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8 Sending requests for assistance | |
(1) A request for assistance under section 7 may be sent— | |
(a) to a court exercising jurisdiction in the place where the evidence is | |
situated, or | |
(b) to any authority recognised by the government of the country in | 5 |
question as the appropriate authority for receiving requests of that | |
kind. | |
(2) Alternatively, if it is a request by a judicial authority or a designated | |
prosecuting authority it may be sent to the Secretary of State (in Scotland, the | |
Lord Advocate) for forwarding to a court or authority mentioned in subsection | 10 |
(1). | |
(3) In cases of urgency, a request for assistance may be sent to— | |
(a) the International Criminal Police Organisation, or | |
(b) any body or person competent to receive it under any provisions | |
adopted under the Treaty on European Union, | 15 |
for forwarding to any court or authority mentioned in subsection (1). | |
9 Use of evidence obtained | |
(1) This section applies to evidence obtained pursuant to a request for assistance | |
under section 7. | |
(2) The evidence may not without the consent of the appropriate overseas | 20 |
authority be used for any purpose other than that specified in the request. | |
(3) When the evidence is no longer required for that purpose (or for any other | |
purpose for which such consent has been obtained), it must be returned to the | |
appropriate overseas authority, unless that authority indicates that it need not | |
be returned. | 25 |
(4) In exercising the discretion conferred by section 25 of the Criminal Justice Act | |
1988 (c. 33) or Article 5 of the Criminal Justice (Evidence, Etc.) (Northern | |
Ireland) Order 1988 (S.I. 1988/ 1847 (N.I. 17)) (exclusion of evidence otherwise | |
admissible) in relation to a statement contained in the evidence, the court must | |
have regard— | 30 |
(a) to whether it was possible to challenge the statement by questioning the | |
person who made it, and | |
(b) if proceedings have been instituted, to whether the local law allowed | |
the parties to the proceedings to be legally represented when the | |
evidence was being obtained. | 35 |
(5) In Scotland, the evidence may be received in evidence without being sworn to | |
by witnesses, so far as that may be done without unfairness to either party. | |
(6) In this section, the appropriate overseas authority means the authority | |
recognised by the government of the country in question as the appropriate | |
authority for receiving requests of the kind in question. | 40 |
10 Domestic freezing orders | |
(1) If it appears to a judicial authority in the United Kingdom, on an application | |
made by a person mentioned in subsection (4)— | |
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(a) that proceedings in respect of a listed offence have been instituted or | |
such an offence is being investigated, | |
(b) that there are reasonable grounds to believe that there is evidence in a | |
participating country which satisfies the requirements of subsection | |
(3), and | 5 |
(c) that a request has been made, or will be made, under section 7 for the | |
evidence to be sent to the authority making the request, | |
the judicial authority may make a domestic freezing order in respect of the | |
evidence. | |
(2) A domestic freezing order is an order for protecting evidence which is in the | 10 |
participating country pending its transfer to the United Kingdom. | |
(3) The requirements are that the evidence— | |
(a) is on premises specified in the application in the participating country, | |
(b) is likely to be of substantial value (whether by itself or together with | |
other evidence) to the proceedings or investigation, | 15 |
(c) is likely to be admissible in evidence at a trial for the offence, and | |
(d) does not consist of or include items subject to legal privilege. | |
(4) The application may be made— | |
(a) in relation to England and Wales and Northern Ireland, by a constable, | |
(b) in relation to Scotland, by the Lord Advocate or a procurator fiscal. | 20 |
(5) The judicial authorities are— | |
(a) in relation to England and Wales, any judge or justice of the peace, | |
(b) in relation to Scotland, any judge of the High Court or sheriff, | |
(c) in relation to Northern Ireland, any judge or resident magistrate. | |
(6) This section does not prejudice the generality of the power to make a request | 25 |
for assistance under section 7. | |
11 Sending freezing orders | |
(1) A domestic freezing order made in England and Wales or Northern Ireland is | |
to be sent to the Secretary of State for forwarding to— | |
(a) a court exercising jurisdiction in the place where the evidence is | 30 |
situated, or | |
(b) any authority recognised by the government of the country in question | |
as the appropriate authority for receiving orders of that kind. | |
(2) A domestic freezing order made in Scotland is to be sent to the Lord Advocate | |
for forwarding to such a court or authority. | 35 |
(3) The judicial authority is to send the order to the Secretary of State or the Lord | |
Advocate before the end of the period of 14 days beginning with its being | |
made. | |
(4) The order must be accompanied by a certificate giving the specified | |
information and, unless the certificate indicates when the judicial authority | 40 |
expects such a request to be made, by a request under section 7 for the evidence | |
to be sent to the authority making the request. | |
(5) The certificate must include a translation of it into an appropriate language of | |
the participating country (if that language is not English). | |
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(6) The certificate must be signed by or on behalf of the judicial authority who | |
made the order and must include a statement as to the accuracy of the | |
information given in it. | |
The signature may be an electronic signature. | |
12 Variation or revocation of freezing orders | 5 |
(1) The judicial authority that made a domestic freezing order may vary or revoke | |
it on an application by a person mentioned below. | |
(2) The persons are— | |
(a) the person who applied for the order, | |
(b) in relation to England and Wales and Northern Ireland, a prosecuting | 10 |
authority, | |
(c) in relation to Scotland, the Lord Advocate, | |
(d) any other person affected by the order. | |
Assisting overseas authorities to obtain evidence in the UK | |
13 Requests for assistance from overseas authorities | 15 |
(1) Where a request for assistance in obtaining evidence in a part of the United | |
Kingdom is received by the territorial authority for that part, the authority | |
may— | |
(a) if the conditions in section 14 are met, arrange for the evidence to be | |
obtained under section 15, or | 20 |
(b) direct that a search warrant be applied for under or by virtue of section | |
16 or 17 or, in relation to evidence in Scotland, 18. | |
(2) The request for assistance may be made only by— | |
(a) a court exercising criminal jurisdiction, or a prosecuting authority, in a | |
country outside the United Kingdom, | 25 |
(b) any other authority in such a country which appears to the territorial | |
authority to have the function of making such requests for assistance, | |
(c) any international authority mentioned in subsection (3). | |
(3) The international authorities are— | |
(a) the International Criminal Police Organisation, | 30 |
(b) any other body or person competent to make a request of the kind to | |
which this section applies under any provisions adopted under the | |
Treaty on European Union. | |
14 Powers to arrange for evidence to be obtained | |
(1) The territorial authority may arrange for evidence to be obtained under section | 35 |
15 if the request for assistance in obtaining the evidence is made in connection | |
with— | |
(a) criminal proceedings or a criminal investigation, being carried on | |
outside the United Kingdom, | |
(b) administrative proceedings, or an investigation into an act punishable | 40 |
in such proceedings, being carried on there, | |
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(c) clemency proceedings, or proceedings on an appeal before a court | |
against a decision in administrative proceedings, being carried on, or | |
intended to be carried on, there. | |
(2) In a case within subsection (1)(a) or (b), the authority may arrange for the | |
evidence to be so obtained only if the authority is satisfied— | 5 |
(a) that an offence under the law of the country in question has been | |
committed or that there are reasonable grounds for suspecting that | |
such an offence has been committed, and | |
(b) that proceedings in respect of the offence have been instituted in that | |
country or that an investigation into the offence is being carried on | 10 |
there. | |
An offence includes an act punishable in administrative proceedings. | |
(3) The territorial authority is to regard as conclusive a certificate as to the matters | |
mentioned in subsection (2)(a) and (b) issued by any authority in the country | |
in question which appears to him to be the appropriate authority to do so. | 15 |
(4) If it appears to the territorial authority that the request for assistance relates to | |
a fiscal offence in respect of which proceedings have not yet been instituted, the | |
authority may not arrange for the evidence to be so obtained unless— | |
(a) the request is from a country which is a member of the Commonwealth | |
or is made pursuant to a treaty to which the United Kingdom is a party, | 20 |
or | |
(b) the authority is satisfied that if the conduct constituting the offence | |
were to occur in a part of the United Kingdom, it would constitute an | |
offence in that part. | |
15 Nominating a court etc. to receive evidence | 25 |
(1) Where the evidence is in England and Wales or Northern Ireland, the Secretary | |
of State may by a notice nominate a court to receive any evidence to which the | |
request relates which appears to the court to be appropriate for the purpose of | |
giving effect to the request. | |
(2) But if it appears to the Secretary of State that the request relates to an offence | 30 |
involving serious or complex fraud, he may refer the request (or any part of it) | |
to the Director of the Serious Fraud Office for the Director to obtain any | |
evidence to which the request or part relates which appears to him to be | |
appropriate for the purpose of giving effect to the request or part. | |
(3) Where the evidence is in Scotland, the Lord Advocate may by a notice | 35 |
nominate a court to receive any evidence to which the request relates which | |
appears to the court to be appropriate for the purpose of giving effect to the | |
request. | |
(4) But if it appears to the Lord Advocate that the request relates to an offence | |
involving serious or complex fraud, he may give a direction under section 27 | 40 |
of the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39) (directions | |
applying investigatory provisions). | |
(5) Schedule 1 is to have effect in relation to proceedings before a court nominated | |
under this section. | |
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