The increasingly transnational nature of criminal law raises complex cross-jurisdictional considerations, for example:
- Can a law enforcement agency from Country A request mutual legal assistance from Country B, for the purposes of obtaining a signed witness statement from a Country B resident, for a criminal prosecution in Country A?
- Does Country A have the power to compel a Country B resident to give evidence at a criminal trial?
We explore these considerations in the context of criminal investigations involving the United Kingdom and Australia, and specifically involving the UK Serious Fraud Office.
What is the Serious Fraud Office?
The Serious Fraud Office (SFO) is a specialist prosecuting authority tackling the top level of serious or complex fraud, bribery and corruption. It is part of the UK criminal justice system covering England, Wales and Northern Ireland.
Often, an Australian citizen becomes a potential witness in a criminal matter being investigated by the SFO.
What powers does the SFO have to compel this person to sign a witness statement or provide evidence at a trial?
Mutual Assistance Request
Australia’s system of mutual assistance with foreign states is governed by the Mutual Assistance in Criminal Matters Act 1987.
The agreement governing mutual assistance between the Australian Government and the Government of the United Kingdom is legislated by way of regulations under this Act titled the Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1999 (‘the Mutual assistance agreement’).
The Mutual assistance agreement provides an express diplomatic channel by which law enforcement agencies such as the UK Serious Fraud Office may request the assistance of the Australian Government and Australian law enforcement agencies.
The equivalent law enforcement body for the investigation of serious and complex fraud in Australia is the Australian Federal Police (AFP). The UK Serious Fraud Office and the AFP collaborate both formally and informally in relation to transnational investigations.
Can the SFO compel an Australian resident to give evidence?
The laws of each state or Territory in Australia apply with respect to compelling a person to attend before a Magistrate to give evidence under the mutual assistance regime.
In all Australian jurisdictions, witnesses in criminal proceedings are only compelled to attend the venue of proceedings and give evidence under oath upon effective service on the relevant person of a subpoena to give evidence, validly issued by a judicial officer.
The Mutual assistance agreement does not expressly provide for the service of foreign judicial documents, including subpoenas, on a resident of Australia. If the Australian resident in question has not been served with a subpoena to give evidence either in the UK or in Australia, they are not compelled to appear in criminal proceedings in any jurisdiction.
In the event a subpoena to give evidence in criminal proceedings in the UK was issued by a judicial officer in the UK and served on an Australian resident under the Mutual assistance agreement, the subpoena is not enforceable on an Australian resident while they remain within the Australian jurisdiction. The Australian resident would however be liable to the relevant penalty or enforcement action for non-compliance upon return to the UK jurisdiction.
The use of coercive powers by Australian government agencies
The use of compulsory powers by Australian government agencies represents a separate means of taking evidence from a witness. Article 8 of the Mutual assistance agreement provides for requests for the exercise of compulsory or coercive powers, by the Requested Party.
Various Australian government agencies are empowered under legislation to conduct examinations of witnesses in which the examined witness is compelled to answer questions. To this extent, the witness’s right to silence is waived. One example of such legislated powers are the compulsory examinations which can be conducted by an appointed examiner of the Australian Criminal Intelligence Commission pursuant to the Australian Crime Commission Act 2002 (Cth).
The UK Serious Fraud Office may validly make an authenticated request for Australian government agencies to examine an Australian resident by way of legislated powers of compulsory examination. However, the High Court of Australia has recently held that bodies legislated to use such coercive powers cannot simply act as a ‘facility’ for the use of such powers, at the request of a separate law enforcement or investigative body.
In these circumstances, in the absence of an independent investigation into the conduct of the Australian resident in question, a compulsory examination cannot lawfully be conducted upon an Australia resident pursuant to a request under the Mutual assistance agreement from the UK Serious Fraud Office.
Whilst under the Mutual assistance agreement the UK Serious Fraud Office may request that an Australian resident give evidence at a criminal trial, either by returning to the UK or giving evidence from Australia, the Mutual assistance agreement merely represents a means of communicating that request and does not compel the Australian resident to take any action in response to any such request.
Mutual assistance is not the only method by which the Australian government can assist the government of the United Kingdom and the law enforcement agencies operating under its jurisdiction. Other methods include Hague Conventions, Letters of Request and informal law enforcement cooperation.
Both Australia and the United Kingdom have acceded to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters as well as the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (‘The Hague Conventions’).
The Hague Conventions represent an agreed diplomatic channel for the transnational service of judicial and extrajudicial documents (including subpoenas to attend and give evidence) and execute letters of requests for the taking of evidence.
The ambit of the Hague Conventions however does not extend to assistance in criminal proceedings. As such, the Hague Conventions do not represent a mechanism by which the UK Serious Fraud Office may ultimately compel an Australian resident to give evidence at a criminal trial.
Letters of Request
Outside of the ambit of the Mutual assistance agreement and the Hague Conventions, Letters of Request can be delivered to the Attorney-General’s Department seeking assistance.
In NSW, the legislation giving effect to such request is the Evidence on Commission Act 1995 (NSW). There is equivalent legislation in each Australian State and territory.
Section 32(2) of the Evidence on Commission Act 1995 (NSW) excludes the provision of assistance in respect of proceedings relating to the commission of an offence unless the requesting Court is in Australia or New Zealand.
As a result of the above exclusion of United Kingdom criminal proceedings from the ambit of proceedings for which Australian Courts can make orders for the examination of witnesses, a Letter of Request does not represent a mechanism by which the UK Serious Fraud Office may ultimately compel an Australian resident to give evidence at a criminal trial.
Informal law enforcement cooperation
Exchange of intelligence information, such as the known address of an Australian resident, may also be provided on an informal basis between the UK Serious Fraud Office and the Australian Federal Police. AFP officers can be utilised to carry out requests, by arrangement with the UK Serious Fraud Office, to the extent of their powers as prescribed by legislation.
The legislated powers of the AFP do not extend to obtaining a signed witness statement under compulsion or the gathering of oral evidence under compulsion for a witness to criminal proceedings.
Laws that govern extradition operate at both the domestic and international level. At the domestic level, extradition of Australian Residents is governed by the Extradition Act 1988 (Cth).
The United Kingdom is declared an ‘extradition country’ for the purposes of the Extradition Act 1988 within the Extradition (United Kingdom) Regulations 2004.
To be liable for extradition from Australia to a foreign jurisdiction, the Australia resident must be an ‘extraditable person’ as defined under section 6 the Extradition Act 1988 (Cth). Provisions include that the person in question must have been convicted of a criminal offence or be the subject of an existing warrant for arrest.
If the person does not meet these criteria, they are not an extraditable person for the purposes of the Extradition Act 1988 (Cth).
Whilst the UK Serious Fraud Office may request the assistance of the Australian Government and Law Enforcement agencies, it ultimately has no power to compel an Australian resident to give evidence at a criminal trial, either by returning the person to the UK or by compelling them to give evidence (for example by video link) from Australia.