166 [1992] 1 All ER 317.
167 Ibid,p 332.
168 [1998] 2 Cr App R 16.
169 (2000)The Times,23 May.
170 For further discussion of this topic, seeop cit,Gane and Mackarel, note 12.
171 See, eg, the USA-UK Treaty concerning the Cayman Islands and Mutual LegalAssistance in Criminal Matters, Art 17, 26 ILM (1987), 536, which forbids US courts to use compulsory measures to obtain documents located outside the jurisdiction. Worthy of note is UN Model Treaty on MutualAssistance in Criminal Matters, Art 8, which provides limitations on the use and transfer of evidence. Unless consent is obtained from the requested State, the evidence may only be used in connection with investigations set out in the request.
172 832 F 2d 1268 (1987), US Ct of Appeals for the District of Columbia.
Governments.173The appellant refused to comply with a subpoena to appear before a US court to produce documents relating to Swiss companies. Rejecting the argument that compliance with the request would be contrary to Swiss secrecy laws and in breach of international comity, the court held that it could ‘order any party within its jurisdiction to testify or produce documents regardless of a foreign sovereign’s view to the contrary’.174Support for the court’s decision can be found in Art 38(1), which states that the treaty would not prevent or restrict the use of procedures available under municipal law.
A similar approach towards international comity was adopted by the Court of Appeals inRe Grand Jury Proceedings; Marsoner v USA,175where, in the absence of any formal legal assistance arrangements with Austria, the District Court ordered the appellant to sign a disclosure directive to act as consent under Austrian law for obtaining documents from bank accounts. The appellant refused to sign and was fined and imprisoned for contempt. On appeal, the appellant argued that the disclosure order violated his rights under the fourth and fifth Amendments of the US Constitution, and Austrian law. After dismissing these claims, the Court of Appeals held that, despite the order of the District Court compelling the appellant to sign the disclosure directive breaching Austrian law and Arts 3, 6 and 8 of the European Convention on Human Rights, international comity did not preclude its enforcement. The court balanced the interests of the US in collecting its taxes against the purported illegality of the order under Austrian law and considerations of bank secrecy and upheld the interests of the US in compelling the appellant’s signature, leaving Austrian courts to decide what effect to give the disclosure directive with respect to Austrian bank records. The decision of the Court of Appeals shows little concern for international comity. Some disquiet has been expressed with respect to the extra-territoriality approach taken by the US courts. Following attempts by the US Court of Appeals to use coercive measures against a bank to obtain confidential documents in the Cayman Islands, the UK insisted on the inclusion of a specific provision forbidding the use of extra-territorial coercive measures by US courts. In this case, a fine was imposed on the bank for failure to comply with an order from the US court, despite the fact that compliance with the request would have been in breach of local law.176The UK reacted by insisting that an agreement to combat narcotics in 1984,177and subsequently the MLAT, signed two years later,178contained a variety of restrictions on assistance, including provisions designed to prevent
‘fishing expeditions’ for information.179
173 1973 USA-Switzerland Treaty on Mutual Assistance in Criminal Matters.
174 See n 173, p 1283.
175 40 F 3d 959 (1994), 9th Cir, US Ct of Appeals.
176 USA v Bank of Nova Scotia,740 F 2d 817.
177 Exchange of Letters of 26 July 1984 Between the USA and UK Concerning the Cayman Islands and Matters Connected with, Arising From, Related to, or Resulting From any Narcotics Activity Referred to in the Single Convention on Narcotic Drugs, 1961,as amended by theProtocol Amending the Single Convention on Narcotic Drugs, 1961, Art 6,Cmnd 9344, 1984.
178 1986 US-UK Treaty Relating to the Cayman Islands, Art 17(3).
179 For a good summary to the background to and content of the Cayman Islands agreements seeop cit, Gilmore, note 1, pp xx–xxiii.
The reluctance of national courts to insist that the exchange of evidence takes place under formal arrangements has encouraged prosecuting authorities to engage in more informal methods of evidence gathering.180However, inRadak,181the Court ofAppeal refused to sanction the prosecution’s failure to make use of available mutual legal assistance procedures intended to safeguard defence rights. In this case, the prosecution could have issued a letter requesting assistance in obtaining the witness’s written testimony for use in criminal proceedings in the UK. On receipt of a formal letter of request, the US authorities provide assistance in accordance with the provisions of the treaty between the Government of the UK of Great Britain and Northern Ireland and the Government of the US on mutual legal assistance in criminal matters. Article 8(4) provides that a requested party shall allow persons specified in the letter of request to ask questions of the person whose testimony is being taken. The examination of the witness is conducted through a legal representative qualified to appear before the courts of the requested State. Under this procedure the parties are provided with the opportunity to test the evidence of a witness living overseas by cross-examination. The court held that the failure to obtain evidence in accordance with s 3 of the CJICA 1990 was relevant to the exercise of the judge’s discretion to grant leave to admit a written statement under s 26 of the CJA 1988.182Although the prosecution had known from the outset that a crucial witness was reluctant to leave the US, they ‘let slip the opportunity of obtaining cross-examined evidence on commission in time for the date fixed for the trial’.183 The issue for the court was whether the lack of opportunity to cross-examine this witness was sufficiently unfair to the defence that it was not in the interests of justice to admit the evidence. In seeking leave to admit the statement, the prosecution were
‘seeking leave to cover their culpability’184for failing to use treaty provisions designed to provide the prosecution and defence with an equal opportunity to summon and examine witnesses which would safeguard defence rights and minimise any
180 See, eg,USA v Verdugo-Urquidez,110 S Ct 1056 (1990), in which no mention was made of the existence of a mutual legal assistance treaty between Mexico and the US which contained a provision for searches and seizure. InUSA v Alvarez-Machain,112 S Ct 2188 (1992) the Supreme Court held that unless a procedure was expressly prohibited by the treaty, the court would not prevent prosecuting authorities from acting in a manner which was arguably in breach of international law. In this case, the court refused to return a fugitive who had been abducted by US authorities. In the absence of an express provision in the extradition treaty prohibiting abduction, the court refused to pronounce the activities unlawful.
181 [1999] 1 Cr App R 187. See S Nash, ‘The Admissibility of Witness Statements Obtained Abroad;R v Radak’, 3E & P(1999), 195.
182 In England and Wales, the admissibility of written statements made outside the UK is subject to the provisions of the CJA 1988, Pt II. The CJA 1988, s 23(1), provides that first hand documentary evidence shall be admissible in criminal proceedings provided the maker of the statement is unavailable to give evidence for one of the reasons set out in s 23(2) or (3). However, satisfying the conditions of admissibility still does not guarantee that a written statement will be adduced in evidence. It is true that there is a presumption against admitting statements which satisfy s 23, if they were prepared during the course of a criminal investigation: CJA 1988, s 26. In considering whether to exercise its discretion, the court is required to balance the importance of the document to the party seeking to rely on it against the degree of unfairness to the other party if the statement were admitted in evidence.
The lack of opportunity to test the evidence by cross-examination is a powerful factor weighing against admission of a written statement.
183 [1999] 1 Cr App R 187, p 203.
184 Ibid.
unfairness. The court was satisfied that had this evidence been obtained on commission by a court in the US, it would have satisfied the requirements of Art 6(3)(d) of the European Convention on Human Rights.185In allowing this appeal, the court considered that, on balance, the degree of unfairness resulting from the failure to use available mutual legal assistance provisions was sufficient to exclude the statement. Whether this case will encourage prosecuting authorities to make better use of mutual legal assistance provisions remains to be seen. What is encouraging is the willingness of the court to exclude evidence in order to ensure equality between the defence and the prosecution as regards the examination of witnesses.
In addition to avoiding formal procedures, prosecuting authorities engage in informal mutual co-operation practices by simply allowing police officers in another jurisdiction access to evidence.186InAujla,187evidence gathered by Dutch police officers in the course of a criminal investigation in The Netherlands was ‘made available’ to police officers in the West Midlands for use at trial in England. Although the Court of Appeal noted that this evidence was used in criminal proceedings in The Netherlands and, thus, was in the public domain, no reference was made to the manner in which it arrived within the jurisdiction.188The admissibility of foreign evidence was subject to the trial judge’s discretion to exclude under s 78 of PACE,189 and there was no authority to support the proposition that the doctrine of abuse of process could be applied to exclude evidence obtained irregularly from outside the jurisdiction. Relevant to the exercise of this discretion was the fact that the evidence in question had been obtained lawfully in accordance with Dutch criminal law and procedure. Similarly, inX, Y and Z,190the Court of Appeal supported a ruling by the trial judge that foreign telephone intercepts obtained from police authorities in another EU State were admissible at trial in England. The Court ofAppeal considered the trial judge’s finding that the handover of the transcript was ‘in accordance with the law of that other country’ could not be impugned. However, no mention was
185 European Convention on Human Rights, Art 6(3) provides that the accused shall have the right to
‘examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’.
186 The discussion will not consider more formal methods of police co-operation for the purposes of intelligence gathering, which takes place through Interpol and Europol.
187 [1998] 2 Cr App R 16.
188 USA v Busic,592 F 2d 13 (1978) provides a more colourful example of the reluctance of States to enquire into the manner in which evidence arrived within the jurisdiction. Having hijacked an aircraft in the US, a group of Eastern European hijackers surrendered to the French authorities whereupon both the fugitives and the evidence were put back onto the aircraft and returned to the US. The Court ofAppeals refused to exclude the evidence on the ground that the Fourth Amendment, which prohibits the use of evidence obtained as a result of an unlawful seizure, did not apply to foreign authorities.
189 Section 78 provides: ‘(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.’ InR v Governor of Pentonville Prison ex p Chinoy[1992] 1 All ER 317, eg, the Divisional Court held, p 332, that evidence obtained abroad in breach of foreign law or international law forms ‘part of the circumstances in which the evidence was obtained’and was a relevant factor to be taken into account in the exercise of the trial judge’s discretion.
190 (2000)The Times,23 May.
made in this case of the means by which this evidence came before the court. InR v P and Others,191the House of Lords confirmed that where telephone conversations between a national of State A and the appellants had been lawfully monitored in State A by the prosecuting authorities of that country, tape-recordings of the conversations were admissible in evidence at the appellants’ trial in England.
Although English courts have refused to try persons brought within the jurisdiction by the deliberate avoidance of formal procedures,192and obtaining evidence from abroad frequently creates similar problems, there is little authority to suggest that admissible evidence will be rejected on the basis that it arrived in the jurisdiction by unconventional means.