2.
(13) Para 49 (on Article XIX); we need to be sure that paragraph 1 of this Article, which obliges the Requested Party to endeavour to trace "any proceeds of a crime against the law of the Requesting Party" (emphasis added) is on all fours with Article IV.i.h, which provides for refusal of assistance in the absence of dual criminality and, if it is not, that there is justification for the departure from Article IV.i.h. Asset tracing on behalf of another jurisdiction is subject to a dual criminality requirement because of the definition of "drug trafficking" in section 38 of the Drug Trafficking Offences Act 1986, which defines the circumstances under which the powers in section 27 of the Act are available, and because authority in this country for all-crime asset tracing is dependent on the conduct overseas amounting to a serious arrestable offence had it occurred here, see (6) above. We need to be satisfied that the word "endeavour" in paragraph 1 resolves this possible conflict between the two Articles. We further draw attention to the implication in Article XIX.2 that restraint could be obtained only where there has been a request under paragraph 1, and that restraint would be obtained only in advance of a confiscation order. There is no reference to a restraint request. But in certain circumstances a restraint request may be made in the absence of a prior asset tracing request (eg where tracing had been on an agency to agency basis. outside the terms of a Treaty). Accordingly, we recommend that paragraph 2 be reworded as follows: "The Requested Party shall take such measures as are permitted by its law to prevent any dealing in, transfer or disposal of suspected proceeds of crime or their value, pending a final determination in respect of those proceeds by a Court of the Requesting Party".
I hope that you find these comments helpful. I am copying this letter to Wendy Wyver and Richard Mash and to Sally Evans, Hugh Giles and June Staniland here in the Home Office,
y
gfx.
G H H SONNENBERG C2 Division
479.plb
***END***
Page 60Page 61
No comments yet.
Private notes are available after approval.