Individuals in Cross-Border Investigations or Proceedings: The UK Perspective

Individuals in Cross-Border Investigations or Proceedings: The UK Perspective

BCL’s Richard Sallybanks and Alex Swan have co-authored the chapter ‘Individuals in Cross-Border Investigations or Proceedings’ in the sixth edition of Global Investigations Review: Practitioner’s Guide to Global Investigations.

*Here is a short extract from the guide. If you wish to read the full guide please visit Global Investigations Review website.

17.1 Introduction

In any cross-border investigation, invariably suspects will be located in different jurisdictions, subject to investigations by authorities from different jurisdictions, or both.

This chapter looks at the key issues that can arise when acting for an individual present in the United Kingdom and subject to criminal investigation or proceedings here and in one or more overseas jurisdictions.2

17.2 Cross-border co-operation

The United Kingdom might co-operate with overseas agencies or regulators in various ways when investigating or prosecuting an individual, ranging from informal ‘intelligence sharing’ to mutual legal assistance (MLA). The main domestic legislation governing MLA in the United Kingdom is the Crime (International Co-operation) Act 2003 (CICA), Part 1 of which deals with criminal cases.

The United Kingdom is party to a number of bilateral and multilateral MLA treaties. While it is not necessary for an MLA treaty to exist between the relevant countries for a request to be made under CICA, requests are more likely to be successful where a treaty basis exists. Before the United Kingdom’s exit from the European Union, there was concern over how co-operation with EU Member States would be governed following Brexit. On 24 December 2020, the United Kingdom and the European Union signed the UK-EU Trade and Co-operation Agreement (TCA), which includes specific provisions on co-operation and MLA, and facilitates the application between EU Member States and the United Kingdom of certain previous MLA treaties and conventions.3 While the TCA ensures there remains a strong co-operative relationship, certain investigative tools, such as European investigation orders,4 can no longer be used.5

MLA requests are usually made to the UK Central Authority (UKCA)6 through a formal international letter of request. The UK Home Office has published detailed guidance on how foreign authorities can make such requests.7 MLA requests will only be considered appropriate, however, when the request is for evidence (and not intelligence).8

A formal MLA request is not required where overseas police and other law enforcement agencies request assistance directly from their UK counterparts. A number of UK agencies9 can receive direct requests, and often this form of co-operation (also known as mutual administrative assistance) 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.10 Creating a JIT is another way information or evidence can be shared without the need for MLA.

*The guide was first published by Global Investigation Review on 14 January 2022. If you wish to read the full guide please visit Global Investigation Review website.

A partner in BCL for 20 years, Richard Sallybanks has been involved in numerous UK and international business crime investigations and prosecutions. His core practice is defending senior executives who are suspects in investigations. His SFO experience includes the Airbus, Barclays Qatar, Alstom and Kaupthing Bank investigations as well as successfully defending Tesco’s Commercial Director on charges of an alleged £250m accounting fraud. Many of his cases are cross-border and Richard is experienced in managing and co-ordinating teams of lawyers in multi-jurisdictional investigations. In the financial sector he has acted for bankers, brokers, traders and senior executives in criminal and regulatory investigations, by the FCA and overseas authorities, including in relation to allegations of money laundering, insider dealing and market abuse.

Anoushka Warlow is a solicitor at BCL specialising in corporate and financial crime, principally cases involving international bribery and corruption, commercial fraud, and money laundering. Anoushka advises both individual and corporate clients and has been involved in a number of highprofile domestic and international investigations conducted by the SFO, the U.S Department of Justice, HMRC, the FCA and the NCA.

Alex Swan is an experienced Senior Associate who has worked on a variety of complex and high-profile criminal matters. He specialises in corporate and financial crime and has extensive experience of advising clients at all stages of investigations and prosecutions. He is adept at dealing with complex cross-border matters, including where there are simultaneous investigations taking place in other jurisdictions. Alex regularly deals with matters being investigated and prosecuted by the SFO, the CPS, HMRC, the NCA, and the FCA, as well as by foreign authorities such as the DOJ, SEC, PNF, CBI and ED.