CHAPTER
98
MUTUAL LEGAL ASSISTANCE (CRIMINAL MATTERS) |
ARRANGEMENT OF
SECTIONS |
SECTION |
|
|
Inconsistencies between different laws. |
Requests to Competent Authority. |
Requests relating to fines. |
Requests relating to search and seizures. |
Request relating to evidence for use abroad. |
|
Request relating to transfer of persons in
custody. |
Provision of assistance in lending exhibits. |
Admissibility of evidence obtained abroad. |
|
Powers ancillary to execution of a request. |
Subsidiary legislation by the Minister. |
Protection of persons appearing in response to a
request. |
|
Extension of Courts' jurisdiction in the taking
of evidence. |
Manner of executing requests. |
Charge upon the Consolidated Fund. |
SCHEDULE - Mutual Legal Assistance Treaties in Criminal
Matters. |
CHAPTER 98 |
MUTUAL LEGAL
ASSISTANCE (CRIMINAL MATTERS) |
An Act to
provide for the implementation of treaties for mutual legal assistance in
criminal matters. | 2 of 1988
S.I. 54/1990 |
[Assent 31st March,
1988]
[Commencement 20th August, 1990] |
1. This Act may be cited as the Mutual Legal Assistance
(Criminal Matters) Act, 1988. | Short title. |
2. (1) In this Act- | Interpretation. |
"Competent
Authority" means the Attorney-General; |
"data"
means representation in any form of information or concepts; |
"foreign
state" means a state that is a party to a treaty; |
"offence"
means an offence within the meaning of the relevant treaty; |
"record"
means any material on which data are recorded or marked and which is capable of
being read or understood by a person or a computer system or other device; |
"request"
means a request for assistance presented pursuant to a treaty; |
"treaty"
means a treaty, convention or other international agreement providing primarily
for mutual legal assistance in criminal matters between a foreign state and The
Bahamas and referred to in the Schedule; |
"law
enforcement officer" means any peace officer, a member of the Royal
Bahamas Defence Force, a Customs Officer as defined in the Customs Management
Act 1976, an officer of the Department of Immigration or an officer in the Prison
Service when acting in relation to the carrying out of any request approved by
the Competent Authority. |
(2) Subject to
subsection (1) other terms and expressions used in this Act shall unless the
context otherwise requires have the meanings assigned to them in the relevant
treaty. |
3. (1) In the event of any inconsistency between the
provisions of this Act and of any other written law, other than the provisions
of an Act prohibiting the disclosure of information or prohibiting its
disclosure except under certain conditions, the provisions of this Act prevail
to the extent of the inconsistency. | Inconsistencies between different laws. |
(2) Nothing in
this Act or a treaty shall be construed as to abrogate or derogate from an
agreement, arrangement or practice respecting co-operation between any
governmental agency of The Bahamas and a foreign or international authority or
organisation. |
4. (1) Where a request is presented in accordance with
the provisions of a treaty to the Competent Authority by a foreign state the
Competent Authority shall deal with that request in such a manner as is
requisite to discharge the obligations of The Bahamas under that treaty. | Requests to Competent Authority. |
(2) The Competent
Authority may not give effect by means of the provisions of this Act to a
request unless the relevant treaty provides for mutual assistance with respect
to the subject matter of the request. |
5. (1) Where the Competent Authority approves of a
request to enforce the payment of a fine imposed by a court of criminal
jurisdiction of a foreign state the enforcement thereof may be pursued in a
court of The Bahamas by way of civil proceedings instituted in the name of the
foreign state as if the fine had been imposed by the latter court. | Requests relating to fines. |
(2) No proceedings
under subsection (1) shall be instituted more than five years after the fine
was imposed. |
6. (1) The provisions of any written law respecting the
grant of authority to and powers and privileges of a law enforcement officer to
carry out searches or seizures shall extend with such modifications as the
circumstances require to any search or seizure which is the subject matter of a
request approved by the Competent Authority. | Requests relating to search and seizures. |
(2) Where the
Competent Authority approves of a request for a search or seizure to be carried
out in The Bahamas regarding an offence with respect to which the foreign state
has jurisdiction the Competent Authority shall ensure that all documents or
information necessary to apply for a search warrant are provided to the
relevant authority concerned in the execution of the request. |
(3) The authority
to whom an application is made pursuant to subsection (2) for the issue of a
search warrant may issue the warrant authorising a law enforcement officer
named therein to execute it anywhere in The Bahamas where the authority is
satisfied by statements under oath that there are reasonable grounds for
believing that- |
(a) an offence
has been committed within the foreign state which has made the request for the
relevant search; |
(b) evidence of
the commission of the offence or information that may reveal the whereabouts of
a person who is suspected of having committed the offence will be found in a
building, vessel, aircraft, receptacle or other place in The Bahamas; and |
(c) it would
not, in the circumstances, be appropriate for an order under section 7(1) to be
made. |
(4) A law
enforcement officer who executes a search warrant in relation to a request
shall before entering the place or premises to be searched or as soon as
practicable thereafter give a copy of the warrant to any person who is present
and appears to be in charge of the place or premises or where the place or
premises are unoccupied the officer shall on entering or as soon as practicable
thereafter cause a copy of the warrant to be affixed in a prominent position
within the place or premises. |
(5) A law
enforcement officer on executing a search warrant in relation to a request may
in addition seize any thing that he believes on reasonable grounds will afford
evidence of, has been obtained by, or used in, or is intended to be used in,
the commission of an offence under the laws of The Bahamas. |
(6) No record or
thing seized for the purpose of compliance with a request shall be sent to the
foreign state until the Competent Authority is satisfied that the foreign state
has agreed to comply with any terms or conditions imposed in respect of the
sending abroad of the record or thing seized. |
7. (1) Where the Competent Authority approves of a
request to obtain evidence to be used in proceedings in a foreign state a court
to which any application is made by the Competent Authority for the purpose
shall have jurisdiction to entertain the application and to make such order as
it sees fit to give effect to the request having regard to the provisions of
the treaty under which the request was made. | Request relating to evidence for use abroad. |
(2) Subject as
hereinafter provided in this section the procedure applicable to any
application under any other written law pertaining to the obtaining of evidence
for use abroad and the mode of carrying out and enforcement of any order of the
court therefor shall mutatis mutandis apply to an application referred
to in subsection (1). |
(3) At the
conclusion of an examination carried out for the taking of evidence in relation
to a request the Registrar of the Supreme Court shall forward duly certified
under the seal of the court to the Competent Authority all depositions,
exhibits or things taken or seized pursuant to the order obtained for the
examination. |
(4) A person named
in an order made under subsection (1) may refuse to answer one or more
questions or to produce certain records or things to the examiner if not a
judge if- |
(a) the refusal
is based on a law in force in The Bahamas; |
(b) to require
the person to answer the questions or to produce the records or things would
constitute a breach of a privilege recognised by a law in force in the foreign
state that presented the request; |
(c) to answer
the questions or produce the records or things would constitute the commission
by the person of an offence against a law in force in the foreign state that
presented the request. |
(5) Where a
request by the Competent Authority is presented to a foreign state and a person
there refuses to answer one or more questions or to give up certain records or
things by reason of a law in force in The Bahamas a judge may determine the
validity of the refusal on an application made, after reasonable notice to the
person, by the Competent Authority. |
(6) Where a person
refuses to answer a question or to produce a record or thing, the examiner
shall continue the examination and ask any other question or request the
production of any other record or thing mentioned in the order. |
(7) A person named
in an order made under subsection (1) who refuses to answer one or more
questions or to produce certain records or things shall, within five days, give
to the examiner if not a judge a detailed statement in writing of all the
reasons on which the person bases the refusal to answer each question that the
person refuses to answer or to produce each record or thing that the person
refuses to produce. |
(8) The examiner
shall make a report to the Registrar accompanied by- |
(a) a
transcript of every examination made in the relevant matter; |
(b) a general
description of every record or thing produced at the examination pursuant to
the order appointing the examiner; and |
(c) a copy of
every statement given under subsection (7) of the reasons for a refusal to
answer any questions or to produce any record or thing. |
(9) Where the
Registrar is in possession of a statement referred to in paragraph (c) of
subsection (8) the Registrar shall refer the documents and anything received
under that subsection to a judge who shall determine whether the reasons
contained in any statement given under subsection (7) that purport to be based
on a law in force in The Bahamas are well-founded and where the judge
determines that they are, that determination shall be mentioned in any order
that the judge makes under subsection (11) but where the judge determines that
they are not, the judge shall order that the person named in the order made
under subsection (1) answer the questions or produce the records or things. |
(10) A copy of
every statement given under subsection (7) that contains reasons that purport
to be based on a law in force in the foreign state shall be appended to any
order that the judge makes under subsection (11). |
(11) A judge to
whom a report is made under subsection (8) may order that there be sent to the
foreign state the report and any record or thing produced, as well as a copy of
the order accompanied by a copy of any statement given under subsection (7)
that contains reasons that purport to be based on a law in force in the foreign
state as well as any determination of the judge made under subsection (9) that
the reasons contained in a statement given under subsection (7) are
well-founded. |
(12) The Competent
Authority may when complying with a request upon receipt of the results of an
examination for the taking of evidence make those results available to the
foreign state subject to such terms and conditions as are permitted by the
relevant treaty. |
(13) No record or
thing that may be sent pursuant to subsection (11) shall be so sent until the
Competent Authority is satisfied that the foreign state that made the request
has agreed to comply with any terms or conditions imposed in respect of the
sending abroad of the record or thing. |
(14) The execution
of an order made under subsection (1) that was not completely executed because
of a refusal, by reason of a law in force in the foreign state, to answer one
or more questions or to produce certain records or things to an examiner may be
continued where a person designated by the foreign state determines that the
reasons are not well-founded and the foreign state so advises the Competent
Authority. |
(15) No person
named in an order made under subsection (1) whose reasons for refusing to
answer a question or to produce a record or thing are determined, in accordance
with subsection (14) not to be well-founded, shall, during the continued
execution of the order, refuse to answer that question or produce that record
or thing to the examiner except with the permission of a judge. |
8. A person named in an order made under section 7(1)
commits a contempt of court if the person refuses to answer a question or to
produce a record or thing to the examiner- | Contempt of Court. |
(a) without
giving the detailed statement required by section 7(7); or |
(b) where the
person was already asked the same question or requested to produce the same
record or thing and all of the reasons on which the person based the earlier
refusal were determined not to be well-founded by- |
(i) a
judge, if the reasons were based on a in force in The Bahamas; or |
(ii) a
person designated by the foreign state or by a court of the foreign state, if
the reasons were based on a law in force in the foreign state. |
9. (1) Where the Competent Authority approves a request
to have a person who is detained in lawful custody by order of a court
transferred to a foreign state the Competent Authority may, where the Competent
Authority is satisfied that the person detained consents to the transfer for
the purposes of the request, submit to- | Request relating to transfer of persons in custody. |
(a) in the case
of a person who is detained but not undergoing a term of imprisonment, the
court which ordered the detention, an application for the transfer of the
person detained; and |
(b) in the case
of a person who is undergoing a term of imprisonment, the Superintendent of
Prisons a transfer order under the hand of the Competent Authority. |
(2) The
application or transfer order mentioned in subsection (1) shall- |
(a) state the
name of the detained person; |
(b) state the
place of confinement of the detained person; |
(c) designate a
person or class of persons into whose custody the detained person is sought to
be delivered; |
(d) state the
place to which the detained person is sought to be transferred; |
(e) state the
reasons why the detained person is sought to be transferred; and |
(f) specify a
period of time at or before the expiration of which the detained person is to
be returned. |
(3) Where a court
is in receipt of an application under subsection (1) and is satisfied that the
detained person consents to the transfer to the foreign state the court may
issue a transfer order to the Superintendent of Prisons or other person in
whose custody the person is being detained and in respect thereto the court may
have the person detained to be brought up and be examined with respect to the
transfer. |
(4) A transfer
order issued pursuant to subsection (1)(b) or (3) shall be sufficient authority
for the Superintendent of Prisons or other person in whose custody the person
is detained or imprisoned to permit the removal of the person named in the
order from such custody in accordance with the directions of the Competent
Authority. |
(5) Directions
issued by the Competent Authority for the transfer of a person shall- |
(a) set out the
name of the detained person and his place of confinement; |
(b) direct the
person who has custody of the detained person to deliver him into the custody
of a person who is designated in the directions or who is a member of a class
of persons so designated; |
(c) direct the
person designated under paragraph (b) to take the detained person to the
foreign state and, on the return of the detained person to The Bahamas, to
return him to the place of confinement where he was when the order was made; |
(d) state the
reasons for the transfer; and |
(e) fix the
period of time at or before the expiration of which the detained person must be
returned. |
(6) A person
transferred pursuant to subsection (4) shall be deemed to be in lawful custody
during the transfer and during the period in which he is in the foreign state
in accordance with the transfer and such time shall count for all purposes
under the laws of The Bahamas as if he had been in custody in The Bahamas. |
(7) A person who
is in lawful custody in a foreign state and who is transferred to The Bahamas
in consequence of a request made by the Competent Authority to that state shall
be deemed to be in lawful custody. |
(8) Any person who
is the subject of a transfer referred to in subsection (6) or (7) may be
released from custody upon such conditions as to bail or otherwise as may be
agreed between the Competent Authority of The Bahamas and that of a foreign
state and shall in any event be released no later than the date on which he would
have been released if he had not been so transferred. |
(9) The Competent
Authority may give directions for the detention in The Bahamas of a person who
has been transferred to The Bahamas out of custody in a foreign state pursuant
to a request by the Competent Authority and any such directions shall be
sufficient authority for the detention and shall not be questioned in or be the
subject of any proceedings in The Bahamas. |
10. (1) Where the Competent Authority approves of a
request to have an exhibit that was admitted in evidence in a criminal
proceeding in a court lent to the requesting state the Competent Authority may
make an application to the court that has possession of the exhibit for a loan
order. | Provision of assistance in lending exhibits. |
(2) Reasonable
notice of the intended application should be given to the parties concerned in
the criminal proceeding and shall- |
(a) contain a
description of the exhibit requested to be lent; |
(b) designate a
person or class of persons to whom the exhibit is sought to be given; |
(c) state the
reasons for the request, as well as contain a description of any tests that are
sought to be performed on the exhibit and a statement of the place where the
tests will be performed; |
(d) state the
place or places to which the exhibit is sought to be removed; and |
(e) specify a
period of time at or before the expiration of which the exhibit is to be
returned. |
(3) Where the
court to which an application under subsection (1) is made is satisfied that
the foreign state has requested the loan for a fixed period and has agreed to
comply with the terms and conditions that the court proposes to include in any
loan order, the court may after considering any representations of the persons
to whom notice of the application was given in accordance with subsection (2)
make a loan order. |
(4) A loan order
made under subsection (3) shall- |
(a) contain a
description of the exhibit; |
(b) order the
person who has possession of the exhibit to give it to a person designated in
the order or who is a member of a class of persons so designated; |
(c) contain a
description of any tests thereby authorised to be performed on the exhibit, as
well as a statement of the place where the tests may be performed; |
(d) fix the
place or places to which the exhibit may be removed; and |
(e) fix the
period of time at or before the expiration of which the exhibit must be
returned. |
(5) A loan order
made under subsection (3) may include any terms or conditions that the court
making it considers desirable, including those relating to the preservation of
the exhibit. |
(6) A court that
made a loan order may vary its terms and conditions. |
(7) The burden of
proving that an exhibit lent to a foreign state pursuant to a loan order made
under subsection (3) and returned to The Bahamas is not in the same condition
as it was when the loan order was made or that it was tampered with after the
loan order was made is on the party who makes that allegation and, in the
absence of that proof, the exhibit shall be deemed to have been continuously in
the possession of the court which made the loan order. |
11. (1) A record or a copy thereof and any affidavit,
certificate or other statement pertaining to the record made by a person who
has custody or knowledge of the record, sent to the Competent Authority by a
foreign state in accordance with a request made by The Bahamas is not
inadmissible in evidence in any proceedings by reasons only that a statement
contained in the record, copy, affidavit, certificate or other statement is
hearsay or a statement of opinion. | Admissibility of evidence obtained abroad. |
(2) For the
purpose of determining the probative value of a record or copy thereof admitted
in evidence under this Act a court or other tribunal may examine the record or
copy, receive evidence orally or by affidavit, including evidence as to the
circumstances in which the information contained in the record or copy was
written, recorded, stored or reproduced, and draw any reasonable inference from
the form or content of the record or copy. |
(3) A thing and
any affidavit, certificate or other statement pertaining to the thing made by a
person in a foreign state as to the identity and possession of the thing from
the time it was obtained until its sending to the Competent Authority by the
foreign state in accordance with a request by The Bahamas, are not inadmissible
in evidence in any proceedings by reason only that the affidavit, certificate
or other statement contains hearsay or a statement of opinion. |
(4) An affidavit,
certificate or other statement mentioned in the preceding subsections is, in
the absence of evidence to the contrary, proof of the statements contained
therein without proof of the signature or official character of the person
appearing to have signed the affidavit, certificate or other statement. |
(5) Unless the
court decides otherwise, no record or copy thereof, no thing and no affidavit,
certificate or other statement mentioned in subsection (1), (2), or (3) shall
be received in evidence in any proceedings unless the party intending to
produce it has given to the party against whom it is intended to be produced
four days' notice, excluding holidays, of that intention, accompanied by a copy
of the record, copy, affidavit, certificate or other statement. |
(6) The service of
a document in a foreign state may be proved by affidavit of the person who
served it. |
12. (1) Subject to section 11(5) a record sent to the
Competent Authority by a foreign state in accordance with a request made by the
Competent Authority is privileged and no person shall disclose to anyone the
record or its purport or the contents of the record or any part thereof before
the record, in compliance with the conditions on which it was so sent, is made
public or disclosed in the course or for the purpose of giving evidence. | Confidentiality. |
(2) No person in
possession of a record mentioned in subsection (1) shall be required in
connection with any legal proceedings to give evidence relating to any
information that is contained in the record or to produce the record. |
13. (1) Where the execution of a request requires the
issue under the laws of The Bahamas of a subpoena or other necessary order by a
judge, or justice of the peace a certificate given by the Competent Authority
that the issue of any such document or order is required for the purpose of a
request shall subject to section 6(3) be sufficient authority for the issue or
making of same without further enquiry. | Powers ancillary to execution of a request. |
(2)
Notwithstanding the provisions of any other law if the execution of any request
approved by the Competent Authority requires the service of any document or the
seizure of any article any law enforcement officer shall assist in such service
or seizure to the same extent as he would be required so to do in the case of
the service or seizure authorised by a court and for that purpose he shall be
deemed to be acting in the execution of his duty and to have the same powers
and privileges as if acting in pursuance of the authority of the court. |
14. (1) The Minister may make Regulations for the
carrying into effect of the other provisions of this Act. | Subsidiary legislation by the Minister. |
(2) The Minister
may make Orders for the modification and adaptation of any law as he considers
necessary for the purpose of giving effect to any treaty or any request made
thereunder or for Orders amending the Schedule. |
(3) Any Order made
by the Minister under subsection (2), other than an Order amending the
Schedule, shall be subject to affirmative resolutions of both the House of
Assembly and the Senate so that no Order shall come into operation unless and
until approved by those resolutions. |
15. Subject to section 9(9) any person who enters The
Bahamas in response to a request made to a foreign state by the Competent
Authority for the appearance of that person in accordance with a treaty, while
in The Bahamas shall not be subject to service of any process or subjected to
any restriction of his personal liberty by reason of anything done or omitted
by him in The Bahamas, or elsewhere prior to his departure from that foreign
state in conformity with such request: | Protection of persons appearing in response to a
request. |
Provided that the
immunity conferred by the foregoing provisions of this section shall cease ten
days after that person has been notified by the Competent Authority that his
presence is no longer required in The Bahamas or, if he has earlier left The
Bahamas, that he is not required by the Competent Authority to return for the
purpose of a request. |
16. (1) Any person who having been ordered by a court
of the Competent Authority in accordance with this Act or by any person acting
in that behalf to produce any documents which are in his possession or under
his control, fails so to do, shall be guilty of an offence and liable on
summary conviction to a fine not exceeding ten thousand dollars or to
imprisonment for a term not exceeding two years, or to both such fine and
imprisonment. | Offences. |
(2) Any person
who, contrary to the provisions of section 12(1), informs any person, other
than his attorney, of the fact of the issue of a request or of any
communication relevant to the matter to which the request relates, shall be
guilty of an offence and liable on summary conviction to a fine not exceeding
one thousand dollars or to imprisonment for a term not exceeding six months, or
to both such fine and imprisonment. |
(3) Any person
who, when required so to do in accordance with any subpoena served upon him,
refuses to attend as required or to provide testimony in response to a request,
shall be guilty of an offence and liable on summary conviction to a fine not
exceeding one thousand dollars or to imprisonment for a term not exceeding one
year or to both such fine and imprisonment. |
(4) The provisions
of subsections (1), (2) and (3) shall be without prejudice to the provisions of
any law with regard to the liability of any person to be dealt with for failure
to comply with any subpoena or other order issued by any court: |
Provided that no
person shall be punished both under this section and any other law for an
offence relating to the same failure to comply with the same order. |
17. Notwithstanding anything to the contrary in this
Act or any other law the jurisdiction of a court under any existing law which
enables the taking of evidence in The Bahamas for the purpose of criminal
proceedings pending abroad shall extend to any application made for the purpose
of a request approved by the Competent Authority whether or not such
proceedings are pending or are proceedings not cognisable by that law or in
which an order for the taking, of evidence is not made in keeping with the
previous practice of the court. | Extension or Courts' jurisdiction in the taking of
evidence. |
18. An agency or department of government or a court
shall, in giving effect to a request approved by the Competent Authority, have
such powers as are necessary to execute the request in the manner sought under
the request. | Manner of executing requests. |
19. All sums expended by the Competent Authority in the
carrying out of a request shall be charged upon the Consolidated Fund. | Charge upon the Consolidated Fund. |
SCHEDULE (Section 2) |
MUTUAL LEGAL
ASSISTANCE TREATIES IN CRIMINAL MATTERS |
1. Treaty between
the Commonwealth of The Bahamas and the United States of America on Mutual
Assistance in Criminal Matters executed by the government of The Bahamas on the
12th day of June 1987; |
2.
Agreement between the Government of The Bahamas and the Government of the
United Kingdom of Great Britain and Northern Ireland concerning the
investigation of Drug Trafficking and Confiscation of the Proceeds of Drug
Trafficking signed at Nassau on the 28th day of June, 1988; and |
3.
Treaty between the Commonwealth of The Bahamas and Canada on Mutual Assistance
in Criminal Matters executed by the Government of The Bahamas on 13th March,
1990. |