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We agreed that at this stage we need not crawl over the fine print of the posed agreement, especially as it seems to cover the sort of ground which we would ect. I think, though, that you will want to know sooner rather than later that we in the Home Office think that further thought will be needed on draft Article IV (3), on the right to refuse assistance in death penalty cases. I am not sure that our Ministers would find such an Article, or such explicit wording, helpful. The Article appears to cut across the line which we have taken on a request for mutual legal assistance from the Indian authorities.
4. More generally in relation to Article IV, we would suggest that thought should be given to whether the refusal of assistance should be mandatory or discretionary in the circumstances set out in that Article. We think that the word "shall" could cause needless difficulty for the purposes of paragraph (1)(g) and would be particularly undesirable in connection with paragraph 1(h).
5. We think that Article XVII also needs careful thought. On paragraph (3), we think that the Attorney General would agree to consider granting immunity from prosecution only on a case by case basis. Moreover, paragraph (4) raises the question as to how, without legislation, a court could be prevented from issuing a witness order. We would need also to bear in mind difficulties in preventing civil proceedings running their course, although these would be comparatively unlikely to involve detention or restriction of personal liberty.
6. You will note that Article XIX, which deals with the proceeds of crime, is an all- crime forfeiture provision similar to that in the UK/US MLAT. As with the US, we already have a bilateral drug trafficking arrangement in force with Hong Kong. It comprises six pages of "guidelines" and in its detail is a different type of document from our other drug trafficking arrangements with dependent territories. The question again arises whether the existing drugs arrangement should remain in force even after an MLAT has been concluded. Of course, if the drugs arrangement cannot continue beyond 1997 the question will not arise. You might, therefore, want to check the position on this at an early date.
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I hope that you find these comments helpful. Please let me know if we can be of further help. We are of course willing to participate in the proposed negotiations next September.
8. I am copying this letter to Geoffrey Sonnenberg here and to Hugh Giles, Home Office Legal Adviser's Branch.
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Caroline Macready
International Criminal Policy Division
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