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Mutual Legal Assistance Kennedy Talbot 33 Chancery Lane

Mutual Legal Assistance Kennedy Talbot 33 Chancery Lane. kt@33cllaw.com. SOCA v Perry. Perry convicted of serious fraud in Israel Perry in Israel; £12m in London bank accounts Disclosure order made and notice sent to Perry’s London house

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Mutual Legal Assistance Kennedy Talbot 33 Chancery Lane

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  1. Mutual Legal AssistanceKennedy Talbot33 Chancery Lane kt@33cllaw.com

  2. SOCA v Perry • Perry convicted of serious fraud in Israel • Perry in Israel; £12m in London bank accounts • Disclosure order made and notice sent to Perry’s London house • Perry challenge to jurisdiction of SOCA officer to issue notice

  3. Court of Appeal (Civil Division)England • Richards LJ – no jurisdiction – target of notice must be in UK at time of issue or thereafter • Carnwath LJ – some limits to jurisdiction – house in London, acknowledged by solicitors - enough • Ward LJ….. • Joint investigations • Don’t have to finish criminal investigation • Fact that CR might mean not in PI to prosecute • Compromises but no buying off prosecution • No criminal and civil at the same time . Comment? • Prosecutors as claimants - a new approach to prosecuting decisions? • S.2A of the 2002 Act and A-G’s guidance • Consequences – re-litigation and disclosure

  4. “The purpose of the Act is to combat cross-border unlawful conduct and I cannot accept that the legislature intended that [the authorities] should engage in this battle against international criminal activity with one hand tied behind its back. If [an officer] knows where the account holder is, why cannot the appropriate officer visit him abroad and ask him a few direct questions?”

  5. More Formal Arrangements – History • Territorial • Comity • Public matters • Civil Foreign Tribunals Evidence Act 1856 • Treaties – 1959 European Convention – 1988 Vienna Convention – 1990 Strasbourg Convention

  6. Current • Crime (International Cooperation) Act 1990 • Proceeds of Crime Act 2002 (External Requests and Orders) Order 2003

  7. General Principles • Reciprocity • Specialty (Gooch; BOC v Barlow) • Costs and asset sharing • Confidentiality (Evans v SFO) • Requesting parties • Discretion and refusal to assist

  8. Types of Assistance • Examination of witnesses and production of documents – evidence - compulsion and exceptions • Searches • Confidential material / banking documents • CIO / AMO • SFO s.2

  9. Practical Considerations • Participation at examinations • Challenges to procedures – admissibility – JR – Abuse (Zardari) • LPP and self - incrimination

  10. Restraint and Confiscation • Investigation • Extent of restraint – location of assets (King) • Legal expenses • Investigation of merits and human rights (Al Zahat / Montgomery (no 2)) • Disclosure (Stanford)

  11. Confiscation • Registration and enforcement • Procedural defences • Rights of innocent third parties (Art. 46) and victims (Re D, 19th March 2010, HC)

  12. SOCA v Perry [2010] Civ 907 • Gooch [1991] 1 Cr App R(S) 183 • BOC v Barlow [2001] EWCA Civ 854 • Govt of USA v Montgomery (no 2) [2004] 1 WLR 2241 • Finnivest [1997] 1 WLR 743 • Zardari (29th April 1998) DC • King v SFO [2009] 1 WLR 718 • Al Zahat [2008] Lloyds Rep 390 • Stanford v SFO [2010] EWCA Civ 137 • Re D [2010] March 19th • Evans v SFO [2003] 1 WLR 299

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