[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.