AFP Guidelines on International Police-to-Police Assistance in Death Penalty Situations

Given the jurisdictional complexities of transnational criminal justice there is a heavy reliance on cooperation between nation states in order to overcome these extra-territorial hurdles. The interconnected nature of the world today has created close law enforcement cooperation between Australia and multiple foreign law enforcement bodies in order to overcome the investigative challenges that transnational crime poses.

The extent of such cooperation is evident through the AFP guidelines on international police-to-police assistance in death penalty situations. Authority to provide assistance and cooperation with foreign law enforcement agencies is granted in accordance with the Australian Federal Police Act 1979 (Cth).

Assistance by the AFP before the detention, arrest, charge or conviction requires a senior AFP management (Manager SES0Level 1 and above) considering certain prescribed factors before approving the provision of assistance in matters with potential death penalty implications.

These include:

  • The purpose of providing the information and the reliability of that information
  • The seriousness of the suspected criminal activity
  • The nationality, age and personal circumstances of the person involved
  • The potential risks to the person, and other persons, in providing or not providing the information
  • Australia’s interest in promoting and securing cooperation from overseas agencies in combatting crime
  • The degree of risk to the person in providing the information, including the likelihood the death penalty will be imposed

Any assistance required after the detention, arrest, charge or conviction of an accused person requires ministerial approval.

What is the Approval Process for AFP assistance in death penalty offences?

In terms of the actual approval process, the Australian Government PNG Death Penalty Framework endorsed by the Attorney-General on 2 June 2014 sets out the whole-of-government approach to managing death penalty issues. It is set out below:

  • Procedures before detention, arrest, charge or conviction

Step 1

The case officer or business area seeking assistance approval must complete the ‘Assistance in Potential death Penalty Situations – Approved Request’ form and have it endorsed by their functional coordinator

Step 2

The case officer sends the endorsed form via a PROMIS task to international operations (INTN – OPS) for approval by the Manager International Network (MIN) or the National Manager Serious and Organised Crime (NMSOC)

  • Procedures after detention, arrest, charge or conviction

Step 1

The case officer or business area seeking assistance approval prepares a ministerial brief with a covering executive brief to MIN/NMSOC for the attention of the Deputy Commissioner Operations. The brief should cover the same prescribed factors (listed above) that an AFP delegate must consider

Step 2

If approved, requests will be progressed to the Attorney-General or the Minister via the AFP Ministerial team

A case example- assistance to Papua New Guinea

A case example of cooperation in transnational criminal justice is the Australian Federal Police providing frontline assistance to the Royal Papua New Guinea Constabulary (RPNGC). The PNG Annexure to the National Guidelines, entitled ‘Application of Whole of Government Death Penalty Framework to AFP ‘Frontline Advisory’ Deployment to PNG’ establishes the government approach to managing death penalty issues in PNG for the AFP (International Deployment Group) officers deployed to Papua New Guinea (PNG).

What type of training can the AFP give to the RPNGC?

The training instructions given by the AFP to the RPNGC is two-fold:

  • General training – the AFP can provide general policing training to the RPNGC. The provision of this training does not require approval
  • ‘In situ training’ (pre and post arrest) – Regardless of whether a person has been arrested or detained on suspicion of having committed an offence for which the maximum penalty is death, the AFP can provide ‘in situ training’ (for example, at a crime scene) without requiring approval. In these situations, the AFP is required to ensure a written record of such assistance is recorded.

Can the AFP affect an arrest transnationally?

The AFP is permitted to arrest without a warrant to assist the RPNGC. However, such authority is granted only in exceptional circumstances. Such circumstances will extend to when an alleged criminal act takes place in the presence of an AFP Appointee or there is a serious threat to the safety and security of other persons, including AFP Appointees.

The AFP is also allowed, post-arrest, to provide evidence if the AFP PNG Mission Commander determines that:

  • The evidence provided would assist in contributing to the death penalty being sought or imposed (such a decision will need to be forwarded on to the Attorney-General for approval)
  • The evidence would assist in determining that there is ‘no possibility’ that the death penalty should be sought or imposed
  • The evidence would assist in exculpating an offender avoiding the death penalty

The Mission Commander, in deciding whether or not to approve assistance in potential death penalty situations for the three categories above, must consider the following factors:

  • The purpose of providing the assistance and/or information to be released
  • The possibility of the authorities in the foreign country using the assistance and/or information only for that purpose
  • The reliability of the information to be released
  • Whether assistance and/or information is exculpatory in nature
  • Nationalities of the persons involved
  • The person’s age and personal circumstances
  • The seriousness of the suspected criminal activity
  • The potential risks to the person, and other persons, in not providing the assistance and/or information
  • The degree of risk to the person in providing the assistance and/or information, including the possibility the death penalty will be imposed, and
  • Australia’s interest in promoting and securing cooperation from overseas agencies in combating crime

How can Nyman Gibson Miralis help you?

Nyman Gibson Miralis has expertise in transnational criminal law matters where the sharing of information between Australian authorities and foreign law enforcement agencies may exposes persons to the death penalty, double jeopardy, multiple criminal proceedings and  asset forfeiture in several jurisdictions all at once.

The potential for this to occur is increasing as there are very few protective protocols and policies in place regulating how the States and Commonwealth should treat and respond to such requests or pursuant to what powers and regulations they should share information with foreign law enforcement and on what conditions.

The lack of clarity and regulatory oversight has the potential to severely undermine  the fair trial principles underpinning the criminal justice process including breaching procedural fairness, depriving persons of the ability to properly prepare their defence  and in some instances “jurisdictional shopping”, so that person are tried in a jurisdiction where the penalties may be most severe.

Nyman Gibson Miralis has developed expertise in working internationally to protect the rights of those who are exposed to punishment both in Australia and other jurisdictions and are able to advise on the most appropriate legal strategy to ensure that due process is followed in accordance with the rule of law, including the observance of human rights.

Transnational/international criminal law is complex and requires the assistance of lawyers skilled both in its practice and procedure and unique dynamics.

Nyman Gibson Miralis is Australia’s leading transnational/international criminal law firm.