[Senate Treaty Document 104-2]
[From the U.S. Government Publishing Office]



   104th Congress 1st            SENATE              Treaty Doc.
         Session
                                                        104-2
_______________________________________________________________________



                                     




 
 TREATY WITH THE UNITED KINGDOM ON MUTUAL LEGAL ASSISTANCE ON CRIMINAL 
                                MATTERS

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

 THE TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND 
  THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN 
   IRELAND ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT 
  WASHINGTON ON JANUARY 6, 1994, TOGETHER WITH A RELATED EXCHANGE OF 
                       NOTES SIGNED THE SAME DATE




 January 23, 1995.--Treaty was read the first time and, together with 
the accompanying papers, referred to the Committee on Foreign Relations 
          and ordered to be printed for the use of the Senate
  

                         LETTER OF TRANSMITTAL

                              ----------                              

                                 The White House, January 23, 1995.
To the Senate of the United States:
    With a view to receiving the advice and consent of the 
Senate to ratification, I transmit herewith the Treaty Between 
the Government of the United States of America and the 
Government of the United Kingdom of Great Britain and Northern 
Ireland on Mutual Legal Assistance in Criminal Matters, signed 
at Washington on January 6, 1994, with a related exchange of 
notes signed the same date. Also transmitted for the 
information of the Senate is the report of the Department of 
State with respect to this Treaty.
    The Treaty is one of a series of modern mutual legal 
assistance treaties being negotiated by the United States in 
order to counter criminal activities more effectively. The 
Treaty should be an effective tool to assist in the prosecution 
of a wide variety of modern criminals, including members of 
drug cartels, ``white-collar criminals,'' and terrorists. The 
Treaty is self-executing.
    The Treaty provides for as broad range of cooperation in 
criminal matters. Mutual assistance available under the Treaty 
includes: (1) the taking of testimony or statements of 
witnesses; (2) the provision of documents, records, and 
evidence; (3) the service of legal documents; (4) the location 
or identification of persons; (5) the execution of requests for 
searches and seizures; and (6) the provision of assistance in 
proceedings relating to the forfeiture of the proceeds of crime 
and the collection of fines imposed as a sentence in a criminal 
prosecution.
    I recommend that the Senate give early and favorable 
consideration to the Treaty, and related exchange of notes, and 
give its advice and consent to ratification.
                                                William J. Clinton.
  

                          LETTER OF SUBMITTAL

                              ----------                              

                                       Department of State,
                                       Washington, January 6, 1995.
The President,
The White House.
    The President: I have the honor to submit to you the Treaty 
between the Government of the United States of America and the 
Government of the United Kingdom of Great Britain and Northern 
Ireland on Mutual Legal Assistance in Criminal Matters (the 
``Treaty''), signed at Washington on January 6, 1994, together 
with a related exchange of notes signed on the same date. I 
recommend that the Treaty and the related exchange of notes be 
transmitted to the Senate for its advice and consent to 
ratification.
    The Treaty covers mutual legal assistance in criminal 
matters. In recent years, similar bilateral treaties have 
entered into force with Argentina, the Bahamas, Canada, Italy, 
Mexico, Morocco, the Netherlands, Spain, Switzerland, Thailand, 
Turkey, the United Kingdom concerning the Cayman Islands, and 
Uruguay. Other similar treaties have been signed and ratified 
by the United States (but have not yet entered into force) with 
Belgium, Colombia, and Jamaica. In addition, treaties with 
Nigeria and Panama have been transmitted to the Senate and 
await Senate consideration. This Treaty contains many 
provisions similar to those in the other treaties.
    This Treaty will enhance our ability to investigate and 
prosecute drug-related money laundering offenses. It is 
designed to be self-executing and will not require implementing 
legislation.
    Article 1 provides for mutual assistance in 
``proceedings'', which is defined in Article 19 to include any 
measure taken in connection with the investigation or 
prosecution of criminal offenses, including the freezing, 
seizure, and forfeiture of proceeds and instrumentalities of 
crime and the imposition of fines related to a criminal 
prosecution.
    The Treaty does not contain a provision limiting assistance 
to offenses which are proscribed under the law of the Party 
from which assistance is requested (the ``Requested Party''). 
As clarified in the interpretative notes that accompany the 
Treaty, however, the Treaty does not apply to anti-trust or 
competition investigation or proceedings underway at the time 
the Treaty was signed. This exchange of notes also provides 
that the Central Authorities of the Parties may, at a later 
date, provide assistance in such proceedings as may be agreed 
in writing between the Parties.
    Article 1 further provides that assistance under the Treaty 
shall include: taking the testimony or statements or persons; 
providing documents, records, and evidence; serving documents; 
locating or identifying persons; transferring persons in 
custody for testimony or other purposes; executing requests for 
searches and seizures; identifying, tracing, freezing, seizing, 
and forfeiting the proceeds and instrumentalities of crime and 
assistance in related proceedings; and such other assistance as 
may be agreed between the Central authorities.
    Article 1 explicitly states that the Treaty does not create 
rights in private parties to obtain, suppress, or exclude 
evidence, or to impede the execution of a request.
    Article 2 provides for the establishment of Central 
Authorities and defines the Central Authorities for purposes of 
the Treaty. For the United States, the Central Authority is the 
Attorney General or a person designated by the Attorney 
General. For the United Kingdom, the Central Authority is the 
Secretary of State for the Home Department or the Secretary's 
designee. The article provides that requests under the Treaty 
shall be made directly between the Central Authorities.
    Article 3 sets forth the circumstances under which a Party 
may deny assistance under the Treaty, including requests 
related to certain military offenses, offenses of a political 
character, and requests relating to an offender who, if 
proceeded against in the Requested Party, would be entitled to 
be discharged on grounds of a previous acquittal or conviction. 
In addition, a Requested Party may also refuse assistance, if, 
in its view, the request, if granted, would impair its 
sovereignty, security, or other essential interests or would be 
contrary to important public policy. As clarified in the 
interpretative notes accompanying the Treaty, the limitation 
based on ``important public policy'' grounds would include a 
Requested Party's policy of opposing the exercise of 
jurisdiction which, in its view, is extraterritorial and 
objectionable.
    Before denying assistance, the Central Authority of the 
Requested State is required to consult with its counterpart in 
the Requesting State to consider whether assistance can be 
given subject to such conditions it deems necessary. If the 
Requesting State accepts assistance subject to conditions, it 
shall comply with the conditions.
    Article 4 prescribes the form and content of written 
requests under the Treaty, specifying in detail the information 
required in each case. The article specifies further 
information to be provided to the extent necessary and possible 
to assist in locating individuals and effecting particular 
types of assistance.
    Article 5 provides that a Request Party shall take whatever 
steps it deems necessary to give effect to requests from the 
other Party. Courts in the Requested State are empowered to 
issue subpoenas, search warrants, or other order orders 
necessary to execute such requests.
    Article 5 further states that requests be executed in 
accordance with the laws of the Requested State unless the 
Treaty provides otherwise. The method of execution specified in 
the request is to be followed to the extent that it is not 
incompatible with the laws and practices of the Requested 
Party. If the Central Authority of the Requested Party 
determines that execution of the request would interfere with 
ongoing proceedings or prejudice the safety of any person in 
its territory, it may postpone execution or, after 
consultations with the Requesting Party, impose conditions on 
such execution. If the Requesting Party accepts assistance 
subject to such conditions, it shall comply with them.
    Under Article 5, the Central Authority of the Requested 
Party shall promptly inform its counterpart in the Requesting 
Party of the outcome of the execution of a request. If a 
request is denied, a Central Authority shall inform its 
counterpart of the reasons for such denial.
    Article 6 apportions between the two States the costs 
incurred in executing a request. Generally, each State shall 
bear the expenses incurred within its territory of executing a 
request.
    Article 7 establishes procedures both for ensuring the 
confidentiality of requests and their contents. Upon request, 
the Requested Party shall keep confidential any information 
that might indicate that a request has been made or responded 
to. However, if a request cannot be executed without breaching 
confidentiality, the Requested State must inform the Requesting 
State, so that the Requesting State may determine whether to 
withdraw the request in order to maintain confidentiality. 
Article 7 further obliges the Requesting Party not to use or 
disclose any information or evidence obtained under the treaty 
for purposes unrelated to the proceedings stated in the request 
without the prior consent of the Requested Party. In the 
interpretative notes, the Parties recognize that these 
prohibitions will not prohibit a Requesting Party from 
disclosing such information to the extent there is an 
obligation to do so under that Party's Constitution or law. 
This last clarification was provided to ensure that the United 
States and the United Kingdom authorities would be in a 
position to make available exculpatory information to criminal 
defendants.
    Article 8 provides that the Requested Party may compel, if 
necessary, the taking of testimony or production of documents 
in its territory on behalf of the Requesting Party. In the 
event that a person whose testimony or evidence is being taken 
asserts a claim of immunity, incapacity, or privilege under the 
laws of the Requesting Party, the testimony or evidence shall 
be taken and the claim made known to the Requesting Party for 
resolution by its authorities.
    Article 8 also requires the Requested Party, upon request, 
to inform the Requesting Party in advance of the date and place 
of the taking of testimony. The Requested Party must also 
permit the presence of any persons specified in the request 
(such as the accused, counsel for the accused, or other 
interested person) and to permit such persons to question the 
person whose testimony is being taken, through a legal 
representative qualified to appear before the courts of the 
Requested Party. Finally, this article provides a mechanism for 
authentication of documentary evidence produced pursuant to 
this article and provides that no further authentication or 
certification shall be necessary in order for such information 
to be admissible in evidence in proceedings in the Requesting 
Party.
    Article 9 requires that the Requested Party provide the 
Requesting Party with copies of publicly available records of 
government departments and agencies. The Requested Party may 
further provide copies of other records or information in the 
possession of a government department or agency but not 
publicly available to the same extent and under the same 
conditions as it would to its own law enforcement or judicial 
authorities. The article requires official authentication of 
documents furnished, using forms appended to the Treaty and 
confirms their admissibility in evidence in the Requesting 
Party if so authenticated.
    Article 10 provides a mechanism for a Requesting Party to 
invite the voluntary appearance and testimony in its territory 
of a person located in the Requested Party. In such a case, the 
Central Authority of the Requested Party is required to invite 
the person to appear and promptly inform the Central Authority 
of the Requesting Party of the person's response. The request 
may state that the Requesting Party will assure the person 
shall not be subject to service of process or be detained or 
subjected to restriction of personal liberty, by reason of any 
acts or convictions which preceded his departure from the 
territory of the Requested Party. This safe conduct shall cease 
fifteen days after the Central Authority of the Requesting 
Party has notified its counterpart that the person's presence 
is no longer required, or if the person has left the territory 
of the Requesting Party and voluntarily returns to it.
    Article 11 provides for the voluntary transfer to one Party 
of a person in custody in the other Party, for purposes of 
assistance under the Treaty, provided that the person in 
question and both Parties agree. The article establishes the 
express authority and the obligation for the Requesting Party 
to maintain the person in custody unless otherwise authorized 
by the Requested Party. It further specifies the requirements 
for ensuring the person's safety and return to the Requested 
Party.
    Article 12 provides that the Requested Party shall use its 
best efforts to ascertain the location or identity of persons 
specified in a request and shall promptly notify the Requesting 
Party of the results of its inquiries.
    Under Article 13, a Requested Party shall, to the extent 
possible, effect service of process of any document requested 
under the Treaty, including subpoenas or other process 
requiring the appearance of any person before any authority or 
tribunal in the territory of the Requesting Party. Such 
service, however, does not impose an obligation under the law 
of the Requested Party to comply with such process. The article 
further requires that any request for the service of a document 
requiring a person to appear in the territory of the Requesting 
Party be transmitted a reasonable time before the scheduled 
appearance. The Requested Party is required to return proof of 
service.
    Article 14 obligates each Party to execute requests for 
search, seizure, and delivery of any article to the Requesting 
Party if the request includes the information justifying such 
action under the laws of the Requested Party and it is carried 
out in accordance with the laws of that Party. The Requested 
Party may refuse such a request if it relates to conduct for 
which its own powers of search and seizure would not be 
exercisable in a similar circumstance. The article further 
provides for the authentication and certification of evidence 
delivered under this article and provides that the Central 
Authority of the Requested Party may impose conditions on 
transfer to protect third party interests in the property.
    Article 15 obliges the Requesting Party to return any 
documents or articles furnished to it under this treaty unless 
the Central Authority waives such return.
    Article 16 obligates the Parties to assist each other in 
asset forfeiture proceedings. Specifically, the Parties agree 
to assist each other in proceedings involving the 
identification, tracing, freezing, seizure, or forfeiture of 
the proceeds and instrumentalities of crime and to assist each 
other in relation to proceedings involving the imposition of 
fines related to a criminal prosecution. Under this article, a 
Requested Party may transfer forfeited assets or the proceeds 
of their sale to the other Party to the extent permitted by the 
former's domestic law, upon such terms as may be agreed.
    Article 17 provides that assistance and procedures provided 
in this Treaty shall not prevent the Parties from providing 
assistance to each other through the provisions of other 
international agreements, national laws, or any other 
arrangement, agreement, or practice applicable between their 
law enforcement agencies.
    Article 18 provides that the Parties or their Central 
Authorities shall consult promptly at the request of either, 
concerning the implementation of this Treaty. Article 18 also 
contains novel consultative procedures to enable the Parties to 
have first recourse to the Treaty, with respect to any matter 
for which assistance could be granted under the Treaty, prior 
to the enforcement of a ``compulsory measure'' requiring an 
action to be performed by a person located in the territory of 
the other Party. The term ``compulsory measure'' is described 
with greater specificity in the interpretative notes. Under the 
consultative mechanisms for dealing with the enforcement of 
compulsory measures, if a Party is aware that its authorities 
are intending to take such compulsory measures, its Central 
Authority shall inform the other Central Authority, who may 
request consultations. Should a Central Authority learn that 
such measures may be taken in its territory, it may also 
request consultations. Ultimately, should consultations fail to 
resolve the matter, cause unreasonable delay, or jeopardize the 
successful completion of a proceeding, enforcement of the 
compulsory measure is not foreclosed. In such instance the 
Central Authority of the Party taking such action may give 
written notice to the other Central Authority of that 
circumstance. Article 18 finally provides for a general 
obligation of the parties to exercise moderation and restraint, 
even when the Parties' consultation obligations under this 
article are satisfied.
    In addition to the consultative mechanism for compulsory 
measures described above, the interpretative notes commit the 
U.S. Department of Justice, on behalf of the United States 
Government, to take certain specified practical measures to 
reduce the number of instances in which a conflict of laws, 
policies, or national interests may arise. Specifically, the 
notes state that the Department of Justice shall: (1) Instruct 
all federal prosecutors not to seek compulsory measures, as 
referred to in Article 18(2) with respect to any matter for 
which assistance could be granted under the Treaty unless the 
U.S. Central Authority has concluded that the consultative 
mechanisms in Article 18 have been satisfied; (2) instruct all 
federal prosecutors not to enforce any compulsory measures, as 
referred to in Article 18(2), with respect to any matter for 
which assistance could be granted under the Treaty unless the 
U.S. Central Authority has concluded that the consultative 
mechanisms in Article 18 have been satisfied; and (3) undertake 
to discourage the issue of compulsory measures by other U.S. 
Government agencies for evidence located in the United Kingdom 
in any matter covered by the Treaty by advising all such 
agencies not to seek such process without consultation and 
coordination with the United States Central Authority.
    Article 19 defines the term ``proceedings'', thus setting 
forth the matters for which the Parties will provide assistance 
under the Treaty. As noted above, the term ``proceedings'' 
means proceedings related to criminal matters and includes any 
measure or step taken in connection with the investigation or 
prosecution of criminal offenses, including the freezing, 
seizure or forfeiture of the proceeds and instrumentalities of 
crime, and the imposition of fines related to a criminal 
prosecution. Article 19 further provides that the Central 
Authorities may at their discretion treat as proceedings such 
hearings before or investigations by any court, administrative 
agency or administrative tribunal with respect to the 
imposition of civil or administrative sanctions as may be 
agreed in writing between the Parties.
    Article 20 sets forth the territorial application of the 
Treaty. With respect to the United Kingdom, the Treaty shall 
apply to England, Wales, Scotland, Northern Ireland, the Isle 
of Man, Channel Islands, and to any other territory for whose 
international relations the United Kingdom is responsible and 
to which this Treaty shall have been extended by agreement 
between the Parties.
    Article 21 provides that the treaty shall be ratified and 
shall enter into force upon an exchange of instruments of 
ratification.
    Article 22 provides for termination to be effective six 
months after written notice of termination is given by one 
party to the other Party.
    A Technical Analysis explaining in detail the provisions of 
the Treaty is being prepared by the United States negotiating 
delegation, consisting of representatives from the Departments 
of Justice and State, and will be transmitted separately to the 
Senate Committee on Foreign Relations.
    The Department of Justice joins the Department of State in 
favoring approval of this Treaty and related exchange of notes 
by the Senate as soon as possible.
            Respectfully submitted,
                                                Warren Christopher.