Re Sandefjord Court's Request

• Jurisdiction: Cayman Islands
• Judge: (Sanderson, J.)
• Judgment Date: 20 September 2001
• Court: Grand Court (Cayman Islands)
• Date: 20 September 2001

Grand Court

(Sanderson, J.)

IN THE MATTER OF A REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE FROM THE SANDEFJORD COURT OF EXAMINING AND SUMMARY JURISDICTION

S. Hall-Jones, Senior Crown Counsel, for the Attorney General;

N.R.L. Clifford for the respondent.

Cases cited:

(1) Ansbacher (Cayman) Ltd., In re, 2001 CILR 214, followed.

(2) Dunne”s Payments, In re, 1997 CILR 330, applied.

(3) Manchester City Stipendiary Magistrate”s Request, In re, 1999 CILR 35, applied.

(4) Worldwide Fin. Holdings v. CITEL, 1994–95 CILR 391, followed.

Legislation construed:

Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 (S.I. 1978/1890), Schedule as adapted by s.5, s.1: The relevant terms of this section are set out at para. 2.

s.2(1): The relevant terms of this sub-section are set out at para. 2.

(2): The relevant terms of this sub-section are set out at para. 2.

(4): ‘An order under this section shall not require a person-

. . .

(b) to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in his possession, custody or power.’

Evidence-assistance to foreign court-comity-court to give effect to letter of request if complies with requirements of Evidence (Proceedings in Other Jurisdictions) Order and proper and practicable to do so-will not construe request favourably in interests of judicial comity

Evidence-assistance to foreign court-request ‘by or on behalf of’ foreign court-request made by court rather than by prosecution if court has expressly reviewed documents and ascertained that request complies with local legal requirements

Evidence-assistance to foreign court-‘proceedings which have been instituted’-Evidence (Proceedings in Other Jurisdictions) Order,

Schedule, s.1(b) not satisfied if preliminary criminal charges, e.g. tax evasion, laid many years ago, no subsequent hearing or date set for trial, and evidence sought relates to other offences under investigation

Evidence-assistance to foreign court-examination of documents and witnesses-request to be dismissed if seeks evidence relating to suspected offences other than ones charged-inappropriate for court to determine which of documents requested relate to existing charges

The Attorney General applied for an order under the Evidence (Proceedings in Other Jurisdictions) Order 1978, that the respondent produce documents for use in a criminal prosecution in Norway.

The Sandefjord Court of Examining and Summary Jurisdiction in Norway sent a letter of request for judicial assistance in a criminal prosecution. The request from the District Magistrate stated that the Norwegian authority responsible for investigating economic crimes had requested the use of ‘enforcement action’ and had drawn up a rogatory commission (appended to the request) which adequately described, both factually and legally, the persons and criminal acts covered by it. The request stated further that there was reason to suspect a named individual of criminal acts attracting a custodial sentence, and that there were special grounds for considering that evidence or confiscable objects existed as described in the rogatory commission. The commission complied with Norwegian law and the court approved the sending of a request to the Cayman Islands in the terms of the commission.

Also attached to the request was a charge sheet giving the suspect”s personal details and the details of his alleged offences under the Norwegian Assessment of Tax Act. The offences described involved building work on the suspect”s Norwegian properties which had not been disclosed to the revenue authorities and which had been funded from accounts held by the respondent (the Aall Foundation) in the Cayman Islands.

A further attachment, described as an endorsement paper, summarized further allegations of theft, tax fraud and embezzlement by the suspect and other persons over the course of 20 years, but made no mention of charges laid in respect of them. It contained requests for evidence relating to these further allegations, to be used for a criminal investigation into the suspect”s affairs with a view to his prosecution.

Evidence from the suspect”s Norwegian lawyers indicated that a criminal investigation had been under way for almost 20 years and that two preliminary charges had been laid against the suspect in respect of the tax offences.

The respondent opposed the making of the order requested. It submitted that (a) this was not a request issued by a court or tribunal within the meaning of s.1(a) of the Schedule to the 1978 Order, but rather the rubber-stamping by the Norwegian court of a request by the investigating authorities; (b) the request did not comply with s.1(b) of the

Schedule, since no criminal proceedings had yet been instituted in Norway; (c) the request failed to distinguish between the evidence sought for the purpose of existing criminal charges and that required for its ongoing investigation into other suspected offences; and (d) the request was merely a fishing expedition, since it did not specify the particular documents to be produced.

Held, dismissing the application:

(1) The Grand Court would give effect to a request for evidence by a foreign court if it was satisfied on the basis of the material before it that it had jurisdiction under the Evidence (Proceedings in Other Jurisdictions) Order and that it was proper and practicable to do so. The court would not stretch the rules of construction to accommodate such a request in the interests of judicial comity (para. 9).

(2) The Magistrate making the request had expressly stated that he had reviewed the documents and concluded that they met the criteria that the persons and offences had been adequately described and certain provisions of Norwegian law had been complied with. Accordingly, he had exercised an adjudicatory function and not merely rubber-stamped the request by the investigating authorities. The request had been made ‘by or on behalf of’ the Norwegian court, for the purposes of s.1(a) and not by the prosecution itself (para. 8; para. 10).

(3) However, the court was not satisfied that criminal proceedings had been instituted before the Norwegian court in compliance with s.1(b) of the Schedule to the Order. The letter of request referred to no specific charge...