Re Canton of Berne's Request

• Jurisdiction: Cayman Islands
• Judge: (Murphy, J.)
• Judgment Date: 03 September 1996
• Court: Grand Court (Cayman Islands)
• Date: 03 September 1996

Grand Court

(Murphy, J.)

IN THE MATTER OF A REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE FROM THE CANTON OF BERNE

Ms L. Agard, Crown Counsel, for the applicant;

S.T. McCann for the first respondent;

S. Hellman for the second respondent.

Cases cited:

(1) -Asbestos Ins. Coverage Cases, In re, [1985] 1 W.L.R. 331; [1985] 1 All E.R. 716.

(2) -Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, In re, 1988–89 CILR N–12.

(3) -Ghani v. Jones, [1970] 1 Q.B. 693; [1969] 3 All E.R. 1700.

(4) -Imacu Ltd., In re, 1989 JLR 17, considered.

(5) -Norway”s (State) Applications (Nos. 1 and 2), In re, [1990] 1 A.C. 723; [1989] 1 All E.R. 745.

(6) -Panayiotou v. Sony Music Entertainment (UK) Ltd., [1994] Ch. 142; [1994] 1 All E.R. 755, considered.

(7) -R. v. Pentonville Prison (Governor), ex p. Osman, [1990] 1 W.L.R. 277; [1989] 3 All E.R. 701.

(8) -Radio Corp. of America v. Rauland Corp., [1956] 1 Q.B. 618; [1956] 1 All E.R. 549.

(9) -Rio Tinto Zinc Corp. v. Westinghouse Elec. Corp., [1978] A.C. 547; [1978] 1 All E.R. 434.

(10) -Trust Houses Ltd. v. PostlethwaiteUNK(1944), 108 J.P. 546.

(11) -US v. Carver, 1980–83 CILR 297.

(12) -US District Ct., Middle District of Florida v. Royal American Shows Inc.UNK(1982), 134 D.L.R. (3d) 32; 66 C.C.C. (2d) 125.

(13) -Voluntary Purchasing Group Inc. v. Insurco Intl. Ltd., 1994–95 CILR 84, considered.

(14) -Worldwide Financial Holding v. CITEL, 1994–95 CILR 391, considered.

(15) -Zingre v. R.UNK(1981), 127 D.L.R. (3d) 223; 61 C.C.C. (2d) 464.

Legislation construed:

Criminal Procedure Code (1995 Revision) (Law 13 of 1975, revised 1995), s.13(1):

‘Criminal proceedings may be instituted either by the making of a complaint or by the bringing before a magistrate of a person who has been arrested without a warrant.’

Grand Court Rules, O.70, r.2(2):

‘There shall be exhibited to the affidavit the request in pursuance of which the application is made, and if the request is not in the English language, a translation thereof in that language.’

Penal Code (1995 Revision) (Law 12 of 1975, revised 1995), s.3:

‘“[P]ossession” includes not only having in one”s own personal possession, but knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the benefit of oneself or any other person. . . .’

Criminal Justice (International Co-operation) Act 1990 (c.5), s.32(4):

‘Her Majesty may by Order in Council direct that the provisions of this Act shall extend, with such exceptions and modifications as appear to Her Majesty to be appropriate, to . . . any colony.’

Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 (S.I. 1978/1890), s.2: The relevant terms of this section are set out at page 189, lines 28–30.

Schedule, s.1 (as adapted by s.5): The relevant terms of this section are set out at page 190, lines 34–42.

Schedule, s.2 (as adapted by s.5): The relevant terms of this section are set out at page 190, line 43 – page 191, line 23.

Schedule, s.3(1) (as adapted by s.5): The relevant terms of this sub-section are set out at page 191, lines 25–28.

Extradition Order in Council (Switzerland) 1881, art. XVI: The relevant terms of this article are set out at page 198, lines 10–16.

Interpretation Act 1889 (52 & 53 Vict., c.63), s.11(2):

‘Where an act passed after the year one thousand eight hundred and fifty, whether before or after the commencement of this act, repeals wholly or partially any former enactment and substitutes provi-sions for the enactment repealed, the repealed enactment shall remain in force until the substituted provisions come into operation.’

s.38(1): ‘Where this act or any act passed after the commencement of this act repeals or re-enacts, with or without modifications, any

provisions of a former act, references in any other act to the provisions so repealed, shall, unless the contrary intention appears, be construed as references to the provisions re-enacted.’

Interpretation Act 1978 (c.30), s.20(2): The relevant terms of this sub-section are set out at page 189, line 44 – page 190, line 3.

Evidence-assistance to foreign court-‘proceedings which have been instituted’-charges laid in criminal prosecution pending in requesting state represent institution of criminal proceedings under Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, Schedule, ss. 1(b) and 5

Evidence-assistance to foreign court-‘court or tribunal’-judicial officers investigating offences in requesting state not court or tribunal under Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, Schedule, ss.1(a) and 5 unless intended trial judges

Evidence-assistance to foreign court-examination of documents and witnesses-Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, Schedule, s.2(4) applies strictly to requesting authority with prior access to evidence already seized by police-list of material seized unable to provide specificity lacking in request for production of ‘particular documents’

Evidence-assistance to foreign court-examination of documents and witnesses-may not compel production of self-incriminating evidence under Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, Schedule, ss. 3(1) and 5, or at common law-bankruptcy-related offences no exception under Cayman law

Police-entry, search and seizure-search without warrant-search of and seizure of property from offender”s premises on arrest for extradition not authorized under Extradition Order in Council (Switzerland) 1881, art. XVI or by reason of definition of ‘possession’ in Penal Code (1995 Revision), s.3

The applicant applied for an order under the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 for the production of documents seized from the respondents by the Cayman Police.

The application was made pursuant to a letter of request from the Special Investigating Judges” Office in Berne asking the Cayman authorities, inter alia, to search the respondents” house and seize evidence of their assets and business interests for use in criminal proceedings against them in Switzerland. At the time of the request, the

Swiss Government also sought the extradition of the respondents to Switzerland. Examples were given in the letter of request of documents and other items which the Swiss authorities wished to use in evidence in those proceedings.

Following the arrest of the respondents in pursuance of the extradition proceedings, the Cayman police searched the respondents” Grand Cayman premises and removed files of documents and computer equipment. Swiss officials identified amongst this material documents for use in the proposed prosecution. A list of all the property seized, generically described, was attached to the witness statement of the officer who had conducted the search and accompanied the present application. In addition, there was submitted a summary of the charges under Cayman law equivalent to those on which the respondents would be indicted under the Swiss Penal Code, prepared by the Legal Department in the extradition proceedings.

The first respondent was committed to custody and the second respondent bailed pending extradition after a hearing in the Summary Court, but both respondents were released by the Grand Court on a writ of habeas corpus in proceedings reported at 1996 CILR 157.

The applicant submitted that (a) the court could rely, in deciding whether criminal proceedings had in fact been commenced against the respondents in Switzerland (as required by ss. 1(b) and 5 of the Schedule to the 1978 Order) and whether the letter of request had come from a Swiss court or tribunal of competent jurisdiction (as required by ss. 1(a) and 5), on Commonwealth case law describing Swiss criminal procedure; (b) nevertheless, the letter provided ample evidence that criminal proceedings had been instituted to an extent equivalent to the making of a complaint under s.13(1) of the Cayman Criminal Procedure Code (1995 Revision), and the charges laid had direct equivalents in Cayman law; (c) the letter also clearly showed that the Special Investigating Judges of Berne, also described as ‘Examining Magistrates’ having the conduct of the criminal proceedings against the respondents, fulfilled judicial as well as investigative functions and therefore constituted a ‘court or tribunal’ exercising jurisdiction in the originating state in accordance with s.1(a); (d) the respondents were not being asked, contrary to s.2(4) of the Schedule to the Order, to give details of or produce documents other than those which an order giving effect to the letter of request would specify, since the documents sought by the Swiss authorities could easily be identified from the list of seized material submitted in evidence read together with the parts of the request outlining the evidence needed to support charges under the Swiss law; (e) since the charges faced by the respondents were essentially bankruptcy-related offences, they could be compelled to give evidence of their finances as would be the case in English bankruptcy proceedings, and consequently the protection against self-incrimination in criminal proceedings afforded by ss. 3(1) and 5 of the Schedule to the Order did not apply to them; furthermore (f) the respondents would not themselves be producing documents to the court

which could incriminate them under s.3(1) since the documents were, at the commencement of the present proceedings, in the possession of the police who had lawfully seized them under (i) common law search and seizure powers following arrest, especially given the wide definition of ‘possession’ under s.3 of the Cayman Penal Code (1995 Revision); or (ii) the Extradition Order in Council (Switzerland) 1881, art. XVI, as items for surrender upon the extradition of...