BCL partner, Richard Sallybanks and associates, Ami Amin and Jonathan Flynn examine the key issues that can arise when acting for an individual who is present in the United Kingdom and subject to a criminal investigation or proceedings in the UK and/or overseas.
Writing for The Practitioner’s Guide to Global Investigations 2019, their chapter discusses important considerations for lawyers acting for such individuals as well as the challenges that may arise at each stage of an investigation.
Below is a short excerpt from their chapter*
Individuals in Cross-Border Investigations or Proceedings: The UK Perspective
In any cross-border investigation, invariably suspects will either be located in different jurisdictions, or subject to investigation by authorities from different jurisdictions, or both.
This chapter looks at the key issues that can arise when acting for an individual who is present in the United Kingdom and subject to a criminal investigation or proceedings here or in one or more overseas jurisdictions.
There are various ways in which the United Kingdom might co-operate with overseas agencies or regulators when investigating or prosecuting an individual, ranging from informal ‘intelligence sharing’ to mutual legal assistance (MLA).
In the United Kingdom, the framework governing MLA requests is contained, primarily, in the Crime (International Co-operation) Act 2003 (CICA), Part 1 of which deals with criminal cases. Under CICA, an MLA request can only be made if it appears to the investigating authority that an offence has been committed (or there are reasonable grounds to suspect that an offence has been committed), and proceedings have been initiated or an investigation has begun. MLA requests are made to the UK Central Authority (UKCA) through a formal international letter of request, known as a commission rogatoire in civil law jurisdictions. The UK Home Office has published detailed guidance on how authorities outside the United Kingdom can make such requests. MLA requests will only be considered appropriate, however, when the request is for evidence (and not intelligence).
Where overseas police and other law enforcement agencies request assistance directly from a UK law enforcement agency, a formal MLA request is not required. A number of UK law enforcement agencies can receive direct requests, and often this form of co-operation is governed by data sharing agreements or memoranda of understanding.
In some instances, cross-border co-operation may extend to the establishment of a joint investigation team (JIT) between investigating agencies in more than one country. The establishment of a JIT is another means by which information or evidence gathered in one country can be shared with another without the need for MLA.
*Reproduced with permission from Law Business Research. This article was first published in January 2019. For further information please visit www.globalinvestigationsreview.com
Richard Sallybanks is a partner at BCL Solicitors LLP specialising in complex business crime and regulatory defence work. Richard has been involved in numerous SFO, FCA, HMRC & CMA investigations and prosecutions, together with associated restraint and confiscation proceedings. His recent SFO experience includes the Alstom, Barclays Qatar, and Tesco investigations (acting for senior individuals under suspicion), as well as acting for Robert Tchenguiz in the SFO’s Kaupthing Bank investigation (including the successful Judicial Review challenge to SFO search warrants). Richard has acted in a number of FCA criminal and regulatory investigations for brokers, traders and senior executives, including in relation to allegations of insider dealing and market abuse. He is experienced in cartel investigations, both domestic investigations conducted by the CMA and cross-border anti-trust investigations (including those conducted by the US DoJ). Richard is also experienced in the international mutual legal assistance regime, and in leading and co-ordinating teams of lawyers in multi-jurisdictional investigations.
Ami Amin is a Chartered Legal Executive at BCL, covering both business crime and extradition. She is an experienced litigator, having represented professionals facing disciplinary proceedings as well as investigating complex cases of sexual misconduct, fraud and dishonesty on behalf of regulatory bodies.
Jonathan Flynn is an employed barrister at BCL specialising in criminal and regulatory law. He has particular expertise in fraud, bribery and corruption, restraint and confiscation proceedings, and general crime. Jonathan has acted in a number of high-profile, complex and multi-jurisdictional cases, including investigations / prosecutions by the Crown Prosecution Service, Financial Conduct Authority, HM Revenue & Customs, Serious Fraud Office and National Crime Agency.