Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005, Article 18.

²⁸ ibid., Article 20.

²⁹ The United Kingdom’s ongoing commitment to the European Convention on Human Rights is set out in the UK–EU Trade and Cooperation Agreement, Article 524.

³⁰ The fourth condition is that the specified property must not be subject to a charge under: Drug Trafficking Offences Act 1986, s.9; Criminal Justice Act 1988, s.78; Criminal Justice (Confiscation) (Northern Ireland) Order 1990, Article 14; Drug Trafficking Act 1994, s.27; or Proceeds of Crime (Northern Ireland) Order 1996, Article 32.

³¹ Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005, Article 22.

³² ibid., Article 26.

³³ Such as a reasonable belief that, unless placed under arrest, the suspect will abscond from the jurisdiction or will attempt to improperly interfere with the investigation: Police and Criminal Evidence Act 1984, s.24 and Code G.

³⁴ Police and Criminal Evidence Act 1984, Code C, para. 6.

³⁵ A person cannot be compelled to give any evidence before a court that they could not be compelled to give in criminal proceedings in the United Kingdom or in criminal proceedings in the requesting state: Crime (International Co-operation) Act 2003, Schedule 1, para. 5.

³⁶ Criminal Justice Act 1987, s.2,. The Financial Conduct Authority has a similar power under the Financial Services and Markets Act 2000, s.171.

³⁷ Answers given in compelled interviews will, however, be admissible against the interviewee in most types of non-criminal proceedings.

³⁸ Saunders v. The United Kingdom [1996] ECHR 65, para. 68 in particular.

³⁹ United States v Allen No. 16-898 (2d Cir. 2017).

⁴⁰ Crime (International Co-operation) Act 2003, s.17(3).

⁴¹ R (Energy Financing Team) v. Bow Street Magistrates’ Court [2006] 1 WLR 1317.

⁴² Police and Criminal Evidence Act 1984, s.15(6) specifies what a warrant should contain.

⁴³ Crime (International Co-operation) Act 2003, s.9.

⁴⁴ Special procedure material includes journalistic material, or material acquired or created in the course of any trade, business, profession or other occupation, which is held subject to a duty of confidentiality: Police and Criminal Evidence Act 1984, s.14.

⁴⁵ The decision in The Director of the Serious Fraud Office v. Eurasian Natural Resources Corporation [2018] EWCA Civ 2006 clarified the scope of material that might arguably be subject to legal professional privilege.

⁴⁶ Equivalent powers exist under the Financial Services and Markets Act 2000, Part XI in respect of FCA investigations and Serious Organised Crime and Police Act 2005, s.62 in respect of National Crime Agency, HMRC and police investigations into ‘specified offences’.

⁴⁷ [2021] 2 WLR 335.

⁴⁸ Crime (International Co-operation) Act 2003, s.24.

⁴⁹ The ‘appropriate officers’ include a constable, an officer of HMRC, a member of the SFO and a person appointed by the Financial Conduct Authority: Crime (Overseas Production Orders) Act 2019, s.2(1)(a).

⁵⁰ The requirements of which the Crown Court judge must be satisfied before granting an overseas production order are set out in the Crime (Overseas Production Orders) Act 2019, s.4.

⁵¹ ‘Electronic data’ is broadly defined within the Crime (Overseas Production Orders) Act 2019 as ‘any data stored electronically’, although Overseas Production Orders cannot require the production of material that is protected by legal professional privilege, or personal confidential records (s.3). Further, the agreement reached between the United Kingdom and United States limits the use of overseas production orders to those sought against ‘communication service providers’, defined in the agreement as an entity (or persons processing data on its behalf) providing certain services to the public, for example, big technology and social media companies providing a public platform for communications.

⁵² Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America on Access to Electronic Data for the Purpose of Countering Serious Crime, USA No. 6 (2019).

⁵³ The focus of this chapter is on extradition from the United Kingdom. However, individuals wanted by overseas authorities may be the subject of an Interpol red notice. Red notices can be issued on the basis that the individual is sought for prosecution or to serve a sentence. Once issued, a red notice alerts police and border officials around the world, and therefore affected individuals may encounter difficulties when travelling internationally, even if they are not subject to an investigation or arrest warrant in the jurisdiction they are travelling from or to. For more information, see https://www.interpol.int/INTERPOL-expertise/Notices/Red-Notices. Additionally, as a result of the Extradition (Provisional Arrest) Act 2020, the mere issuance of a red notice by Interpol at the request of Australia, Canada, Liechtenstein, New Zealand, Switzerland and the United States is now sufficient to warrant the arrest of the concerned individual in the United Kingdom.

⁵⁴ Implemented domestically by the European Union (Future Relationship) Act 2020, the UK–EU Trade and Cooperation Agreement sets out the United Kingdom’s extradition arrangements with the 27 EU Member States following the United Kingdom’s departure from the previous European Arrest Warrant Framework.

⁵⁵ Polakowski v. Westminster [2021] EWHC 53 (Admin).

⁵⁶ Extradition Act 2003 (Designation of Part 1 Territories) Order (SI 2003/3333), as amended.

⁵⁷ Extradition Act 2003 (Designation of Part 2 Territories) Order (SI 2003/3334).

⁵⁸ Extradition Act 2003, s.2.

⁵⁹ ibid., s.3.

⁶⁰ ibid., s.5. A person subject to provisional arrest must be brought before the appropriate judge within 48 hours and an application for discharge must be granted if a certified warrant is not produced within that time frame: ibid., s.6.

⁶¹ ibid., ss.166 to 168.

⁶² In England and Wales, cases are heard at Westminster Magistrates’ Court.

⁶³ Extradition Act 2003, ss.4 and 8.

⁶⁴ ibid., ss.64 and 65.

⁶⁵ ibid., s.35.

⁶⁶ ibid., ss.26 to 29.

⁶⁷ ibid., s.32.

⁶⁸ A list of category 2 territories is provided at https://www.gov.uk/guidance/extradition-processes-and-review.

⁶⁹ https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/024/signatures?module=signatures-by-treaty&treatynum=024.

⁷⁰ Extradition Act 2003, ss.69 and 70.

⁷¹ ibid., s.71.

⁷² ibid., ss.137 and 138.

⁷³ ibid., s.71.

⁷⁴ A defendant in extradition proceedings has the right to bail unless alleged to be unlawfully at large after a conviction in the requesting territory: Extradition Act 2003, s.198. However, the usual grounds for refusing bail under the Bail Act 1976 apply together with an additional ground of refusal where the conduct constituting the extradition offence is an offence under UK law and appears to have been committed while the defendant was on bail.

⁷⁵ Extradition Act 2003, s.78.

⁷⁶ ibid.

⁷⁷ ibid., s.84(1). This requires the judge to have regard to all the admissible evidence before the court, including evidence called by the requested person, to determine whether the judge is satisfied that there is evidence upon which the requested person could be convicted at a ‘summary trial of an information’ against the person: Devani v. Republic of Kenya [2015] EWHC 3535 (Admin).

⁷⁸ The Extradition Act 2003 (Parties to International Conventions) Order 2005 provides that a state will only be designated a category 2 territory in this way in relation to conduct to which the convention applies, e.g., drug trafficking offences in contravention of the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

⁷⁹ Extradition Act 2003: ss.21(1) and 21A(1)(a) (Part 1 cases) and s.87(1) (Part 2 cases).

⁸⁰ Soering v. United Kingdom (1989) 11 EHRR 439.

⁸¹ HH v. Deputy Prosecutor of the Italian Republic, Genoa (2012) 3 WLR 90 summarised the conclusions of Baroness Hale re: case law interpreting Article 8 of the European Convention on Human Rights.

⁸² Shankaran v. India (2014) EWHC 957 (Admin).

⁸³ Vincent Brown aka Vincent Bajinja, et al. v. The Government of Rwanda, The Secretary of State for the Home Department (2009) EWHC 770 (Admin).

⁸⁴ Extradition Act 2003, s.21A.

⁸⁵ ibid., s.19B (Part 1 cases) and s.83A (Part 2 cases).

⁸⁶ ibid., s.19B(3) (Part 1 cases) and s.83A(3) (Part 2 cases).

⁸⁷ Love v. Government of the United States and another [2018] EWHC 172 (Admin), Scott v. Government of the United States of America [2018] EWHC 2021 (Admin), United States v. McDaid [2020] EWHC 1527 (Admin) and Government of the United States of America v. Taylor.

⁸⁸ In this context, ‘the United Kingdom’ refers to England, Wales and Northern Ireland.

⁸⁹ Defined by the Serious Organised Crime and Police Act 2005, s.71(4), as a prosecutor from the CPS, HMRC, SFO or the Director of Public Prosecutions of Northern Ireland.

⁹⁰ R v. Dougall [2010] EWCA Crim 1048.

⁹¹ The SFO and the CPS are currently the only authorities authorised to enter into DPAs: Crime and Courts Act 2013, Schedule 17, para. 3(1).

⁹² Crime and Courts Act 2013, Schedule 17, para. 4(1).

⁹³ ibid., Schedule 17, para. 13(6).

⁹⁴ In trying to put itself into a position where it can reach a DPA, the corporate entity will be anxious to demonstrate its co-operation with the concerned authority. Co-operation is a public interest factor militating against prosecution under the joint SFO and CPS Code of Practice: DPA Code of Practice, para. 2.8.2(i), Crime and Courts Act 2013.

⁹⁵ SFO v. Tesco Stores Limited [2019] EW Misc 1 (Crown C), para. 4.

⁹⁶ For example, the DPA in SFO v. Sarclad Limited [2016] Lloyd’s Rep FC 509 (formerly referred to as SFO v. XYZ Ltd).

⁹⁷ Richard v. The British Broadcasting Corporation (BBC) & Anor [2018] EWHC 1837 (Ch), paras. 248–51; and ZXC v. Bloomberg [2020] EWCA Civ 611, paras. 81–84.

⁹⁸ Financial Conduct Authority v. Macris [2017] UKSC 19.