# docs_fts_content

c1: EFTA00021749
c2: DataSet 8
c3: VOL00008
c4: DataSet 8/VOL00008/IMAGES/0004/EFTA00021749.pdf
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=== Page 1 ===
From: "cmecf@ca2.uscourts.gov" <cmecf@ca2.uscourts.gov>
To:
Subject: 19-2221 United States of America V. Epstein "Defective Document FILED"
Date: Mon, 05 Aug 2019 19:01:07 +0000
***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits
attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of
all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees
apply to all other users. To avoid later charges, download a copy of each document during this first
viewing.
Court of Appeals, 2nd Circuit
Notice of Docket Activity
The following transaction was filed on 08/05/2019
Case Name:
United States of America V. Epstein
Case Number: 19-2221
Document(s): Document(s)
Docket Text:
DEFECTIVE DOCUMENT, notice of additional counsel, [11], on behalf of Appellant Jeffrey Epstein, FILED.
[2624335] [19-2221]
Notice will be electronically mailed to:
Martin G. Weinberg
Reid Weingarten, -:
The following document(s) are associated with this transaction:
Document Description: Defective_Document_Notice
Original Filename:
/opt/ACECF/live/forms/DonnellBolden_192221_2624335_Defective_Document_Notice_142.pdf
Electronic Document Stamp:
[STAMP acecfStamp_ID=1161632333 [Date=08/05/2019] [FileNumber=2624335-0]
[4dbd012777752d2dd78a4b05be1da3886a8eefdd41ae09ba8fb89dcd558ec5e80d078587a77166d4cb2828494277
cc3fe1ac169fe526f23db66184f7fd75812d]]
Recipients:
Martin G. Weinberg, -
Reid Weingarten, -
EFTA00021749


c1: EFTA00021689
c2: DataSet 8
c3: VOL00008
c4: DataSet 8/VOL00008/IMAGES/0004/EFTA00021689.pdf
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=== Page 1 ===
SECURITY
U.S. Department of Justice
United States Attorney
Southern District of New York
The Silvio J. Mollo Building
One Saint Andrew's Plaza
New York, New York 10007
February 26, 2021
BY ELECTRONIC MAIL
Christian Everdell, Esq.
Mark Cohen, Esq.
Cohen & Gresser LLP
800 Third Avenue
New York, NY 10022
Laura Menninger, Esq.
Jeffrey Pagliuca, Esq.
Haddon, Morgan and Foreman, P.C.
150 East Tenth Avenue
Denver, CO 80203
Bobbi Sternheim, Esq.
Law Offices of Bobbi C. Sternheim
33 West 19th Street-4th Fl.
New York, NY 10007
Re:
United States V. Ghislaine Maxwell, 20 Cr. 330 (AJN)
Dear Counsel:
Today we are producing the materials listed in the below index. These discovery materials
are stamped with control numbers SDNY_GM_02742751 through SDNY_GM_02742962.
Please note that both this letter and the enclosed materials are governed by the July 31,
2020 Protective Order in this case. I This letter is itself designated as "confidential," because it
includes information regarding records designated as "confidential" under the Protective
Order. An index of the materials contained in this production is below:
1
Files in PDF format designated as "confidential" under the protective order have been stamped
"confidential." However, certain files cannot be individually labeled as confidential on the
documents themselves due to their file format.
EFTA00021689

=== Page 2 ===
Page 2
Bates Start
Bates End
Summary Description
Confidential
Designation
SDNY GM 02742751
SDNY GM 02742752
American Express records
SDNY GM 02742753
SDNY GM 02742754
Amanda Kramer emails
Confidential
SDNY GM 02742755
SDNY GM 02742762
A. Kramer emails
Emails between Serene Nakano and
SDNY GM 02742763
SDNY GM 02742877
A. Marie Villafana
A. Kramer February 2016 meeting
SDNY_GM_02742878
SDNY GM 02742886
notes
Confidential
Notes of February 11, 2021 Call with
SDNY GM 02742887
SDNY GM 02742892
A. Kramer
Notes from the U.S. Attorney's
Office for the Southern District of
SDNY GM 02742893
SDNY GM 02742894
Florida
Flight log provided to A. Kramer at
SDNY GM 02742895
SDNY GM 02742962
February 2016 meeting
Confidential
Among the materials contained in this production is an excerpt of a flight log that former
Assistant United States Attorney
received during a February 29, 2016 meeting
with attorneys representing
(the "February 2016 meeting"). At the
February 2016 meeting, AUSA
received copies of Jeffrey Epstein's black book, excerpts
of flight records, and certain Palm Beach Police Department reports. Epstein's black book and the
Palm Beach Police Department reports were previously produced to you on August 21, 2020, and
can be found at SDNY_GM_00174731-SDNY_GM_00174827 and SDNY_GM_00174880-
SDNY_GM_00174966 respectively. Today we are producing to you the version of the flight
records AUSA Kramer received at the February 2016 meeting, which includes a subset of logs
previously produced to you on August 5, 2020 (see SDNY_GM_00005532-
SDNY_GM_00005676) as well as two additional pages that were not previously produced to you
in discovery, see SDNY_GM_02742935 and SDNY_GM_02742937.
Additionally, in recognition of the Government's obligations under Brady V. Maryland,
373 U.S. 83 (1963) and its progeny, we are disclosing the information below. This disclosure
should not be taken to indicate that the Government believes the enclosed information constitutes
Brady material. Rather, we make this disclosure in an abundance of caution. Specifically, the
Government discloses the following:
The witness identified as witness "M" in a 2007 ex parte declaration, which you
attached as Exhibit B to the Defense Pretrial Motion Number 10 for Bill of
Particulars and Pre-Trial Disclosures in this case, is
On or about
November 14, 2006,
was interviewed by the Federal Bureau of
Investigation. The notes from that interview contain the following line on page 12:
"rumor is that JE is gay," apparently referring to a rumor regarding Jeffrey
Epstein's sexual orientation.
The Government recognizes that its discovery obligations are ongoing and will promptly
produce any additional discoverable material of which it becomes aware. Please do not hesitate
EFTA00021690

=== Page 3 ===
Page 3
to reach out if you have any difficulty accessing these materials or if you wish to arrange a time to
review physical items in the FBI's custody.
Very truly yours,
AUDREY STRAUSS
United States Attorney
by:
EFTA00021691


c1: EFTA00020479
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c4: DataSet 8/VOL00008/IMAGES/0004/EFTA00020479.pdf
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=== Page 1 ===
OFFICIAL RECORD
Intake (Rev. 5-23-17)
UNCLASSIFIED
FEDERAL BUREAU OF INVESTIGATION
Intake
Date: 08/11/2020
Case ID #: 50D-NY-3027571
(U) EPSTEIN, JEFFREY; CHILD SEX
TRAFFICKING
Drafted By:
Date/Time Received: 08/10/2020 11:20 PM EDT
Details:
On 08/10/2020, at 08/10/2020 p.m. Eastern Time, an anonymous female
caller (Anonymous), cellular telephone number
,
called the
FBI National Threat Operations Center (NTOC) Unit to report information
related to Jeffrey Epstein.
Anonymous provided the following information:
Anonymous reported her father,
,
residing in
Tarpon Springs, FL, an attorney, was a former recruiter for Epstein.
Anonymous stated she and her five siblings were "sold" throughout their
entire childhood and Anonymous stated she met Epstein when she was four
years old, around the time Ghislaine was around. Anonymous was given
mental health problems while growing up in order to make her appear less
credible. Anonymous stated her father forced men to have sex with her
beginning at the age of four or five. Anonymous reported she is now 28-
years old and she cannot do it anymore.
While growing up,
assigned all of the siblings with "pimps."
Anonymous stated her "pimp" was only a year older and they were expected
to marry one another. Anonymous noted she is still with her "pimp" and
they have a four year old child together.
is currently
attempting to get full custody of Anonymous' child, but Anonymous fears
he will be trafficked as well. Anonymous' child has already made
reference to "I don't want grandpa to hurt my butt" and "I don't want
monsters to come in my room. "
UNCLASSIFIED
EFTA00020479

=== Page 2 ===
UNCLASSIFIED
Re: 50D-NY-3027571, 08/11/2020
Anonymous reported her siblings would never come forward with the
information and would never bring it up. Anonymous stated she is still
"under the thumb" of an unknown man that sells her, and Anonymous
receives no money for it. Anonymous often blacked-out as a child and
stated some of her memories are unclear.
Anonymous is potentially willing to provide additional information in
person. Anonymous noted she was the one to take the photograph of Prince
Andrew and
in 2001. Anonymous formally went by the name
"
UNCLASSIFIED
2
EFTA00020480


c1: EFTA00023393
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c4: DataSet 8/VOL00008/IMAGES/0004/EFTA00023393.pdf
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=== Page 1 ===
Event: Accepted: Epstein Call
Start Date: 2020-05-22 17:00:00 +0000
End Date: 2020-05-22 18:00:00 +0000
Location: 877-720-9282 - 8146826
Class: X-PERSONAL
Comment:
Date Created: 2020-05-21 14:05:56 +0000
Date Modified: 2020-05-21 14:05:56 +0000
Priority: 5
DTSTAMP: 2020-05-21 13:36:47 +0000
Attendee
EFTA00023393


c1: EFTA00023055
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=== Page 1 ===
Exhibit C
EFTA00023055

=== Page 2 ===
(Rev. 01-31-2003)
FEDERAL BUREAU OF INVESTIGATION
Precedence: PRIORITY
Date: 12/06/2006
To: Albuquerque
Santa Fe RA
San Juan
St. Thomas RA
From: Miami
Squad PB-2, PBCRA
Contact: SA
b6
b7c
Approved By:
Drafted By:
Case ID #: 31E-MM-108062 (Pending)
Title: JEFFREY EPSTEIN;
WSTA - CHILD PROSTITUTION
Synopsis: To set leads for captioned investigation.
Details: On 07/24/2006 the Federal Bureau of Investigation
(FBI), Palm Beach County Resident Agency (PBCRA), began
investigating Jeffrey Epstein, a part-time resident of Palm
Beach, along with
# PBCRA obtained information from
the City of Palm Beach Police Department (PBPD)
Epstein
Following the receipt of the case files from the PBPD,
PBCRA began interviewing
b6
who reported a similar
b7c
series of events. In particular,
described how contact
b7D
was made via telephone, primarily
340
01.EC
31E- MM- 108062-
CONFIDENTIAL
SDNY_GM_02050812
EFTA00023056

=== Page 3 ===
To: Albuquerque From: Miami
Re: 31E-MM-108062, 12/06/2006
b6
b7c
b7D
met by Enstein
and some
On most
instances, Epstein
example,
Epstein
During the course of PBPD's investigation, a search
warrant for Epstein's home was obtained and executed. Many of
Epstein's belongings were removed from the home prior to the
execution of the search warrant - for example, the computer
processing units (CPUs) were removed from the house but the
computer screens, keyboards, cords, etc. were left behind. The
missing CPU's were never recovered.
During the search, several telephone message pads were
recovered. These message pads show messages taken from several of
the girls who were interviewed and admitted to engaging in sexual
massages or other sexual activity with Epstein. The messages
contained text such as "I have a female for him" and "has girl
for tonight." Some of the messages from the girls were addressed
to Epstein and others were addressed to
Additional messages recovered during the search
contained text confirming appointment times.
During the PBCRA's investigation,
that
would contact
2
CONFIDENTIAL
SDNY_GM_02050813
EFTA00023057

=== Page 4 ===
To: Albuquerque From: Miami
Re: 31E-MM-108062, 12/06/2006
The investigation revealed that prior to
the flights to Palm Beach,
would contact some of
via cell phone The massage pads show evidence that
b6
b7c
b7D
In addition to the home in Palm Beach, Epstein also
maintains a residence in the U.S. Virgin Islands, New York and
New Mexico.
To date, the PBCRA continues to develop witnesses and
victims from across the United States. Due to the media coverage,
unknown status of the state investigation, vulnerability of the
young female victims, and political influences, the AUSAs and
Case Agents have a target date of January 2007 for indictment.
Based on the ongoing criminal investigation, the PBCRA
is requesting the assistance in establishing Epstein's criminal
activity utilizing interstate commerce and the travel in
interstate commerce to engage in illicit sexual conduct and
prostitution. Prior to conducting captioned leads, it is
requested that the lead agent (s) contact SA
FBI Miami, West Palm RA,
or SA
for investigative direction and
questions.
3
CONFIDENTIAL
SDNY_GM_02050814
EFTA00023058


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c4: DataSet 8/VOL00008/IMAGES/0004/EFTA00021076.pdf
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=== Page 1 ===
9/10/19
Cattny
Missage Pads
SA03008
4/1/05
knew to Mean
FOR Jeffrey
If
-
2x 8
teenage girl
M Jean-luc
\ wrote this Msg. GM in house $ said oh this
is funny Msg. Burnsand either GM rewrite it or she
had me rewrite it.
potential teenage girl for him to Meet
saw on twittee he said wl wife the kid
Met Alan Dershowitz Calone in house]
no wife, no kids when he received Massage
2/05
28/
SAO 01446
- reference to school
dont know name
remember taking call
know talking about scheduling Massage
HS talking bout think
I would have used initials
then
EFTA00021076

=== Page 2 ===
MP L
could be
in his Rm he had Msg books when he left
th me saw -
took them
MP 2
- dont recognize handwriting
- I know who
is
- lived in NY share apt w/
- dont know well
- building volunteering houses in (R, or some like that
- NY residence -gift left from her
female bottom pic
- she abruptly left
- -heard stories She was throwing up &
eating disorder & She lied
-
travel to Pherto Rico b/c
preg.
I recognized
$ she was helping
met on island (older sis of
)
\
her in
recent
- I thought she was of age
news
- didnt have much interaction w/ her
MP3
.
recognize
name
JE came downstairs w/ her
think
there
- told story of driving tast $ being pulled
over by police dad had to get her
EFTA00021077

=== Page 3 ===
MP 4
Sne had
- upper left - think
potential writing
loopriting
ting
- at time Jt had disagreement w/ bro
about hospital bill, etc
MP 5
- Darren = attny NY
-
- could be
or diff.
- NY to PB on plane had neck problems
MP 6
dont recognize
MP 7
- -think it could be
- recruiting girls in NY
- travel w/ Jean Luc to Russia
- Shared apt w/
Im helping
find girls
Henry Jarecki
-some JE thought as friend
- heard that he had gf named
- Saw online a pic of Henry
"
"
EFTA00021078

=== Page 4 ===
MP8
- everyone referred to him as Jeffrey (personal)
- Mr. Epstein = house staff was more formal
MP 9
-
- remember her
dont remember if had girl wi her When saw
her
- could be
writing
dont know - dont think her b/c
# 7 = very European way of writing it
if in NY travel to PB
-
- she primarily call
- would give me list of things to do
- JE want me to confirm night b4 or
Monning of
JE in front of comp in PB or VI
- he give list of things to do
- people to call
sometimes let me Sit in on mtgs
there in NY
EFTA00021079

=== Page 5 ===
10
- had these pads - kept them stored in NY
GM had
- they were in diff residences
pads too
-
= could be girl massaged
Little St
remember her wanting speak about college
James or
Jeff
11
- could be my writing
- leave msgs in kitchen for him
-
transitional pantry area
12
- my writing
- told to confirm appts.
-
traveled w/ JE
-
give massages to Thesen Me,
, or
whoever traveling w/ JE
13
dont recognize writing
14
girl that was preg.
- girl that travel to NY to PB
who described having neck injury
EFTA00021080

=== Page 6 ===
15
- confirming or to do list on who to call
- my writing
16
- dont recognize
- European background b/c of 7
buen both GM 3 JE stationary in diff places
,
large desk GM used - or area near comp.
- trained on now make calls from
- she was immediate person I reported to
- she gave me list on travel way PB
-
gave me pieces of paper of people
to confirm
- 1 kept papers in desk but they
were later gone - thought
got rid
- remember
SAT
-
tasked w/ baby purchases for
-
would call a person to ask about someone
else - feel like remember specific name
dont remember ever asking if they knew
other girls
EFTA00021081

=== Page 7 ===
- I was aways told who to call or ask about
remember
who would come w/ other girls
- She would stay in kitchen or downstairs
remember
w/ girls
- dont remember
dont remember specific examples but think
saw payments - I may have but dont remember
grab cash tn go upstairs during sessions
piles of $ 100 bills
put back in duffle bag
he had
VI by his desk
cabana
- PB by " 11
desk
- LR near bookshelf - desk
$1000 petty cash 1 was given
- had to Type up report to account for it
- give to accountant
feel like I had knowledge that both girls got
paid - one who brought
- dont remember exactly
EFTA00021082

=== Page 8 ===
one in PB th one in NY
PB
chat w/
- stay around more
Copperfield think
one time
girl
L'
her $ girl
= stay behind to chat
was
- another friend She came wl brought flower pic
Friend into photogr.
hat w/ JE
- trying to get into college w/ SAT info /tutor
- NY office in GM told to look into it
- I needed to buy books for her or friend
Jt in
kitchen
Ship them
in time
- books didnt arrive $ he got really
upset w/ Me
JE gave to me
women are from venus, men are from Mars
women (cucle bout womens bodies)
Stocks for Dummies
Story of Old -
gave me book
Remember being in Barnes L Noble wl him
in NY $ PB
- 1 could have picked up when ordering
PB
female
adjustments girls received from chiropracteR
When stay chat
EFTA00021083

=== Page 9 ===
NY
- friends w/
- Model w/ good agency
-showing shoes she got as gift
- she was coming $ seeing JE
- young model 17 I think
VI
Stationary comp I on
saw quick glance of social Media of
PB
traveled to NM, PB
JE NY house waiting RM to left \ was in
She his
Larry Summers visiting at time \ help
gf
- very long Mtg in Le upstairs
serving drinks,
food etc.
She slept
came in looked like from event
in his
said she
bedem
She was looking for girls for JE
she also helped find chef
they found porn or something
Remember time
Prince Andrew have breakfast wl JE
girl young bowering dancer like curtsy way
when JE introduce to Prince
- think this girl introduced by
- unsure
EFTA00021084

=== Page 10 ===
sexual encounter w/ JE $
going to GUN ask bout partners
- in car I say something to JE
- I told her had disclose - she say what bout
all girls JE have
In NY always together
N4= = home base
PB = My 11 11
apt building
-1 had studio
- pilots stay there
-
had apt there
dont remember Meals 2gether in PB
ate Meals Zgether on VI
JE more of Snacker
More scheduled
NY
- eat out more
- 6 or 7 when done go home
PB
- stay in house 2nd floor
-
above garage towards front of street
- occasionally \ stayed there too
Photos
- she took of me
- cataloging all pics
EFTA00021085

=== Page 11 ===
In Gm house - we worked there
- Mac comp. w/ large printee
- She had laptop
- large binders
- lot of nude photos of women posing in each of
his houses
- I feel like I had a camera
- remember taking photo of his goddaughter
$ JE playing chess
-
$ I at pool taking photos dont
remember Who
- dont remember taking nudes
GM
met her b/c JE tasked me to ts buy
toiletries for guests staying at 66th St
came to learn She former gf
GM buying furniture around world for him
Jt deliver news of father death
gave instruction to house Mges
remember her PB $ VI
see her alot more in NY
PB
bedroom
- Jt large bathan w/ 2 bathrobms
- GM things in his houses /closets
She would tell me do things /tasks / shampoo,
etc.
I didnt like her, I tried to avoid her
EFTA00021086

=== Page 12 ===
She wasnt nice person
her house person always in tears
Philipines from / think - twins or kids young
work for GM
- asst. work in house
setup of
- work out of NY office
3 desks
seemed close wl GM
- -JE gift her wl fur coat kept at GM house
- JE =
work for \ work for
= JE overall
boss
GM participate in threesomes when he was
her bf
one in
time
travel to Spa
GM
- "on if you find pretty girl get her #
say
she can yet give massage to JE"
very strong person
- I travel to FL - my phone not working & (
call
to connect to GM
- I had to talk to
about GM being upset
b/c I took up her asst. time
PB
Call $ schedule - seemed like reg. activity
NY $ VI
did in NY
I didnt
EFTA00021087

=== Page 13 ===
2x a day everyday he received massages
would have to schedule t confirm appts.
her dad - all kids have come table w/ articles
JE say GM to get something if we couldnt
blc she persuasive
VeRBAL
would come across condescending
JE
said how ungrateful I was $ not
Saying thank you
did something similar to
getting
haircut 1/2 didnt say thank you
/ was told to tell her to pack up by leave apt.
I said / neve get abortion
he ask ton of questions, what if downs, rape
JE mind games
VI
I was sick w/ fever
- he came in $ said wake up lazy flick
my day off
- he lett msg very upset
- made me sit on floor $ do pedicure
reobsessed w/ me putting eye cream on
- if | missed day he get upset
time VI in
despite guy being married he gay
gentleman need Spend more time wl me $
he called me
Diana van
wife of
guy
EFTA00021088

=== Page 14 ===
VI $ NM one time PB
girl give Massage
I would have give Massage $ there would
lead Sex contact
one time asked travel to Boston
- -he often go Harvard
- think trip There short fight
- Gulfstream
- bed made
- nudity 5 encounter he want have sex & said
no he stopped
other times
involved $ She initiated
predominantly w/ massage
in MII Mind \ didnt want to do it but
I agreed
very strange sit. happened on plane
- he grabbed me by neck $ Shook me hard
I dont remember him being forceful
I was 20/21 it was consensual
he told me ithad massaging duty
- / was confused that was part of My role
- I didnt see
to do
EFTA00021089

=== Page 15 ===
at talked
he flew my parents in as surprise
- he had access to my parents / did that
/ wasnt
happy he
about he point have
he $ said last name of what my GM name
- he did his research on my background
Ben wolf Agent
DOS
A
- girls
fill on plane
- asked who all they were
immigration
Jt Say you should ask him bout status
JE say talk to Darren but he didnt know
1st told
Massage duty
Me that
- dont remember how progressed to sex contact
in VI
- feel like thing w/
was planned thing
-
she initiated wl J the me
- may be 5 encounters w/ 2 of them
- JE joked was his gay ge
- Ix Jt not present VI she initiated
I gave Massage to
"
11
girl who flew into Island
- Met at St. Barts - She was sales associat.
- didnt look underage
- SK flew her in
told me come downstairs
he asked me run bath
girl topless
EFTA00021090

=== Page 16 ===
touched Me
VI
JE say what about - if you keep men happy
I took it as flirting or giving sex favors
- 1 didnt respond
introduce
to me
whenked
- he used word cousin when referring to me
Slang
introduce me as that to other people
was prostitute
I felt like he was propositioning me
flew into Aspen
other girls go shopping
was told not tell them girls around
gestured to me thought They talk bout
me
guy from Dubai - Sultan
Andrew Farcus introduced to JE
on phone WI
there N JE telling her
in NY
JE tell her not to Think bout it too long
going to hotel to meet up
we in Car = Jojo driver
EFTA00021091

=== Page 17 ===
\ think \ met
-
descent
- seen her in NY
flew into Miami
- , JE,
w/dog
- 1 asked entertain
while JE
went
met at
somewhere else MiamiBeach
Mtg \ point
- Soho house JE telling me 1 could be real
he
helping
estate agent - developer/archited he had me meet w/
To meet
-
me & JE
told me \ have to drive someone to PB
Standing of
- JE telling me something happen wl visa
- made me feel
dont remember
in front
everything bout it
-
bldg. close
gave me # of person
there by
- rushing there
something happen
near
- Bashniek there
to his detriment
- grabbing comp. notebooks
house MgR,
gentleman there
persube son
- f/u w/
to find out when get back
other \ think
Det. Black whenever he done
- gave to
-
found more books
I called
or he was still There $
gave them to him
I feel like instruction came from
giving me phone #
EFTA00021092

=== Page 18 ===
I think they travel on to VI
asked me to gather books in VI after this
bring back from VI
she reminded Me go in to all locations
huts, etc.
brought back to NY If gave to
sometimes travel wi JE $ sometimes Miami
to Puerto Rico to VI
driver Marina to boat
gave books in GM house
printout of Morerecent copy
she told me to shred it in GM house
Remember having feeling it was strange
Jt duffle bag - tape recorder 5 it was on
-1 turned it off
beg.' 06
- saw him reach for tape recorder $ slip into
bathrobe
initial made promise work learn things stocks,
etc, business world
Stress, verbal grew, never felt good
told resign
EFTA00021093

=== Page 19 ===
she didnt take Seriously
his accountant resigned. \ told him I resign too
dont Think he took seriously
calls records from VI in 06
travel to Paris
meeting w/ former bf
1 travel to Poland
aidnt go
he asked me go to Dubai
- We dont need passports - seemed strange
Cuba trip
give kiss cheek b Castro
called in by Darren - if you ever need help.
- never talk to police
something was off
tapeorder
JE ask things about if \ ever beat someone up
say on you dont enjoy fooling around wl
me
- this is what your job all along
/
once he flip \ knew
-
what if I scream or say no
1 knew he had gun by bed.
- I m on island no where to go
EFTA00021094

=== Page 20 ===
knew he had guns
It gave
gun one time for safety purposes
remember time gun taken
EFTA00021095

=== Page 21 ===
IMPORTANT MESSAGE
IMPORTANT MESSAGE
FOR
M.J.E
FOR
Mi
J.E
1/29/05
A.M.
DATE
TIME
P.M.
1/25/05
A.M.
10.00
DATE
TIME
P.M.
M
M
OF
OF
PHONE/
PHONE/
MOBILE
MOBILE
TELEPHONED
PLEASE CALL
TELEPHONED
PLEASE CALL
CAME TO SEE YOU
WILL CALL AGAIN
CAME TO SEE YOU
WILL CALL AGAIN
WANTS TO SEE YOU
RUSH
WANTS TO SEE YOU
RUSH
RETURNED YOUR CALL
SPECIAL ATTENTION
RETURNED YOUR CALL
SPECIAL ATTENTION
MESSAGE
MESSAGE
Plane call how.
This ho- now
call number- Please
cell her
R
a
SIGNED
R
a
1184
SIGNED
1184
IMPORTANT MESSAGE
IMPORTANT MESSAGE
FOR
J.E
FOR
JE
DATE
1
9:00
A.M.
TIME
P.M.
DATE
/
TIME T.10
A.M.
P.M.
M
M
OF
OF
PHONE
PHONE/
MOBILE
MOBILE
TELEPHONED
PLEASE CALL
TELEPHONED
PLEASE CALL
CAME TO SEE YOU
WILL CALL AGAIN
CAME TO SEE YOU
WILL CALL AGAIN
WANTS TO SEE YOU
RUSH
WANTS TO SEE YOU
RUSH
RETURNED YOUR CALL
SPECIAL ATTENTION
RETURNED YOUR CALL
SPECIAL ATTENTION
MESSAGE
MESSAGE
Please cell her back
'I havo fomals
for him
SC1184 1001
R
a
R
SIGNED
a
1184
SIGNED
1184
1
EFTA00021096

=== Page 22 ===
IMPORTANT MESSAGE
IMPORTANT MESSAGE
FOR
Mr
FOR
2/8/05
A.M.
A.M.
DATE
TIME
P.M.
DATE
TIME
P.M.
M
M
OF
OF
PHONE/
PHONE
MOBILE
MOBILE
TELEPHONED
PLEASE CALL
TELEPHONED
PLEASE CALL
CAME TO SEE YOU
WILL CALL AGAIN
CAME TO SEE YOU
WILL CALL AGAIN
WANTS TO SEE YOU
RUSH
WANTS TO SEE YOU
RUSH
RETURNED YOUR CALL
SPECIAL ATTENTION
RETURNED YOUR CALL
SPECIAL ATTENTION
MESSAGE
MESSAGE
Lift
you
a
SIGNED
a
1184
SIGNED
1184
IMPORTANT MESSAGE
IMPORTANT MESSAGE
FOR
&
FOR
K
DATE
TIME
Stite
A.M.
P.M.
DATE
TIME
215
A.M.
P.M.
M
M
paud
OF
OF
PHONE/
PHONE/
MOBILE
MOBILE
TELEPHONED
PLEASE CALL
TELEPHONED
PLEASE CALL
CAME TO SEE YOU
WILL CALL AGAIN
CAME TO SEE YOU
WILL CALL AGAIN
WANTS TO SEE YOU
RUSH
WANTS TO SEE YOU
RUSH
RETURNED YOUR CALL
SPECIAL ATTENTION
RETURNED YOUR CALL
SPECIAL ATTENTION
MESSAGE
MESSAGE
It's
important
SG1184 10/01
a
SIGNED
a
1184
SIGNED
1184
2
EFTA00021097

=== Page 23 ===
IMPORTANT MESSAGE
IMPORTANT MESSAGE
FOR
FOR
DATE 11-4-04
TIME 2.40 A.M. P.M.
DATE 2004
A.M.
TIME
P.M.
M
M
₽
OF
OF
PHONE/
PHONE/
MOBILE
MOBILE
TELEPHONED
PLEASE CALL
TELEPHONED
PLEASE CALL
CAME TO SEE YOU
WILL CALL AGAIN
CAME TO SEE YOU
WILL CALL AGAIN
WANTS TO SEE YOU
RUSH
WANTS TO SEE YOU
RUSH
RETURNED YOUR CALL
SPECIAL ATTENTION
RETURNED YOUR CALL
SPECIAL ATTENTION
MESSAGE
MESSAGE
Return
tiney could
like
Battneys
frash
Call
/Alex scheduried
for today]
a
SIGNED
a
1184
SIGNED
1184
800
IMPORTANT MESSAGE
IMPORTANT MESSAGE
FOR
FOR
Mr. J.E.
DATE 12/6/04
TIME 1:00 A.M. P.M.
DATE
12/6/04 TIME 1:30 A.M. P.M.
M
M
V.
Harry Boller
OF
OF
PHONE
PHONE
MOBILE
MOBILE
TELEPHONED
PLEASE CALL
TELEPHONED
PLEASE CALL
CAME TO SEE YOU
WILL CALL AGAIN
CAME TO SEE YOU
WILL CALL AGAIN
WANTS TO SEE YOU
RUSH
WANTS TO SEE YOU
RUSH
RETURNED YOUR CALL
SPECIAL ATTENTION
RETURNED YOUR CALL
SPECIAL ATTENTION
MESSAGE
MESSAGE
Please cell her
Raturning your
Cell
SC1184 10/01
&
a
R
a
SIGNED
1184
SIGNED
1184
3
EFTA00021098

=== Page 24 ===
IMPORTANT MESSAGE
IMPORTANT MESSAGE
FOR Jeffrey
FOR Mr. Eptain
TIME 5:11 A.M. P.M.
DATE 1/24/04
8:29
A.M.
DATE
TIME
P.M.
M
M
Mark Epstein
OF
OF
PHONE/
PHONE/
MOBILE
MOBILE
TELEPHONED
X
PLEASE CALL
TELEPHONED
PLEASE CALL
CAME TO SEE YOU
WILL CALL AGAIN
CAME TO SEE YOU
WILL CALL AGAIN
WANTS TO SEE YOU
RUSH
WANTS TO SEE YOU
RUSH
RETURNED YOUR CALL
SPECIAL ATTENTION
RETURNED YOUR CALL
SPECIAL ATTENTION
MESSAGE has girl for
MESSAGE
tonight
Caus me in
New YORK
a
SIGNED
a
1184
SIGNED
1184
IMPORTANT MESSAGE
IMPORTANT MESSAGE
FOR
MIR (15%
4/24/04
TIME 5:29 A.M. P.M.
FOR Jeffrey
DATE
DATE
TIME 2308 A.M. P.M.
M LaSCNison
Dr. M moushwits
OF
OF
PHONE/
PHONE/
MOBILE
MOBILE
TELEPHONED
PLEASE CALL
TELEPHONED
PLEASE CALL
CAME TO SEE YOU
WILL CALL AGAIN
CAME TO SEE YOU
WILL CALL AGAIN
WANTS TO SEE YOU
RUSH
WANTS TO SEE YOU
RUSH
RETURNED YOUR CALL
SPECIAL ATTENTION
RETURNED YOUR CALL
SPECIAL ATTENTION
MESSAGE Will Be ave 19/3/8
N
At This NUMBER For
30min Otherwise Termarrov
9AM to jov PM
SC1184 10/01
a
SIGNED
a
1184
SIGNED
1184
4
EFTA00021099

=== Page 25 ===
IMPORTANT MESSAGE
IMPORTANT MESSAGE
FOR
MR EPSTEIN
FOR MR EPSTEIN
DATE
TIME /:00 A.M. P.M.
DATE
7/6
TIME 8:00 A.M. P.M.
M Darren
OF
OF M DARREN
PHONE/
PHONE/
MOBILE
MOBILE
TELEPHONED
PLEASE CALL
TELEPHONED
PLEASE CALL
CAME TO SEE YOU
WILL CALL AGAIN
CAME TO SEE YOU
WILL CALL AGAIN
WANTS TO SEE YOU
RUSH
WANTS TO SEE YOU
RUSH
RETURNED YOUR CALL
SPECIAL ATTENTION
RETURNED YOUR CALL
SPECIAL ATTENTION
MESSAGE
MESSAGE
He said that
he got a call
Fr.m Byron
a
SIGNED
a
1184
SIGNED
1184
IMPORTANT MESSAGE
IMPORTANT MESSAGE
FOR 7€
FOR
Day
4.85
A.M.
A.M.
DATE
TIME
P.M.
DATE
TIME
P.M.
M
M
OF Two CAROLINE Ambridus
OF
PHONE/
PHONE/
MOBILE
MOBILE
TELEPHONED
PLEASE CALL
TELEPHONED
PLEASE CALL
CAME TO SEE YOU
WILL CALL AGAIN
CAME TO SEE YOU
WILL CALL AGAIN
WANTS TO SEE YOU
RUSH
WANTS TO SEE YOU
RUSH
RETURNED YOUR CALL
SPECIAL ATTENTION
RETURNED YOUR CALL
SPECIAL ATTENTION
MESSAGE
MESSAGE
Imeal like
I mool I cash 200ML have
my
Usea
2
10/01
for
a
SIGNED
a
1184
SIGNED
1184
LA
EFTA00021100

=== Page 26 ===
IMPORTANT MESSAGE
IMPORTANT MESSAGE
FOR OF
FOR
TF
DATE
TIME 5.20 A.M. P.M.
10/18/20
A.M.
DATE
TIME
P.M.
M
M
OF
OF
PHONE
PHONE
AREA CODE
NUMBER
EXTENSION
AREA CODE
NUMBER
EXTENSION
TELEPHONED
PLEASE CALL
TELEPHONED
PLEASE CALL
CAME TO SEE YOU
WILL CALL AGAIN
CAME TO SEE YOU
WILL CALL AGAIN
WANTS TO SEE YOU
RUSH
WANTS TO SEE YOU
RUSH
RETURNED YOUR CALL
SPECIAL ATTENTION
RETURNED YOUR CALL
SPECIAL ATTENTION
MESSAGE
MESSAGE
Mana 3mml
55435070139
SIGNED
SIGNED
1184
1184
IMPORTANT MESSAGE
IMPORTANT MESSAGE
FOR OF
FOR OF
DATE
TIME 4:16 P.M. A.M.
DATE
TIME 4:15 A.M. P.M.
M
M
OF
OF
PHONE
PHONE
AREA CODE
NUMBER
EXTENSION
AREA CODE
NUMBER
EXTENSION
TELEPHONED
PLEASE CALL
TELEPHONED
PLEASE CALL
CAME TO SEE YOU
WILL CALL AGAIN
CAME TO SEE YOU
WILL CALL AGAIN
WANTS TO SEE YOU
RUSH
WANTS TO SEE YOU
RUSH
RETURNED YOUR CALL
SPECIAL ATTENTION
RETURNED YOUR CALL
SPECIAL ATTENTION
MESSAGE was wondering
MESSAGE
it She could
She couldn sack
work tonight
yesterday b/c her mom
had TO go to hospital
SIGNED
SIGNED
1184
1184
EFTA00021101

=== Page 27 ===
IMPORTANT MESSAGE
IMPORTANT MESSAGE
FOR
FOR
Texas
A.M.
A.M.
DATE
TIME
P.M.
DATE
TIME
P.M.
M
M
OF
OF
PHONE
PHONE
ON
AREA CODE
NUMBER
EXTENSION
TELEPHONED
PLEASE CALL
TELEPHONED
PLEASE CALL
CAME TO SEE YOU
WILL CALL AGAIN
CAME TO SEE YOU
WILL CALL AGAIN
WANTS TO SEE YOU
RUSH
WANTS TO SEE YOU
RUSH
RETURNED YOUR CALL
SPECIAL ATTENTION
RETURNED YOUR CALL
SPECIAL ATTENTION
MESSAGE CANCELLED
MESSAGE
EXPLAIN
ee
phene- Call
procede Fel Brille
SIGNED
SIGNED
1184
1184
IMPORTANT MESSAGE
IMPORTANT MESSAGE
FOR
FOR
JF
A.M.
A.M.
DATE
TIME
P.M.
DATE
TIME
P.M.
M
M
OF
OF
PHONE
PHONE
AREA CODE
NUMBER
EXTENSION
TELEPHONED
PLEASE CALL
TELEPHONED
PLEASE CALL
CAME TO SEE YOU
WILL CALL AGAIN
CAME TO SEE YOU
WILL CALL AGAIN
WANTS TO SEE YOU
RUSH
WANTS TO SEE YOU
RUSH
RETURNED YOUR CALL
SPECIAL ATTENTION
RETURNED YOUR CALL
SPECIAL ATTENTION
MESSAGE
MESSAGE
SIGNED
SIGNED
1184
1184
7
EFTA00021102

=== Page 28 ===
IMPORTANT MESSAGE
IMPORTANT MESSAGE
FOR Mr. Obstern 8/19/02
FOR Vir Chetris
A.M.
DATE
IME
P.M.
DATE
8/19/02
A.M.
TIME
P.M.
M
M
OF
OF
PHONE
PHONE
AREA CODE
NUMBER
EXTENSION
AREA CODE
NUMBER
EXTENSION
TELEPHONED
PLEASE CALL
TELEPHONED
PLEASE CALL
CAME TO SEE YOU
WILL CALL AGAIN
CAME TO SEE YOU
WILL CALL AGAIN
WANTS TO SEE YOU
RUSH
WANTS TO SEE YOU
RUSH
RETURNED YOUR CALL
SPECIAL ATTENTION
RETURNED YOUR CALL
SPECIAL ATTENTION
MESSAGE
MESSAGE
needs to be
asked of she could do
8:30 instead of 9:00
called
because she has somewhere
she u repposed to be
please advise
SIGNED
SIGNED
1184
1184
IMPORTANT MESSAGE
IMPORTANT MESSAGE
FOR MR. EPSTEIN
FOR MR. Sparch
A.M.
DATE
HME
P.M.
DATE
8/20/02
10ᵗʰ
A.M.
TIME
P.M.
M
M Dr ADDRERSOR
OF
OF
PHONE
PHONE
AREA CODE
NUMBER
EXTENSION
AREA CODE
NUMBER
EXTENSION
TELEPHONED
PLEASE CALL
TELEPHONED
PLEASE CALL
CAME TO SEE YOU
WILL CALL AGAIN
CAME TO SEE YOU
WILL CALL AGAIN
WANTS TO SEE YOU
RUSH
WANTS TO SEE YOU
RUSH
RETURNED YOUR CALL
SPECIAL ATTENTION
RETURNED YOUR CALL
SPECIAL ATTENTION
MESSAGE
MESSAGE
SIGNED
SIGNED
1184
1184
if
EFTA00021103

=== Page 29 ===
IMPORTANT MESSAGE
IMPORTANT MESSAGE
FOR
Mr. Mr.J.E.
FOR
Mr.J.E.
DATE
9/29/04 TIME 11:48 A.M. P.M.
DATE
9/30/04
TIME 6:27
A.M.
P.M.
M -
M
OF
OF
PHONE/
PHONE/
MOBILE
MOBILE
TELEPHONED
PLEASE CALL
TELEPHONED
PLEASE CALL
CAME TO SEE YOU
WILL CALL AGAIN
CAME TO SEE YOU
WILL CALL AGAIN
WANTS TO SEE YOU
RUSH
WANTS TO SEE YOU
RUSH
RETURNED YOUR CALL
SPECIAL ATTENTION
RETURNED YOUR CALL
SPECIAL ATTENTION
MESSAGE
MESSAGE
Sho'll cell back
She has Famles
noxt wook Mon/Tve
for Mr.J.E
R
a
SIGNED
R
a
1184
SIGNED
1184
IMPORTANT MESSAGE
IMPORTANT MESSAGE
FOR OE
FOR JE
DAT
TIME 11:05 A.M. P.M.
DAT
TIME 1035C A.M. P.M.
M
M
OF
OF
PHONE/
PHONE/
MOBILE
MOBILE
TELEPHONED
PLEASE CALL
TELEPHONED
PLEASE CALL
CAME TO SEE YOU
WILL CALL AGAIN
CAME TO SEE YOU
WILL CALL AGAIN
WANTS TO SEE YOU
RUSH
WANTS TO SEE YOU
RUSH
RETURNED YOUR CALL
SPECIAL ATTENTION
RETURNED YOUR CALL
X
SPECIAL ATTENTION
MESSAGE Missed your call
MESSAGE
b/c couldn't find
har phone
SC1184 1001
a
a
SIGNED
1184
SIGNED
1184
9
EFTA00021104

=== Page 30 ===
DAKES
6pm
Jeffrey E. Epstein
10
EFTA00021105

=== Page 31 ===
J have lett
messayes for
-
to confirm
100
pm
I
to confirm
5:30pm
(it want straight to
Voicemail)
Jeffrey E. Epstein
11
EFTA00021106

=== Page 32 ===
Down Weeks
Suturder
120
you
Medical
reseren eden logg
14
Jeffrey E. Epstein
12
EFTA00021107

=== Page 33 ===
11 Clen
AIR-
- Dlysis +
12:30 Chick
- -Bultal
4.
5hm Tom
1030
Doen
+
AM
3 Sept
?
Six (+) B.,
has after sdwol
Big sweng
X
K
UW
Jeffrey E. Epstein
13
EFTA00021108

=== Page 34 ===
Left messages for
works 4-9 pm Mon & Two
leaves school@
11:30AM
will be here
tomorrow at 10:30 AM
Jeffrey E. Epstein
14
EFTA00021109

=== Page 35 ===
10:30
on frishing
aroun Zaleo
Jeffrey E.E
is

=== Page 36 ===
(h)
Iri -
- for Morele
-
Chaphi Set nd of code Mian
Chrine
Johnuh taken
Ghislaine Maxwell
16
EFTA00021111


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=== Page 1 ===
From:
To:
Subject: Final Voucher 11061409-1(1) approved by
now awaiting further
approval
Date: Fri, 06 Mar 2020 16:52:48 +0000
Importance: Normal
Dear
Final voucher 11061409-1(1) has been approved by
, now awaiting further approval.
Trip ID: 11061409-1
Voucher ID: 1
Voucher type: Final
Traveler name:
Purpose: R20NYS13400 - Epstein Investigation Witness interviews
Destination: Beverly Hills, CA, United States
Dates: 2020-02-26 - 2020-02-29
Current status: Pending Voucher Approval
Voucher total expenses: 1196.11
Estimated trip cost: 1634.37
E2 Single Sign On Login (within DOJ Network Only):
https://dojnet.doj.gov/jmd/fs/e2-redirect.html
E2 Manual Login (User ID and Password):
https://e2.gov.cwtsatotravel.com
Thank you for using E2Solutions. Help and support is available online by selecting the 'Online Help' link.
Please note: Replies to this mailbox are not monitored.
Some E2 email notifications are optional. To manage your email notifications, go to E2 Solutions to change your
email settings. Click 'Profile' on the task bar and then click the 'Edit Email Notifications' link to manage the
emails that you receive from us.
Reference ID# V0010
This e-mail and any attachments may contain confidential and/or proprietary information. If you received this e-
mail in error, please notify the sender immediately by reply e-mail and delete the e-mail and any attachments;
any further use of such e-mail or attachments is strictly prohibited.
EFTA00023342


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=== Page 1 ===
From:
To:
Subject: Conference: Jeffrey Epstein
Date: Wed, 17 Jul 2019 17:58:14 +0000
Importance: Normal
Attachments: unnamed
EFTA00021417


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=== Page 1 ===
From:
To:
Cc:
Subject: RE: Discovery Tasks for Maxwell on Epstein Relativity Databases
Date: Wed, 14 Oct 2020 16:27:04 +0000
Thanks very much.
From:
Sent: Wednesday, October 14, 2020 12:22 PM
To:
Subject: RE: Discovery Tasks for Maxwell on Epstein Relativity Databases
It is possible I sent you the wrong link. I am currently in the White Plains office sending out a hard drive for the
production. I will check the link when I get back to my computer and have my RSA token.
Thank you.
From:
Sent: Wednesday, October 14, 2020 10:48 AM
To:
Co
Subject: RE: Discovery Tasks for Maxwell on Epstein Relativity Databases
Thanks
When I click on the link you sent, it brings me to the "FBI Files from Florida Office" folder, but it appears to
bring up all 26,164 documents in that folder, when the production should be a smaller number of documents bearing the
tags I listed below. Are you free for a call to discuss?
From
Sent: Wednesday, October 14, 2020 10:02 AM
To:
Cc:
Subject: RE: Discovery Tasks for Maxwell on Epstein Relativity Databases
Good Morning
Thank you for the e-mail. Just to confirm can you please review the below search and let me know that everything that is
in the search is everything you wish to produce for item three. I want to make sure that we have everything you need
before we start the imaging process.
EFTA00022047

=== Page 2 ===
Thank you.
From
Sent: Tuesday, October 13, 2020 11:17 PM
To:
Co
Subject: Discovery Tasks for Maxwell on Epstein Relativity Databases
Thanks very much for speaking earlier today. As discussed, we are asking for the following three productions to be
prepared for the Maxwell case. I've listed those tasks below in the order in which we discussed them, but, as we
discussed, if you and the vendor believe a different order would be more efficient, please just let me know.
EFTA00022048

=== Page 3 ===
As we've discussed, we need all of these materials to be delivered to 1 St. Andrews by the end of October in order to
meet our discovery deadline.
Finally, I believe
should be sending you a drive containing the scans of boxes of files from the USAO-SDFL.
We need all of those files loaded into the US V Epstein database on Relativity in a new folder entitled "USAO-SDFL Files,"
ASAP so that we can review them, please.
Thanks very much, as always for your help, and please do not hesitate to reach out if there are any questions or
confusion. I'm always happy to chat.
Thanks so much,
EFTA00022049


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=== Page 1 ===
EXHIBIT 1

=== Page 2 ===
U.S. Department of Justice
United States Attorney
Southern District of New York
The Silvio J. Mollo Building
One Saint Andrew's Plaza
New York, New York 10007
October 11, 2021
BY ELECTRONIC MAIL
Christian Everdell, Esq.
Cohen & Gresser LLP
800 Third Avenue
New York, NY 10022
Laura Menninger, Esq.
Jeffrey Pagliuca, Esq.
Haddon, Morgan and Foreman, P.C.
150 East Tenth Avenue
Denver, CO 80203
Bobbi Sternheim, Esq.
Law Offices of Bobbi C. Sternheim
33 West 19th Street-4th Fl.
New York, NY 10007
Re:
United States V. Ghislaine Maxwell, 20 Cr. 330 (AJN)
Dear Counsel:
Pursuant to Judge Nathan's Order of September 3, 2021 (Dkt. No. 335), the Government
writes to inform you that it may refer at trial to the following individuals as co-conspirators of the
defendant, including for the purpose of Fed. R. Evid. 801(d)(2)(E):
Jeffrey Epstein
The Government has produced all co-conspirator statements which it intends to offer at
trial pursuant to Fed. R. Evid. 801(d)(2)(E) in the Government's production today or in its previous
productions. To the extent the Government learns of additional co-conspirator statements as it
continues to prepare for trial, it will produce those statements in connection with its ongoing
obligation to produce Jencks Act material.
EFTA00021942

=== Page 3 ===
Page 2
Please be advised that the above list is limited to the individuals the Government may refer
to as co-conspirators at trial. While the Government makes no representations as to whether it
views other individuals as potential or actual co-conspirators of the defendant, it does not intend
to refer to any other individuals as co-conspirators at trial. The above list is also not intended to
reflect a complete list of individuals who may be referenced at trial. That information is contained
in the Government's Jencks Act production(s).
Please note that this letter and the information contained herein is governed by the July 31,
2020 Protective Order in this case. This letter is itself designated as "confidential" under the
Protective Order.
Very truly yours,
United States Attorney
By:
Assistant United States Attorneys
Southern District of New York
EFTA00021943


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=== Page 1 ===
Event: Mark Epstein Meeting
Start Date: 2019-11-25 15:00:00 +0000
End Date: 2019-11-25 16:00:00 +0000
Organizer:
Location: 1 St. Andrews
Class: X-PERSONAL
Date Created: 2019-11-04 16:47:11 +0000
Date Modified: 2019-11-04 16:47:11 +0000
Priority: 5
DTSTAMP: 2019-11-04 14:17:10 +0000
Attendee:
Alarm: Display the following message 15m before start
Reminder
EFTA00021294


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=== Page 1 ===
From:
)"
To:
(
)"
Subject: Accepted: Epstein Op Meeting with FBI
Date: Thu, 27 Jun 2019 17:39:43 +0000
Importance: Normal
Attachments: unnamed
EFTA00021245


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=== Page 1 ===
U.S. DEPARTMENT OF
U.S. Customs and Border Protection
U.S. Department of Homeland Security
HOMELAND SECURITY
TECS - Person Encounter List
09/21/2021 11:35 EDT
Generated By:
Page 1 of 2
Last Name
First Name
DOB
Doc
Document
Date - Time
Carrie
Carrier
I/O
Site
Insp
Type
Status
Updated
Ref
Arr
Dep
Type
Number
(Eastern)
r
Num.
Status
Loc
Loc
Code
EPSTEIN
JEFFREY
P
01/21/2000
00
505LS
I
A523
AIRLINE
23:35
(NOT
API)
EPSTEIN
JEFFREY
P
12/18/1999
PV
1
I
A511
AIRLINE
16:25
(NOT
API)
EPSTEIN
JEFFREY
P
12/11/1999
PV
1
I
A511
AIRLINE
17:09
(NOT
API)
EPSTEIN
JEFFREY
P
08/14/1999
PV
908JE
I
A511
AIRLINE
19:25
(NOT
API)
EPSTEIN
JEFFREY
P
01/29/1999
BA
1
I
4701
APIS
JFK
LHR
09:40
EPSTEIN
JEFFREY
P
11/06/1998
BA
3
I
4701
APIS
JFK
LHR
17:59
EPSTEIN
JEFFREY
10/01/1998
00
1
I
A523
AIRLINE
14:00
(NOT
API)
EPSTEIN
JEFFREY
05/30/1998
AF
8
I
4701
APIS
JFK
CDG
00:00
EPSTEIN
JEFFREY
P
03/20/1998
BA
1
I
4701
APIS
JFK
LHR
00:00
EPSTEIN
JEFFREY
P
02/28/1998
00
90
I
A523
AIRLINE
20:30
(NOT
API)
EPSTEIN
JEFFREY
P
01/18/1998
BA
1
I
4701
APIS
JFK
LHR
09:31
EPSTEIN
JEFFREY
P
12/25/1997
00
1
I
A523
AIRLINE
18:13
(NOT
API)
EPSTEIN
JEFFREY
P
12/23/1997
00
908G
I
A523
AIRLINE
17:34
(NOT
API)
EPSTEIN
JEFFREY
12/06/1997
RG
0000868
I
A472
AIRLINE
18:33
(NOT
API)
EPSTEIN
JEFFREY
P
06/19/1997
BA
1
I
A472
AIRLINE
09:19
(NOT
API)
EPSTEIN
JEFFREY
P
06/19/1997
BA
1
I
4701
APIS
JFK
LHR
00:00
EPSTEIN
JEFFREY
05/31/1997
I
A523
AIRLINE
18:52
(NOT
API)
For Official Use Only / Law Enforcement Sensitive
EFTA00021183

=== Page 2 ===
U.S. DEPARTMENT OF
U.S. Customs and Border Protection
U.S. Department of Homeland Security
HOMELAND SECURITY
TECS - Person Encounter List
09/21/2021 11:35 EDT
Generated By:
Page 2 of 2
Last Name
First Name
DOB
Doc
Document
Date - Time
Carrie
Carrier
I/O
Site
Insp
Type
Status
Updated
Ref
Arr
Dep
Type
Number
(Eastern)
r
Num.
Status
Loc
Loc
Code
EPSTEIN
JEFFREY
P
05/24/1997
I
A472
AIRLINE
09:20
(NOT
API)
EPSTEIN
JEFFREY
03/17/1997
I
A523
AIRLINE
18:37
(NOT
API)
EPSTEIN
JEFFREY
P
02/06/1997
BA
3
I
A472
AIRLINE
18:03
(NOT
API)
EPSTEIN
JEFFREY
01/25/1997
I
A523
AIRLINE
18:56
(NOT
API)
Total Number of Records: 21
Legend
Loc
Codes
Value
LHR
LONDON / HEATHROW INTL
CDG
PARIS, CH. DE GAULLE
JFK
JOHN F KENNEDY INTL
Doc Type
Codes
Value
P
P - PASSPORT
Site Code
Codes
Value
A472
A472 - NEW YORK, JFK AIRPORT, TERM 7
A511
A511 - CBP-CYRIL E KING, INTL AIRPORT
A523
A523 = CBP-PALM BEACH, INTERNATIONAL
4701
4701 = 4701
For Official Use Only / Law Enforcement Sensitive
EFTA00021184


c1: EFTA00023448
c2: DataSet 8
c3: VOL00008
c4: DataSet 8/VOL00008/IMAGES/0004/EFTA00023448.pdf
c6: pdf
c7: images
c0:
=== Page 1 ===

=== Page 2 ===

=== Page 3 ===

=== Page 4 ===

=== Page 5 ===

=== Page 6 ===

=== Page 7 ===


c1: EFTA00022669
c2: DataSet 8
c3: VOL00008
c4: DataSet 8/VOL00008/IMAGES/0004/EFTA00022669.pdf
c6: pdf
c7: images
c0:
=== Page 1 ===
Delaware
PAGE 1
The First State
I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF AMENDMENT OF "SHMITKA AIR, INC.", ",
CHANGING ITS NAME FROM "SHMITKA AIR, INC." TO "FREEDOM AIR
INTERNATIONAL, INC. ", FILED IN THIS OFFICE ON THE SIXTH DAY OF
JULY, A.D. 2010, AT 2:37 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE
NEW CASTLE COUNTY RECORDER OF DEEDS.
OFFICE 00000
W. Bullock, Secretary of State
3143027 8100
AUTHENTICATION: 8097751
100717774
DELAWARE
DATE: 07-07-10
You may verify this certificate online
at corp.delaware.gov/authver.shtml
EFTA00022669

=== Page 2 ===
State of Delaware
Secretary of State
Division of Corporations
Delivered 02:52 PM 07/06/2010
FILED 02:37 PM 07/06/2010
CERTIFICATE OF AMENDMENT
SRV 100717774 - 3143027 FILE
OF
CERTIFICATE OF INCORPORATION
OF
SHMITKA AIR, INC.
*****
SHMITKA AIR, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the sole director of the Corporation, by Written Consent of
Sole Director in Lieu of Meeting, filed with the Minutes of the proceedings of the
Board of Directors, adopted the following resolution proposing and declaring
advisable the amendment of the Certificate of Incorporation of the Corporation to
change the name of the Corporation from Shmitka Air, Inc. to Freedom Air
International, Inc.:
RESOLVED, that the Certificate of Incorporation of Shmitka
Air, Inc. be amended to change the name of the Corporation
from Shmitka Air, Inc. to Freedom Air International, Inc. by
changing the first Article thereof so that, as amended, said
Article shall be and read as follows:
"1.
The Name of the corporation is FREEDOM AIR
INTERNATIONAL INC."
SECOND: That in lieu of a meeting and vote of the stockholders of the
Corporation, the sole stockholder of the Corporation has given written consent to
said amendment in accordance with the provisions of Section 228 of the General
Corporation Law of the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Sections 242 and 228 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by Darren K. Indyke, its Vice President, this 6TH
day of July,
2010.
Janen X Death
Darren K. Indyke, Vice President
EFTA00022670

=== Page 3 ===
FORM APPROVED
OMB No. 2120-0042
UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION-MIKE MONRONEY AERONAUTICAL CENTER
AIRCRAFT REGISTRATION APPLICATION
CERT: ISSUE DATE
UNITED STATES
REGISTRATION NUMBER
N722JE
AIRCRAFT MANUFACTURER & MODEL Reystone Helicopter
AIRCRAFT (Sikorsky) SERIAL No. S-76C+
760750
FOR FAA USE ONLY
TYPE OF REGISTRATION (Check One box)
1. Individual
2. Partnership
3. Corporation
4. Co-Owner
5. Government
8. Non-Citizen Corporation
9. Non-Citizen Corporation Co-Owner
NAME OR APPLICANT (Person(s) shown on evidence of ownership. If individual, give last name, first name, and middle initial.)
Freedom Air International, Inc.
TELEPHONE NUMBER: (
)
ADDRESS (Permanent mailing address for first applicant on list) (If P.O. Box is used. physical address must also be shown.)
Number and stree
Rural Route:
P.O. Box:
CITY
STATE
zio
CHECK HERE IF YOU ARE ONLY REPORTING A CHANGE OF ADDRESS
ATTENTION! Read the following statement before signing this application.
This portion MUST be completed.
A false or dishonest answer to any question in this application may be grounds for punishment by fine and/or imprisonment
(U.S. Code, Title 18, Sec. 1001).
CERTIFICATION
I/WE CERTIFY:
(1) That the above aircraft is owned by the undersigned applicant, who is a citizen (including corporations)
of the United States.
(For voting trust, give name of trustee:
). or:
CHECK ONE AS APPROPRIATE
a.
A resident alien, with alien registration (Form 1-151 or Form 1-551) No.
b.
A non-citizen corporation organized and doing business under the laws of (state)
and said aircraft is based and primarily used in the United States. Records or flight hours are available for
inspection at
(2) That the aircraft is not registered under the laws of any foreign country: and
(3) That legal evidence of ownership is attached or has been filed with the Federal Aviation Administration
NOTE: If executed for co-ownership all applicants must sign. Use reverse side if necessary.
TYPE OR PRINT NAME BELOW SIGNATURE
SIGNATURE
TITLE
DATE
EACH PART OF THIS
APPLICATION MUST
BE SIGNED IN INK.
Daven JudyJee
Vice President
8/2/10
SIGNATURE Darren' Indyke
TITLE
DATE
SIGNATURE
TITLE
DATE
NOTE Pending receipt of the Certificate of Aircraft Registration, the aircraft may be operated for a period not in excess of 90
days, during which time the PINK copy of this application must be carried in the aircraft.
AC Form 8050-1 (1/09) (NSN 0052-00-628-9007) Supersedes Previous Edition

=== Page 4 ===
FAA Registry - Aircraft - N-Number Results
Page 1 of 2
FAA REGISTRY
N-Number Inquiry Results
N722JE is Assigned
Aircraft Description
Serial Number
760750
Type Registration
Corporation
Manufacturer Name
KEYSTONE HELICOPTER
Certificate Issue
02/27/2009
Date
Model
S-76C
Status
Valid
Type Aircraft
Rotorcraft
Type Engine
Turbo-shaft
Pending Number
None
Change
Dealer
No
Date Change
None
Authorized
Mode S Code
52325707
MFR Year
2008
Fractional Owner
NO
Registered Owner
Name
SHMITKA AIR INC
Street
City
State
County
Zip Code
Country
UNITED STATES
Airworthiness
Engine Manufacturer TURBOMECA
Classification
Standard
Engine Model
ARRIEL 2S2
Category
Transport
A/W Date
12/08/2008
This is the most current Airworthiness Certificate data, however, it may not reflect the current
aircraft configuration. For that information, see the aircraft record. A copy can be obtained at
Http://aircraft.fa.gov/e.gov/ND/airrecordsND.asp
Other Owner Names
http://registry.fa.gov/aircraftinquiry/NNum_Results.aspx?NNumbertxt=72F
8/13/2010
EFTA00022672

=== Page 5 ===
FAA Registry - Aircraft N-Number Results
Page 1 of 2
make
FAA REGISTRY
N-Number Inquiry Results
N491 GM is Assigned
Aircraft Description
Serial Number
53375
Type Registration
Corporation
Manufacturer Name
BELL
Certificate Issue
11/13/2002
Date
Model
407
Status
Valid
Type Aircraft
Rotorcraft
Type Engine
Turbo-shaft
Pending Number
None
Change
Dealer
No
Date Change
None
Authorized
Mode S Code
51412161
MFR Year
1999
Fractional Owner
NO
Registered Owner
Name
SHMITKA AIR INC
Street
City
State
County
Zip Code
Country
UNITED STATES
Airworthiness
Engine Manufacturer ROLLS-ROYC
Classification
Standard
Engine Model
250-C47B
Category
Normal
A/W Date
11/14/2002
This is the most current Airworthiness Certificate data, however, it may not reflect the current
aircraft configuration. For that information, see the aircraft record. A copy can be obtained at
Http://aircraft.fa.gov/e.gov/ND/airrecordsND.asp
Other Owner Names
http://registry.fa.gov/aircraftinquiry/NNum_Results.aspx?NNumbertxt=491GM
8/13/2010
EFTA00022673

=== Page 6 ===
Lisa Gaskin
re: 491GM 722JE ( change.) R/O
From:
Lisa Gaskin
Sent:
Friday, July 23, 2010 3:32 PM
waiting for A/Rs.
To:
Cc:
'Darren Indyke':
; Christopher R SIK Shurkus;
; Sheila Allen
Subject:
FW: name change
Attachments:
FAl.pdf
Hi,
I'm sorry I didn't answer sooner, but this went to my old email address & had to be routed to me. Aero Records was
purchased in June by AIC Title Service LLC, and several of us are here at AIC now. My new information is below. (New
email, address, phones, etc...)
We can definitely take care of this for you. I will hold on to the name change copy that you emailed to us, and we need
you to also send FAA Form 8050-1, the Application for Aircraft Registration, for each of the aircraft, showing the new
company name. We will submit the name change document, with the application forms, to the FAA, and they will issue
new certificates to you, under the new name, about a month following the filing of the documents. Our fees are $79
each aircraft, plus $5 to the FAA (total of $84 each aircraft). You can send us a check in the amount of $168., along with
the documents, or give us a credit card to bill - whichever is easiest for you.
If you have not received our information regarding the re-registration of all aircraft that will soon begin taking place at
FAA, just let me know, and I will get that information to you, via email. Aircraft certificates will need to be renewed
every three years, and our company has the ability to track these for clients.
Just let me know if you need me to mail the Application for Registration forms to you, or answer any other questions.
Thank you,
Lisa
Lisa Gaskin
Special Services Administrator
ph:
ph:
fax:
AIC Title Service, LLC
Follow us on Twitter at www.twitter.com/AlCtitle
From: Lauren Quick [mailto
Sent: Friday, July 23, 2010 11:42 AM
To: Lisa Gaskin
Subject: Fwd: name change
1
EFTA00022674

=== Page 7 ===
Lisa,
This came for you in your Aero email. Thanks!
Sincerely,
Lauren
Forwarded message
From:
Date: Fri, Jul 23, 2010 at 11:22 AM
Subject: name change
To:
Cc
,
Hello Lisa,
Shmitka Air, Inc, has changed its name to "FREEDOM AIR INTERNATIONAL" at this time,
can you forward me the appropriated paper work to start the process for my registration change with the FAA for our Bell
407 N491GM serial number 53375 and Sikorsky S76 N722JE serial number 750 ?
I have attached the name change from Delaware in this email. if you have any questions please call.
thank you,
Chief Pilot. Freedom Air International
Cell
Howard and Chris,
can you notify the appropriate parties at Sikorsky of this name change in reference to our contract warrenty and AAG
credit money? thanks,
--
Lauren Quick
AIC Title Service, LLC
(fax)
Follow us on Twitter at www.twitter.com/AICtitle
2
EFTA00022675

=== Page 8 ===
NAME
Lisa Gaskin
CHG DOC att
From:
Lauren Quick
Sent:
Friday, July 23, 2010 11:42 AM
To:
Lisa Gaskin
Subject:
Fwd: name change
Attachments:
FAl.pdf
Lisa,
need this
3
This came for you in your Aero email. Thanks!
Sincerely,
wants to
Lauren
r/o name
Forwarded message
chg FOR 4916m-sm 53375 (Bell)
From:
Date: Fri, Jul 23, 2010 at 11:22 AM
722JE-5/n 750 (SiKORSKY)
Subject: name change
To:
(also name change doc) A
Cc:
Talk to
Hello Lisa,
sheila
Shmitka Air. Inc. has changed its name to "FREEDOM AIR INTERNATIONAL" at this time,
can you forward me the appropriated paper work to start the process for my registration change with the FAA for our Bell
407 N491GM serial number 53375 and Sikorsky S76 N722JE serial number 750 ?
I have attached the name change from Delaware in this email. if you have any questions please call.
Chief Pilot, Freedom Air, International
Quoted this: $84 eachalc
$79 + $5
Cell
Howard and Chris,
can you notify the appropriate parties at Sikorsky of this name change in reference to our contract warrenty and AAG
credit money? thanks,
Dr
K.Judyke, PLLC
charge his
mc
Lauren Quick
AIC Title Service, LLC
x)
Follow us on Twitter at www.twitter.com/AICtitle
1
EFTA00022676

=== Page 9 ===
Lisa Gaskin
From:
Lisa Gaskin
new
Sent:
Thursday, July 29, 2010 9:40 AM
To:
Subject:
RE: name change
red Ey
Hi
of Corms
We will send another Fed-Ex today. Please be sure to have the forms sent back through our office, since we have
advanced money for 2 Fed-Ex transmissions.
Thank you,
to
Lisa
Lisa Gaskin
Special Services Administrator
ph:
ph:
fax:
AIC Title Service, LLC
Follow us on Twitter at www.twitter.com/AICtitle
From:
hailto
Sent: Wednesday, July 28, 2010 4:26 PM
To: Lisa Gaskin
Subject: Re: name change
Hi Lisa,
Yes can you fedex to Darren Indyke /
As a back up plan,
Thx
Sent from my BlackBerry wireless handheld
From: Lisa Gaskin
Date: Wed, 28 Jul 2010 15:56:45 -0500
To:
Subject: RE: name change
1
EFTA00022677

=== Page 10 ===
the fed-ex has gone today. If you would like me to send out another package tomorrow, for delivery on Friday, I
can. Just let me know...thanks!
Lisa
Lisa Gaskin
Special Services Administrator
ph:
ph:
fax:
AIC Title Service, LLC
Follow us on Twitter at www.twitter.com/AlCtitle
From:
ailto:
Sent: Wednesday, July 28, 2010 3:40 PM
To: Lisa Gaskin
Subject: Re: name change
Lisa, I'm in Paris now, have you sent package yet, I may have you send to Darren Indyke in Ny to complete? Is
that possible?
Thx
Sent from my BlackBerry wireless handheld
From: Lisa Gaskin
m>
Date: Wed, 28 Jul 2010 14:53:47 -0500
To:
Subject: RE: name change
Hi,
We are sending you application forms via Fed-Ex for delivery tomorrow.
Thank you,
Lisa
Lisa Gaskin
Special Services Administrator
ph:
ph:
fax:
2
EFTA00022678

=== Page 11 ===
Lisa Gaskin
From:
Sent:
Wednesday, July 28, 2010 11:57 AM
To:
Lisa Gaskin
Subject:
Re: name change
Yes Lisa please fwd the forms needed and I'll get them filled
Thx
Sent from my BlackBerry wireless handheld
Sale A/R
From: Lisa Gaskin
Date: Fri, 23 Jul 2010 15:32:06 -0500
To:
L
Cc: Darren Indyke
Christopher R SIK
Shurkus
; Sheila Allen<
Subject: FW: name change
Hi,
I'm sorry I didn't answer sooner, but this went to my old email address & had to be routed to me. Aero Records was
purchased in June by AIC Title Service LLC, and several of us are here at AIC now. My new information is below. (New
email, address, phones, etc...)
We can definitely take care of this for you. I will hold on to the name change copy that you emailed to us, and we need
you to also send FAA Form 8050-1, the Application for Aircraft Registration, for each of the aircraft, showing the new
company name. We will submit the name change document, with the application forms, to the FAA, and they will issue
new certificates to you, under the new name, about a month following the filing of the documents. Our fees are $79
each aircraft, plus $5 to the FAA (total of $84 each aircraft). You can send us a check in the amount of $168., along with
the documents, or give us a credit card to bill - whichever is easiest for you.
If you have not received our information regarding the re-registration of all aircraft that will soon begin taking place at
FAA, just let me know, and I will get that information to you, via email. Aircraft certificates will need to be renewed
every three years, and our company has the ability to track these for clients.
Just let me know if you need me to mail the Application for Registration forms to you, or answer any other questions.
Thank you,
Lisa
Lisa Gaskin
Special Services Administrator
ph:
ph:
fax:
1
EFTA00022679

=== Page 12 ===
AIC Title Service, LLC
Follow us on Twitter at www.twitter.com/AICtitle
From: Lauren Quick [mailto
Sent: Friday, July 23, 2010 11:42 AM
To: Lisa Gaskin
Subject: Fwd: name change
Lisa,
This came for you in your Aero email. Thanks!
Sincerely,
Lauren
Forwarded message
From:
Date: Fri, Jul 23, 2010 at 11:22 AM
Subject: name change
To:
Cc:
m
Hello Lisa,
Shmitka Air, Inc, has changed its name to "FREEDOM AIR INTERNATIONAL" at this time,
can you forward me the appropriated paper work to start the process for my registration change with the FAA for our Bell
407 N491GM serial number 53375 and Sikorsky S76 N722JE serial number 750 ?
I have attached the name change from Delaware in this email. if you have any questions please call.
thank you,
Chief Pilot Freedom Air. International
Cell
Howard and Chris,
can you notify the appropriate parties at Sikorsky of this name change in reference to our contract warrenty and AAG
credit money? thanks,
Lauren Quick
AIC Title Service, LLC
2
EFTA00022680

=== Page 13 ===
DECLARATION OF INTERNATIONAL OPERATIONS
Soufse
THE UNDERSIGNED OWNER OF AIRCRAFT N491GM, MANUFACTURER:
BELL, MODEL 407, WITH SERIAL NUMBER 53375, HEREBY DECLARES
THAT THIS AIRCRAFT IS SCHEDULED TO MAKE AN INTERNATIONAL
FLIGHT ON AUGUST 6, 2010, AS FLIGHT NUMBER N491GM,
DEPARTING: WEST PALM BEACH, FLORIDA, WITH A DESTINATION OF:
NASSAU, BAHAMAS.
EXPEDITED REGISTRATION IN SUPPORT OF THIS INTERNATIONAL
FLIGHT IS REQUESTED THIS
DAY OF AUGUST, 2010, WITH
KNOWLEDGE THAT:
Whoever, in any matter within the jurisdiction of the executive
branch of the Government of the United States, knowingly and
willfully makes or uses any false writing or document knowing
the same to contain any materially false, fictitious or fraudulent
statement of representation shall be fined under Title 18 United
States Code or imprisoned not more than 5 years, or both (18
U.S.C. Sec. 1001(a).
NAME OF OWNER:
Freedom Air International, Inc.
TYPED NAME OF SIGNER: Darren Indyke
SIGNATURE:
Daven Dushe
TITLE:
Vice President, Freedom Air International, Inc.
COMMENTS:
Filed by: AIC TITLE SERVICE, LLC /LISA GASKIN
TELEPHONE:
FAX:
PLEASE SEND ORIGINAL TO AIC TITLE SERVICE, LLC
EFTA00022681

=== Page 14 ===
DECLARATION OF INTERNATIONAL OPERATIONS
THE UNDERSIGNED OWNER OF AIRCRAFT N491GM, MANUFACTURER:
BELL, MODEL 407, WITH SERIAL NUMBER 53375, HEREBY DECLARES
THAT THIS AIRCRAFT IS SCHEDULED TO MAKE AN INTERNATIONAL
FLIGHT ON AUGUST 6, 2010, AS FLIGHT NUMBER N491GM,
DEPARTING: WEST PALM BEACH, FLORIDA, WITH A DESTINATION OF:
NASSAU, BAHAMAS.
EXPEDITED REGISTRATION IN SUPPORT OF THIS INTERNATIONAL
FLIGHT IS REQUESTED THIS
DAY OF AUGUST, 2010, WITH
KNOWLEDGE THAT:
Whoever, in any matter within the jurisdiction of the executive
branch of the Government of the United States, knowingly and
willfully makes or uses any false writing or document knowing
the same to contain any materially false, fictitious or fraudulent
statement of representation shall be fined under Title 18 United
States Code or imprisoned not more than 5 years, or both (18
U.S.C. Sec. 1001(a).
NAME OF OWNER:
Freedom Air International, Inc.
TYPED NAME OF SIGNER: Darren Indyke
SIGNATURE:
TITLE:
Vice President, Freedom Air International, Inc.
COMMENTS:
Filed by: AIC TITLE SERVICE, LLC /LISA GASKIN
TELEPHONE
FAX:
PLEASE SEND ORIGINAL TO AIC TITLE SERVICE, LLC
EFTA00022682

=== Page 15 ===
Lisa Gaskin
From:
Lisa Gaskin
Sent:
Tuesday, August 03, 2010 9:44 AM
To:
'Darren Indyke'
Subject:
RE: Freedom Air International
Good morning, Darren!
Just fill in all of the blanks on 2 of the forms, describing each of the aircraft (make,
model, serial number, registration number), this time showing your new company name in the
applicant block. Be sure that a physical address is shown. Also, be sure to print your
name, in addition to signing the form. Your title "Vice President" should also be shown in
the appropriate block.
You can keep the pink copies, and send me the white & green pages
of each form.
Then, just mail or overnight the forms to me, here at AIC.
Thanks so much,
Lisa
Lisa Gaskin
Special Services Administrator
ph:
ph:
fax:
AIC Title Service. LLC
Follow us on Twitter at www.twitter.com/AICtitle
Original Message
From: Darren Indyke [mailto
Sent: Tuesday, August 03, 2010 9:12 AM
To:
Subject: Freedom Air International
Please advise how the registration forms should be filled out to reflect the name change.
Thanks.
Darren K. Indyke
Vice President
1
EFTA00022683

=== Page 16 ===
AIC
TITLE SERVICE, LLC
Date: July 29, 2010
To:
Darren Indyke/
Re:
Form 8050-1
Via Federal Express
Dear Darren &
Enclosed please find FAA form 8050-1 (Application for Aircraft
Registration), forwarded to you at the request of
in connection with name changes for two aircraft.
We look forward to helping you with this transaction.
Thank you,
Lisa Gaskin
Lisa Gaskin
Special Services Administrator
/lg
Encl.
6350 W Reno
Oklahoma City, OK 73127
Ph:
r
Fax:
www.aictitle.com
EFTA00022684

=== Page 17 ===
AIC
TITLE SERVICE, LLC
Date: July 28, 2010
To:
Freedom Air International
(West Palm Beach, Florida)
Re:
Form 8050-1
Via Federal Express
Dear
Enclosed please find the forms you requested, in reference to your name change.
We look forward to helping with this process.
Thank you,
Lisa Haskin
Lisa Gaskin
Special Services Administrator
/lg
Encl.
6350 W Reno
Oklahoma City, OK 73127
Ph:
or
Fax:
www.aictitle.com
EFTA00022685

=== Page 18 ===
1:45
Darin w/ Freedom
air
7
Please call
Talk to 7AA
and call him,
Spoke
w/weNDy.
N 4916m
He Needs to give them
a few days to process
for INTL Flight
re: intl flight
after name change.
this a problem?
(To Is fly w/old hard card?)
EFTA00022686

=== Page 19 ===
Page 1 of 1
From: Origin ID: JRBA (212) 327-0131
Bella Klein
FedEx.
Ship Date: 04AUG10
ActWgt: 1.0LB
HBRK Associates_Inc.
Express
CAD: 100311032/INET3060
E
Delivery Address Bar Code
SHIP TO: (800) 288-2519
BILL SENDER
Ref #
Lisa Gaskin
Invoice #
PO #
Dept #
THU - 05 AUG A1
TRK#
0201
7937 9141 6629
STANDARD OVERNIGHT
73127
OK-US
XH OKCA
OKC
After printing this label:
1. Use the 'Print' button on this page to print your label to your laser or inkjet printer.
2. Fold the printed page along the horizontal line.
3. Place label in shipping pouch and affix it to your shipment so that the barcode portion of the label can be read and scanned.
Warning: Use only the printed original label for shipping. Using a photocopy of this label for shipping purposes is fraudulent and could
result in additional billing charges, along with the cancellation of your FedEx account number.
Use of this system constitutes your agreement to the service conditions in the current FedEx Service Guide, available on fedex.com.FedEx will not be
responsible for any claim in excess of $100 per package, whether the result of loss, damage, delay, non-delivery,misdelivery,or misinformation, unless
you declare a higher value, pay an additional charge, document your actual loss and file a timely claim.Limitations found in the current FedEx Service
Guide apply. Your right to recover from FedEx for any loss, including intrinsic valueof the package, loss of sales, income interest, profit, attorney's fees,
costs, and other forms of damage whether direct, incidental,consequential, or special is limited to the greater of $100 or the authorized declared value.
Recovery cannot exceed actual documented loss.Maximum for items of extraordinary value is $500, e.g. jewelry, precious metals, negotiable
instruments and other items listed in our ServiceGuide. Written claims must be filed within strict time limits, see current FedEx Service Guide.
https://www.fedex.com/shipping/html/en/PrintlFrame.html
8/4/2010
EFTA00022687

=== Page 20 ===
Lisa Gaskin
From:
Darren Indyke
Sent:
Friday, August 13, 2010 5:15 PM
To:
Lisa Gaskin
Subject:
Re: N722JE AND N491GM
Yes thanks.
Darren Indyke
Sent from my iPhone
On Aug 13, 2010, at 6:06 PM, Lisa Gaskin
wrote:
Dear Darren:
Please give me your authority to file with the FAA, on Monday morning, the (2) aircraft
registration applications & name change document for Freedom Air International Inc. I have
these ready to go.
Also, as you instructed during our phone conversation, I will NOT submit the declaration of
international operations form.
Thanks so much,
Lisa
Lisa Gaskin
Special Services Administrator
ph:
ph:
1
EFTA00022688

=== Page 21 ===
AIC
TITLE SERVICE, LLC
COPY
DATE: August 16, 2010
FEDERAL AVIATION ADMINISTRATION
AIRCRAFT REGISTRATION BRANCH
OKLAHOMA CITY, OK
OKLAHOHA
OXL OKLAHOM CITY
RE: (1) N722JE, Keystone Helicopter S-76C, Serial No. 760750
0C 8 WU 91 9AU 20101
(2) N491GM, Bell 407, Serial No. 53375
Freedom Air International Inc.
Ladies and Gentlemen:
We are enclosing the following document for your review and recordation:
Bill of Sale
X
Name Change Document
X
(2) Application for Registration forms
Please process the name change documents and return Certificates of Registration
to AIC Title Service in the Public Documents Room. If for any reason you find any of these
documents to be unacceptable for recordation or not needed for FAA records, please return
them to AIC Title Service, LLC in the Public Documents Room.
Sincerely,
Lisa Gaskin
AIC Title Service, LLC Staff
FAA fees: $10.00
6350 W Reno
Oklahoma City, OK 73127
Ph:
O
Fax:
www.aictitle.com
EFTA00022689

=== Page 22 ===
REGISTRATION NOT TRANSFERABLE
UNITED STATES OF AMERICA
This certificate
DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION
must be in the air-
CERTIFICATE OF AIRCRAFT REGISTRATION
craft when operated.
U.S. Department
AIRCRAFT SERIAL NO.
of Transportation
NATIONALITY AND
REGISTRATION MARKS N
Federal Aviation
491GM
53375
Administration
MANUFACTURER AND MANUFACTURER'S DESIGNATION OF AIRCRAFT
Civil Aviation Registry
BELL
407
ICAO Aircraft Address Code: 51412161
This certificate is
Official Business
issued for registra-
tion purposes only
The Federal Avia-
tion Administration
(CUT ON DOTTED LINE)
Pensity for Private Use $300
FREEDOM AIR INTERNATIONAL INC
and is not a certif-
AC Form 8050-3 (5/2008) Supersedes previous editions
491GM
icate of title.
TO:
FREEDOM AIR INTERNATIONAL INC
does not determine
rights of ownership
TO
as between private
persons.
CORPORATION
It is certified that the above described aircraft has been entered on the register of the
Federal Aviation Administration, United States of America, in accordance with the Convention
on International Civil Aviation dated December 7. 1944, and with Title 49, United States Code,
U.S. Department
and regulations Issued thereunder.
of Transportation
DATE OF ISSUE
Federal Aviation
November 13, 2002
ADMINISTRATOR
Administration
AC Form 8050-3 (5/2008) Supersedes previous editions

=== Page 23 ===
REGISTRATION NOT TRANSFERABLE
UNITED STATES OF AMERICA
This certificate
DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION
must be in the air-
CERTIFICATE OF AIRCRAFT REGISTRATION
craft when operated.
U.S. Department
EFTA00022691
AIRCRAFT SERIAL NO.
of Transportation
NATIONALITY AND
N
Federal Aviation
REGISTRATION MARKS
722JE
760750
Administration
MANUFACTURER AND MANUFACTURER'S DESIGNATION OF AIRCRAFT
Civil Aviation Registry
KEYSTONE HELICOPTER
S-76C
ICAO Aircraft Address Code: 52325707
This certificate is
Official Business
Issued for registra-
tion purposes only
and is not a certif-
AC Form 8050-3 (5/2008) Supersedes previous editions 722JE
- TO
(CUT ON DOTTED LINE)
Penalty for Private Use $300
FREEDOM AIR INTERNATIONAL INC
Icate of title.
The Federal Avia-
TO:
FREEDOM AIR INTERNATIONAL INC
tion Administration
does not determine
rights of ownership
as between private
persons.
CORPORATION
It is certified that the above described aircraft has been entered on the register of the
Federal Aviation Administration, United States of America, in accordance with the Convention
on International Civil Aviation dated December 7, 1944, and with Title 49, United States Code,
U.S. Department
and regulations issued thereunder.
of Transportation
DATE OF ISSUE
Federal Aviation
February 27, 2009
ADMINISTRATOR
Administration
AC Form 8050-3 (5/2008) Supersedes previous editions

=== Page 24 ===
Lisa Gaskin
From:
Lisa Gaskin
Sent:
Friday, August 27, 2010 2:52 PM
To:
Subject:
Certificates of Registration
Hi, Darren.
I have received both of the registration certificates, for N491GM and N722JE, under the new name- Freedom Air
International Inc.
Please let me know if you would like these sent via mail or overnight courier & the best address to use.
Thanks so much,
Lisa
Lisa Gaskin
Special Services Administrator
ph:
ph:
fax:
AIC Title Service, LLC
Follow us on Twitter at www.twitter.com/AICtitle
1
EFTA00022692

=== Page 25 ===
Lisa Gaskin
From:
Sent:
Friday, August 27, 2010 4:40 PM
To:
Lisa Gaskin
Subject:
Re: Fwd: Certificates of Registration
Fedex 114420816
t Charge to his
JUD-EX #
You are authorized to charge
Sent from my BlackBerry wireless handheld
From: Lisa Gaskin
Date: Fri, 27 Aug 2010 16:34:10 -0500
To:
; Darren Indyke
Subject: RE: Fwd: Certificates of Registration
could you please authorize me to put the Fed-Ex fees on your mastercard that we used for the FAA transaction?
(Or, if you have a fed-ex acct. number, I can use that. But, you'll need to get it to me pretty quickly...)
Thanks!
Lisa
Lisa Gaskin
Special Services Administrator
ph:
ph:
fax:
AIC Title Service, LLC
Follow us on Twitter at www.twitter.com/AlCtitle
From:
mailto:
Sent: Friday, August 27, 2010 4:00 PM
To: Darren Indyke
Subject: Re: Fwd: Certificates of Registration
Please fedex with saturday delivery to my Fla home;
1
EFTA00022693

=== Page 26 ===
Thank you,
Sent from my BlackBerry wireless handheld
From: Darren Indyke
Date: Fri, 27 Aug 2010 13:08:45 -0700
To:
Subject: Fwd: Certificates of Registration
Pls tell Lisa where you want them sent
Sent from my iPhone
Begin forwarded message:
From: Lisa Gaskin
Date: August 27, 2010 12:51:30 PM PDT
To:
Subject: Certificates of Registration
Hi, Darren.
I have received both of the registration certificates, for N491GM and N722JE, under the new
name- Freedom Air International Inc.
Please let me know if you would like these sent via mail or overnight courier & the best address
to use.
Thanks so much,
Lisa
Lisa Gaskin
Special Services Administrator
2
EFTA00022694

=== Page 27 ===
ph:
ph:
fax:
AIC Title Service, LLC
Follow us on Twitter at www.twitter.com/AICtitle
3
FFTA00022695


c1: EFTA00021819
c2: DataSet 8
c3: VOL00008
c4: DataSet 8/VOL00008/IMAGES/0004/EFTA00021819.pdf
c6: pdf
c7: images
c0:
=== Page 1 ===
From:
To:
)"
Cc:
Christian Everdell
"Mark
S. Cohen"
)"
)"
Subject: Re: Pretrial Interview - Ghislaine Maxwell
Date: Mon, 06 Jul 2020 17:34:49 +0000
I will handle this matter.
Thanks
U.S. Pretrial Services
On Jul 6, 2020, at 1:33 PM,
)
wrote:
Good afternoon,
Copied on this email are Chris Everdell and Mark Cohen, two attorneys representing defendant Ghislaine Maxwell in
case number 20 Cr. 330 (AJN). Please let them know how they can arrange for a pretrial interview with their client in
advance of her bail hearing this week.
If you need any additional information, please do not hesitate to contact me.
Thank you,
Assistant United States Attorney
Southern District of New York
1 St. Andrew's Plaza
New York, NY 10007
EFTA00021819


c1: EFTA00023499
c2: DataSet 8
c3: VOL00008
c4: DataSet 8/VOL00008/IMAGES/0004/EFTA00023499.pdf
c6: pdf
c7: images
c0:
=== Page 1 ===
From:
"
To:
)"
)"
Cc:
"
(USANYS)"
Bcc: "USAHUB-USAJournal111"
Subject: RE: Question re SDFL Epstein file
Date: Thu, 18 Feb 2021 00:55:10 +0000
Embedded: RE:_Question_re_SDFL_Epstein_file.msg
Sender:
Subject: RE: Question re SDFL Epstein file
Message-Id:
<DM3P110MB0345CF783CB7B4F276E8827084859@DM3P110MB0345.NAMP110.PROD.OUTLOOK.CO
M>
To:
To:
Cc:
EFTA00023499


c1: EFTA00022040
c2: DataSet 8
c3: VOL00008
c4: DataSet 8/VOL00008/IMAGES/0004/EFTA00022040.pdf
c6: pdf
c7: images
c0:
=== Page 1 ===
From:
To:
Cc:
Subject: RE: litigation re: victim names
Date: Wed, 14 Oct 2020 02:27:49 +0000
Attachments: 2020-08-
13,_GM_letter_to_Judge_Nathan_re_victim_names_and_prison_privileges_docketed.pdf;
2020.08.25_AJN_Order_denying_defense_motion_for_victim_identities.pdf
Hi
Yes, attached is our briefing and Judge Nathan's order ruling in our favor.
From:
Sent: Tuesday, October 13, 2020 11:57 AM
To:
Cc:
Subject: litigation re: victim names
Hi
The VOC chiefs mentioned that you litigated before Judge Nathan whether you had to disclose the names of the
victims/witnesses identified in your indictment by number. Can you send us your briefing on that and any written order
by Nathan/transcript of her ruling?
Thanks so much!
Assistant United States Attorney
Southern District of New York
Tel:
EFTA00022040


c1: EFTA00021155
c2: DataSet 8
c3: VOL00008
c4: DataSet 8/VOL00008/IMAGES/0004/EFTA00021155.pdf
c6: pdf
c7: images
c0:
=== Page 1 ===
From:
To:
Subject: Unit Update Report
Date: Fri, 04 Jan 2019 23:28:22 +0000
Importance: Normal
Attachments: Geoff_2019.01.04_Criminal_Update_Report.pdf
Special edition for
Associate U.S. Attorney
United States Attorney's Office
Southern District of New York
EFTA00021155


c1: EFTA00023261
c2: DataSet 8
c3: VOL00008
c4: DataSet 8/VOL00008/IMAGES/0004/EFTA00023261.pdf
c6: pdf
c7: images
c0:
=== Page 1 ===
From:
To:
Bcc: "USAHUB-USAJournal111"
Subject: RE: Response to Rule 16/Brady Letter
Date: Sun, 25 Oct 2020 18:54:41 +0000
Embedded: RE:_Response_to_Rule_16_Brady_Letter.msg
Sender:
Subject: RE: Response to Rule 16/Brady Letter
Message-Id:
M-
To:
To:
EFTA00023261


c1: EFTA00021293
c2: DataSet 8
c3: VOL00008
c4: DataSet 8/VOL00008/IMAGES/0004/EFTA00021293.pdf
c6: pdf
c7: images
c0:
=== Page 1 ===
From:
Subject: Mark Epstein Meeting
Date: Mon, 04 Nov 2019 14:17:17 +0000
Importance: Normal
Attachments: unnamed
EFTA00021293


c1: EFTA00021534
c2: DataSet 8
c3: VOL00008
c4: DataSet 8/VOL00008/IMAGES/0004/EFTA00021534.pdf
c6: pdf
c7: images
c0:
=== Page 1 ===
From:
(USANYS)"
To:
)"
Cc:
Subject: RE: motions under seal?
Date: Fri, 02 Aug 2019 15:26:25 +0000
It is a little difficult to know what needs to be sealed/redacted in the abstract. Out of an abundance of caution, can you
file the documents with any reference to evidence/discovery and cooperators redacted? We can then review the
unredacted version and discuss what, if anything, can be unredacted for the public version.
Assistant United States Attorney
From:
Sent: Friday, August 2, 2019 11:03 AM
To:
is
(USANYS)
Cc:
Subject: motions under seal?
Our motions will be ready to go out in a few hours., One is straight forward legal argument about the cell tower data,
which we don't have a problem filing. The other motion deals with the statements to the police and by necessity we
discuss the statements in detail. We also discuss some of the discovery and the cooperating witnesses. What is the
Government position about filing that motion under seal?
Also,
affidavit hasn't been signed because the only regular access to a notary are members of his legal team and we
don't want to witness his signature. We will have him sign it through whatever the process is at MCC or in open court at
our next appearance.
Garden City, NY 11530
This transmittal may be a confidential attorney client communication or may otherwise be privileged or confidential. If it is not clear
that you are the intended recipient, you are hereby notified that you have received this transmittal in error; any review, dissemination,
distribution or copying of this transmittal is strictly prohibited. If you suspect that you have received this communication in error,
please notify us immediately by telephone or email and immediately delete this message and all its attachments
EFTA00021534

=== Page 2 ===
EFTA00021535


c1: EFTA00020870
c2: DataSet 8
c3: VOL00008
c4: DataSet 8/VOL00008/IMAGES/0004/EFTA00020870.pdf
c6: pdf
c7: images
c0:
=== Page 1 ===
From:
To:
Subject: FW: SDNY investigation
Date: Wed, 30 Sep 2020 20:14:04 +0000
Attachments:
(CMA) - Vol. I - 12-04-09.pdf;
- Vol._Il.pdf
Team,
Attached are the transcripts of
depositions. I'd like to schedule a team call for Friday to discuss them. Does 10
a.m. Friday work for everyone for a call to discuss? If you need more time to review them, let me know and we can push
to Monday.
Thanks,
From: Weinstein, Marc A.
Sent: Wednesday, September 30, 2020 1:52 PM
To:
Cc: Andrew Tomback
Subject: RE: SDNY investigation
The transcripts are attached. We trust that the US Attorney's Office will keep these confidential other than to the extent
disclosure is required in any pending case.
Regards,
Marc
Marc A. Weinstein I Partner
Chair, White Collar Defense
Hughes Hubbard & Reed LLP
This message contains confidential information and is intended only for the individual named. If you are not the named addressee you should not
disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-
mail from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost,
destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this
message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version.
From: Weinstein, Marc A.
Sent: Wednesday, September 30, 2020 12:03 PM
To:
Cc: Andrew Tombac
EFTA00020870

=== Page 2 ===
Subject: RE: SDNY investigation
connected with Jack Scarola last week. I just sent him an email to confirm that we can provide you with the
transcript. Once we receive confirmation from him, we will send you the transcript.
Best regards,
Marc
From
Sent: Tuesday, September 29, 2020 3:40 PM
To: Weinstein, Marc A
Cc: Andrew Tomback
Subject: RE: SDNY investigation
CAUTION: This email was sent by someone outside of the Firm.
Hi Marc,
Hope you're doing well. I wanted to check in on the status of this issue - have you been able to connect with Mr. Scarola?
Thanks,
From: Weinstein, Marc A
Sent: Tuesday, September 22, 2020 4:54 PM
To:
Cc: Andrew Tomback
Subject: RE: SDNY investigation
Thanks
I will give him a call.
Marc A. Weinstein Partner
Chair, White Collar Defense
Hughes Hubbard & Reed LLP
This message contains confidential information and is intended only for the individual named. If you are not the named addressee you should not
disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-
mail from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost,
destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this
message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version.
From:
Sent: Tuesday, September 22, 2020 4:42 PM
To: Weinstein, Marc A.
Cc: Andrew Tomback
EFTA00020871

=== Page 3 ===
Subject: RE: SDNY investigation
CAUTION: This email was sent by someone outside of the Firm.
Marc,
Thanks for following up on this. If it's okay with you, I think it makes sense to connect you with the plaintiff's attorney,
Jack Scarola, so that he can convey this to you directly. I have spoken with him and explained the context here, and he
has told me that he would be happy to speak with you. He is also seeking a copy of the transcript, as he has informed me
that he no longer has his case files for matters this old. Here is his contact information:
Jack Scarola
Thank you,
From: Weinstein, Marc A.
Sent: Tuesday, September 22, 2020 11:24 AM
To:
Cc: Andrew Tomback
Subject: RE: SDNY investigation
We haven't found a governing protective order, but to be safe, would you be able to get a letter or email from
attorney stating that they are not aware of a protective order/agreement governing the disclosure of the transcript, and
to the extent one existed, they are waiving any provisions in order to permit the Estate to provide the transcript to the US
Attorney's Office, and that they will not claim, in any forum, that the Co-Executors, the Estate, or any representatives of
either, breached any such order/agreement in that case by providing the transcript to the US Attorney's Office.
Let us know if that works on your end.
Best regards,
Marc
Marc A. Weinstein Partner
Chair, White Collar Defense
Hughes Hubbard & Reed LLP
This message contains confidential information and is intended only for the individual named. If you are not the named addressee you should not
disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-
mail from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost,
destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this
message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version.
EFTA00020872

=== Page 4 ===
From
Sent: Monday, September 14, 2020 3:01 PM
To: Weinstein, Marc A
Cc: Andrew Tomback
Subject: RE: SDNY investigation
CAUTION: This email was sent by someone outside of the Firm.
Hi Marc,
Thanks - we have conferred with plaintiff's counsel, who has informed us that he is unaware of any protective order
relating to the
awsuit.
Best,
Assistant United States Attorney
Southern District of New York
One Saint Andrew's Plaza
New York. NY 10007
From: Weinstein, Marc A.
Sent: Monday, September 14, 2020 12:07 PM
To:
Cc: Andrew Tomback
Subject: Re: SDNY investigation
we are still looking to see what confidentiality restrictions might apply. If her lawyer has any such confidentiality
or protective order that governed the case, it might be helpful if you could obtain and share that.
Marc A. Weinstein | Partner
Chair, White Collar Defense
Hughes Hubbard & Reed LLP
This message contains confidential information and is intended only for the individual named. If you are not the named addressee you should not
disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-
mail from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost,
destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this
message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version.
On Sep 14, 2020, at 11:56 AM,
wrote:
CAUTION: This email was sent by someone outside of the Firm.
Marc,
EFTA00020873

=== Page 5 ===
Thanks very much. Are you able to provide it to us? If there are any issues with providing it to us, or if a call would be
useful to discuss, please let us know.
Thanks,
From: Weinstein, Marc A.
Sent: Monday, September 14, 2020 11:51 AM
To:
Cc: Andrew Tomback
Subject: RE: SDNY investigation
we have the transcript of
deposition.
Regards,
Marc
Marc A. Weinstein Partner
Chair, White Collar Defense
Hughes Hubbard & Reed LLP
This message contains confidential information and is intended only for the individual named. If you are not the named addressee you should not
disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-
mail from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost,
destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this
message which arise as a result of e-mail transmission. If verification is required please request a hard-copy version.
From:
Sent: Friday, September 11, 2020 1:40 PM
To: Weinstein, Marc A.
Cc: Andrew Tomback <
Subject: RE: SDNY investigation
CAUTION: This email was sent by someone outside of the Firm.
Thanks, Marc. We'll look forward to hearing from you, and thanks for your assistance with this.
From: Weinstein, Marc A.
Sent: Fridav. September 11. 2020 1:35 PM
To:
Cc: Andrew Tomback
Subject: RE: SDNY investigation
Thanks
.
It wasn't clear to me from the call that it was the plaintiff's deposition that you were after, as opposed to
another witness in the case. Now that it's clear, we will see if we can track it down.
Regards,
EFTA00020874

=== Page 6 ===
Marc
Marc A. Weinstein | Partner
Chair, White Collar Defense
Hughes Hubbard & Reed LLP
This message contains confidential information and is intended only for the individual named. If you are not the named addressee you should not
disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-
mail from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost,
destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this
message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version.
From:
Sent: Friday, September 11, 2020 1:30 PM
To: Weinstein, Marc A
Cc: Andrew Tomback
Subject: RE: SDNY investigation
CAUTION: This email was sent by someone outside of the Firm.
Marc,
Thanks for speaking earlier. The plaintiff's name is
who is represented by Jack Scarola. The deposition
took place in 2009, and Jeffrey Epstein was represented by Mark Luttier and Bob Critton of Critton, Luttier, and Coleman
LLP in West Palm Beach.
Thanks very much,
Assistant United States Attorney
Southern District of New York
One Saint Andrew's Plaza
New York, NY 10007
From: Weinstein, Marc A.
Sent: Friday, September 11, 2020 11:11 AM
To:
Cc: Andrew Tomback
Subject: RE: SDNY investigation
I just realized that you didn't share with us the deponent's name for the transcript you are looking for. Let us
know so that we can make the appropriate inquiries.
Best regards,
Marc
EFTA00020875

=== Page 7 ===
Marc A. Weinstein Partner
Chair, White Collar Defense
Hughes Hubbard & Reed LLP
This message contains confidential information and is intended only for the individual named. If you are not the named addressee you should not
disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-
mail from your system. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost,
destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this
message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version.
Fror
Sent: Thursday, September 10, 2020 11:14 AM
To: Weinstein, Marc A
Cc: Andrew Tomback
Subject: RE: SDNY investigation
CAUTION: This email was sent by someone outside of the Firm.
That works well, thanks very much. Talk to you then.
From: Weinstein, Marc A
Sent: Thursday, September 10, 2020 11:13 AM
To:
Cc: Andrew Tombacl
Subject: Re: SDNY investigation
if 11:00 works, I can send a dial-in.
Marc A. Weinstein | Partner
Chair, White Collar Defense
Hughes Hubbard & Reed LLP
This message contains confidential information and is intended only for the individual named. If you are not the named addressee you should not
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On Sep 10, 2020, at 10:46 AM,
wrote:
CAUTION: This email was sent by someone outside of the Firm.
Andy and Marc,
Are you available for a brief call tomorrow? I'm available before 1 p.m., if there's a time that works for you in that window.
EFTA00020876

=== Page 8 ===
Thanks very much,
Assistant United States Attorney
Southern District of New York
One Saint Andrew's Plaza
New York, NY 10007
EFTA00020877


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c4: DataSet 8/VOL00008/IMAGES/0004/EFTA00021997.pdf
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c7: images
c0:
=== Page 1 ===
JPMorgan Account
Account type
Account number
Account Type Account number
Month/Date/Year
Social Security (M). / Tax ID no. assport no.
Account title
116 EAST 65th Street LLC
BACK
All Accountholders/Signers must sign this Signature Form exactly as the checks/imitructions will be signed.
Prins older older/Signer. Trustee Custodian, Director, etc)
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Ghiskine Maxwell
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BAC
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yes
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Signing instructions Please ute back of card if necessary.)
SB1062192-F1
1
EFTA00021997

=== Page 2 ===
A1
Comments
Date[mmddyyyy]
Box Number
Form Type = "CITADEL"
02102010
Doc Code Doc Code Doc Code Doc Code Account Numbers
194
Account Numbers
SB1062192-F1
2
EFTA00021998

=== Page 3 ===
Jul-27-2011 02:34 PM PMorgan Chase 102-634-5955
7/13
IPMorgan Account
ACCOUNT the Account name
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SB1062192-F1
3
EFTA00021999

=== Page 4 ===
A1
Comments
Date[mmddyyyy]
Box Number
Form Type = "CITADEL"
07272011
Doc Code Doc Code Doc Code Doc Code Account Numbers
194
Account Numbers
SB1062192-F1
4
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=== Page 5 ===
JPMorgan Account
Action not Account number
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13847
13
SB1062192-F1
5
EFTA00022001

=== Page 6 ===
JPMorgan Account
Account type
Account type
Account number
Month/Date/Year
-
Social Security no. Tax Dro. no. Passport no.
Account title
Ghishire MAXWELL
BACK
All Accountholders/Signers must sign this Signature Form exactly as the checks/instructions will be signed
t
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SB1062192-F1
6
EFTA00022002

=== Page 7 ===
A1
Comments
Date[mmddyyyy]
Box Number
Form Type = "CITADEL"
02102010
Doc Code Doc Code Doc Code Doc Code Account Numbers
194
Account Numbers
SB1062192-F1
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=== Page 8 ===
MAR-05-03 14:47 FROM:
10:2127502400
The Morgan Account
Application: Signature Page
PMorgan Private Bank
MORGAN USA ONLY
USAD
Title
GHISLAINE MAXWELL
SPN
Primary CAS
Accounts Opened
ASSET
PAAS
BROKER
DDA
MMJA
MARGIN
THIS APPLICATION MUST BE COMPLETED BEFORE MORGAN WILL BE ABLE TO PROVIDE FINANCIAL SERVICES. IF ANY SECTION
YOU WILL CONTACT ME TO OBTAIN ADDITIONAL INFORMATION. YOU WILL SEND ME A COMPLETED COPY OF THE APPLICATION
YOU OF ANY INACCURACIES WITHIN 10 DAYS OF YOUR SENDING ME A COMPLETED COPY. MUST ALSO NOTIFY YOU OF ANY
CHANGE
THE INFORMATION IN THIS APPLICATION ABSENT NOTIFICATION. THE INFORMATION CONTAINED IN THE APPLICATION WILL as
AND COMPLETE
A
MORGAN
The General Terms for Accounts and Services and Appendices along with this Application
AGREEMENT
additional Account Agreements. Rate and Fee Schedules, Risk Disclosures and Supplement
all amendments and supplements to any of them is effect from time to time comprise the
between you and me.
By signing this Application, I acknowledge that I have, or will read all the various document
but not limited to, the General Terms for Accounts and Services. Account Agreements. Rate
Schedules. and Appendices. including Risk Disclosures. Supplemental Forms. and if applica
Global Custody Account Agreement, which comprise the agreement between you and me
I further acknowledge that I will notify you immediately if I have any issues with the
Otherwise. 1 will be decemed to concur with this Agreement between you and mc. I also
of the Accounts 1 am applying for is pledged as Collateral for all of my obligations. 1
that 1 have read and consent to the terms of the JPMorgan Private Bank Privacy Policy.
mander in which my information is received and used, and that upon opening an account
Private Bank my clicar information will be used by one or more members of the JPMorgan
family of companies (as listed in the Policy) in order to make available to me all the
services available through the JPMorgan Private Bank
I understand that you do got give tax or legal advice. and that I am advised to consult a
Advisor about tax. legal. and estate-planning issues affecting my Accounts. including the
are titled.
B
TAX CERTIFICATION
I CERTIFY AS THE ACCOUNTHOLDER SIGNING BELOW AND UNDER PENALTIES OF PERJURY THAT (1) THE NUMBER
APPLICATION 18 MY CORRECT TAXPAYER IDENTIFICATION NUMBER (OR AM WAITING FOR A NUMBER TO BE
AND
(2) THAT AM NOT SUBJECT TO BACK-UP WITHHOLDING BECAUSE (A) I AM EXEMPT FROM BACKUP WITHMOLDING
NOT BEEN NOTIFIED BY THE INTERNAL REVENUE SERVICE (IRS) THAT E AM SUBJECT TO BACK-UP WITHHOLDING
A FAILURE To REPORT ALL INTEREST AND DIVIDENDS, OR (C) THE IRS HAS NOTIFIED ME THAT I AM NO LONGER
BACK-UP WITHHOLDING AND (3) I AM A U.S. PERSON INCLUDING A U.S. RESIDENT ALIEN).
: UNDERSTAND THAT IF HAVE BEEN NOTIFIED BY THE 1A2 THAT AM SUBJECT TO BACK-UP WITHHOLDING AS
DIVIDEND OR INTEREST UNDERREPORTING. AND MAVE NOT RECEIVED - NOTICE FROM THE IN: ADVISING ME
WITHHOLDING is TERMINATED , MUST STRIKE OR CROSS OUT THE INFORMATION CONTAINED IN ITEM It LN
PARAGRAPH.)
THE IRS DOES NOT REQUIRE CONSENT TO ANY PROVISION OF THIS DOCUMENT OTHER THAN THE CERTIFICATION
10
AVOID BACK-UP WITHHOLDING
LIMITED LIABILITY COMPANIES ONLY FOR FEDERAL TAX PURPOSES IF THE MEMBERS HAVE CHOSEN TO BC
ASSOCIATION TAXABLE AS A CORPORATION YOU MUST CHECK THE DOX To THE LEFT OF THE WORD EXEMPT TO
BACKUP WITHHOLDING ON INTEREST AND DIVIDEND PAYMENTS OTHERWISE TMC CLASSIFICATION WILL **
PARTNERSMIP on AS A SINGLE OWNER DISREGARDED AS AN (MIITY SEPARATE FROM ITS OWNER
EXEMPT (CLASSIFIED AS AN ASSOCIATION TAXABLE AS A CORPORATION).
C
ACCOUNTS
. HAVE APPLIED TO OPEN THE FOLLOWING ACCOUNTS:
OPENED
Asset
Brokerage
Investment Management
X
Deposit
Custody
D
PRE-DISPUTE
By signing below, I acknowledge my agreement to arbitrate any controversies arising out of the Margie
ARBITRATION
Brokerage Agreements with JPMSL in accordance with paragraph 6 of the Brokernge Agreement.
SIGN HERE
ALL ACCOUNTHOLDERS ARE REQUIRED TO SIGN BELOW:
IF SIGNATURES ARE ON BEHALF OF ENTITY ACCOUNTHOLDER, PLEASE SPECIFY NAME OF ENTITY
gS Signature
GHISLAINE MAXWELL
Date
Print Name
X
Signature (Additional Accountholder)
Date
Print Name
X
Signature (Addidonal Accountholder)
Due
Price Name
X
Signature (Additional Accountholder)
Due
Print Name
** TOTAL PAGE 009
Renf MAR 05 '03 14:50
2127502408 FAGE.0
SB1062192-F1
8
EFTA00022004

=== Page 9 ===
194
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Account now -
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Your
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SB1062192-F1
9
EFTA00022005

=== Page 10 ===
CLIDOCS
Tracking ID
0827201213863
Submitted By: TIMOTHY ANDREWS (U709412)
Document Codes: 194
DC1 Numbers:
Account Numbers: 000000739474332
SB1062192-F1
10
EFTA00022006

=== Page 11 ===
The Chase Manhattan Bank
CHASE
BUSINESS SIGNATURE CARD
BRANCH COPY
CARD COMPLETION DATE
ACCOUNT NUMBER
BAC/PROFIT CENTER
DATE 7/17/02 ACCOUNT OPENED
0134
ACCOUNT TITLE ("DEPOSITOR")
MAY HOTEL Services Corp
TAXPAYER IDENTIFICATION NUMBER
NUMBER OF
YES
SIGNATURES
CHECKS
/
NOTES
/
POA?
REQUIRED
NO
The Depositor certifies that it has reviewed the information contained in this Signature Card and the
Business Account Application and finds it accurate on this date. The Depositor has received and
agrees to the Terms and Conditions for Business Accounts and the Business Banking Card
Agreement currently in effect and as may be amended for the type of account and services it has
selected. The Depositor certifies that the (No.)
signature(s) presented below, including
reverse side, is/are the signature(s) of the person(s) authorized to sign and/or act with respect to
account transactions.
LINE OUT UNUSED SIGNATURE BOXES
PRINTED NAME
TITLE
Darren K. INDYRE
PRESIDENTX
Darent SIGNATURE Defler
GHISLAINE Maxwell
VICE Pros
X
of
X
X
Under the penalty of perjury, the Depositor certifies (1) that the number shown on this form is its
correct taxpayer identification number and (2) that the Depositor is not subject to backup
withholding either because: (a) it is exempt from backup withholding, or (b) it has not been notified
that it is subject to backup withholding as a result of a failure to report all interest or dividends, or (c)
the Internal Revenue Service has notified it that the Depositor is no longer subject to backup
withholding. (If the Depositor has in fact been notified by the IRS that it is subject to backup
withholding due to notified payee underreporting, please strike out the appropriate
phrase within the certification.)
X
Date: 17/12/02
Signature
Signature
THIS SECTION FOR CORPORATIONS ONLY
The undersigned Secretary of the Corporation hereby certifies that the above signatures are the signatures of persons authorized
to sign and/or act on the Corporation's behalf with respect to account tran ctions.
Secretary X
Date: 1/12/02
Check here if there are additional account signers on reverse side of BRANCH COPY.
THE ABOVE INFORMATION AND (NO.)
SIGNATURE(S) WERE VERIFIED BY:
Print Name TJACKSON
Initials TJ
Dept. No./Br. No.: 134
Retain card in branch for one year after account closes. Then send to Pawling for additional retention of five years.
039020* (4-00)
BRANCH COPY DO NOT SEND TO CHECK REVIEW
SB1062192-F1
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=== Page 12 ===
CHECK
Corporation
Partnership
Municipality
Unincorporated Association
ACCOUNT
ARRANGEMENT:
Sole Proprietorship
Estate
Other
CHECK
Checking
Checking with Interest
ACCOUNT
TYPE:
MMA
Savings
ADDITIONAL ACCOUNT SIGNERS - LINE OUT UNUSED SIGNATURE BOXES
PRINTED NAME
TITLE
SIGNATURE
X
X
X
X
X
COMPLETE ADDITIONAL CARD TOP(S) IF THERE ARE MORE THAN NINE (9) SIGNERS (EXCLUDING POA) ON THE ACCOUNT
POWER OF ATTORNEY INFORMATION
DATE POWER OF ATTORNEY RECEIVED
(Not valid for Corporations and Municipalities)
/
/
POWER OF ATTORNEY NAME
POWER OF ATTORNEY SIGNATURE
X
ADDRESS (Street and Number)
CITY
STATE
ZIP CODE
Check Imaging or No Checks With Statement: The Depositor authorizes you not to return paid
checks with its account statements. If the Depositor selected the Check Imaging option, the Depositor
agrees to receive images (front only) of its paid checks. The Depositor agrees that the account
statement will contain information about each check paid, including check number, dollar amount
and date paid, thereby enabling a proper reconciliation of the account. Upon request, photocopies of
checks will be provided. You will not retain original checks.
PRINTED NAME
TITLE
SIGNATURE
THIS SECTION FOR CORPORATIONS ONLY
The undersigned Secretary of the Corporation hereby certifies that the above signatures are the signatures of persons authorized
to sign and/or act on the Corporation's behalf with respect to account transactions
Secretary X
Date:
THE ABOVE INFORMATION AND (NO.)
SIGNATURE(S) (POA AND ADDITIONAL SIGNERS) WERE VERIFIED BY:
Print Name
Initials
Dept. No./Br No.:
Retain card in branch for one year after account closes. Then send to Pawling for additional retention of live years.
BRANCH COPY . DO NOT SEND TO CHECK REVIEW
039020* (4-00)
SB1062192-F1
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=== Page 13 ===
JUL-27-2011 02:34 PM PMorgan Chase 102-634-5955
7/13
IPMorgan Account
Account the Account name
Account the Account number
TOM
Sodial Security no. Tax D no. Person no,
the
BAC #
AS Accomintholders Stywes - sign the Signature form sway # instructions - DE doned
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SB1062192-F1
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=== Page 14 ===
A1
Comments
Date[mmddyyyy]
Box Number
Form Type = "CITADEL"
07272011
Doc Code Doc Code Doc Code Doc Code Account Numbers
194
Account Numbers
SB1062192-F1
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=== Page 15 ===
Apr-13-2012 04:44 PM JPMorgan Chase 302-634-5955
7/11
PMorgan Account
Account Type
number
April 23,2012
Agreement
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Account -
TerraMar Project, Inc.
SAC,
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194
SB1062192-F1
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=== Page 16 ===
A1
Comments
Date[mmddyyyy]
Box Number
Form Type = "CITADEL"
04272012
Doc Code Doc Code Doc Code Doc Code Account Numbers
194
Account Numbers
SB1062192-F1
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=== Page 17 ===
Apr-13-2012 04:44 PM PMargan Chase 302-634-5955
7/11
PMorgan Account
Account Type
April 23, 2012
Agreement IVEM
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Social Senseyee
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information (Ruse use back of we receased
194
SB1062192-F1
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EFTA00022013


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=== Page 1 ===
From: Roberta Kaplan
To:
)"
Cc: "Kate L. Doniger"
Subject: RE: quick call re: Epstein investigation?
Date: Thu, 21 May 2020 21:35:52 +0000
Of course; on a call with Kate right now; we will call you when we are done
From:
Sent: Thursday, May 21, 2020 5:29 PM
To: Roberta Kaplan
Subject: RE: quick call re: Epstein investigation?
Robbie,
With apologies for the short notice, by any chance would you have five minutes free to chat via phone sometime this
afternoon / evening up until 7:00 or tomorrow before 1:00 pm? I'd be happy to call you anytime that's convenient (or feel
free to try me anytime if that's easier, at
). Just wanted to ask you a quick question. And of course happy to
have anybody additional on your end join as well if that's useful.
Thanks very much, and hope you're doing alright given the current circumstances.
thanks again,
Assistant U.S. Attorney
Southern District of New York
This email and its attachments may contain information that is confidential and/or protected from disclosure by the attorney-client, work product or other
applicable legal privilege. If you are not the intended recipient of the email, please be aware that any unauthorized review, use, disclosure, dissemination,
distribution, or copying of this communication, or any of its contents, is strictly prohibited. If you have received this communication in error, please notify
the sender immediately and destroy all copies of the message from your computer system. Thank you.
EFTA00023176


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=== Page 1 ===
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 1 of 34
USDC SDNY
DOCUMENT
UNITED STATES DISTRICT COURT
ELECTRONICALLY FILED
DOC #:
SOUTHERN DISTRICT OF NEW YORK
DATE FILED: 4/16/21
United States of America,
-V-
20-cr-330 (AJN)
Ghislaine Maxwell,
OPINION & ORDER
Defendant.
ALISON J. NATHAN, District Judge:
In June 2020, a grand jury returned a six-count indictment charging Ghislaine Maxwell
with facilitating the late financier Jeffrey Epstein's sexual abuse of minor victims from around
1994 to 1997. The Government filed a first (S1) superseding indictment shortly thereafter,
which contained only small, ministerial corrections. The S1 superseding indictment included
two counts of enticement or transportation of minors to engage in illegal sex acts in violation of
the Mann Act and two counts of conspiracy to commit those offenses. It also included two
counts of perjury in connection with Maxwell's testimony in a civil deposition. Trial is set to
begin on July 12, 2021.
Maxwell filed twelve pretrial motions seeking to dismiss portions of the S1 superseding
indictment, suppress evidence, and compel discovery. After the parties fully briefed those
motions, a grand jury returned a second (S2) superseding indictment adding a sex trafficking
count and another related conspiracy count.
This Opinion resolves all of Maxwell's currently pending pretrial motions other than
those seeking to suppress evidence, which the Court will resolve in due course. The motions, and
this Opinion, deal exclusively with the S1 superseding indictment and do not resolve any issues
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related to the newly added sex trafficking charges. For the reasons that follow, the Court denies
Maxwell's motions to dismiss the S1 superseding indictment in whole or in part. It grants her
motion to sever the perjury charges for a separate trial. It denies her motion to further expedite
discovery.
The Court provides a brief summary of its conclusions here and its reasoning on the
pages that follow:
Maxwell moves to dismiss all counts based on a non-prosecution agreement between
Jeffrey Epstein and the U.S. Attorney for the Southern District of Florida. The Court
concludes that the agreement does not apply in this District or to the charged offenses.
Maxwell moves to dismiss all counts as untimely. The Court concludes that the
Government brought the charges within the statute of limitations and did not unfairly
delay in bringing them.
Maxwell moves to dismiss the Mann Act counts because they are too vague, or in the
alternative to require the Government to describe the charges in greater detail. The
Court concludes that the charges are specific enough.
Maxwell moves to dismiss the perjury counts because, in her view, her testimony
responded to ambiguous questioning and was not material. The Court concludes that
these issues are best left for the jury.
Maxwell moves to sever the perjury counts from the Mann Act counts so that they can
proceed in a separate trial. The Court concludes that severance is appropriate and will
try the perjury counts separately.
Maxwell moves to strike language from the indictment that she believes is superfluous
and to dismiss conspiracy counts she believes are redundant. The Court concludes that
these motions are premature before trial.
Maxwell moves to compel the Government to immediately disclose certain categories
of evidence. The Court concludes that she is not entitled to do so, but the Court will
order Maxwell and the Government to confer on a discovery schedule.
Maxwell moves to dismiss all counts because a grand jury in White Plains, rather than
Manhattan, returned the S1 superseding indictment. Because a jury in Manhattan
returned the S2 superseding indictment, the motion appears moot.
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I.
Jeffrey Epstein's non-prosecution agreement does not bar this prosecution
In September 2007, under investigation by both federal and state authorities, Jeffrey
Epstein entered into a non-prosecution agreement ("NPA") with the Office of the United States
Attorney for the Southern District of Florida. Dkt. No. 142 at 1-2. Epstein agreed in the NPA to
plead guilty in Florida state court to soliciting minors for prostitution and to serve eighteen
months in a county jail. Id. In exchange, the U.S. Attorney's Office agreed not to charge him
with federal crimes in the Southern District of Florida stemming from its investigation of his
conduct between 2001 and 2007. Id. It also agreed not to bring criminal charges against any of
his "potential co-conspirators." Id.
As a recent report from the Department of Justice's Office of Professional Responsibility
observed, the NPA was unusual in many respects, including its breadth, leniency, and secrecy.
OPR Report, Gov. Ex. 3, Dkt. No. 204-3, at X, 80, 175, 179, 260-61. The U.S. Attorney's
promise not to prosecute unidentified co-conspirators marks a stark departure from normal
practice for federal plea agreements. This provision appears to have been added "with little
discussion or consideration by the prosecutors." Id. at 169, 185. The report concluded that the
U.S. Attorney's negotiation and approval of the NPA did not amount to professional misconduct,
but nonetheless reflected "poor judgment." Id. at 169.
Only the NPA's effect, and not its wisdom, is presently before the Court. Maxwell
contends that the NPA bars this prosecution, because she is charged as a co-conspirator of
Jeffrey Epstein and the NPA's co-conspirator provision lacks any geographical or temporal
limitations. The Court disagrees for two independent reasons. First, under controlling Second
Circuit precedent, the NPA does not bind the U.S. Attorney for the Southern District of New
York. Second, it does not cover the offenses charged in the S1 superseding indictment.
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A. The non-prosecution agreement does not bind the U.S. Attorney for the
Southern District of New York
United States Attorneys speak for the United States. When a U.S. Attorney makes a
promise as part of a plea bargain, both contract principles and due process require the federal
government to fulfill it. See Santobello V. New York, 404 U.S. 257, 262 (1971); United States V.
Ready, 82 F.3d 551, 558 (2d Cir. 1996). The question here is not whether the U.S. Attorney for
the Southern District of Florida had the power to bind the U.S. Attorney for the Southern District
of New York. The question is whether the terms of the NPA did so. Applying Second Circuit
precedent and principles of contract interpretation, the Court concludes that they did not.
In United States V. Annabi, the Second Circuit held: "A plea agreement binds only the
office of the United States Attorney for the district in which the plea is entered unless it
affirmatively appears that the agreement contemplates a broader restriction." 771 F.2d 670, 672
(2d Cir. 1985) (per curiam). This is something akin to a clear statement rule. Single-district plea
agreements are the norm. Nationwide, unlimited agreements are the rare exception. Applying
Annabi, panels of the Second Circuit have stated that courts cannot infer intent to depart from
this ordinary practice from an agreement's use of phrases like "the government" or "the United
States." United States V. Salameh, 152 F.3d 88, 120 (2d Cir. 1998) (per curiam); United States V.
Gonzalez, 93 F. App'x 268, 270 (2d Cir. 2004). Those are common shorthand. A plea
agreement need not painstakingly spell out "the Office of the United States Attorney for Such-
and-Such District" in every instance to make clear that it applies only in the district where
signed.
Maxwell asks this Court to draw the opposite conclusion. The provision of the NPA
dealing with co-conspirators does not expressly state that it binds U.S. Attorneys in other
districts. It does not expressly state that it applies in other districts. The relevant language, in
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its entirety, reads as follows: "the United States also agrees that it will not institute any criminal
charges against any potential co-conspirators of Epstein." Dkt. No. 142-1 at 5. Under Annabi,
Salameh, and Gonzalez, a statement that "the United States" agrees not to prosecute implies no
restriction on prosecutions in other districts.
Two provisions of the NPA refer specifically to prosecution in the Southern District of
Florida. The first states that the U.S. Attorney for the Southern District of Florida will defer
"prosecution in this District" if Epstein complies with the agreement. Dkt. No. 142-1 at 2. The
second states that no prosecution "will be instituted in this District, and the charges against
Epstein if any, will be dismissed" after he fulfills the agreement's conditions. Maxwell contends
that the lack of similar language in the co-conspirator provision must mean that it lacks any
geographical limitation. If anything, that language reflects that the NPA's scope was expressly
limited to the Southern District of Florida. It is not plausible-let alone "affirmatively
apparent", Annabi, 771 F.2d at 672,-that the parties intended to drastically expand the
agreement's geographic scope in the single sentence on the prosecution of co-conspirators
without clearly so saying.
Without an affirmative statement in the NPA's text, Maxwell turns to its negotiation
history. Under Second Circuit precedent she may offer evidence that negotiations of the NPA
between the defendant and the prosecutors included a promise to bind other districts. See United
States V. Russo, 801 F.2d 624, 626 (2d Cir. 1986). She alleges that officials in the U.S.
Attorney's Office for the Southern District of Florida sought and obtained approval for the NPA
from the Office of the Deputy Attorney General and communicated with attorneys in other
districts. Any involvement of attorneys outside the Southern District of Florida appears to have
been minimal. Maxwell has already received access to an unusually large amount of information
5
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about the NPA's negotiation history in the form of the OPR report and yet identifies no evidence
that the Department of Justice made any promises not contained in the NPA. The OPR report
reflects that the Office of the Deputy Attorney General reviewed the NPA, but only after it was
signed when Epstein tried to get out of it. OPR Report at 103. Other documents show that
attorneys in the Southern District of Florida reached out to other districts for investigatory
assistance but not for help negotiating the NPA. Dkt. No. 204-2. Nor would direct approval of
the NPA by the Office of the Deputy Attorney General change the meaning of its terms. No
evidence suggests anyone promised Epstein that the NPA would bar the prosecution of his co-
conspirators in other districts. Absent such a promise, it does not matter who did or did not
approve it.
Second Circuit precedent creates a strong presumption that a plea agreement binds only
the U.S. Attorney's office for the district where it was signed. Maxwell identifies nothing in the
NPA's text or negotiation history to disturb this presumption. The Court thus concludes that the
NPA does not bind the U.S. Attorney for the Southern District of New York.
B. The non-prosecution agreement does not cover the charged offenses
The NPA would provide Maxwell no defense to the charges in the S1 superseding
indictment even against an office bound to follow it. The NPA bars prosecution, following
Epstein's fulfillment of its conditions, only for three specific categories of offenses:
(1) "the offenses set out on pages 1 and 2" of the NPA; namely, "any offenses that
may have been committed by Epstein against the United States from in or around
2001 through in or around September 2007" including five enumerated offenses;
(2) "any other offenses that have been the subject of the joint investigation by the
Federal Bureau of Investigation and the United States Attorney's Office"; and
(3) "any offenses that arose from the Federal Grand Jury investigation."
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Dkt. No. 142-1 at 2. The NPA makes clear that the covered charges are those relating to
and deriving from a specific investigation of conduct that occurred between 2001 and 2007.
Maxwell contends that the NPA's co-conspirator provision lacks any limitation on the
offenses covered. The Court disagrees with this improbable interpretation. The phrase
"potential co-conspirator" means nothing without answering the question "co-conspirator in
what?" The most natural reading of the co-conspirator provision is that it covers those who
conspired with Epstein in the offenses covered by the NPA for their involvement in those
offenses. Thus, it would cover any involvement of Maxwell in offenses committed by Epstein
from 2001 to 2007, other offenses that were the subject of the FBI and U.S. Attorney's Office
investigation, and any offenses that arose from the related grand jury investigation.
The Court has no trouble concluding that the perjury counts are not covered by the NPA.
Those charges do not relate to conduct in which Maxwell conspired with Epstein and stem from
depositions in 2016, more than eight years after Epstein signed the NPA. Maxwell now
concedes as much, though her motion sought to dismiss the S1 superseding indictment in its
entirety, perjury counts and all.
The Mann Act counts, too, fall comfortably outside the NPA's scope. The S1
superseding indictment charges conduct occurring exclusively between 1994 and 1997, some
four years before the period covered by the Southern District of Florida investigation and the
NPA. The NPA does not purport to immunize Epstein from liability for crimes committed
before the period that was the subject of the FBI and U.S. Attorney's Office investigation.
Maxwell's protection is no broader. The Court thus concludes that the NPA does not cover the
offenses charged in the S1 superseding indictment.
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C. Maxwell is not entitled to an evidentiary hearing
In the alternative to dismissing the indictment, Maxwell requests that the Court conduct
an evidentiary hearing as to the parties' intent in the NPA. The Court finds no basis to do so.
The cases Maxwell cites where courts held hearings on the scope of a plea agreement
mostly involved oral agreements where there was no written record of the full set of terms
reached by the parties. All of them involved defendants with first-hand knowledge of
negotiations who claimed prosecutors breached an oral promise. "An oral agreement greatly
increases the potential for disputes such as
a failure to agree on the existence, let alone the
terms, of the deal." United States V. Aleman, 286 F.3d 86, 90 (2d Cir. 2002). Thus, an
evidentiary hearing may be necessary to determine the terms of an agreement never committed to
writing. This is no such case. The NPA's terms are clear. Beyond the NPA itself, an extensive
OPR report details its negotiation history. No record evidence suggests that prosecutors
promised Epstein anything beyond what was spelled out in writing. The Court agrees with the
Government that Maxwell's request for a hearing rests on mere conjecture.
For the same reason, the Court will not order the discovery on the NPA. In any case, it
appears that the Government has already produced two of the documents Maxwell seeks in her
motion-the OPR report and notes mentioned in a privilege log. Of course, the Government's
disclosure obligations would require it to disclose to Maxwell any exculpatory evidence or
evidence material to preparing the defense, including any evidence supporting a defense under
the NPA. The Government shall confirm in writing within one week whether it views any
evidence supporting Maxwell's interpretation of the NPA as material it is required to disclose,
and, if so, whether it has disclosed any and all such evidence in its possession.
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II.
The indictment is timely
A. The indictment complies with the statute of limitations
Federal law imposes a five-year limitations period for most non-capital offenses. 18
U.S.C. § 3282(a). Recognizing the difficulty of promptly prosecuting crimes against children,
Congress has provided a longer limitations period for "offense[s] involving the sexual or
physical abuse, or kidnaping" of a minor. 18 U.S.C. $ 3283. Until 2003, the operative version
of § 3283 allowed prosecution of these offenses until the victim reached the age of twenty-five.
Congress further extended the limitations period in the PROTECT Act of 2003, Pub. L. No. 108-
21, 117 Stat. 650, to allow prosecution any time during the life of the victim.
The parties agree that the Mann Act charges are timely if subject to the PROTECT Act,
but untimely under the general statute of limitations for non-capital offenses or the pre-2003
version of § 3283. Maxwell contends that the charged offenses do not qualify as offenses
involving the sexual or physical abuse or kidnapping of a minor and are thus governed by the
general statute of limitations. Alternatively, she contends that the pre-2003 version of § 3283
applies because the charged conduct occurred prior to 2003. The Court concludes that statute of
limitations in the PROTECT Act applies and that the charges are timely.
1. The Mann Act charges are offenses involving the sexual abuse of minors
Maxwell does not dispute that the facts alleged in the S1 superseding indictment involve
the sexual abuse of minors. The indictment charges that Epstein sexually abused each of the
alleged minor victims and that Maxwell allegedly enticed them to travel or transported them for
that purpose. Instead, Maxwell contends that charged offenses do not qualify as offenses
involving the sexual abuse of minors because sexual abuse is not an essential ingredient of each
statutory offense. See Bridges V. United States, 346 U.S. 209, 221 (1953). In Maxwell's view,
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for example, it is possible to transport a minor with intent to engage in criminal sexual activity
and not follow through with the planned sexual abuse, and so sexual abuse is not an essential
ingredient of the offense. Maxwell makes the same argument for the enticement and related
conspiracy charges.
This approach is analogous to the "categorical approach" employed by courts to evaluate
prior convictions for immigration and sentencing purposes. See Taylor V. United States, 495
U.S. 575, 602 (1990). Generally speaking, the "categorical approach" requires that courts "look
only to the statutory definitions-i.e., the elements" of the relevant offense to determine if the
provision applies "and not to the particular facts underlying those convictions." Descamps V.
United States, 570 U.S. 254, 261 (2013) (internal quotation marks omitted). Whether a statute
requires a categorical or case-specific approach is a question of statutory interpretation. To
determine whether Congress used the word "offense" in a statute to refer to an offense in the
abstract or to the facts of each individual case, the Court must examine the statute's "text,
context, and history." United States V. Davis, 139 S. Ct. 2319, 2327 (2019).
Though it has not authoritatively settled the question, the Second Circuit has strongly
suggested that Maxwell's approach is the wrong one. In Weingarten V. United States, 865 F.3d
48, 58-60 (2d Cir. 2017), the Second Circuit discussed at length how the text, context, and
history of § 3283 show that Congress intended courts to apply the statute using a case-specific
approach. The Third Circuit reached the same conclusion in United States V. Schneider, 801
F.3d 186, 196 (3d Cir. 2015).
The Court sees no reason to depart from the reasoning in Weingarten. First, "[t]he
Supreme Court's modern categorical approach jurisprudence is confined to the post-conviction
contexts of criminal sentencing and immigration deportation cases." Weingarten, 865 F.3d at 58.
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To the extent that the categorical approach is ever appropriate in other contexts, it is
inappropriate here.
The Court begins with the statute's text. Statutes that call for application of the
categorical approach typically deal with the elements of an offense in a prior criminal conviction.
Id. at 59. "The language of $ 3283, by contrast, reaches beyond the offense and its legal
elements to the conduct 'involv[ed]' in the offense. That linguistic expansion indicates Congress
intended courts to look beyond the bare legal charges in deciding whether § 3283 applied." Id. at
59-60 (alteration in original) (quoting $ 3283). Maxwell cites one case holding otherwise, but
that case involved a venue statute presenting significantly different concerns. See United States
V. Morgan, 393 F.3d 192, 200 (D.C. Cir. 2004). The Supreme Court has likewise held that a
statute which uses the language "an offense that involves fraud or deceit in which the loss to
the victim or victims exceeds $10,000" is "consistent with a circumstance-specific approach."
Nijhawan V. Holder, 557 U.S. 29, 32, 38 (2009) (emphasis added). Thus, the word "involves"
generally means that courts should look to the circumstances of an offense as committed in each
case. This reading accords with a robust legislative history indicating that Congress intended to
apply $ 3283 to a wide range of crimes against children. See Weingarten, 865 F.3d at 60;
Schneider, 801 F.3d at 196.
The purposes underlying the categorical approach do not apply here either. For statutes
dealing with prior convictions, "[t]he categorical approach serves 'practical' purposes: It
promotes judicial and administrative efficiency by precluding the relitigation of past convictions
in minitrials conducted long after the fact." Moncrieffe V. Holder, 569 U.S. 184, 200-01 (2013).
In the context of § 3283, there is no prior conviction to assess, and the jury will determine in the
first instance whether "the defendant engaged in the applicable abusive conduct." Weingarten,
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865 F.3d at 60. Maxwell nonetheless contends that using a case-specific approach for § 3283
would be impractical because the Government would need to prove conduct beyond the elements
of the offense. It may be true that this approach requires the Government to prove some
additional facts, but any statute-of-limitations defense presents factual issues (including, at least,
when the alleged conduct took place). This is not a serious practical problem and does not
justify setting aside the statute's language and apparent purpose.
Maxwell relies primarily on Bridges V. United States, 346 U.S. 209 (1953), to urge this
Court to cast Weingarten aside. The Supreme Court in Bridges addressed a statute that extended
the limitations period for defrauding the United States during the Second World War. In that
case, the Supreme Court first concluded that making false statements at an immigration hearing
was not subject to the extended limitations period because it lacked any pecuniary element as
required by the statute. Id. at 221. Then, as an alternative basis for its holding, it explained that
the offense did not require fraud as an "essential ingredient." Id. at 222. It reached that
conclusion in large part because the statute's legislative history made clear that Congress
intended it to apply only to a narrow class of war frauds causing pecuniary loss. Id. at 216.
As the Second Circuit explained in Weingarten, Congress had the opposite intent in the
enacting in the PROTECT Act. Weingarten, 865 F.3d at 59 & n. 10. "In passing recent statutes
related to child sex abuse, including extensions of the § 3283 limitations period, Congress
'evinced a general intention to "cast a wide net to ensnare as many offenses against children as
possible." Id. at 60 (quoting Schneider, 801 F.3d at 196 (quoting United States V. Dodge, 597
F.3d 1347, 1355 (11th Cir. 2010) (en banc))). The primary basis for Bridges' holding-
legislative history supporting a narrow interpretation-does not exist here. Instead, both the
statute's plan meaning and its legislative history suggest it should apply more broadly.
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Based on the statute's text, context, and history, the Court follows Weingarten and
concludes that the appropriate inquiry is whether the charged offenses involved the sexual abuse
of a minor on the facts alleged in this case. There is no question that they did. The Court thus
concludes that § 3283 governs the limitations period for the charges here.
2. The 2003 amendment to the statute of limitations applies to these offenses
Maxwell next contends that because the charged conduct took place before the
PROTECT Act's enactment, that statute did not lengthen the statute of limitations applicable to
her alleged offenses. Here too, the Second Circuit has provided guidance in its decision in
Weingarten. Although the court did not provide a definitive answer there, it explained that the
view Maxwell now takes conflicts with established principles of retroactivity and the decisions
of at least two other circuit courts. Weingarten, 865 F.3d at 58 & n.8; see Cruz V. Maypa, 773
F.3d 138, 145 (4th Cir. 2014); United States V. Leo Sure Chief, 438 F.3d 920, 924 (9th Cir.
2006).
The Supreme Court has set out a two-step framework to determine whether a federal
statute applies to past conduct. See Landgraf V. USI Film Products, 511 U.S. 244, 280 (1994).
Courts look first to the language of the statute. If the statute states that it applies to past conduct,
courts must so apply it. Weingarten, 865 F.3d at 54. Otherwise, the statute applies to past
conduct unless doing so would create impermissible retroactive effects. Id.
The Court begins with Landgraf's first step. To assess a statute's meaning here, courts
must consider the text of the statute along with other indicia of congressional intent, including
the statute's history and structure. See Enter. Mortg. Acceptance Co., LLC, Sec. Litig. V. Enter.
Mortg. Acceptance Co., 391 F.3d 401, 406 (2d Cir. 2004).
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Section 3283, as amended by the PROTECT Act, broadly states that "[n]o statute of
limitations that would otherwise preclude prosecution for an offense involving the sexual or
physical abuse, or kidnaping, of a child under the age of 18 years shall preclude such prosecution
during the life of the child." The statute lacks an express retroactivity clause, but courts have
held that no such clause is necessary, including for this particular statute. See Leo Sure Chief,
438 F.3d at 923. The statute's plain language unambiguously requires that it apply to
prosecutions for offenses committed before the date of enactment. Instead of simply providing a
new limitations period for future conduct, Congress stated that no statute of limitations that
would otherwise preclude prosecution of these offenses will apply. That is, it prevents the
application of any statute of limitations that would otherwise apply to past conduct.
Courts have reached the same conclusion for other statutes employing similar language.
The Eighth Circuit has held that the 1994 amendments to § 3283, which allowed prosecution of
sex crimes against children until the victim reached age twenty-five, applied to past conduct. See
United States V. Jeffries, 405 F.3d 682, 684-85 (8th Cir. 2005). The Second Circuit has observed
that the Higher Education Technical Amendments of 1991, Pub. L. No. 102-26, 105 Stat. 123,
illustrates language that requires a statute's application to past conduct. See Enter. Mortg.
Acceptance Co., LLC, Sec. Litig., 391 F.3d at 407. That statute eliminated the statute of
limitations for claims on defaulted student loans by stating that "no limitation shall terminate the
period within which suit may be filed." Id. The PROTECT Act's language is quite similar.
The history of § 3283 confirms Congress's intent to apply the extended limitations period
as broadly as the Constitution allows. With each successive amendment to the statute, Congress
further extended the limitations period, recognizing that sex crimes against children "may be
difficult to detect quickly" because children often delay or decline to report sexual abuse.
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Weingarten, 865 F.3d at 54. Congress enacted the limitations provision of the PROTECT Act
because it found the prior statute of limitations was "inadequate in many cases." H.R. Conf.
Rep. No. 108-63, at 54 (2003). For example, a person who abducted and raped a child could not
be prosecuted beyond this extended limit-even if DNA matching conclusively identified him as
the perpetrator one day after the victim turned 25." Id.
Maxwell makes no argument based on the statute's text. Instead, she contends that
because the House version of the bill included an express retroactivity provision absent from its
final form, the Court should infer that Congress did not intend the statute to apply to past
conduct. However, the legislative history makes clear that Congress abandoned the retroactivity
provision in the House bill only because it would have produced unconstitutional results. The
Supreme Court has explained that a law that revives a time-barred prosecution violates the Ex
Post Facto Clause of the Constitution, but a law that extends an un-expired statute of limitations
does not. Stogner V. California, 539 U.S. 607, 632-33 (2003). Senator Leahy, who co-
sponsored the PROTECT Act, expressed concerns in a committee report that the proposed
retroactivity provision was "of doubtful constitutionality" because it "would have revived the
government's authority to prosecute crimes that were previously time-barred." 149 Cong. Rec.
S5137, S5147 (Apr. 10, 2003) (statement of Sen. Leahy). Congress removed the provision
shortly thereafter for this reason. The removal of the express retroactivity provision shows only
that Congress intended to limit the PROTECT Act to its constitutional applications, including
past conduct-like Maxwell's-on which the statute of limitations had not yet expired.
Both the text and history of the PROTECT Act's amendment to $ 3283 reflect that it
applies Maxwell's conduct charged in the S1 superseding indictment. The Court could stop here.
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However, it also concludes that even if the statute were ambiguous, it would properly apply to
these charges.
At Lanfgraf's second step, the Court asks whether application of the statute to past
conduct would have impermissible retroactive effects. "[A] statute has presumptively
impermissible retroactive effects when it 'takes away or impairs vested rights acquired under
existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in
respect to transactions or considerations already past." Weingarten, 865 F.3d at 56 (quoting
Landgraf, 511 U.S. at 290). Thus, applying a new statute of limitations to previously time-
barred claims has an impermissible retroactive effect. Enter. Mortg. Acceptance Co., LLC, Sec.
Litig., 391 F.3d at 407. Applying it to conduct for which the statute of limitations has not yet
expired does not. Vernon V. Cassadaga Valley Cent. Sch. Dist., 49 F.3d 886, 890 (2d Cir. 1995).
Maxwell concedes that these offenses were within the statute of limitations when
Congress enacted the PROTECT Act. Thus, the Act did not deprive her of any vested rights.
Maxwell contends that it is unfair to allow the Government to prosecute her now for conduct that
occurred more than twenty years ago, but there is no dispute that Congress has the power to set a
lengthy limitations period or no limitations period at all. It has done so here, judging that the
difficulty of prosecuting these offenses and the harm they work on children outweighs a
defendant's interest in repose. Maxwell's fairness argument is a gripe with Congress's policy
judgment, not an impermissibly retroactive application of the statute. The Court concludes that
§ 3283 allows her prosecution now.
B. The Government's delay in bringing charges did not violate due process
"As the Supreme Court stated in United States V. Marion, the statute of limitations is 'the
primary guarantee against bringing overly stale criminal charges." United States V. Cornielle,
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171 F.3d 748, 751 (2d Cir. 1999) (cleaned up) (quoting United States V. Marion, 404 U.S. 307,
322 (1971)). There is a strong presumption that an indictment filed within the statute of
limitations is valid. To prevail on a claim that pre-indictment delay violates due process, a
defendant must show both that the Government intentionally delayed bringing charges for an
improper purpose and that the delay seriously damaged the defendant's ability defend against the
charges. See id. This is a stringent standard. "Thus, while the [Supreme] Court may not have
shut the door firmly on a contention that at some point the Due Process Clause forecloses
prosecution of a claim because it is too old, at most the door is barely ajar." DeMichele V.
Greenburgh Cent. Sch. Dist. No. 7, 167 F.3d 784, 790-91 (2d Cir. 1999).
The Court sees no evidence that the Government's delay in bringing these charges was
designed to thwart Maxwell's ability to prepare a defense. However, it is enough to say that
Maxwell does not make the strong showing of prejudice required to support this sort of claim.
Maxwell contends that the Government's delay in bringing charges has prejudiced her interests
because potential witnesses have died, others have forgotten, and records have been lost or
destroyed. It is highly speculative that any of these factors would make a substantial difference
in her case.
Maxwell first points to several potential witnesses who have passed away. These include
Jeffrey Epstein and his mother, one individual Maxwell believes worked with one of the alleged
victims in this case, and a police detective who investigated Epstein in Florida. She contends
they all would have provided exculpatory testimony were they alive today. Courts have
generally found that vague assertions that a deceased witness might have provided favorable
testimony do not justify dismissing an indictment for delay. See, e.g., United States V. Scala, 388
F. Supp. 2d 396, 399-400 (S.D.N.Y. 2005). The Court agrees with this approach. Maxwell
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provides no indication of what many of these potential witnesses might have testified to. The
testimony she suggests the detective might have offered-that witnesses in the Palm Beach
investigation did not identify Maxwell by name-is propensity evidence that does nothing to
establish her innocence of the charged offenses. There are also serious doubts under all of the
relevant circumstances that a jury would have found testimony from Epstein credible even if he
had waived his right against self-incrimination and testified on her behalf. See United States V.
Spears, 159 F.3d 1081, 1085 (7th Cir. 1999).
Maxwell's arguments that the indictment should be dismissed because of the possibility
of missing witnesses, failing memories, or lost records fail for similar reasons. These are
difficulties that arise in any case where there is extended delay in bringing a prosecution, and
they do not justify dismissing an indictment. United States V. Marion, 404 U.S. 307, 325-26
(1971); see United States V. Elsbery, 602 F.2d 1054, 1059 (2d Cir. 1979).
Finally, the Court finds no substantial prejudice from the pretrial publicity this case has
garnered. Maxwell contends that lengthy public interest in this case has transformed her
reputation from that of Epstein's friend to a co-conspirator. And she also alleges-without
evidence-that her accusers fabricated their stories based on media allegations. The Court will
not dismiss the indictment on Maxwell's bare assertion that numerous witnesses are engaged in a
perjurious conspiracy against her. And the Court will take all appropriate steps to ensure that the
pretrial publicity in this case does not compromise Maxwell's right to a fair and impartial jury.
The Court thus concludes that Maxwell has failed to establish actual prejudice from the
Government's delay in bringing charges. She may renew her motion if the factual record at trial
shows otherwise. On the present record, neither the applicable statute of limitations nor due
process bars the charges here.
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III.
The indictment describes the charged offenses with specificity
Maxwell seeks to dismiss the Mann Act counts for lack of specificity or in the alternative
to compel the Government to submit a bill of particulars providing greater detail of the charges.
The Court concludes that the charges in the S1 superseding indictment are clear enough.
Under Federal Rule of Criminal Procedure 7, an indictment must contain "a plain,
concise, and definite written statement of the essential facts constituting the offense charged."
The indictment must be specific enough to inform the defendant of the charges and allow the
defendant to plead double jeopardy in a later prosecution based on the same events. United
States V. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992). "Under this test, an indictment need do
little more than to track the language of the statute charged and state the time and place (in
approximate terms) of the alleged crime." United States. V. Tramunti, 513 F.2d 1087, 1113 (2d
Cir. 1975). In addition to dismissal, "Rule 7(f) of the Federal Rules of Criminal Procedure
permits a defendant to seek a bill of particulars in order to identify with sufficient particularity
the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to
prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second
time for the same offense." United States V. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987).
The S1 superseding indictment sets out the elements of each charged crime and the facts
supporting each element. Nonetheless, Maxwell contends that the indictment is too vague
because it refers to open-ended time periods, describes conduct like "grooming" and
"befriending" that is not inherently criminal, and does not identify the alleged victims by name.
Maxwell's first argument fails because the Government need only describe the time and
place of charged conduct "in approximate terms." Tramunti, 513 F.2d at 1113. The details are
subject to proof at trial. "[T]he Second Circuit routinely upholds the 'on or about' language used
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to describe the window of when a violation occurred." United States V. Kidd, 386 F. Supp. 3d
364, 369 (S.D.N.Y. 2019) (quoting United States V. Nersesian, 824 F.2d 1294, 1323 (2d Cir.
1987)). "This is especially true in cases of sexual abuse of children: allegations of sexual abuse
of underage victims often proceed without specific dates of the offenses." United States V.
Young, No. 08-cr-285 (KMK), 2008 WL 4178190, at *2 (S.D.N.Y. Sept. 4, 2008) (collecting
cases). As here, these cases frequently involve alleged abuse spanning a lengthy period of time,
and witnesses who were victimized as children may struggle to recall the precise dates when
abuse occurred. The indictment adequately describes the time and place of the charged conduct.
Maxwell next contends that allegations of noncriminal conduct render the charges
impermissibly vague. The Court disagrees. Rule 7 requires only that the language of the
indictment track the language of the statute and provide a rough account of the time and place of
the crime. Tramunti, 513 F.2d at 1113. The language of the S1 superseding indictment does so.
The Government's decision to provide more details than those strictly required does not hamper
Maxwell's ability to prepare a defense. Maxwell's argument that some of the conduct alleged is
not inherently criminal goes to the merits of the Government's case, not the specificity of the
charges.
Finally, Maxwell argues that the indictment is vague because the government does not
provide the names of the alleged victims. The Court sees no basis to require that the alleged
victims' names be included the indictment. The names of victims, even if important, generally
need not appear there unless their omission would seriously prejudice the defendant. See United
States V. Stringer, 730 F.3d 120, 127 (2d Cir. 2013); United States V. Kidd, 386 F. Supp. 3d 364,
369 (S.D.N.Y. 2019). Maxwell likely knows the identity of the alleged victims described in the
indictment at this point because the Government has provided extensive discovery on them.
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Moreover, the Government has agreed to disclose their names in advance of trial. There is thus
no unfairness here. See Stringer, 730 F.3d at 126. As discussed below, the Court will require
the parties to negotiate and propose a full schedule for all remaining pretrial disclosures.
IV.
The perjury charges are legally tenable
The Court turns next to Maxwell's motion to dismiss the perjury counts stemming from
her answers to questions in a deposition in a civil case. She contends that these charges are
legally deficient because the questions posed were fundamentally ambiguous and the questions
were not material to the subject of the deposition. The Court concludes that the charges are
legally tenable and Maxwell's defenses are appropriately left to the jury.
The applicable perjury statute imposes criminal penalties on anyone who "in any
proceeding before or ancillary to any court
knowingly makes any false material declaration."
18 U.S.C. $ 1623(a). Testimony is perjurious only if it is knowingly false and is material to the
proceeding in which the defendant offered it.
A. The questions posed were not too ambiguous to support a perjury charge
The requirement of knowing falsity requires that a witness believe that their testimony is
false. United States V. Lighte, 782 F.2d 367, 372 (2d Cir. 1986). As a general matter, "[a] jury is
best equipped to determine the meaning that a defendant assigns to a specific question." Id.
Courts have acknowledged a narrow exception for questions that are so fundamentally
ambiguous or imprecise that the answer to them cannot legally be false. Id. at 372, 375; see also
United States V. Wolfson, 437 F.2d 862, 878 (2d Cir. 1970). A question is fundamentally
ambiguous only if reasonable people could not agree on its meaning in context. Lighte, 782 F.2d
at 375. The existence of some arguable ambiguity does not foreclose a perjury charge against a
witness who understood the question.
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At a minimum, Maxwell's motion is premature. Courts typically evaluate whether a
question was fundamentally ambiguous only after the development of a full factual record at
trial. See, e.g., United States V. Markiewicz, 978 F.2d 786, 808 (2d Cir. 1992). The evidence at
trial may shed further light on whether the questions posed were objectively ambiguous in
context or whether Maxwell subjectively understood them. In any event, the Court has closely
considered each of the categories of questions that Maxwell argues are ambiguous. None of the
alleged ambiguities Maxwell identifies rise to the level supporting dismissal of the charges. The
context of the questions and answers, in conjunction with the Government's evidence, could lead
a reasonable juror to conclude that the statements were perjurious. Truth and falsity are
questions for the jury in all but the most extreme cases. The Court declines to usurp the jury's
role on the limited pretrial record.
B. A reasonable juror could conclude that Maxwell's statements were material
Maxwell also argues that the perjury counts should be dismissed because none of the
allegedly false statements were material to the defamation action. In a civil deposition, a
statement is material if it has a natural tendency to influence the court or if a truthful answer
might reasonably lead to the discovery of admissible evidence. United States V. Gaudin, 515
U.S. 506, 509 (1995); United States V. Kross, 14 F.3d 751, 753-54 (2d Cir. 1994). Like knowing
falsity, materiality is an element of the offense and thus ordinarily must be "decided by the jury,
not the court." Johnson V. United States, 520 U.S. 461, 465 (1997). Only the most extraordinary
circumstances justify departure from this general rule. United States V. Forde, 740 F. Supp. 2d
406, 412 (S.D.N.Y. 2010) (citing Gaudin, 515 U.S. at 522-23).
The charged statements do not fall within this narrow exception. Maxwell contends that
the questions did not relate to the sex trafficking and sexual abuse allegations at the center of the
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civil case, but that is not the legal standard. The Government may prevail if it proves that
Maxwell's answers could have led to the discovery of other evidence or could influence the
factfinder in the civil case. See Gaudin, 515 U.S. at 509; Kross, 14 F.3d at 753-54. At trial, a
reasonable juror could conclude that truthful answers to the questions may have permitted the
plaintiff to locate other victims or witnesses who could have corroborated the plaintiff's
testimony. The factual disputes relating to materiality are at least enough to preclude pretrial
resolution. In criminal cases, courts must guard against "invading the 'inviolable function of the
jury' in our criminal justice system," and if the "defense raises a factual dispute that is
inextricably intertwined with a defendant's potential culpability, a judge cannot resolve that
dispute on a Rule 12(b) motion." United States V. Sampson, 898 F.3d 270, 281 (2d Cir. 2018).
The Court concludes that the perjury charges are legally tenable and appropriately
presented to the jury.
V.
The perjury charges must be severed and tried separately
Although the perjury charges are legally tenable, the Court concludes that the interests of
justice require severing those counts and trying them separately. Trying the perjury counts
together with the Mann Act counts would require admitting evidence of other acts likely to be
unduly prejudicial. It would also risk disqualifying Maxwell's chosen counsel based on their
involvement in the earlier civil case.
Rule 14(a) of the Federal Rules of Criminal Procedure allows a court to order separate
trials if joining all offenses in a single trial would prejudice the defendant. A defendant seeking
severance must show significant unfairness to outweigh the burden on the court of conducting
multiple trials. United States V. Walker, 142 F.3d 103, 110 (2d Cir. 1998). The harm to the
defendant must be more than "solely the adverse effect of being tried for two crimes rather than
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one." United States V. Werner, 620 F.2d 922, 929 (2d Cir. 1980). Though this standard is
demanding, the Court concludes that, due to unique features of the perjury counts, Maxwell
meets it here. Trying all counts together would compromise Maxwell's right to the counsel of
her choice and risk an unfair trial.
Trying the perjury counts together with the Mann Act counts would risk an unfair trial on
each set of counts. First, it would introduce unrelated allegations of sexual abuse, which would
potentially expose the jury to evidence that might otherwise not be admissible. In particular, a
joint trial would potentially expose the jury to a wider swath of information regarding civil
litigation against Epstein that is remote from Maxwell's charged conduct. This presents a
significant risk that the jury will cumulate the evidence of the various crimes charged and find
guilt when, if considered separately, it would not do so. See United States V. Halper, 590 F.2d
422, 430 (2d Cir. 1978). Second, the evidence presented on the Mann Act counts may prejudice
the jury's ability to fairly evaluate Maxwell's truthfulness in her deposition, a critical element of
the perjury counts. The Court has concerns that a limiting instruction may be inadequate to
mitigate these risks given the nature of the allegations involved.
Importantly, a joint trial is also likely to require disqualification of at least one of
Maxwell's attorneys from participating as an advocate on her behalf. The perjury counts likely
implicate the performance and credibility of her lawyers in the civil action-two of whom
represent her in this case. The New York Rules of Professional Conduct generally forbid a
lawyer from representing a client in a proceeding in which the lawyer is likely also to be a
witness. N.Y. R. Prof'l Conduct $ 3.7(a). Maxwell's counsel in the civil action and the
deposition may be important fact witnesses on the perjury counts. Even if counsel were not
required to testify, trying all counts together could force Maxwell to choose between having her
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counsel testify on her behalf on the perjury charges and having them assist her in defending the
Mann Act charges.
The Second Circuit has recognized that witness testimony offered by a party's attorney
presents serious risks to the fairness of a trial. See Murray V. Metro. Life Ins. Co., 583 F.3d 173,
178 (2d Cir. 2009). The lawyer might appear to vouch for their own credibility, jurors might
perceive the lawyer as distorting the truth to benefit their client, and blurred lines between
argument and evidence might confuse the jury. Id. Disqualification of counsel also implicates
Maxwell's Sixth Amendment right to be represented by the counsel of her choice. See, e.g.,
United States V. Kincade, No. 15-cr-00071 (JAD) (GWF), 2016 WL 6154901, at *6 (D. Nev.
Oct. 21, 2016). The prejudice to Maxwell is especially pronounced because the attorneys who
represented her in the civil case have worked with her for years and are particularly familiar with
the facts surrounding the criminal prosecution. See United States V. Cunningham, 672 F.2d
1064, 1070-71 (2d Cir. 1982).
The Court is of course cognizant of the burden separate trials may impose on all trial
participants. But much of the proof relevant to the perjury counts and the Mann Act counts does
not overlap. In particular, materiality for statements made in a civil deposition is broad, and
evidence on that question is unlikely to bear on the other charges here. See Kross, 14 F.3d at
753-54; Gaudin, 515 U.S. at 509. Although some allegations of sexual abuse are relevant to
both sets of charges, many are not. At a minimum, this will expand the scope of the trial far
beyond the narrower issues presented. And while the Court agrees with the Government that at
least some of Maxwell's concerns are overstated, there is little question that the jury's
consideration of the nature of the defamation action will require a significant investment of time
and resources to provide the requisite context.
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The balance of these considerations favors severance. "Motions to sever are committed
to the sound discretion of the trial judge." United States V. Casamento, 887 F.2d 1141, 1149 (2d
Cir. 1989). In its discretion, the Court concludes that trying the perjury counts separately will
best ensure a fair and expeditious resolution of all charges in this case.
VI.
Maxwell's motion to strike surplusage is premature
Maxwell moves to strike allegations related to one of the alleged victims from the S1
superseding indictment as surplusage. The Court declines to do so at this juncture.
Federal Rule of Criminal Procedure 7(d) allows a court to strike surplusage from an
indictment on a defendant's motion. "Motions to strike surplusage from an indictment will be
granted only where the challenged allegations are not relevant to the crime charged and are
inflammatory and prejudicial." United States V. Hernandez, 85 F.3d 1023, 1030 (2d Cir. 1996)
(cleaned up). Courts in this District generally delay ruling on any motion to strike until after the
presentation of the Government's evidence at trial, because that evidence may affect how
specific allegations relate to the overall charges. See, e.g., United States V. Nejad, No. 18-cr-224
(AJN), 2019 WL 6702361, at *18 (S.D.N.Y. Dec. 6, 2019); United States V. Mostafa, 965 F.
Supp. 2d 451, 467 (S.D.N.Y. 2013).
Maxwell contends that the allegations related to "Minor Victim-3" are surplusage
because the indictment does not charge that Minor Victim-3 traveled in interstate commerce or
was below the age of consent in England where the alleged activities took place. Thus, she
argues, these allegations do not relate to the charged conspiracy and instead reflect an attempt to
introduce Minor Victim-3's testimony for impermissible purposes.
The Court will not strike any language from the S1 superseding indictment at this
juncture. The standard under Rule 7(d) is "exacting" and requires the defendant to demonstrate
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clearly that the allegations are irrelevant to the crimes charged. United States V. Napolitano, 552
F. Supp. 465, 480 (S.D.N.Y. 1982). The indictment does not allege that the alleged victim
traveled in interstate commerce or was underage during sexual encounters with Epstein. But the
Court cannot rule out that the allegations may reflect conduct undertaken in furtherance of the
charged conspiracy or be relevant to prove facts such as Maxwell's state of mind. See United
States V. Concepcion, 983 F.2d 369, 392 (2d Cir. 1992). The Court will follow the well-worn
path of others in this District and reserve the issue for trial. Maxwell may renew her motion
then.
VII. Maxwell's motion to dismiss multiplicitous charges is premature
Maxwell's motion to dismiss either the first or third count of the S1 superseding
indictment as multiplicitous is also premature. Maxwell contends that the Government has
alleged the same conspiracy twice in the indictment. "An indictment is multiplicitous when it
charges a single offense as an offense multiple times, in separate counts, when, in law and fact,
only one crime has been committed." United States V. Chacko, 169 F.3d 140, 145 (2d Cir. 1999).
"The multiplicity doctrine is based upon the double jeopardy clause of the Fifth Amendment,
which assures that the court does not exceed its legislative authorization by imposing multiple
punishments for the same offense." United States V. Nakashian, 820 F.2d 549, 552 (2d Cir. 1987)
(cleaned up).
"Where there has been no prior conviction or acquittal, the Double Jeopardy Clause does
not protect against simultaneous prosecutions for the same offense, so long as no more than one
punishment is eventually imposed." United States V. Josephberg, 459 F.3d 350, 355 (2d Cir.
2006). "Since Josephberg, courts in this Circuit have routinely denied pre-trial motions to
dismiss potentially multiplicitous counts as premature." United States V. Medina, No. 13-cr-272
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(PGG), 2014 WL 3057917, at *3 (S.D.N.Y. July 7, 2014) (collecting cases). The Court therefore
denies Maxwell's motion to dismiss multiplicitous counts without prejudice.
VIII. The parties shall negotiate all remaining disclosures
Maxwell moves to compel the Government to produce certain documents she believes it
has in its possession and has failed to produce. She also seeks accelerated disclosure of the
Government's witness list, Jencks Act material, Brady and Giglio material, co-conspirator
statements, and Rule 404(b) material. Based on the Government's response in briefing and
letters the parties have since submitted to the Court, it appears that most of these requests have
been overtaken by events. Accordingly, although the Court concludes that Maxwell is not
entitled to expedite this discovery based on the arguments in her motion papers, the Court will
require the parties to confer on an overall schedule for all remaining pretrial disclosures.
A. The Court accepts the Government's representations that it has disclosed all
Brady and Giglio Material
The Supreme Court's decisions in Brady V. Maryland, 373 U.S. 83 (1963) and Giglio V.
United States, 405 U.S. 150 (1972) require the Government to disclose to defendants certain
evidence that will aid their defense. Brady requires disclosure of exculpatory evidence. Under
Giglio, the Government has a duty to produce "not only exculpatory material, but also
information that could be used to impeach a key government witness." United States V. Coppa,
267 F.3d 132, 135 (2d Cir. 2001) (citing Giglio, 405 U.S. at 154). As a general rule, "Brady and
its progeny do not require immediate disclosure of all exculpatory and impeachment material
upon request by a defendant." Id. at 146. "[A]s long as a defendant possesses Brady evidence in
time for its effective use, the government has not deprived the defendant of due process of law
simply because it did not produce the evidence sooner." Id. at 144.
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Maxwell requests an order directing immediate disclosure of all Brady and Giglio
material and also requests a few specific documents she contends the Government has failed to
disclose. The Court begins with the specific requests. The requested materials include (1)
records of witness interviews in connection with an ex parte declaration in support of a response
to a motion to quash subpoenas; (2) an unredacted copy of two FBI reports; (3) pages from a
personal diary that is in the custody of a civilian third party; and (4) copies of all subpoenas the
Government has issued for Maxwell's records as part of its investigation in this case.
The Government represents that it is cognizant of its Brady obligations, that is has
reviewed the witness interviews and one of the FBI reports, and that neither set of documents
includes exculpatory information not previously disclosed. The Court has no reason to doubt the
Government's representation in this case that it is aware of its Brady obligations and that it has
complied and will continue to comply with them. And because the witness statements are
covered by the Jencks Act, the Court cannot compel production of such statements under the
terms of the statute. See 18 U.S.C. § 3500; Coppa, 267 F.3d at 145. Next, the Government
represents that it has already produced an unredacted copy of the other requested FBI report, and
so that request is moot. The diary pages she requests are within the control of a civilian third
party, not the Government, and so the Government need not (and perhaps cannot) produce them.
See United States V. Collins, 409 F. Supp. 3d 228, 239 (S.D.N.Y. 2019). Finally, Maxwell's
request for copies of all subpoenas the Government has issued is overly broad and lacks a legal
basis. Maxwell is not entitled to compel production of these documents.
The Court also will not issue an order requiring the immediate disclosure of Brady and
Giglio material. The Government has represented that it recognizes its obligations under Brady
and that it has complied, and will continue to comply, with such obligations. The Court has no
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reason to doubt these representations given its expansive approach to document production thus
far in this case. The Government has agreed in its recent letter to produce Giglio material six
weeks in advance of trial. The parties shall negotiate the specific timing, but assuming a
schedule along those lines is met, the Court concludes that Maxwell will be able to effectively
prepare for trial. See Coppa, 267 F.3d at 144.
B. Jencks Act material and co-conspirator statements
Maxwell also seeks to expedite discovery of Jencks Act material and non-exculpatory
statements of co-conspirators that the government may offer at trial. The Jencks Act, 18 U.S.C.
$ 3500, "provides that no prior statement made by a government witness shall be the subject of
discovery until that witness has testified on direct examination." Coppa, 267 F.3d at 145. The
statute therefore prohibits a district court in most cases from ordering the pretrial disclosure of
witness statements unless those statements are exculpatory. "A coconspirator who testifies on
behalf of the government is a witness under the Act." In re United States, 834 F.2d 283, 286 (2d
Cir. 1987). The Court therefore lacks the inherent power to expedite these disclosures. In any
case, the Government has agreed to produce all Jencks Act material at least six weeks in advance
of trial.
The Court also rejects Maxwell's alternative request for a hearing to determine the
admissibility of co-conspirator declarations. Co-conspirator statements may often be admitted at
trial on a conditional basis. If the Court determines that the Government has not met its burden
to show that the conditionally admitted statements were made in furtherance of the charged
conspiracy, the Court should provide a limiting instruction or, in extreme cases declare a
mistrial. United States V. Tracy, 12 F.3d 1186, 1199 (2d Cir. 1993). Although conditional
admissions can pose a problem, a pretrial hearing is unnecessary here because the Government
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has committed to producing co-conspirator statements at least six weeks in advance of trial to
allow Maxwell to raise any objections. Maxwell will have adequate time to object to any
proffered co-conspirator testimony following the Government's Jencks Act disclosures.
C. Witness list
As a general matter, "district courts have authority to compel pretrial disclosure of the
identity of government witnesses." United States V. Cannone, 528 F.2d 296, 300 (2d Cir. 1975).
In deciding whether to order accelerated disclosure of a witness list, courts consider whether a
defendant has made a specific showing that disclosure is "both material to the preparation of the
defense and reasonable in light of the circumstances surrounding the case." United States V.
Bejasa, 904 F.2d 137, 139-140 (2d Cir. 1990) (cleaned up).
Maxwell has made a particularized showing that the Government must produce a witness
list reasonably in advance of trial. The nature of the allegations in this case-decades-old
allegations spanning multiple locations-present considerable challenges for the preparation of
the defense. However, the Government's proposed disclosure schedule-which will afford
Maxwell at least six weeks to investigate testifying witness statements-allows Maxwell
significantly more time to review disclosures than schedules adopted in most cases in this
District. See, e.g., United States V. Rueb, No. 00-CR-91 (RWS), 2001 WL 96177, at *9
(S.D.N.Y. Feb. 5, 2001) (thirty days before trial); United States V. Nachamie, 91 F. Supp. 2d 565,
580 (S.D.N.Y. 2000) (fourteen days before trial). In addition, on April 13, 2021, the
Government produced over 20,000 pages of interview notes, reports and other materials related
to non-testifying witnesses. After considering the circumstances, including the complexity of the
issues in this case and what the defense has already received and likely learned in the course of
discovery, the Court concludes that the Government's proposal is generally reasonable.
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D. Rule 404(b) material
Maxwell's final discovery request is for early disclosure of evidence the Government
seeks to offer under Federal Rule of Evidence 404(b). Under Rule 404(b), if the prosecutor in a
criminal case intends to use "evidence of a crime, wrong, or other act" against a defendant, the
prosecutor must "provide reasonable notice of the general nature of any such evidence that the
prosecutor intends to offer at trial" and must "do so in writing before trial-or in any form
during trial if the court, for good cause, excuses lack of pretrial notice." The Government
represents that it will notify the defense of its intent to use 404(b) evidence at least 45 days in
advance of trial to allow Maxwell to file any motions in limine to be considered at the final
pretrial conference. The Government's proposal will give Maxwell an opportunity to challenge
admission of that evidence and to bring to the Court's attention any issues that require resolution
before trial. "This is all that Rule 404(b) requires." United States V. Thompson, No. 13-cr-378
(AJN), 2013 WL 6246489, at *9 (S.D.N.Y. Dec. 3, 2013). The Court concludes this schedule is
generally reasonable, although additional time to enable briefing and resolution in advance of
trial is strongly encouraged.
The Court's denial of Maxwell's requests to compel pretrial disclosures does not preclude
the parties from negotiating in good faith for an expedited discovery timeline that will account
for Maxwell's specific concerns. "[I]n most criminal cases, pretrial disclosure will redound to
the benefit of all parties, counsel, and the court." United States V. Percevault, 490 F.2d 126, 132
(2d Cir. 1974). In general, the Court will require the parties to negotiate a final, omnibus
schedule to propose to the Court. The Court concludes that the disclosure of all of the above
materials approximately six to eight weeks in advance of trial is appropriate and sufficient.
32
EFTA00022122

=== Page 33 ===
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 33 of 34
Given the complexities of the case and the addition of two counts via the S2 indictment, the
Court encourages the parties to agree to approximately eight weeks.
IX.
The S2 superseding indictment moots Maxwell's grand jury challenge
The Court has not received supplemental briefing on the motions in light of the return of
the S2 superseding indictment and so does resolve any such issues here. 1 However, Maxwell's
motion seeking to dismiss the S1 superseding indictment because it was returned by a grand jury
sitting at the White Plains courthouse appears moot. Maxwell argued that the use of a grand jury
drawn from the White Plains Division in this District did not represent a fair cross-section of the
community, because her trial would proceed in the Manhattan Division. A grand jury sitting in
Manhattan returned the S2 superseding indictment. By April 21, 2021, Maxwell shall show
cause why her grand jury motion should not be dismissed on that basis.
Conclusion
The Court DENIES Maxwell's motions to dismiss the indictment as barred by Epstein's
non-prosecution agreement (Dkt. No. 141), to dismiss the Mann Act counts as barred by the
statute of limitations (Dkt. No. 143), to dismiss the indictment for pre-indictment delay (Dkt. No.
137), to dismiss the Mann Act counts for lack of specificity (Dkt. No. 123), to dismiss the
perjury counts as legally untenable (Dkt. No. 135), to strike surplusage (Dkt. No. 145), to
dismiss count one or count three as multiplicitous (Dkt. No. 121), and to expedite pretrial
disclosures (Dkt. No. 147). The Court GRANTS Maxwell's motion to sever the perjury counts
for a separate trial (Dkt. No. 119).
1 The parties shall negotiate and propose a schedule for any available additional or supplement rulings in
light of the filing of the S2 indictment.
33
EFTA00022123

=== Page 34 ===
Case 1:20-cr-00330-AJN Document 207 Filed 04/16/21 Page 34 of 34
The Court ORDERS the Government to confirm within one week whether it considers
any evidence related to negotiation of the non-prosecution agreement to constitute Brady or Rule
16 material and, if so, to confirm that it has or will disclose such evidence.
The Court further ORDERS the parties to negotiate a final schedule for all pretrial
disclosures that remain outstanding, including: Brady, Giglio, and Jenks Act materials, including
co-conspirator statements; non-testifying witness statements; testifying witness statements; the
identity of victims alleged in the indictment; 404(b) material; and the Government's witness list.
The Court also requires the parties to negotiate a schedule for any additional or supplemental
motions briefing in light of the S2 indictment. The Court ORDERS a joint proposal to be
submitted by April 21, 2021. If agreement is not reached, the parties shall submit their
respective proposals.
The Court further ORDERS Maxwell to show cause by April 21, 2021 why her motion to
dismiss the S1 superseding indictment under the Sixth Amendment (Dkt. No. 125) should not be
denied as moot.
so ORDERED.
Dated: April 16, 2021
New York, New York
Alin D.Netto
ALISON J. NATHAN
United States District Judge
34
EFTA00022124


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From:
To:
)"
Subject: Title Reports for 9 E 71st Street
Date: Tue, 23 Jul 2019 17:56:54 +0000
Attachments: Title Documents Jade Data Research 9 EAST 71ST STREET, NEW YORK, NY.pdf;
Title_Report_Jade_Data_Research_19-J-9358_NEW_YORK_for_9_E_71st_St.doc
Good afternoon
Attached are certified Title Reports for 9E 71st Street.
As soon as you send to me the grand jury subpoena for the U.S. Virgin Islands corporation records, I will have it
served.
Squad C-40 (FAST) Senior Financial Investigator (SFI)
(0)(212) 384-2557
(c)(732) 403-1836
EFTA00020928


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=== Page 1 ===
From:
To:
Subject: RE: Jeffrey Epstein
Date: Mon, 09 Mar 2020 21:15:59 +0000
thanks very much - received and appreciated.
From:
Sent: Monday, March 09, 2020 15:52
To:
Subject: FW: Jeffrey Epstein
Hi
Here's something related to the Epstein case.
Thanks,
From:
Sent: Monday, March 9, 2020 3:37 PM
To:
Subject: Fwd: Jeffrey Epstein
Hi
do you know who at SDNY to forward this correspondence to? Thanks.
Begin forwarded message:
From:
Date: March 9, 2020 at 3:00:06 PM EDT
To:
Cc:
Subject: Jeffrey Epstein
Good afternoon, Ms.
Please see annexed for your information.
--
Very truly yours,
John Ray
Ray, Mitev & Associates, LLP
New York Attorneys
"Killer Bees"
Manhattan:
EFTA00023339

=== Page 2 ===
New York, NY 10010
Long Island:
Miller Place, New York 11764
IRS Circular 230 Required Notice-IRS regulations require that we inform you that to the extent this
communication contains any statement regarding federal taxes, that statement was not written or
intended to be used, and it cannot be used, by any person (i) for the purpose of avoiding federal tax
penalties that may be imposed on that person, or (ii) to promote, market or recommend to another
party any transaction or matter addressed herein.
This communication is otherwise privileged and confidential as attorney-client communication and/or
attorney work product and may not be used, reproduced, reformatted or in any way referred to
without the prior written consent of Ray, Mitev & Associates, under penalty of law. If you have
received this message in error, or are not the intended recipient, please notify us immediately and
destroy this message, along with any and all copies of this message.
Service of legal papers/documents by e-mail is not authorized and will be treated as a nullity. To the
extent that this communication may contain attorney advertising, same is not intended to form any
attorney-client relationship or otherwise impart or convey any legal advice.
EFTA00023340


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=== Page 1 ===
From:
)"
To:
Subject: RE: documents for Relativity
Date: Mon, 22 Apr 2019 19:50:37 +0000
Importance: Normal
Following up on the below, and for the same case - US V. Epstein (USAO # 2018R01618) - could we please load the
documents in the following folder into Relativity:
\Usa.doj.gov\cloud\NYS\StAndrews\Shared\USvEpstein-2018R01618\Investigation\#2018 SDNYinvestigation\Subpoena
Returns\Boies iller\2019-04-18, Boies Schiller second subpoena response
In terms of structure, they can go under the "BSF returns" subfolder (under the folder "Subpoena Returns") under a new
subfolder identified as "BSF second production". And under that, we'd like to keep the same folder structure as exists at
the link. Does that work?
And I don't believe there is DVD information (as in the "BSF first production" documents), but if there is, please let us
know. Please also let me know if any questions or if any other information would be helpful, and if you could let us know
when it's all uploaded?
thanks very much,
Assistant U.S. Attorney
Southern District of New York
From:
Sent: Thursday, March 28, 2019 11:16
To
Subject: RE: documents for Relativity
Perfect, thanks very much.
From
Sent: Thursday, March 28, 2019 09:02
To:
Cc
Subject: RE: documents for Relativity
Hello
EFTA00020769

=== Page 2 ===
The documents would need to be converted to a different format. I will talk to someone about getting the documents
converted to a different format.
Thank you.
From:
Sent: Wednesday, March 27, 2019 7:15 PM
To:
is
Subject: RE: documents for Relativity
That's no problem, we don't need those on Relativity. Separately, though will we be able to play those video files *not*
on a DVD? That is, we only have them in electronic format (in the file folders) - I haven't tried to play them, so maybe it's
just as easy as that, but wanted to check if we need to get them processed in some other fashion to be able to view
independently of a DVD player.
thanks,
From:
Sent: Tuesday, March 26, 2019 09:32
To:
-
Cc: Y
Subject: RE: documents for Relativity
Good Morning
I have noticed that some of these documents contain data that appears to be from a DVD. A DVD contains a bunch of
separate files to make everything play on a DVD, but it will not make sense to load DVD information into Relativity. The
following should not be loaded to Relativity:
1.
\\Usa.doj.gov\cloud\NYS\StAndrews\Shared\UUUV4Q*3\lFS09LP\_AMUFM*3\S90B8HH\B3KTU3*5\2MQV91
I\G6WHHA*F\7EJDCF~7\Interview H. R\VIDEO_TS
2.
\\Usa.doj.gov\cloud\NYS\StAndrews\Shared\UUUV4Q^3\FS09LP\_AMUFM*3\S90B8H*H\B3KTU3*5\2MQV99
I\GWR892~P\60AFYC*X\Interview J. H\VIDEO_TS
3.
!\GWR892~P\60AFYC*X\Interview S. V\VIDEO_TS
4.
\\Usa.doj.gov\cloud\NYS\StAndrews\Shared\UUUV4Q^3\FS09L*P\_AMUFM*3\S90B8H*H\B3KTU3*5\2MQV99
I\GYCEJB~B\53V7CE*B\Interview A. D\VIDEO_TS
5.
\\Usa.doj.gov\cloud\NYS\StAndrews\Shared\UUUV4Q*3\FS09L*P\_AMUFM*3\S90B8H*H\B3KTU3*5\2MQV991
I\GYCEJB^B\53V7CE~B\Interview A. T\VIDEO_TS
6. \\Usa.doj.gov\cloud\NYS\StAndrews\Shared\USvEpstein-2018R01618\Investigation\# 2018 SDNY
investigation\Subpoena Returns\ Boies Schiller\2019-03-04, Boies Schiller first subpoena response\GJ SUBPOENA
EFTA00020770

=== Page 3 ===
RESPONSE 004582 (State Disc 1)\2. Walkthrough Video
Please let me know if there are any questions.
Thank you.
From:
Sent: Monday, March 25, 2019 7:00 PM
To:
Cc:
Subject: RE: documents for Relativity
Could we please load the documents in the following folder into Relativity for US V. Epstein (USAO # 2018R01618):
\Usa.doj.gov\cloud\NYS\StAndrews\Shared\USvEpstein-2018R01618\Investigation\#2018 SDNYinvestigation\Subpoena
Returns\Boies Schiller\2019-03-04, Boies Schiller first subpoena response
In terms of structure, we'd like to create a folder identified as "Subpoena Returns" (at the same level as "FBI Case File" is
currently), and in a subfolder within Subpoena Returns, a folder titled "BSF returns," and within that a subfolder identified
as "BSF first production" that the docs in the above link can be deposited into (including any additional subfolders). Does
that work?
Please let me know if any questions or if any other information would be helpful, and if you could please let us know
when it's all uploaded?
thanks very much,
Assistant U.S. Attorney
Southern District of New York
EFTA00020771


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=== Page 1 ===
From:
To:
Subject: Automatic reply: United States of America V. Jeffrey Epstein
Date: Tue, 06 Aug 2019 11:25:07 +0000
I will be out of the office on vacation until Monday, August 12th. Although I will have access to email during my absence, my responses may be
delayed. For urgent matters, please contact the other AUSA(s) on the case, or AUSA
EFTA00021548


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=== Page 1 ===
From:
)"
To:
Cc:
)"
(USANYS) [Contractor]"
(USANYS)"
Subject: RE: Maxwell drive delivery Monday 1/11
Date: Tue, 12 Jan 2021 19:10:23 +0000
Thanks very much for letting us know.
Best,
Original Message
From:
Sent: Tuesday, January 12, 2021 2:07 PM
To:
Cc:
)
(USANYS) [Contractor]
(USANYS)
Subject: Re: Maxwell drive delivery Monday 1/11
Just wanted to give you a heads up that Maxwell will receive the hard drives tomorrow. Our paralegal who logs
them was out yesterday and had an a lot of discovery drives to log today. By the time he went to deliver hers, she
was already on her VTC and won't be off until 3:30 and he will no longer be here.
Best,
)"
1/8/2021 2:20
PM
Good afternoon,
The FBI has very kindly agreed to deliver two new drives from my office to the MDC for Ghislaine Maxwell on
Monday, January 11th. I've cc'd Special Agent
,
who will be coordinating the delivery. Would you
please let us know what time the FBI should plan to make the delivery and who will be available to receive the
drives on Monday?
Thank you all very much for your help.
Best,
Assistant United States Attorney
Southern District of New York
1 St. Andrew's Plaza
New York, NY 10007
<mailto:
EFTA00020526


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=== Page 1 ===
From: "Miller, Michael"
To:
)"
Subject: RE: Epstein
Date: Thu, 01 Aug 2019 19:10:23 +0000
Thank you,
Much appreciated. Mike
From:
Sent: Thursday, August 1, 2019 3:07 PM
To: Miller, Michael
Subject: RE: Epstein
Mike,
Just tried calling but didn't catch her, but I emailed to let her know your timing. We'll keep in touch and get it taken care
of.
thanks,
From: Miller, Michael
Sent: Thursday, August 01, 2019 14:36
To:
)
Subject: RE: Epstein
- We have not been able to connect yet. I'm at my desk for the next 1.5 hours if that works for Agent
Mike
From:
Sent: Thursday, August 1, 2019 12:23 PM
To: Miller, Michael
Subject: RE: Epstein
Hi Mike,
Thanks for following up, and I asked Agent
to reach out to you - I think she may have left a message. Let me know
if you and she aren't able to connect up by the end of the day? If you're still not by then, I can try to set up a specific
time.
thanks,
From: Miller, Michael
Sent: Thursday, August 01, 2019 10:40
To:
Subject: Epstein
Hello
-
Any word on when I can send someone by to pick up the ring, diamonds, and funds?
EFTA00020954

=== Page 2 ===
Many thanks.
Mike
Michael C. Miller
Partner
www.steptoe.com/mmiller
Steptoe
Steptoe & Johnson LLP
1114 Avenue of the Americas
New York, NY 10036
www.steptoe.com
This message and any attached documents contain information from the law firm Steptoe & Johnson LLP that may be confidential and/or privileged. If you
are not the intended recipient, please do not read, copy, distribute, or use this information. If you have received this transmission in error, please notify the
sender immediately by reply e-mail and then delete this message.
EFTA00020955


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=== Page 1 ===
From:
To:
)"
Cc:
)"
)"
Subject: RE: subpoena of
Date: Thu, 18 Jul 2019 02:02:00 +0000
Hi
Thanks for your email. I am tied up for much of this week with a testifying witness, but should be able to speak to
about the topics you identified later this week or early next week and will get back to you about next steps
soon.
Best,
From:
Sent: Tuesday, July 16, 2019 12:53 PM
To:
Cc:
Subject: RE: subpoena of
Following up on our phone conversation earlier today, thank you for being in touch and advising us of your representation
of
in connection with
eceipt of a grand jury subpoena. So you have contact info for our full team,
we're all reachable anytime at the copied emails or by phone at:
As we briefly discussed, the documentary materials we are seeking from
in the first instance are any flight
manifests, flight plans, or other documents reflecting passengers and/or travel records, dating back to 2000. And we
would like to hear from
about
observations, if any, of young women or girls on flights, as well as any discussions
with Mr. Epstein about his relationships with young women or girls, or his legal issues relating to those relationships. We
are also interested to know the identities of Epstein's employees and staff whom
S aware of, current and
previous.
As I mentioned on the phone, given the prospect of attorney proffer information and/or a possible voluntary interview,
we are prepared to hold in abeyance the current subpoena return date of July 22, 2019.
thank you,
Assistant U.S. Attorney
Southern District of New York
EFTA00021366


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From:
"
)"
To:
)"
Cc:
(USANYS)"
, "Lonergan, Jessica (USANYS)"
Subject: RE: Mark Epstein
Date: Tue, 26 May 2020 22:03:29 +0000
No problem - will disregard, thanks.
From:
Sent: Tuesday, May 26, 2020 6:01 PM
To:
Cc:
(USANYS)
>; L
(USANYS)
EFTA00023394


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=== Page 1 ===
THERE
U.S. Department of Justice
Federal Bureau of Prisons
Central Office
320 First St., NW
Washington, DC 20534
January 9, 2020
Danielle Ivory
The New York Times
620 Eighth Avenuse
New York, NY 10018
Request Number: 2020-01336
Dear Ms. Ivory:
This is in response to the above referenced Freedom of Information Act (FOIA) request.
On 01-02-2020, you submitted a FOIA request to the Federal Bureau of Prisons (BOP).
A copy of your request is attached.
After reviewing your request, the BOP determined the request should be aggregated
into one request, which is request number 2020-01336. This request was made on 12-
12-2019, which is the date you submitted the earliest request being aggregated. This
will ensure you are not disadvantaged by our action.
Department of Justice regulations provide for the aggregation of requests where "a
component reasonably believes that a requester. is attempting to divide a single
request into a series of requests for the purpose of avoiding fees " The regulation
continues, "Components may presume that multiple requests of this type made within a
30-day period have been made in order to avoid fees." 28 C.F.R. § 16.10(h) (2015).
BOP's decision to aggregate is based on the time both requests were filed and the
interrelation of the records sought in each request. We do not know if any fees will be
associated with this request and will inform you of any estimated fees prior to us
searching for or copying any responsive records.
Regarding your request for expedited treatment, you provided insufficient information to
support your claim regarding an urgency to inform the public. This Office cannot identify
a particular urgency to inform the public about an actual or alleged federal government
activity beyond the public's right to know about government activities generally.
You provided insufficient information to support your claim you are primarily engaged in
disseminating information that would warrant placing your request before all other
requests.
Therefore, your request will be processed in the order in which it was received.
EFTA00023433

=== Page 2 ===
If you would like to discuss how to make your request less burdensome, please feel free
to contact the undersigned, this office, or the Federal Bureau of Prisons' (BOP) FOIA
Public Liaison,
at
,
320 First Street NW, Suite 936,
Washington DC 20534, or
Additionally, you may contact the Office of Government Information Services (OGIS) at
the National Archives and Records Administration to inquire about the FOIA mediation
services they offer. The contact information for OGIS is as follows: Office of
Government Information, Services, National Archives and Records Administration,
Room 2510, 8601 Adelphi Road, College Park, Maryland 20740-6001; e-mail at
; telephone at
; toll free at
; or facsimile at
If you are not satisfied with my response to this request, you may administratively
appeal by writing to the Director, Office of Information Policy (OIP), United States
Department of Justice, Sixth Floor, 441 G St., NW, Washington, DC 20001, or you may
submit an appeal through OIP's FOIAonline portal by creating an account at:
https://www.foiaonline.gov/foiaonline/action/public/home Your appeal must be
postmarked or electronically transmitted within 90 days of the date of my response to
your request. If you submit your appeal by mail, both the letter and the envelope should
be clearly marked "Freedom of Information Act Appeal."
Sincerely,
Supervisory Attorney
EFTA00023434


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=== Page 1 ===
From: Christian Everdell
To:
)"
)"
(USANYS)"
Cc: "Mark S. Cohen"
Bobbi Sternheim
>, Jeff Pagliuca
>, "Laura Menninger"
Subject: Discovery Requests
Date: Thu, 07 Jan 2021 21:13:14 +0000
Attachments: 2020.11.18_Maxwell_Discovery_Letter.pdf; 2006.12.06_FBI_Report.pdf; PROD011-
Gaps.xlsx
Inline-Images: image005.jpg; image006.jpg
We write to raise a number of discovery issues. Please let us know your position on these issues at your earliest
convenience.
1. In our email correspondence on 11/18/2020, you agreed to create a new hard drive containing the entire discovery
production. We provided you with a 4TB hard drive for that purpose on 11/20/2020. It is very important for Ms.
Maxwell to have this drive as soon as possible to prepare her defense. Do you have an update on when the drive
will be ready?
2. We also informed you that the CD produced on November 18, 2020 did not work on the prison computer at the
MDC (as you know, the laptop provided to Ms. Maxwell does not have a CD drive). Accordingly, we asked you to
include the material on the CD in the new 4TB hard drive. We followed-up with you about this issue on December
30, 2020. Given that the new hard drive is still not ready, we ask that you download the material on the CD onto
a separate thumb drive or hard drive and provide it as quickly as possible to Ms. Maxwell at the MDC so that she
can review the materials this weekend. Alternatively, you can provide an external CD drive to Ms. Maxwell at
the MDC so that she can read the files on the MDC computer. We will provide whatever media device you
require to facilitate this production.
3. Unlike the November 9, 2020 discovery cover letter, the November 18, 2020 discovery cover letter (attached) does
not correlate the Bates numbers to the particular "Subject Device" from which the documents were recovered.
Instead, the cover letter indicates that the documents came from "SDNY_PROD015" or "SDNY_PROD016." We do
not know what those terms refer to. We request that the government produce a list that correlates the Bates
numbers for all of the documents in SDNY_PROD015 and SDNY_PROD016 to the particular devices from which the
documents were recovered.
4. We request that the government provide an unredacted version of the FBI report, dated December 6, 2006,
bearing Bates number SDNY_GM_02050812-14 (attached). We also request that the government produce a log
identifying all of the redacted documents in the discovery and the bases for each of the redactions.
5. There are a few documents that seem to be missing from the discovery. For example, the AT&T documents
(SDNY_GM_00001015-3637) do not seem to include subscriber information for the various phone numbers. Also,
the flight logs produced by David Rodgers begin at Bates number "Rodgers000028," suggesting that
Rodgers000001-000027 were not produced to us. Please produce these documents to us or provide an
explanation why you are not producing them to us. Please confirm whether there are other documents that were
removed from the grand jury subpoena productions that we have not yet identified and the basis for their removal.
6. There are a few Bates number/metadata issues with some of the documents:
EFTA00021707

=== Page 2 ===
a. There is an overlap between the fourth and fifth document productions. The fourth production ends at
SDNY_GM_00328863, the fifth production begins at SDNY_GM_00328070. We propose renumbering the
range from the fifth production (i.e., renumber SDNY_GM_00328070-328863).
b. The metadata load files (*.DAT) for PROD011 had a number of gaps which are detailed in the attached Excel
file. We propose that you send us a new DAT file covering only the missing documents.
C. The metadata load files (*.DAT) for PROD015 had a gap from SDNY_GM_00723971 to SDNY_GM_00723981.
We propose that you send us a new DAT file covering only the missing documents.
7. To the extent that the government has created an index of the documents produced on November 9 and
November 18 that is more detailed than the production cover letters, we request that you provide a copy to the
defense.
8. We request that the government provide copies of the grand jury subpoenas for documents issued by the
government in this case. Also, please identify the date range of documents you requested in each subpoena.
There is one other issue we'd like to raise. An article in the Daily Beast on Monday referenced the search warrant affidavit
for the cell-site simulator used to track Ms. Maxwell's cellphone before her arrest (https://www.thedailybeast.com/how-
the-fbi-tracked-down-ghislaine-maxwell-alleged-madam-of-jeffrey-epstein). The article stated that the affidavit appeared
in a "newly unsealed court filing." I don't recall this affidavit being unsealed or referenced in anything that was filed on
the court docket. Please confirm whether or not the government unsealed this affidavit or any other materials from the
criminal discovery, and whether any discovery materials were released pursuant to FOIA requests.
Regards,
Chris
Christian R Everdell
COHEN & GRESSER LLP
view bio
www.cohengresser.com
New York Paris Washington DC London
CG
CONFIDENTIALITY NOTICE: The information contained in this e-mail may be confidential and/or privileged. This e-mail is intended to be reviewed initially by only
the individual named above. If the reader of this e-mail is not the intended recipient or a representative of the intended recipient, you are hereby notified that any
review, dissemination or copying of this e-mail or the information contained herein is prohibited. If you have received this e-mail in error, please immediately notify
the sender by telephone and permanently delete this e-mail. Thank you.
PRIVACY: A complete copy of our privacy policy can be viewed at: https://www.cohengresser.com/privacy-policy.
EFTA00021708


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=== Page 1 ===
From:
To:
Cc:
Subject: Epstein/JPM
Date: Tue, 10 Dec 2019 14:31:53 +0000
We're doing a brief follow up call this morning at 10 with the FCA, the British regulator who, as discussed, is looking at Jes
Staley and his potential relationship with Epstein. No need at all to join if you're otherwise occupied - my guess is this will
be a brief update (from them) and a request from us that they not go overt anytime soon - but if of interest, feel free to
swing by at 10.
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=== Page 1 ===
From:
To:
Subject: FW:
notes
Date: Fri, 21 Aug 2020 17:22:54 +0000
Attachments: Provided_by
153718.pdf;
interview_notes154256.pdf;_image_154139.pdf;
image_154154.pdf
Original Message
From:
Sent: Friday, October 11, 2019 16:18
To:
Cc:
Subject:
notes
Hi all,
Here are the notes from today's interview along with the photos provided.
Also,
is available on Tuesday at 10:30am.
Have a good weekend.
EFTA00023345


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From: "postmaster@voip.usa.doj.gov". <postmaster@voip.usa.doj.gov>
To:
Cc:
Subject: Voice Message Attached from
- HOLDSCLAW SUSAN
Date: Tue, 16 Jul 2019 16:31:07 +0000
Importance: Normal
Attachments
20190716_123107.wav
Time: Jul 16, 2019 12:31:07 PM
Click attachment to listen to Voice Message
EFTA00021410


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From:
To:
Cc:
Subject: RE: Epstein
Date: Thu, 29 Nov 2018 19:32:45 +0000
Importance: Normal
Based on the text of the non-pros, looks like a state indictment. I'm looking for it now.
From:
Sent: Thursday, November 29, 2018 2:24 PM
To:
Cc:
Subject: RE: Epstein
This is a particularly intriguing tid-bit:
Facing a 53-page federal indictment, Epstein could have ended up in federal prison for the
rest of his life.
You may want to see if anything was ever publicly filed.
From:
Sent: Thursday, November 29, 2018 2:13 PM
To
Cc:
Subject: Epstein
Here's the article:
https://www.miamiherald.com/news/local/article220097825.html
Sent from my iPhone
EFTA00023178


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From:
To:
Cc:
Subject:
Date: Fri, 27 Sep 2019 17:47:24 +0000
Attachments: Agg_Harrass_1996.pdf
Hi
I know we've discussed the attached report before, but could you please double check whether there are any additional
NYPD records (including archived files) related to the report?
Thanks,
Assistant United States Attorney
Southern District of New York
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From:
To:
Subject: Accepted: Conference: Jeffrey Epstein
Date: Mon, 15 Jul 2019 18:29:06 +0000
Importance: Normal
Attachments: unnamed
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=== Page 1 ===
From:
)"
To: Gary Bloxsome
Cc: Daniel Cundy
Jennifer Richardson
)"
)"
Subject: RE: Sensitive Correspondence
Date: Mon, 10 Aug 2020 17:20:04 +0000
Inline-Images: image001.jpg; image002.jpg
Gary,
We write to follow up on our prior discussions. As discussed on our last call, our standard proffer agreement
understandably has different provisions and protections than would result from a compelled interview pursuant to an
MLAT request. It is often the case that individuals who want to voluntarily assist with our investigations do not require any
protections, but nevertheless, when individuals we are seeking to interview do request certain protections as part of a
voluntary interview, we ordinarily find that the proffer agreement language is appropriate and sufficient. Nevertheless,
based on your queries, we would be prepared to include the following language in a proffer agreement governing a
voluntary, live interview of your client:
- Absent a court order directing otherwise, the SDNY will not use or disclose the content of the witness's statements
in an interview with law enforcement in any matter other than a criminal investigation, prosecution, or related
civil action or asset forfeiture action initiated by the United States government.
We are not able to provide a broader grant of immunity with respect to statements made by your client during a voluntary
interview. As we discussed on the phone, in a voluntary interview the individual being interviewed has the right to choose
not to answer any particular question, has the right to consult with counsel at any time, and may explain the context or
basis of answers to whatever extent necessary. Accordingly, and also considering the obvious problems with granting
broad immunity to an interviewee for statements not yet made, we do not believe it would be necessary or appropriate
to further diverge from our standard practice. We are also not aware of any treaty provision that would preclude
prosecution for intentional and willful false or misleading statements.
Regarding your request that we provide subject areas of the interview in advance, we have generally described those
subjects with you in our phone conversations, but we reiterate them here for your convenience. In a voluntary interview
with your client, we would expect to ask questions (and follow-up questions, as appropriate), about topics including, and
with the understanding that the answers to questions about these topics might naturally flow into additional topics, the
following: the duration and nature of your client's relationships with Ghislaine Maxwell, Jeffrey Epstein, and their
respective (or joint) employees or associates; communications your client has had relating to individuals associated with
Ghislaine Maxwell or Jeffrey Epstein, including communications in person, via phone, via email, or via other means, and
including but not limited to communications with Maxwell or Epstein themselves; any such communications your client
had, or was aware of, with or about potential or actual contact with girls or women in connection with sexual activity or
possible sexual activity; and information relating to any other individuals of whom your client is aware who might have
information relating to these or other similar topics. These subjects would naturally include, but not be limited to,
questions relating to any individuals who have made public accusations that relate to our investigation. This description is
not meant to be exhaustive or exclusive, but rather to guide your understanding of the kind of information we believe
your client may be able to provide to assist our investigation.
Finally, you previously have asked if we are able to state whether individuals have made accusations that your client
committed a crime. To avoid any confusion or miscommunication, we want to reiterate that we are not able to convey any
confidential information from our investigation, including any potential witness statements or other investigative results,
as they relate to any particular individual, including your client, other than through judicial processes. As I have noted
previously, we obviously are aware of certain accusations made publicly.
We look forward to speaking with you tomorrow.
Regards,
Assistant U.S. Attorney
EFTA00022201

=== Page 2 ===
Southern District of New York
From:
Sent: Wednesday, August 05, 2020 16:38
To: Gary Bloxsome
Cc: Daniel Cundy ; Jennifer Richardson ;
)
;
Subject: RE: Sensitive Correspondence
Gary,
We've received the below, thank you. And we would like to briefly remind that it will be helpful for us to receive the
documents you mentioned as soon as practicable, so we can review them in advance of the call.
Regards,
From: Gary Bloxsome
Sent: Wednesday, August 05, 2020 16:23
To:
Cc: Daniel Cundy
>; Jennifer Richardson
is
>;
Subject: Re: Sensitive Correspondence
Time and date fine.
Same dial in details as before.
Regards
Gary
Gary Bloxsome
I
Partner
RANKED IN
Chambers
Blackfords LLP
I
London
EC4M 7EF
UK
www.blackfords.com
2020
TOP TIER
Leading Firm
2020
COVID-19 - Please see our websiteherefor our updated position in relation to Coronavirus.
In the meantime if you need to speak to one of our lawyers, please leave a voicemail by dialling
where we will respond to the messages in the order they are received or by emailing your
enquiry to
Blackfords LLP is a limited liability partnership registered in England & Wales with registered number OC325398 at
Croydon, CRO 1EA. A list of members' names is available at this address.
GDPR: details of how we handle personal data can be found in our Privacy Statement
Authorised and regulated by the Solicitors Regulation Authority under number 462078.
On 4 Aug 2020, at 00:23,
)
wrote:
External email: is it safe to open attachments and links?
Gary,
Briefly following up on our call earlier today, we would like to propose a follow-up call for this coming Tuesday, 11
August, at 5:00 p.m. London time (12:00 noon New York time). Will that work on your end? If so, please feel free to send
an invitation and dial-in.
Regards,
EFTA00022202

=== Page 3 ===
From: Gary Bloxsome
Sent: Friday, July 31, 2020 12:14
To:
Cc: Daniel Cundy
>; Jennifer Richardson
is
is
Subject: Re: Sensitive Correspondence
Dear
Thank you for your emails of 28th and 29th July 2020.
In relation to protections equivalent to those that would be available in any compelled MLAT interview, we would
seek to secure the following from you;
[1] An undertaking that the evidence obtained from our client pursuant to the agreement will not be used for any
purpose other than that specified in the agreement namely, the proceedings on indictment in US V Maxwell,
without the consent of our client and;
[2] An undertaking that the answers to questions, statements, or information given by the client in a voluntary
interview conducted with the DOJ, shall not be used in evidence against the client, except as against the client for
possible prosecution in the UK for providing false or misleading statements or where the client, in giving
evidence in a prosecution for some other offense, provides testimony inconsistent with his responses given in the
voluntary interview, pursuant to the agreement.
Kind regards and speak on Monday.
Gary
Gary Bloxsome I Partner
Blackfords LLP
London EC4M 7EF
www.blackfords.com
COVID-19 - Please see our websiteheref for our updated position in relation to Coronavirus.
In the meantime if you need to speak to one of our lawyers, please leave a voicemail by dialling
where we will respond to the messages in the order they are received or by emailing your
enquiry to
Blackfords LLP is a limited liability partnership registered in England & Wales with registered number OC325398 at
Croydon, CRO 1EA. A list of members' names is available at this address.
GDPR: details of how we handle personal data can be found in our Privacy Statement
Authorised and regulated by the Solicitors Regulation Authority under number 462078.
On 29 Jul 2020, at 20:19,
wrote:
External email: is it safe to open attachments and links?
Gary,
A brief update to the below information - I should have included the specific jury instruction elements for 18 U.S.C.
1001, subsection (2), which likely would be more applicable to a prosecution based on a proffer statement. Although
the knowing and willful element in particular is identical, we nevertheless wanted to provide this to you as well.
Pursuant to Sand, Modern Federal Jury Instructions, Instruction 36-9 (Elements of the Offense), those elements are:
First, on or about the date specified, the defendant made a statement or representation;
Second, that this statement or representation was material;
EFTA00022203

=== Page 4 ===
Third, the statement or representation was false, fictitious or fraudulent;
Fourth, the false, fictitious or fraudulent statement was made knowingly and willfully; and
Fifth, the statement or representation was made in a matter within the jurisdiction of the government of the United
States (or federal funds were involved).
Regards,
Assistant U.S. Attorney
Southern District of New York
From:
Sent: Tuesday, July 28, 2020 18:29
To: Gary Bloxsome
Cc: Daniel Cundy
>; Jennifer Richardson
>;
is
Subject: RE: Sensitive Correspondence
Gary,
We write to follow up on our conversation yesterday, to confirm certain aspects of our discussion and to provide
certain information you requested. First, thank you for conveying your questions, and I hope our initial responses were
of some use. To provide additional information that may be helpful, attached please find a blank proffer agreement,
which is our standard form agreement for proffer interviews, as you requested. Please note that in addition to the
provisions I briefly described on our call, there are also provisions that may not be relevant to your client. We
nevertheless send the complete agreement for your review.
Additionally, and also as requested, certain information relating to Title 18, United States Code, Section 1001, is
provided below.
In relevant part, that statute states the following: "Except as otherwise provided in this section, whoever, in any matter
within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States,
knowingly and willfully-(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes
any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or
document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry [is guilty of an
offense]. The full language of the statute is also available here.
Regarding the elements required to prove such an offense, pursuant to Sand, Modern Federal Jury Instructions,
Instruction 36-3 (Elements of the Offense), a conviction for this offense require that the following elements each must
be proven beyond a reasonable doubt:
First, that on or about the date specified in the indictment, the defendant falsified (or concealed or covered up) a
material fact;
Second, that the fact falsified (or concealed or covered up) was material;
Third, that defendant did so by trick, scheme or device;
Fourth, that defendant acted knowingly and willfully; and
Fifth, that the falsification, concealment or coverup was with respect to a matter within the jurisdiction of the
government of the United States (if applicable: or that federal funds were involved).
You may note in particular the inclusion of the "knowingly and willfully" requirement, as we discussed.
We also understand that you will send us, to the extent you believe it is relevant or helpful for our consideration, any
particular provisions or protections contemplated under the MLAT process, and which of those, if any, you believe are
relevant, or should be applicable, to a voluntary interview.
We look forward to speaking with you again this coming Monday, August 3, at 4:00 p.m. (LDN time), and we further
confirm, as discussed, that our Office is prepared to extend the Negotiation Period, referenced in our email of July 14,
2020, for two weeks from our call yesterday, to August 10, 2020, under the terms previously mutually agreed upon.
Regards,
Assistant U.S. Attorney
Southern District of New York
EFTA00022204

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From:
To:
)"
Subject: RE: documents for Relativity
Date: Mon, 29 Apr 2019 15:56:16 +0000
Importance: Normal
All of the data has been loaded to Relativity and is available for review. Please let me know if there are any questions.
Thank you.
From:
Sent: Wednesday, April 24, 2019 11:36 AM
To:
Cc
Subject: RE: documents for Relativity
We've received some additional documents in this same production we'd like to include in the same general subfolder on
Relativity ("BSF second production" under "BSF returns"), please. I'm sending them in a separate folder link so that they
don't mess up your process with the initial results; they're here:
\\Usa.doj.gov\cloud\NYS\StAndrews\Shared\USvEpstein-2018R01618\Investigation\# 2018 SDNY.investigation\Subpoena
Returns\ Boies Schiller\2019-04-23, Boies Schiller second subpoena response (follow-up)
Please note there are a few things from that folder that do NOT need to be uploaded - the folder titled "!Original Zips"
and the two PDF documents (in the main folder) don't need to go onto Relativity. And I think I neglected to give similar
info for the original folder linked to below ("2019-04-18, Boies Schiller second subpoena response") - in that folder, we do
not need the "!Original Zips" folder or its contents, and do not need the three PDF documents in the main folder to be
uploaded.
As always, please let me know if any questions or issues, and thanks very much.
From:
Sent: Monday, April 22, 2019 15:55
To:
Cc:
is
Subject: RE: documents for Relativity
We can keep the folder structure that currently exists. If I have any questions regarding the documents I will let you
know.
EFTA00020692

=== Page 2 ===
Thank you.
From:
Sent: Monday, April 22, 2019 3:51 PM
To:
Cc:
is
i
is
Subject: RE: documents for Relativity
Following up on the below, and for the same case - US V. Epstein (USAO # 2018R01618) - could we please load the
documents in the following folder into Relativity:
\Usa.doj.gov\cloud\NYS\StAndrews\Shared\USvEpstein-2018R01618\Investigation\# 2018 SDNY investigation\Subpoena
Returns\ Boies Schiller\2019-04-18, Boies Schiller second subpoena response
In terms of structure, they can go under the "BSF returns" subfolder (under the folder "Subpoena Returns") under a new
subfolder identified as "BSF second production". And under that, we'd like to keep the same folder structure as exists at
the link. Does that work?
And I don't believe there is DVD information (as in the "BSF first production" documents), but if there is, please let us
know. Please also let me know if any questions or if any other information would be helpful, and if you could let us know
when it's all uploaded?
thanks very much,
Assistant U.S. Attorney
Southern District of New York
From:
Sent: Thursday, March 28, 2019 11:16
To:
Cc:
is
is
is
Subject: RE: documents for Relativity
Perfect, thanks very much.
From:
Sent: Thursday, March 28, 2019 09:02
To:
Cc:
is
is
is
Subject: RE: documents for Relativity
Hello
EFTA00020693

=== Page 3 ===
The documents would need to be converted to a different format. I will talk to someone about getting the documents
converted to a different format.
Thank you.
From:
Sent: Wednesday, March 27, 2019 7:15 PM
To:
Cc:
i
i
is
Subject: RE: documents for Relativity
That's no problem, we don't need those on Relativity. Separately, though will we be able to play those video files *not*
on a DVD? That is, we only have them in electronic format (in the file folders) - I haven't tried to play them, so maybe it's
just as easy as that, but wanted to check if we need to get them processed in some other fashion to be able to view
independently of a DVD player.
thanks,
From:
Sent: Tuesday, March 26, 2019 09:32
To:
Cc:
is
i
is
Subject: RE: documents for Relativity
Good Morning
I have noticed that some of these documents contain data that appears to be from a DVD. A DVD contains a bunch of
separate files to make everything play on a DVD, but it will not make sense to load DVD information into Relativity. The
following should not be loaded to Relativity:
1.
\\Usa.doj.gov\cloud\NYS\StAndrews\Shared\UUUV4Qr3\lFS09t*PL_AMUFM3\S90B8H*H\B3KTU35\2MQV99
I\G6WHHA~F\7EJDCF~7\Interview H. R\VIDEO_TS
2.
\\Usa.doj.gov\cloud\NYS\StAndrews\Shared\UUUV4Q3\FS09LP\_AMUFM*3\S90B8H*H\B3KTU3*5\2MQV99
\GWR892~P\60AFYC~X\Interview J. H\VIDEO_TS
3.
\\Usa.doj.gov\cloud\NYS\StAndrews\Shared\UUUV4Q*3\FS09L*P\_AMUFM*3\S90B8H*H\B3KTU3*5\2MQV991
I\GWR892~P\60AFYC*X\Interview S. V\VIDEO_TS
4.
\\Usa.doj.gov\cloud\NYS\StAndrews\Shared\UUUV4Q*3\lFS09L*PL_AMUFM3\S90B8H*H\B3KTU3*5\2MQV99
I\GYCEJB~B\53V7CE~B\Interview A. D\VIDEO_TS
5.
\\Usa.doj.gov\cloud\NYS\StAndrews\Shared\UUUV4Q*3\lFS09LP\_AMUFM*3\S90B8H*H\B3KTU3*5\2MQV99
I\GYCEJB^B\53V7CE~B\InterviewA. T\VIDEO_TS
6. \\Usa.doj.gov\cloud\NYS\StAndrews\Shared\USvEpstein-2018R01618\Investigation\# 2018 SDNY
investigation\Subpoena Returns\ Boies Schiller\2019-03-04, Boies Schiller first subpoena response\GJ SUBPOENA
EFTA00020694

=== Page 4 ===
RESPONSE 004582 (State Disc 1)\2. Walkthrough Video
Please let me know if there are any questions.
Thank you.
From:
Sent: Monday, March 25, 2019 7:00 PM
To:
Cc:
is
i
is
Subject: RE: documents for Relativity
Could we please load the documents in the following folder into Relativity for US V. Epstein (USAO # 2018R01618):
\Usa.doj.gov\cloud\NYS\StAndrews\Shared\USvEpstein-2018R01618\Investigation\# 2018 SDNY investigation\Subpoena
Returns\Boies Schiller\2019-03-04, Boies Schiller first subpoena response
In terms of structure, we'd like to create a folder identified as "Subpoena Returns" (at the same level as "FBI Case File" is
currently), and in a subfolder within Subpoena Returns, a folder titled "BSF returns," and within that a subfolder identified
as "BSF first production" that the docs in the above link can be deposited into (including any additional subfolders). Does
that work?
Please let me know if any questions or if any other information would be helpful, and if you could please let us know
when it's all uploaded?
thanks very much,
Assistant U.S. Attorney
Southern District of New York
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From:
"
To:
Subject: Mark Epstein Meeting
Date: Thu, 24 Oct 2019 14:56:50 +0000
Importance: Normal
Attachments: unnamed
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From:
To:
Subject: RE: Additional inmates
Date: Mon, 16 Dec 2019 17:32:16 +0000
Sounds good.
and I have a call tomorrow at 4:30 with
and
for the Epstein probate matter, but I'll
send around an email rescheduling.
From:
Sent: Monday, December 16, 2019 12:27 PM
To:
Subject: Re: Additional inmates
Totally agreed, let's try to start interviews on the island at 10:30 (in the hopes they'll start pulling them earlier) if that
works for the agents. I can clear my calendar that day, I'm sure the chiefs will understand. We could try meeting late
tomorrow afternoon with them if they prefer, maybe around 4:30.
Sent from my iPhone
On Dec 16, 2019, at 9:15 AM,
wrote:
Ok, great! So, Rikers on Weds? Think 12 is too late to start if we are trying to do three people? If so, I will find someone
to cover my court appearance in the morning.
Sent from my iPhone
On Dec 16, 2019, at 12:06 PM,
wrote:
Hey- just sorted out scheduling. I'm coming back today, so we can keep
on the calendar for tomorrow.
Sent from my iPhone
On Dec 16, 2019, at 7:54 AM,
wrote:
Got it, good luck. We could also try moving
to Thursday afternoon - I doubt either of those people will take all
day - and that way we could make Wednesday or Rikers day.
Sent from my iPhone
On Dec 16, 2019, at 10:50 AM,
wrote:
We may need to move the
interview to Weds (I just found out I may have to stay in LA an extra day, returning
on the red eye Weds). Will know more in 2 or so hours.
Sent from my iPhone
On Dec 16, 2019, at 7:48 AM,
wrote:
Could you do Weds? We could move our afternoon team meeting, obviously.
From:
Sent: Monday, December 16, 2019 10:45 AM
EFTA00021003

=== Page 2 ===
To:
Cc:
Subject: Re: Additional inmates
Has everyone been served at this point?
Sent from my iPhone
On Dec 16, 2019, at 7:39 AM,
wrote:
Just checked; that's right, 12/20 is the GJ date for
From:
Sent: Monday, December 16, 2019 10:37 AM
To:
is
Cc:
Subject: Re: Additional inmates
Some GJs have a date of 12/20. I'm not at my desk, but I think
for sure.
On Dec 16, 2019 10:26 AM,
wrote:
Thanks, sounds good. I'm free on Friday if that works for everyone.
Sent from my iPhone
On Dec 16, 2019, at 7:23 AM,
wrote:
Good morning,
is going to try and speak with the 3 additional inmates DOC ID identified this afternoon. He would like to
be able to tell them a date we would interview them if they wanted to speak. When are you guys available?
Thank you,
Investigator
Department of Investigation
80 Maiden Lane
New York, NY 10038
Phone:
Confidentiality Notice: This e-mail communication, and any attachments, contains confidential and
privileged information for the exclusive use of the recipient(s) named above. If you are not an
intended recipient, or the employee or agent responsible to deliver it to an intended recipient, you are
hereby notified that you have received this communication in error and that any review, disclosure,
dissemination, distribution or copying of it or its contents is prohibited. If you have received this
communication in error, please notify me immediately by replying to this message and delete this
communication from your computer. Thank you.
EFTA00021004


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From:
To:
Subject: US V. Epstein
Date: Thu, 05 Mar 2020 19:00:52 +0000
Hello
The new data set you gave to me from the FBI has some problems and I was wondering if we can get the FBI to fix some of
these issues. Here are the problems:
1. The data they sent to us has no way to put any e-mails or attachments together so if we were processing the data
we have no way to link anything together.
2. The load file has no link to the native file which means that when we load the data to the database we have no
way to have the native files show up in the database
3. The control numbers in the load file do not match those of the native files. Which means we have two sets of
numbers and no way to match up anything.
If we can get the FBI to either send us the data again with these corrections applied that would be great. Please let me
know if there are any questions.
Thank you.
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From:
To:
Subject: FW: Activity in Case 1:20-mj-00132-AJ USA V. Maxwell Commitment to Another District
Date: Mon, 06 Jul 2020 13:56:26 +0000
Attachments: Maxwell_Committment.pdf
From:ecf_bounce@nhd.uscourts.gov<ecf_bounce@nhd.uscourts.gov>
Sent: Monday, July 6, 2020 9:47 AM
To: nef@nhd.uscourts.gov
Subject: Activity in Case 1:20-mj-00132-AJ USA V. Maxwell Commitment to Another District
This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this
e-mail because the mail box is unattended.
***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits
attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of
all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees
apply to all other users. To avoid later charges, download a copy of each document during this first
viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply.
U.S. District Court
District of New Hampshire
Notice of Electronic Filing
The following transaction was entered on 7/6/2020 at 9:47 AM EDT and filed on 7/2/2020
Case Name:
USA V. Maxwell
Case Number:
1:20-mj-00132-AJ
Filer:
Document Number: 3
Docket Text:
COMMITMENT TO ANOTHER DISTRICT as to Ghislaine Maxwell. Defendant committed to
District of Southern District of New York. So Ordered by Magistrate Judge Andrea K.
Johnstone. (kad)
1:20-mj-00132-AJ-1 Notice has been electronically mailed to:
USANH.ECFCriminal@usdoj.gov, USANH.ECFDocket@usdoj.gov
1:20-mj-00132-AJ-1 Notice, to the extent appropriate, must be delivered conventionally to:
The following document(s) are associated with this transaction:
EFTA00021810

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Document description:Main Document
Original filename:n/a
Electronic document Stamp:
[STAMP dcecfStamp_ID=1045603718 [Date=7/6/2020] [FileNumber=2213530-0]
[a54aff0aa1928dad9fe689f4deed294c6888dabd358b213ab141d106659b80925bf9
5ed9e5b779934631a8d8c2c6569de4b22ff69a0f11641e996d235302ffeb]|
EFTA00021811


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=== Page 1 ===
From: BOBBI C STERNHEIM
To:
Cc:
>, Christian Everdell
Subject: [EXTERNAL] Ghislaine Maxwell 02879-509
Date: Tue, 26 Oct 2021 00:33:03 +0000
Inline-Images: Screen_Shot_2021-10-25_at_7.10.13_PM.png; Screen_Shot_2021-10-25_at_7.07.56_PM.png
Good evening -
During my in-person visit yesterday with Ms. Maxwell, the HEPA filters were not operating in the visiting room that I have
been required
to use, even when more than one attorney is present. The officers told me to use the larger, corner room.
Previous requests to use this more ample corner room have been denied because the officers' claim
the camera cannot be positioned. Yesterday, the officers simply and easily positioned the camera focused on the corner room.
I am requesting that future in-person visits be conducted in the larger corner room.
The previous reason for denying that request appears invalid.
Also, legal mail sent to the MDC has not been picked up by the facility. See tracking information below.
Please promptly provide an explanation and inform me when Ms. Maxwell will receive these deliveries.
Thank you-
Bobbi
Tracking Number: EJ699436435US
Scheduled Delivery by
Status
THURSDAY
Available for Pickup
14
by
October 15, 2021 at 7:55 am
OCTOBER
BROOKLYN, NY 11232
2021 i
6:00pm
i
Get Updates
Tracking Number: EJ699436400US
Scheduled Delivery by
Status
SATURDAY
Available for Pickup
16
by
October 19, 2021 at 6:51 am
OCTOBER
BROOKLYN, NY 11232
2021
i
6:00pm
1
Get Updates
Please note my new office address and preferred email address:
EFTA00023213

=== Page 2 ===
BOBBI C. STERNHEIM, ESQ.
Law Offices of Bobbi C. Sternheim
Main:
Cell:
Fax:
This message and any attached documents contain information from the Law Offices of Bobbi C. Sternheim that may be
confidential and/or privileged.
If you are not the intended recipient, you may not read, copy, distribute, or use this information.
If you have received this transmission in error, please notify the sender immediately by reply e-mail and then delete this
message. Thank you.
EFTA00023214


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=== Page 1 ===
From:
To:
Subject: RE: Meetings for next week
Date: Fri, 02 Aug 2019 15:45:05 +0000
I know that
sked you about scheduling a meeting on the church fraud case for next week. It would be good to
schedule that - I think he is aiming for end of week.
Check with the Securities chiefs about a time for meetings on
2 separate cases).
is ripe
for early next week;
late.
may want to have a check-in meeting with the Epstein team. He gets regular email updates, but he might want to
just talk about status of things.
From
Sent: Friday, August 2, 2019 11:25 AM
To:
Subject: Meetings for next week
Are there any meetings I should try to get on the calendar for next week or even this afternoon? Thanks!
Best,
Special Assistant to the U.S. Attorney
United States Attorney's Office, SDNY
EFTA00021546


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=== Page 1 ===
OFFICIAL RECORD
Intake (Rev. 5-23-17)
UNCLASSIFIED
FEDERAL BUREAU OF INVESTIGATION
Intake
Date: 08/04/2020
Case ID #: 50D-NY-3027571
(U) EPSTEIN, JEFFREY; CHILD SEX
TRAFFICKING
Drafted By:
Date/Time Received: 08/03/2020 12:28 PM EDT
Details:
On 08/03/2020, at 12:28 p.m. Eastern Time, an anonymous tipster
(Anonymous), IP address
,
resolving from Finland, submitted
an online tip to the FBI National Threat Operations Center (NTOC) via
tips.fbi.gov to report information regarding human trafficking by Jeffery
Epstein.
Anonymous provided the following information:
Date Submitted: 08/03/2020 12:28:06 PM ET
Transaction Number: 39C2A10B-5E11-46DF-A431-D7A85D311629
Threat To Life: False
Submitted Text:
Pedophilia organized by JE for Prince Andrew. For evidence: look for keys
stored in the drawing room. There are tapes in a secret compartment of a
drawer next to a Michelangelo picture of a flower vase at his house in
the Bahamas. Look also for other things in the kitchen. There is also
another studio apartment in the Bahamas and in Ipanema, Brazil, and
Florianopolis, Brazil.
Violation: Public Corruption, White Collar Crime, Civil Rights
Violation Questions
What was the exact crime that occurred?: Jeffrey Epstein and Prince
Andrew of the UK
UNCLASSIFIED
EFTA00020470

=== Page 2 ===
UNCLASSIFIED
Re: 50D-NY-3027571, 08/04/2020
Does this information involve a government official? If so, what is their
name and position/title?: No
Do you have any evidence to support your claim or know of any witnesses
to the crime (s) ?: Yes
Did you suffer any personal losses (financially or physically) due to the
crime?: No
How long has this activity been going on?: 15 years
Complainant Information
First Name:
Middle Name:
Last Name:
Age:
DOB:
Additional Info:
Type: Other
Address:
City:
Zip:
Subject Information
First Name: Jeffrey
Middle Name:
Last Name: Epstein
Age: 50
DOB:
Additional Info: Not applicable.
How is Contact Known: I do not.
Type: Other
Address:
City:
Zip:
Witness Information
First Name:
Middle Name:
UNCLASSIFIED
2
EFTA00020471

=== Page 3 ===
UNCLASSIFIED
Re: 50D-NY-3027571, 08/04/2020
Last Name:
Age:
DOB:
Additional Info: Not applicable.
How is Contact Known: I do not.
Type: Other
Address:
City:
Zip:
Remote IP:
Remote Host: api.fbi.gov
Http Referrer: https://www.fbi.gov/tips
User Browser:
Latitude:
Longitude:
Country: FI
Region: null
City: null
Postal Code: null
Timezone: 03:00
UNCLASSIFIED
3
EFTA00020472


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=== Page 1 ===
From:
(USANYS)"
To:
(ODAG)"
Subject: Re: DAG Memos
Date: Fri, 24 May 2019 02:36:47 +0000
Importance: Normal
Great. Many thanks.
Sent from my iPhone
On May 23, 2019, at 9:17 PM,
(ODAG)
wrote:
Thank you, and have conveyed the memos.
On May 23, 2019, at 11:10 AM,
(USANYS)
wrote:
Here are the two memos for your briefing with Ed of the DAG, one from Geoff and the other from me on the recusal
matters.
After you and I spoke, we realized that we should add Epstein and we have done so.
As always, please feel free to call with any comments or questions.
<SDNY Memo to DAG.GSB.cases.5.23.19.final.pdf>
<SDNY Memo to DAG - GSB Recused.5.23.19.Finaldocx.pdf>
EFTA00022482


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=== Page 1 ===
From:
(USANYS)"
To:
)"
(USANYS)"
Cc:
)"
)"
Subject: RE: RE: draft response to Epstein defense preservation requests
Date: Wed, 07 Aug 2019 13:33:41 +0000
I'm not sure I had previously seen the 8/1 supplemental request. Let me know if one of you has a moment to discuss.
From:
Sent: Tuesday, August 6, 2019 3:01 PM
To:
(USANYS)
is
(USANYS)
Cc:
is
Subject: RE: draft response to Epstein defense preservation requests
This has been in the works for a little while, due to various other things that have come up in the interim, but we didn't
want it to get lost given the discovery motion schedule. The attached is based on our conversations with
including
his email with suggested language for the prefatory language, and responds to the two attached defense letters. Happy to
discuss anytime and to incorporate comments and suggestions.
thanks,
Assistant U.S. Attorney
Southern District of New York
EFTA00022325


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=== Page 1 ===
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
X
:
:
UNITED STATES OF AMERICA
:
PROTECTIVE ORDER
:
- V. -
:
19 Cr. 490 (RMB)
JEFFREY EPSTEIN,
:
:
Defendant.
:
:
X
RICHARD M. BERMAN, United States District Judge:
WHEREAS the Government intends to produce to JEFFREY
EPSTEIN, the defendant, certain documents and materials that
(i) affect the privacy and confidentiality of individuals,
(ii) would impede, if prematurely disclosed, the Government's
ongoing investigation of uncharged individuals; (iii) would risk
prejudicial pretrial publicity if publicly disseminated, and
(iv) is not authorized to be disclosed to the public or
disclosed beyond that which is necessary for the defense of this
action, and other materials pursuant to Federal Rule of Criminal
Procedure 16 ("Rule 16") and pursuant to any other disclosure
obligations (collectively, the "Discovery"), which contain
sensitive, confidential, or personal identifying information;
WHEREAS, the Government seeks to protect sensitive,
confidential, or personal identifying information contained in
the materials it produces consistent with Rule 16 or other
disclosure obligations;
1
EFTA00021651

=== Page 2 ===
WHEREAS the defendant, through his counsel, consents
to the entry of this Order;
IT HEREBY IS ORDERED:
1.
The Discovery disclosed to the defendant
("Defendant") and/or to the defendant's attorneys ("Defense
Counsel") during the course of proceedings in this action:
a)
Shall be used by the defendant or his
counsel solely for purposes of the defense of this action;
b)
Shall not be copied or otherwise recorded or
transmitted by the defendant;
c)
Shall not be disclosed or distributed in any
form by the defendant or his counsel except as set forth in
paragraph 2 (d) below;
d)
May be disclosed only by Defense Counsel and
only to the following persons ("Designated Persons") :
i. investigative, secretarial, clerical,
or paralegal personnel employed full-time or part-time by the
defendant's counsel ("Defense Staff") ;
ii. any expert, advisor, or any other
individual retained or employed by the Defendant and Defense
Counsel for the purpose of assisting in the defense of this case
("Defense Experts/Advisors") ;
iii. such other persons as hereafter may be
authorized by Order of the Court ("Other Authorized Persons") ;
2
EFTA00021652

=== Page 3 ===
e)
May be shown to, but not disseminated to or
provided copies of to, prospective witnesses and their counsel
(collectively, "Potential Witnesses"), to the extent deemed
necessary by defense counsel, for trial preparation.
2.
To the extent the Discovery is disclosed to
Defense Staff, Defense Experts/Advisors, Other Authorized
Persons, or Potential Witnesses, Defense Counsel shall instruct
such individual (s) of the terms of this Order and that such
individual (s) are bound by this Order. To the extent that
Discovery is disseminated to Defense Staff, Defense
Experts/Advisors, or Other Authorized Persons, Defense Counsel
shall encrypt and/or password protect the Discovery.
3.
The Defendant, Defense Counsel, Defense Staff,
Defense Experts/Advisors, Potential Witnesses, and Other
Authorized Persons are prohibited from posting or causing to be
posted any of the Discovery or information contained in the
Discovery on the Internet, including any social media website
4.
The Defendant, Defense Counsel, Defense Staff,
Defense Experts/Advisors, Potential Witnesses, and Other
Authorized Persons are precluded from publicly disclosing or
disseminating the identity of any victims or witnesses
referenced in the Discovery.
5.
The Defendant, Defense Counsel, Defense Staff,
Defense Experts/Advisors, Potential Witnesses, and Other
3
EFTA00021653

=== Page 4 ===
Authorized Persons are prohibited from filing publicly as an
attachment to a filing or excerpted within a filing any of the
Discovery or information contained in the Discovery, unless
authorized by the Government in writing or by Order of the
Court. Any filings that incorporate the Discovery by
attachment, contain any excerpts of Discovery, or incorporate
Discovery by reference must be filed under seal. Nothing in
this Order precludes Defense Counsel from using the Discovery in
judicial proceedings in this case.
6.
Copies of Discovery or other materials produced
by the Government in this action bearing "confidential" stamps
or otherwise designated as "confidential" and/or electronic
Discovery materials designated as "confidential" by the
Government, including such materials marked as "confidential"
either on the documents or materials themselves, or designated
as "confidential" in a cover letter, index, folder title, or
other identifying designation, are deemed "Confidential
Information."
7.
Confidential Information may contain personal
identification information of specific individuals who are not
parties to this action, and other confidential information; as
well as information that identifies, or could lead to the
identification of, witnesses who may be subject to intimidation
or obstruction, and whose lives, persons, and property, as well
4
EFTA00021654

=== Page 5 ===
as the lives, persons, and property of loved ones, will be
subject to risk of harm absent the protective considerations set
forth herein. The Government's designation of material as
Confidential Information will be controlling absent contrary
order of the Court.
8.
Confidential Information disclosed to the
defendant, or Defense Counsel, respectively, during the course
of proceedings in this action:
a)
Shall be used by the defendant or his
counsel only for purposes of the defense of this action;
b)
Shall be maintained in a safe and secure
manner solely by Defense Counsel;
c)
Shall be reviewed by the Defendant solely in
the presence of Defense Counsel;
d)
Shall not be possessed outside the presence
of Defense Counsel, or maintained, by the Defendant;
e)
May be disclosed only by Defense Counsel and
only to Designated Persons;
f)
May be shown to, but not disseminated to or
provided copies of to, Potential Witnesses, to the extent deemed
necessary by defense counsel, for trial preparation, and after
defense counsel and/or Defense Staff instructs such
individual (s) of the terms of this Order and that such
individual (s) are bound by this Order.
5
EFTA00021655

=== Page 6 ===
9.
Copies of Discovery or other materials produced
by the Government in this action bearing "highly confidential"
stamps or otherwise designated as "highly confidential" and/or
electronic Discovery materials designated as "highly
confidential" by the Government, including such materials marked
as "highly confidential" either on the documents or materials
themselves, or designated as "highly confidential" in a cover
letter, index, folder title, or other identifying designation,
are deemed "Highly Confidential Information."
10. Highly Confidential Information contains images
of nude or partially-nude individuals. The Government's
designation of material as Highly Confidential Information will
be controlling absent contrary order of the Court. Highly
Confidential Information disclosed to Defense Counsel during the
course of proceedings in this action:
a)
Shall not be disseminated, transmitted, or
otherwise copied and provided to Defense Counsel or the
Defendant;
b)
Shall be reviewed by the Defendant solely in
the presence of Defense Counsel;
c)
Shall not be possessed outside the presence
of Defense Counsel, or maintained, by the Defendant;
6
EFTA00021656

=== Page 7 ===
d)
Shall be made available for inspection by
Defense Counsel and the Defendant, under the protection of law
enforcement officers or employees; and
e)
Shall not be copied or otherwise duplicated
by Defense Counsel or the Defendant during such inspections.
11. The Defendant and Defense Counsel shall provide a
copy of this Order to Designated Persons to whom they disclose
Confidential Information or Highly Confidential Information.
Prior to disclosure of such information to Designated Persons,
any such Designated Person shall agree to be subject to the
terms of this Order by signing a copy hereof and stating that
they "Agree to be bound by the terms herein," and providing such
copy to the defendant's counsel. However, the defendant and his
or her respective counsel need not obtain signatures from any
member of the defense team (i.e., attorneys, experts,
consultants, paralegals, investigators, support personnel, and
secretarial staff involved in the representation of the
defendants in this case), all of whom are nonetheless bound by
this Protective Order.
12. Except for Discovery that has been made part of
the record of this case, Defense Counsel shall return to the
Government or securely destroy or delete all Discovery,
including but not limited to Confidential Information, within 30
days of the expiration of the period for direct appeal from any
7
EFTA00021657

=== Page 8 ===
verdict in the above-captioned case; the period of direct appeal
from any order dismissing any of the charges in the above-
captioned case; or the granting of any motion made on behalf of
the Government dismissing any charges in the above-captioned
case, whichever date is later.
8
EFTA00021658

=== Page 9 ===
13. The foregoing provisions shall remain in effect
unless and until either (a) the Government and Defense Counsel
mutually agree otherwise, or (b) this Order is modified by
further order of the Court.
SO ORDERED:
Dated:
New York, New York
, 2019
HONORABLE RICHARD M. BERMAN
United States District Judge
AGREED AND CONSENTED TO:
Dated: July 23, 2019
New York, New York
GEOFFREY S. BERMAN
United States Attorney
Southern District of New York
By:
/s/
Assistant United States Attorneys
Dated:
, 2019
New York, New York
JEFFREY EPSTEIN
By:
Martin Weinberg, Esq.
Reid Weingarten, Esq.
Counsel for Jeffrey Epstein
9
EFTA00021659


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=== Page 1 ===
Fact Witness Travel Request (Domestic Witness Travel)
AUSA, see instructions below.
To:
SDNY Victim/Witness Unit
From:
Date: August 5, 2021
Re:
United States V. Ghislaine Maxwell
Court Docket No: 20 Cr. 330 (AJN)
USAO No: 2018R01618
Witness Name:
Witness DOB:
(Name/DOB as printed here will be forwarded to travel agency and then to TSA and must exactly
match the witness's driver's license or other travel ID or TSA will not permit the witness to fly.)
Witness Address:
Witness TelNos (mobile):
Witness e-mail:
Witness Needed to Appear in SDNY on
Date: August 16, 2021
Time: 1 PM
Witness Needed to Appear for:
Trial ( )
Date:
Grand Jury ( )
Date:
Trial Prep (X)
Date: August 16, 2021 at 1 PM, and August 17, 2021 at 10 AM
Estimated Dates Witness will Arrive:
August 15, 2021 (any time)
Depart:
August 17, 2021 (evening)
Is the person a Fact Witness and not an Expert Witness?
(Yes/No):
Yes
Current Federal Civilian or Military Employee?
(Yes/No):
No
Is the Witness Facing Criminal Charges?
(Yes/No):
No
Does the Witness Reside Outside the Continental United States?
(Yes/No):
No
Is this Witness a Victim-Witness?
(Yes/No):
No
Hotel Required?
(Yes/No):
Yes
Has the Witness advised you of any unusual travel expenses?
(Yes/No):
No
Unusual expenses of fact witnesses can include
special travel arrangements
care for dependent child or incapacitated family member left at home
kennel fees for pets
rev. 2019.11.19
EFTA00023104

=== Page 2 ===
necessary travel companion
extra baggage (more than one bag)
Please describe the unusual expense:
For Victim-Witness Coordinator:
1. (For UEFW other than travel, which must be itemized and approved in advance:) This UEFW
is apparently within VWC approval authority and tentatively approved pending receipt(s) for
UEFW expenses (Yes/No):
2. Other VWC comments:
VWC Initials and Date:
Instructions to AUSA:
Use this form for all fact witnesses within the U.S. except government employees and military
personnel, for whom a Request for Armed Forces or Government-Employee Witness should
be used.
For foreign witnesses, use the International Witness Travel Request. Complete an Early or
Extended stay memo if the witness is being brought in more than 3 business days prior to
court/GJ testimony.
Witnesses may only be brought in under the FEWS appropriation for grand jury testimony that
has been scheduled and where the witness is expected to testify before the grand jury; court
testimony; or preparation for same. Any other witness travel, e.g., for investigative interviews,
must be covered by the investigating component from litigative funds. See
See generally DOJ Instruction 1300.01.01 (approved 9/28/2018) and sources referenced
therein.
rev. 2019.11.19
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=== Page 1 ===
From:
To:
Cc:
Subject: Re: Request re Ghisliane Maxwell
Date: Fri, 08 Jan 2021 15:40:25 +0000
No, unfortunately not. It would have to come from your office.
Best,
)"
1/7/2021 4:35
PM
Good afternoon,
At the request of defense counsel, our office is preparing a new drive
with a copy of discovery material that was previously produced to
Ghislaine Maxwell on a CD, but which she has been unable to view. The
drive will be ready tomorrow. Today, defense counsel asked that Maxwell
be able to review those materials over this coming weekend, but no one
from our office is available to hand deliver the drive tomorrow, and we
understand that Maxwell would not receive a FedEx package sent out
tomorrow until next week. Defense counsel has offered to pick the drive
up from our office and hand deliver it to the MDC themselves tomorrow.
Would that be permissible?
Thank you,
Assistant United States Attorney
Southern District of New York
New York, NY 10007
<mailto:
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=== Page 1 ===
From:
)"
To:
,
Cc:
(USANYS)"
)"
)"
Subject: United States V. Ghislaine Maxwell, 20 Cr. 330 (AJN)
Date: Fri, 08 Oct 2021 14:00:36 +0000
Attachments: 500_Series - Financial_Exhibits.zip
Hope you're both doing well. Following up on our last conversation, we wanted to send along a few documents in order
to facilitate our conversation about identifying an appropriate witness from JP Morgan. Attached is a zip file containing a
few draft exhibits. We are still working on finalizing exhibits, but we thought it made sense to start the conversation about
this sooner rather than later. Please let us know if you have any questions or if a call would be useful.
Thanks,
Assistant United States Attorney
Southern District of New York
One Saint Andrew's Plaza
New York, NY 10007
EFTA00021687


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=== Page 1 ===
From:
To:
Subject: RE: Please read - child exploitation/sex crimes case updates
Date: Wed, 12 Feb 2020 19:39:02 +0000
Epstein case is charged and nolle submitted post-death.
From:
Sent: Wednesday, February 12, 2020 14:30
To:
Subject: Please read - child exploitation/sex crimes case updates
It's that time again
If you are in the "to" line of this email, you have a Project Safe Childhood case for which we need an update. Because of
the sensitive nature of these cases, it's critical that we don't let cases linger, and, in consultation with your supervisors, we
close cases when necessary.
Please review the attached list, noting the most recent entry for any case under your name. Then
If the case is uncharged, please advise me of the status of any expected charges and/or come by to discuss next
steps.
If the case has been charged, please send me a quick email with any updates to the case status (e.g., pled,
sentenced, on appeal) or, if the status is up to date, please confirm that no changes need to be made.
Thanks in advance for your prompt reply to this email. (Read: Please don't make me hunt you down for updates - this will
take approximately 5 minutes.)
EFTA00021120

=== Page 2 ===
Thanks,
EFTA00021121


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=== Page 1 ===
From: BOBBI C STERNHEIM
To:
(USANYS)"
)"
Cc: Christian Everdell
, Laura Menninger
, Jeff Pagliuca
Subject: U.S. V. Maxwell, S2 20 Cr. 330 (AJN)
Date: Fri, 07 May 2021 19:38:50 +0000
Attachments: Reply_to_Dkt_270.pdf; ATT00001.htm
Good afternoon-
Attached is a courtesy copy of today's ECF filing.
Enjoy the weekend,
Bobbi
EFTA00022454


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=== Page 1 ===
From:
Subject: Re: Maxwell
Date: Fri, 24 Jul 2020 22:10:11 +0000
Yes. I told him he's need to get legal advice from his general counsel (or whoever), I appealed to him more on
the ethics side of it. And told him about the secrecy of grand juries, which he was fuzzy on.
Sent from my iPhone
On Jul 24, 2020, at 6:08 PM,
wrote:
This sounds like he's trying to get protection from legal liability or legal advice he should be getting from
counsel,
not us, doesn't it?
From:
Sent: Friday, July 24, 2020 5:44 PM
To:
Cc:
Subject: Fwd: Maxwell
In the meantime, I just noticed that he responded with this.
Sent from my iPhone
Begin forwarded message:
From:
Date: July 24, 2020 at 3:46:31 PM EDT
To:
Subject: Re: Maxwell
Many thanks
Can you please let me know if there is a specific legal barrier to me naming any of the
alleged victims given that (a) they are no longer minors and (b) that at least two of them
have waived anonymity in the past to speak out as survivors of Epstein's abuse?
Best
EFTA00021933

=== Page 2 ===
London SE1 9GF
On Fri, 24 Jul 2020 at 18:58,
wrote:
Hello. Your email was forwarded to me by
Please note that prosecutors in this office are not
available for media inquiries. You can forward any further inquiries to the press office.
We cannot comment or provide any guidance on your questions.
Best,
Spokesman
United States Department of Justice
U.S. Attorney's Office I Southern District of New York
Sent from my iPhone
"Please consider the environment before printing this e-mail"
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=== Page 1 ===
OFFICIAL RECORD
Intake (Rev. 5-23-17)
UNCLASSIFIED
FEDERAL BUREAU OF INVESTIGATION
Intake
Date: 08/06/2020
Case ID #: 50D-NY-3027571
(U) EPSTEIN, JEFFREY; CHILD SEX
TRAFFICKING
Drafted By:
Date/Time Received: 08/06/2020 10:12 AM EDT
Details:
On 08/06/2020, at 10:12 a.m. Eastern Time,
,
date of birth
international cellular telephone number
,
address
Cambridge, UK, called the FBI National
Threat Operations Center (NTOC) to report "significant" information
related to the Epstein/Maxwell case.
provided the following information:
In 2007,
was introduced to New York photographer Eliot Siegel,
personal identifiers unknown, by mutual friends. Siegel asked
to
attend a modeling event at the 02 Arena in London, England for a test
shoot.
attended the event and discovered it was an annual S&M
modeling event. While at the event, London photographer Patrick James
Fitzgerald (or might be James Patrick Fitzgerald), personal identifiers
unknown, spoke with
and offered to photograph her for modeling.
Fitzgerald told
that she would be on the front cover of a magazine.
While Fitzgerald was talking to
,
Jeffrey Epstein and Ghislaine
Maxwell came over and stared at
- Epstein and Maxwell did not say
anything to Fitzgerald and only looked at her.
did not accept
Fitzgerald's modeling offer.
Around a month after the event,
was contacted online by a subject
(name unknown) in Miami, FL. The subject was a very handsome man and
tried to start a romantic relationship with
.
The subject and
were typing to each other, but at the same time were connected by a video
chat with no audio.
saw the subject had a man standing behind him
UNCLASSIFIED
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=== Page 2 ===
UNCLASSIFIED
Re: 50D-NY-3027571, 08/06/2020
that appeared to be coaching him what to say. The subject did not know
could see the man. The subject tried to convince
to travel to
Florida to meet with him.
got angry with the subject and told him
that she was going to contact police and blocked him.
did not follow
through and contact police because at the time she was dealing with other
matter. At the time,
father was trying to sleep with her and she
had been told that her neighbor was trying to film her in her home.
On 08/05/2020,
saw a news articles about Scott Borgerson, personal
identifiers unknown, that included photos.
recognized Borgerson as
the subject that contacted her online and tried to convince her to travel
to Florida.
believes her encounters are related to the Epstein/Maxwell case.
advised she also met Prince William in England and believes that
might also be connected.
UNCLASSIFIED
2
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=== Page 1 ===
From:
To:
Bcc: "USAHUB-USAJournal111"
Subject: RE: Ghislaine Maxwell Triggerfish
Date: Mon, 28 Dec 2020 17:04:00 +0000
Embedded: RE:_Ghislaine_Maxwell_Triggerfish.msg
Sender:
Subject: RE: Ghislaine Maxwell Triggerfish
Message-Id:
<CY1P110MB0184C04E5E4D806EFFE219DC8AD90@CY1P110MB0184.NAMP110.PROD.OUTLOOK.CO
M>
To:
To:
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=== Page 1 ===
Event: Epstein call
Start Date: 2020-04-29 18:00:00 +0000
End Date: 2020-04-29 18:30:00 +0000
Organizer
Class: X-PERSONAL
Date Created: 2020-04-29 15:39:50 +0000
Date Modified: 2020-04-29 15:39:50 +0000
Priority: 5
DTSTAMP: 2020-04-29 15:27:37 +0000
Attendee:
Alarm: Display the following message 15m before start
Reminder
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=== Page 1 ===
From:
(USANYS)"
To:
(USANYS)"
(USANYS)"
"
(USANYS)"
Subject: RE: call from attorney for
Date: Tue, 16 Jul 2019 17:13:42 +0000
Importance: Normal
Kate Cassidy, from Hafetz & Necheles
-
-
-
represents
pilot for Epstein
-
served with a subpoena
Cassidy has not yet spoken substantively with
Asked for his status in the investigation; I said we would follow up with an email and also circle back in the next few days.
Assistant U.S. Attorney
Southern District of New York
I
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=== Page 1 ===
A7
MUTUAL LEGAL ASSISTANCE
IN CASES OF FRAUD
A. Introduction
A.7.01
(a) Relationship between international agreements on
mutual assistance and domestic legislation
A.7.03
(b) International developments
A.7.06
(i) European Convention on Mutual Assistance in
Criminal Matters
A.7.09
(ii) Commonwealth Scheme Relating to Mutual
Assistance in Criminal Matters 1986
A.7.12
(iii) United Nations Convention against Corruption
A.7.14
(c) EU developments
A.7.16
(i) The Schengen Convention
A.7.19
(ii) Convention on Mutual Assistance in Criminal
Matters between EU Member States and its
Protocol
A.7.26
(iii) Council Framework Decision on the execution in
the EU of orders freezing property or evidence
A.7.31
(iv) The Council Framework Decision 2008/978/JHA
of 18 December 2008 on the European evidence
warrant for the purpose of obtaining objects,
documents and data for use in proceedings in
criminal matters
A.7.35
(v) The European Investigation Order
A.7.36
(vi) Other mutual recognition initiatives
A.7.39
(vii) Council Framework Decision 2001/ 413/JHA of
28 May 2001 on Combating Fraud and
Counterfeiting Non-cash Means of Payment
A.7.41
(viii) Agreement on Mutual Legal Assistance between
the EU and the US
A.7.43
(d) UK mutual assistance legislation in outline
A.7.55
(i) Crime (International Co-operation) Act 2003
A.7.55
(1) Commencement
A.7.57
Fraud
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=== Page 2 ===
Chapter A7: Mutual Legal Assistance in Cases of Fraud
(ii) Proceeds of Crime 2002 (External Requests and
Orders) Order 2005
A.7.58
(e) The UK Central Authority
A.7.60
(f) The Serious Fraud Office
A.7.102
(g) HM Revenue and Customs
A.7.106
(h) UK Border Agency (UKBA)
A.7.109
(i) The National Crime Agency
A.7.110
(j) Letters of request and commissions rogatoires
A.7.115
B. UK Requests to Foreign States for Assistance
A.7.116
(a) Persons able to request assistance
A.7.117
(i) Requests by a judicial authority on the
application of a prosecuting authority or
the defendant
A.7.117
(b) Meaning of 'evidence'
A.7.122
(c) Procedure for obtaining a letter of request from a
judicial authority
A.7.123
(d) Transmission of the request under the Crime
(International Co-operation) Act 2003, section 8
A.7.126
(e) Execution of the request and transmission of the
evidence to the UK
A.7.130
(f) Permitted use, admissibility, and return of the
evidence
A.7.133
(i) Restrictions on collateral use
A.7.133
(ii) Admissibility
A.7.135
(iii) Return of evidence to the requested state
A.7.136
(g) Hearing witnesses abroad by television link
A.7.137
(h) Requests to foreign states to freeze evidence
A.7.140
(i) Conditions for issuing a domestic freezing order
A.7.143
(ii) Transmission of the domestic freezing order
A.7.147
(iii) Amending or revoking a freezing order
A.7.203
(i) Requests for foreign bank information
A.7.204
(i) Requests for information about a person's bank
account (Crime (International Co-operation)
Act 2003, section 43)
A.7.205
(ii) Monitoring banking transactions (Crime
(International Co-operation) Act 2003,
section 44)
A.7.211
(iii) Sending requests under the Crime
(International Co-operation) Act 2003,
sections 43 and 44
A.7.215
C. Requests by Foreign States to the UK for Assistance
in Providing Evidence
A.7.216
(a) Introduction
A.7.216
(b) Requests from foreign states for assistance in
obtaining evidence
A.7.217
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Chapter A7: Mutual Legal Assistance in Cases of Fraud
(i) Incoming requests for assistance: initial steps
A.7.219
(1) The overseas authorities which may
request assistance
A.7.222
(2) The decision whether or not to grant
assistance: general
A.7.223
(3) Disclosure of the letter of request
A.7.229
(ii) Proceedings before a nominated court
A.7.232
(1) Conditions for granting assistance under
the Crime (International Co-operation)
Act 2003, section 15
A.7.232
(2) The hearing
A.7.235
(3) Forwarding the evidence to the
foreign state
A.7.301
(iii) Referring a request to the Serious Fraud Office
under the Crime (International Co-operation)
Act 2003, section 15(2)
A.7.302
(1) The Serious Fraud Office's powers under
$ 2 of the Criminal Justice Act 1987
A.7.306
(2) Interviews under the Criminal Justice
Act 1987, section 2(2)
A.7.309
(3) Notices under the Criminal Justice
Act 1987, section 2(3)
A.7.314
(4) Search warrants under the Criminal Justice
Act 1987, section 2(4)
A.7.317
(5) Privilege against self-incrimination in
mutual assistance proceedings
A.7.327
(iv) Use of search warrants to give assistance to
a foreign state
A.7.328
(1) Warrants under section 8 of the Police and
Criminal Evidence Act 1984
A.7.333
(2) Production orders and warrants under
section 9 of, and Schedule 1 to, the Police
and Criminal Evidence Act 1984
A.7.339
(3) Use of the powers in Part 2 of the Police
and Criminal Evidence Act 1984 following
a request for mutual assistance
A.7.406
(4) Warrants under section 17 of the Crime
(International Co-operation) Act 2003
A.7.410
(5) Giving the direction under the Crime
(International Co-operation) Act 2003,
section 13
A.7.415
(v) Transmission of the evidence
A.7.417
(1) Use of the evidence in the requesting state
A.7.424
(vi) Hearing evidence from the UK by television or
telephone link
A.7.426
(1) Television links
A.7.427
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=== Page 4 ===
Chapter A7: Mutual Legal Assistance in Cases of Fraud
(2) Telephone links
A.7.432
(3) Overseas requests to freeze evidence
in the UK
A.7.439
(vii) Receiving an overseas freezing order
A.7.441
(viii) Nominating a court
A.7.444
(ix) Giving effect to the overseas freezing order
A.7.447
(x) Evidence seized under the order
A.7.503
(xi) Release of evidence held under the order
A.7.505
(c) Requests for UK bank transaction information
A.7.508
(i) Request for customer information from a UK
financial institution
A.7.509
(1) Receipt of request
A.7.509
(2) Making, varying, and discharging a
customer information order
A.7.518
(ii) Requests to the UK to monitor bank accounts
A.7.521
(1) Request for an account monitoring order
A.7.522
(2) Making, varying, or discharging account
monitoring orders
A.7.528
(3) The offence of disclosure in relation to
customer information orders and account
monitoring orders
A.7.533
D. Mutual Legal Assistance in Relation to Restraint
and Confiscation
A.7.538
(a) Introduction
A.7.538
(b) Requests by the UK for assistance in relation to
restrain and confiscation
A.7.541
(i) Requests by the UK for assistance in restraining
property abroad and enforcing confiscation
orders
A.7.542
(1) The conditions in the Police and Criminal
Evidence Act 1984, section 40
A.7.549
(2) Temporal limitations in respect of requests
for assistance
A.7.606
(3) Contents of the request
A.7.607
(ii) Requests for assistance in evidence gathering in
connection with potential restraint and
confiscation
A.7.608
(c) Foreign requests to the UK for assistance with
restraint and confiscation
A.7.612
(i) Introduction
A.7.612
(ii) Commencement and temporal scope of the
Proceeds of Crime Act 2002 (External Requests
and Orders) Order 2005
A.7.615
(iii) Definitions
A.7.619
(iv) Reference of an external request by the
Secretary of State
A.7.620
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Chapter A7: Mutual Legal Assistance in Cases of Fraud
(v) The Crown Court's power to make a restraint
order at the request of a foreign state
A.7.624
(1) The Article 7 conditions
A.7.627
(2) Procedure
A.7.630
(vi) The Crown Court's power to enforce an
external order
A.7.637
(1) Conditions for giving effect to an
external order
A.7.640
(vii) Orders which may be made in addition to and
in aid of restraint orders and external orders
A.7.650
(viii) Confiscation orders: orders which may be made
by a UK court
A.7.704
(ix) The procedure for enforcing foreign orders
in the UK
A.7.707
(x) Remitting confiscated property to the
requesting state
A.7.710
(d) Foreign requests for assistance in gathering
evidence in relation to confiscation
A.7.714
(i) Investigations using powers in the Crime
(International Co-operation) Act 2003
A.7.714
(ii) Investigations using powers in the Proceeds
of Crime Act 2002
A.7.715
E. Mutual Enforcement within the UK
A.7.719
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A. Introduction
[A.7.03]
A. Introduction
This chapter examines the means by which the UK assists and seeks the assistance of foreign A.7.01
states1 in the investigation and prosecution of fraud and related offences.2
1 In this chapter the term "foreign state' includes the Channel Islands, the Isle of Man, and British Overseas
Territories, which are responsible themselves for providing mutual assistance in response to requests from
other countries.
2 But note that the Crime (International Co-operation) Act 2003 (CICA) also permits the UK to provide
assistance in relation to administrative proceedings and clemency proceedings in foreign states. There are
also statutory powers enabling foreign states to seek assistance in relation to financial and regulatory
matters under the Companies Act 1989 and the Financial Services and Markets Act 2000. Part 1 of the
Regulation of Investigatory Powers Act 2000 contains provisions relating to mutual assistance in the
interception of communications. There are also a range of provisions for the exchange of information in
tax matters, see eg the European Administrative Co-operation (Taxation) Regulations 2012, SI 2012/
3062.
The two principal pieces of legislation in this field are:
A.7.02
the Crime (International Co-operation) Act 2003 (CICA 2003). CICA 2003 contains
provisions allowing the UK to seek and provide assistance in a number of ways, including
the provision of evidence and information; the service of process, the enforcement of
foreign driving disqualifications, and other related matters.2 CICA 2003 repealed the
Criminal Justice (International Cooperation) Act 1990 however SS 5, 6,9, and 10 of the
1990 Act remain in force;
the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (the POCA
Order)3 enables the UK to restrain assets at the request of foreign states and also to
enforce external confiscation orders.4
1 The enforcement of foreign judgments in civil proceedings is outside the scope of this work. For a recent
analysis of the provisions concerning enforcement of foreign orders in insolvency proceedings, and the
Foreign Judgments (Reciprocal Enforcement) Act 1933 and S 426 of the Insolvency Act 1986, see New
Cap Reinsurance Corporation Ltd (in liquidation) " Grant [2012] Ch 538, CA.
2 The provisions of CICA 2003 relating to service of process and driving disqualifications are not covered
in this chapter. For further details, see C Nicholls, C Montgomery and JB Knowles, The Law of
Extradition and Mutual Assistance (3rd edn, 2013), chs 22 and 23.
3 SI 2005/3181, made under POCA.
4 Part 3 of the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas
Forfeiture Orders) Order 2005 (SI 2005/3180) contains similar powers enabling forfeiture of the
instrumentalities of crime at the request of foreign states, as to which see generally Malabu Oil and Gas
Ltd " Director of Public Prosecutions [2016] Lloyd's Rep FC 108.
(a) Relationship between international agreements on mutual assistance
and domestic legislation
The development of mutual assistance legislation in the UK has primarily been driven by A.7.03
mutual legal assistance treaties and other international agreements. These instruments had
the effect of requiring the UK to adapt its laws so as to enable it to honour its international
obligations. It is thus convenient to consider these agreements first before describing the
domestic legislation.
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[A.7.04]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
A.7.04 However, unlike in respect of extradition, it should be noted at the outset that the domestic
mutual assistance scheme does not require the existence of a treaty as a pre-condition for the
granting of mutual assistance. The UK is able, in general, to offer assistance to any state
whether or not that country is able to reciprocally assist the UK, and whether or not there
is a bilateral or multilateral agreement in place.¹
1 Mutual Legal Assistance Guidelines for the United Kingdom (12th edn, Home Office, March 2015), P 5.
A.7.05 Mutual legal assistance treaties therefore have a dual role to play in the mutual assistance
process. First, they can be used as an aid to the interpretation of relevant legislation.1 In
particular, parts of the CICA 2003 give effect to international agreements and framework
decisions, and these domestic provisions fall to be interpreted in light of the international
instrument to which they give effect.2 Secondly, the Secretary of State and the court must
take into account treaty provisions when considering the extent to which assistance should
be granted under the CICA 2003 or other legislation.3
1 Atlan, Unreported, 10 June 1996 (CA); see also Enander " Governor of Her Majesty's Prison Brixton [2005]
EWHC 3036 (Admin), paras 29-30.
2 Dabas " High Court of Madrid [2007] 2 AC 31; Pupino [2006] QB 83, ECJ. The difficulty identified in
Assange " Swedish Prosecution Authority [2012] 2 AC 471, paras 201-221, so far as pre-Treaty of Lisbon
EU instruments enacted under Title VI TEU are concerned, has since been solved: Cretu " Local Court
of Suceava, Romania [2016] 1 WLR 3344; Goluchowski v Poland [2016] 1 WLR 2665, para 46.
3 R v Secretary of State ex P Fininvest Spa [1997] 1 WLR 743, 758. See also R [2008] EWCA Crim 3062.
(b) International developments
A.7.06 Among the most important multilateral conventions and agreements in relation to mutual
assistance ratified by the UK are the Council of Europe's Convention on Mutual Assistance
in Criminal Matters 19591 (the "European Convention on Mutual Assistance in Criminal
Matters') and its First and Second Additional Protocols;2 the Council of Europe's Conven-
tion on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime 1990;3
and the Commonwealth Scheme (the 'Harare Scheme').4
1 ETS No 30.
2 ETS No 99 and ETS No 182. The second Additional Protocol came into force in the UK on 1 October
2010.
3 ETS No 141. There is also a Council of Europe Convention on the Laundering, Search, Seizure and
Confiscation of the Proceeds from Crime and on the Financing of Terrorism (CETS No 198), which the
UK ratified in 2015.
4 Scheme Relating to Mutual Assistance in Criminal Matters within the Commonwealth, Commonwealth
Secretariat, London, LMN (86) 13. See the updated scheme, Revised Scheme Relating to Mutual
Legal Assistance in Criminal Matters within the Commonwealth, including amendments made by Law
Ministers in April 1990, November 2002, October 2005 and July 2011 <http://thecommonwealth.org/
sites/default/files/key_reform_pdfs/P15370_14_ROL_Model_Leg_Mutual_Legal_Assnce.pdfs_The
UK has also ratified the UN Convention against Transnational Organised Crime 2000 and the UN
Convention Against Corruption 2003.
A.7.07 There have also been a number of important developments at EU level, including the
Schengen Convention,¹ the EU Convention on Mutual Assistance in Criminal Matters
and its Protocol,2 and most recently the development of mutual recognition initiatives to
facilitate speedier mutual legal assistance. However, the referendum on the United
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A. Introduction
[A.7.11]
Kingdom's membership of the European Union, held on 23 June 2016, led to a decision to
withdraw from EU membership. Notice of intention to leave the EU ("Brexit') was served
under Art 50 TEU on 29 March 2017. Withdrawal was due to take effect on 29 March
2019 but at the date of writing had been postponed. Consequently, the UK's continued
participation in EU mutual recognition instruments remains the subject of significant
uncertainty (see para A.7.17).³
1 OJ L 239, 22.09.2000, P 19.
2 OJ C 197, 12.07.2000, P 3 and OJ C 326, 21.11.2001.
3 See, eg, the House of Lords, European Union Committee, "Brexit: Judicial Oversight of the European
Arrest Warrant', 6th Report of Session 2017-19.
The UK is also a signatory to a number of bilateral mutual legal assistance treaties.¹ Among A.7.08
these are the Mutual Legal Assistance Treaty with the US, which entered into force on
12 February 1996. The Foreign Office maintains a list of all bilateral agreements.2
1 Often referred to as an 'MLAT'.
2 See <http://www.fco.gov.uk/en/publications-and-documents/treaties/lists-teaties/bilateral-mutual-
legal>.
(i) European Convention on Mutual Assistance in Criminal Matters
One of the first international instruments to respond to the effects of cross-border criminal A.7.09
activity was the European Convention on Mutual Assistance in Criminal Matters.¹
Although this opened for signature in 1959, it was not ratified by the UK until 1991 when
the Criminal Justice (International Cooperation) Act 1990 came into force. Art 3(1) of the
Convention provides that:
The requested Party shall execute in the manner provided for by its law any letters
rogatory relating to a criminal matter and addressed to it by the judicial authorities of
the requesting Party for the purpose of procuring evidence or transmitting articles to
be produced in evidence, records or documents.
1 ETS No 30. See generally, D McClean, International Cooperation in Civil and Criminal Matters
(2012), P 170.
The Additional Protocol to the Convention, which opened for signature in 1978, contains A.7.10
provisions intended to relax the Convention's restrictions on assistance in relation to fiscal
offences. The Second Additional Protocol facilitates the exchange or disclosure of infor-
mation by broadening the range of situations in which mutual assistance may be requested
and by making the provision of assistance easier, quicker and more flexible. This includes
the creation of joint investigation teams (JIT).¹
1 Article 20.
The European Convention on Mutual Assistance in Criminal Matters was an important A.7.11
achievement for its time in its recognition of the necessity for specific instruments for
cooperation in evidence gathering. However, like all new instruments, it had limitations.
Perhaps the most notable was that the Convention was designed to operate amongst states
of like legal tradition, namely the civil law states of Europe, and it was geared towards legal
systems where criminal prosecutions were under the control of an investigating judge.
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[A.7.12]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
(ii) Commonwealth Scheme Relating to Mutual Assistance in Criminal
Matters 1986
A.7.12 The Commonwealth Scheme was adopted by Commonwealth Law Ministers in Harare,
Zimbabwe, in August 19861 and has been amended since in 2002, 2005, and 2011. It is
not treaty-based and depends for its effective operation on the passage by all members of
the Commonwealth of domestic legislation, including legislation to enable the exercise of
powers and functions by their law enforcement and curial bodies on behalf of other
Commonwealth countries.
1 Scheme Relating to Mutual Assistance in Criminal Matters within the Commonwealth, Common-
wealth Secretariat, London, LMN (86) 13. See generally, D McClean, International Cooperation in Civil
and Criminal Matters (2012), P 177 and the Office of Civil and Criminal Justice Reform, Commonwealth
Schemes for International Cooperation in Criminal Matters, Commonwealth Secretariat (2017). The most
recent version of the Scheme can be found at <http://thecommonwealth.org/sites/default/fles/key_
reform_pdfs/P15370_14_ROL_Model_Leg_Mutual_Legal_Astnce.pdf>.
A.7.13 The Commonwealth Scheme provides for a wider range of assistance than its Council of
Europe counterpart and recognises the common law independence of the police in
conducting investigations, as well as a non-judicial prosecutor exercising a prosecutorial
discretion. The types of assistance envisaged by the Scheme include:
obtaining and taking of evidence;
making available records and other documents;
facilitating the appearance of witnesses (including persons in custody) provided such
persons consent;
interception of telecommunications and postal items;
covert electronic surveillance;
the use of live video links in the course of investigations and judicial procedures;
asset recovery; and
issuing of process for compulsory measures including search and seizure.
(iii) United Nations Convention against Corruption
A.7.14 The Convention was adopted by the General Assembly by resolution 58/4 of 31 October
2003.
1 See
<http://www.unodc.org/documents/treaties/UNCAC/Publications/Convention/08-50026_E.
pdf>.
A.7.15 The principal aim of the Convention is to prevent corruption from occurring. The
Convention requires countries to establish criminal and other offences to cover a wide
range of acts of corruption, if these are not already crimes under domestic law. Chapter IV
of the Convention deals with international cooperation consequent to that. Countries
agreed to cooperate with one another in every aspect of the fight against corruption,
including prevention, investigation, and the prosecution of offenders. Countries are bound
by the Convention to render specific forms of mutual legal assistance in gathering and
transferring evidence for use in court, and to extradite offenders. Countries are also
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A. Introduction
[A.7.17]
required to undertake measures which will support the tracing, freezing, seizure, and
confiscation of the proceeds of corruption.¹
1 See generally C Nicholls et al, Corruption and Misuse of Public Office (3rd edn, 2017).
(c) EU developments
In October 1999 at Tampere, the European Council adopted a legislative approach called A.7.16
mutual recognition as the cornerstone of judicial cooperation in the EU. This followed the
institutional changes brought about by the Treaty of Amsterdam.1 Mutual recognition
presents a significant departure from existing mutual assistance procedures.² The tradi-
tional 'request principle' for mutual assistance entails requests being addressed from
executive to executive through their national ministries. Such requests could be refused on
a wide variety of domestic discretionary principles including specialty,3 double criminal-
ity,4 the political offence exception5 and the bar on extraditing nationals.6 However, this
made outcomes slow, cumbersome, and often unreliable. Mutual recognition has been
embraced to change this by leaving decision-making predominantly with the judiciary.
Under mutual recognition, judicial decisions by one EU state can be implemented in
another with limited grounds for refusal and without any real consideration of the
processes by which these decisions were reached.7 This inevitably impacts on the individual
by permitting their direct exposure to other European criminal justice systems.
1 1997 OJ C/340/1.
2 See Mackarel, "Surrendering' the Fugitive-The European Arrest Warrant and the United Kingdom',
JoCL 71 (362) 2007.
3 The specialty principle generally acts as a bar on an extradited person being prosecuted for anything
other than the offence for which s/he was extradited.
4 This is the principle that extradition or mutual assistance will be refused for acts that are not also defined
as crimes in the jurisdiction dealing with the request.
5 This exception is a general bar on the extradition of alleged offenders who are sought for political activity
and is aimed at preventing persecution.
6 This bar has its basis in the link between allegiance and protection between state and its nationals, the
right of a state to prosecute and punish its own nationals, and in a distrust of other criminal justice
systems.
7 Peers, "Mutual Recognition and Criminal Law: Has the Council got it wrong?' CMLR 41:5-36 (2004),
p.10.
The mutual recognition agenda sought to revolutionise mutual legal assistance within the A.7.16A
EU as legal instruments progressively replaced traditional mutual legal assistance conven-
tions. To date there have been a number of EU initiatives in the area of criminal mutual
assistance that have had an important impact on the UK's domestic legislation, including
CICA 2003.
However, the legal situation has recently become complicated. Protocol 36 of the Treaty of A.7.17
Lisbon permitted the UK Government to decide by 31 May 2014 whether it intended to
continue to be bound by unamended, pre-Lisbon EU police and criminal justice (PCJ)
measures. This allowed the UK to withdraw from these measures before they became
subject to the jurisdiction of the Court of Justice of the European Union and the European
Commission's enforcement powers. Under Art 10(4) of Protocol 36, the UK indicated it
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was withdrawing from all such measures with effect from 1 December 2014. It then set out
its intention to opt back into 35 selected measures. The measures included many mutual
recognition instruments and a number of other key instruments (eg legislation establishing
Europol and Eurojust and legislation on joint investigation teams and criminal records).
Twenty-nine measures, including Europol, Eurojust, and joint investigation teams were
eventually re-joined. For a while, therefore, normality was resumed. However, the UK's
subsequent decision to withdraw from the EU leaves numerous issues pertaining to the
future status of these instruments to be addressed within the exit negotiations.² The UK
Government has identified "cooperating in the fight against crime and terrorism' as one of
its twelve guiding principles in the "Brexit' negotiations.3 But there is no guarantee as yet
that an effective legal framework for mutual recognition of judgments can be maintained,
there being no precedents for many of the arrangements which need to be put in place. 4
A significant potential stumbling block is the role of the Court of Justice of the EU (CJEU).
As taking "control of our own laws' was a core motivator behind the decision to leave the
EU, any CJEU jurisdiction in relation to UK cooperation arrangements will remain highly
contentious.5 Possible alternative models of cooperation may potentially be found in the
extradition agreement negotiated by Iceland and Norway with the EU.6 This requires
the parties to "keep under review' the development of the case law of the CJEU and the
domestic courts of Iceland and Norway. Agreement on these issues is yet to be reached.
1 The whole episode also served to resolve the legal problems identified in Assange V Swedish Prosecution
Authority [2012] 2 WLR 1275AC 471, paras 201-221: see above, n 9.
2 For general discussion on these issues, see V Mitsilegas, "European Criminal Law without the United
Kingdom? The Triple Paradox of Brexit' (2018) NJECL, 8(4), 437-38 and R Davidson, "Brexit and
Criminal Justice: The Future of the UK's Cooperation Relationship with the EU' [2017] Crim L R 5.
3 HM Government, "The United Kingdom's Exit From, and New Partnership with, the European Union'
(February 2017), Cm 9417.
4 See the House of Lords, European Union Committee, "Brexit: Future UK-EU Security and Police
Cooperation', 7th Report of Session 2016-17, HL Paper 77, para 87.
5 See "Theresa May's Brexit Speech in Full', The Telegraph, 17 January 2017.
6 Council Decision 2014/835 of 27 November 2014 on the conclusion of the Agreement between the
European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure
between the Member States of the European Union and Iceland and Norway [2014] OJ L343/1.
A.7.18 The UK Government has noted that, following the UK's withdrawal from the EU, the UK
will be a 'third country' (external country) in its dealings with the Union. It has suggested:
One option for future EU-UK cooperation in this area would be to limit cooperation
to those areas where a precedent for cooperation between the EU and third countries
already exists. While this would be one possible approach, it would result in a limited
patchwork of cooperation falling well short of current capabilities. It would also fall
short of current channels used to assess the strategic threats facing European
countries-threats that will still be shared after the UK withdraws from the EU.A
piecemeal approach to future UK-EU cooperation would therefore have more
limited value, and would risk creating operational gaps for both the UK and for its
European partners, increasing the risk for citizens across Europe.¹
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A. Introduction
[A.7.21]
At the time of writing, the future of mutual legal assistance in the criminal sphere between
the UK and the EU remains extremely uncertain. With that caveat, we outline in S (i) below
the EU mutual legal assistance scheme in which the UK participates, as it currently stands.
1 HM Government, "Security, Law Enforcement and Criminal Justice: A Future Partnership', 18 Septem-
ber 2017, para 35.
(i) The Schengen Convention
France, Germany, Belgium, Luxembourg, and the Netherlands agreed on 14 June 1985 to A.7.19
sign an agreement on the gradual abolition of checks at their common borders. This
became known as the Schengen Agreement, after the name of the town in Luxembourg
where it was signed.
1 See generally, D McClean, International Cooperation in Civil and Criminal Matters (2012), P 157.
The Convention Implementing the Schengen Convention was signed in June 1990 and A.7.20
came into effect in March 1995.1 By that time, other EU Member States had joined the
initial signatories of this inter-governmental agreement, which was signed outside the EU
framework because of a lack of agreement in relation to competence in the areas of border
control. The Convention has 142 articles providing measures for creating a common area
of justice and security, following abolition of common borders. Its key aims are to facilitate
free movement within participating states; to improve police cooperation; to extend the
provision of mutual legal assistance between signatory states; and to improve access to the
Schengen Information System (SIS).
1 OJ L 239, 22.09.2000, P 19.
The SIS was set up to allow police forces and consular agents from the Schengen countries A.7.21
to access data on specific individuals (ie criminals wanted for arrest or extradition, missing
persons, third-country nationals to be refused entry, etc) and on goods which have been lost
or stolen. The data related to persons may include data on: persons wanted for arrest for
extradition purposes; aliens for whom an alert has been issued for the purposes of refusing
entry; and missing persons or on persons needing temporary police protection, among
other things. A second technical version of this system (SIS II) entered into operation on
9 April 2013. It has enhanced functionalities, such as the possibility to use biometrics, new
types of alerts, the possibility to link different alerts (such as an alert on a person and a
vehicle) and a facility for direct queries on the system. It also ensures stronger data
protection.¹ It is a database of 'real-time' alerts about individuals and objects of interest to
EU law enforcement agencies.2 Each participating country has a SIRENE (Supplementary
Information Request at the National Entry) Bureau, to provide supplementary informa-
tion and coordinate activities. The UK connected to SIS II in April 2015.3At the time of
writing most information about persons of interest to law enforcement within the EU are
dealt with by SIS II. The most likely replacement for the system when and if the UK leaves
the SIS is the Interpol system of notifications.
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1 See the Council Decision of 18 February 2008 on the trials for the second generation Schengen
Information System (SIS II) OJ L 57, 1.3.2008.
2 House of Lords, European Union Committee, "Brexit: Future UK-EU Security and Police Coopera-
tion', 7th Report of Session 2016-17, HL Paper 77, para 87.
3 See House of Lords European Union Committee, "Brexit: Future UK-EU Security and Police Coop-
eration', 7th Report, session 2016-17, para 8.
A.7.22 The 1985 Schengen Agreement and the Convention implementing it, and the decisions
and declarations adopted by the Schengen bodies are known collectively as the Schengen
acquis. The texts are available on the Europa website. They were made part of the acquis
communautaire by Protocol 2 to the Treaty of Amsterdam.3 Requests from the UK to
participate in some aspects of the Schengen acquis (the police and judicial cooperation
elements-the UK does not participate in the frontier control elements) led to two Council
Decisions (Council Decision 2000/365/EC4 and Council Decision 2004/926/EC5).
1 See <http://ec.europa.eu/justice/criminal/law/index_en.htm>.
2 This is the entirety of legislation, legal acts and court decisions which constitute the body of EU law.
3 Protocol No 2, Treaty on European Union, integrating the Schengen acquis into the framework of the
European Union, OJ L 340, 10 November 1997.
4 OJ L 31, 1.6.2000.
5 OJ L 395/70, 31.12.2004.
A.7.23 Protocol 19 to the Treaty on the Functioning of the European Union (TFEU) integrated
the Schengen acquis into the framework of the European Union.1 Art 4 to Protocol 19
provides that the UK may request to take part in some or all provisions of the Schengen
acquis. Art 5 of Protocol 19 provides that the UK is deemed to opt in to measures building
on parts of the acquis in which it participates unless, within three months of the publication
of the proposal or initiative, it notifies the Council that it does not wish to take part in the
measure-'an opt-out'. If the UK does not opt out within that three-month period, it is
automatically bound. If the UK opts out, the Commission and Council can decide to eject
the UK from all or part of the rest of Schengen to the extent considered necessary if such
non-participation seriously affects the practical operability of the system but the Protocol
states explicitly that it must seek to retain the UK's widest possible participation.²
1 OJ C 326, 26.10.2012.
2 See <https://www.gov.uk/government/uploads/system/uploads/atachment_data/file/206474/Final_
opt-in_webpage_update.pdf>.
A.7.24 Key provisions of the Schengen Convention that are implemented by the UK through
CICA 2003 include:
the continuation of surveillance by law enforcement officers if the subject crosses into
another Member State (so-called 'hot surveillance');1
the extended provision of mutual legal assistance to include, in addition to ordinary
criminal proceedings, clemency proceedings and administrative proceedings;2
the sending of procedural documents directly by post rather than via central authorities;3
the designation of a supervisory authority to carry out independent supervision of
national data files from the SIS.4
1 Article 40.
2 Article 49.
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A. Introduction
[A.7.28]
3 Article 52.
4 Article 114.
Access to the SIS after withdrawal from the EU will be a complex issue for Brexit A.7.25
negotiations. There is no precedent for providing such access to a country which is neither
a Member State nor a Schengen country. Any future agreement on UK access will doubtless
require the UK to continue to apply standards consistent with EU data protection
legislation. There is equally no precedent on which the UK could rely to argue for
continued access to SIS II.¹
1 See evidence of Security Commissioner Julian King to the House of Commons Home Affairs Commit-
tee, 28 February 2017, according to which outside of non-EU Schengen countries there are no
precedents for third countries accessing those information-sharing platforms (Q92).
(ii) Convention on Mutual Assistance in Criminal Matters between EU Member
States and its Protocol
On 29 May 2000 the EU Council of Ministers adopted the Convention on Mutual A.7.26
Assistance in Criminal Matters. The Convention did not enter force until 2005. Art 1 of
the Convention explains that its purpose is to supplement the provisions between Member
States of inter alia the the Council of Europe's 1959 Convention on Mutual Assistance in
Criminal Matters and its Additional Protocol, and the mutual assistance provisions of the
Schengen Convention. The EU Convention does not affect the application of more
favourable provisions in bilateral or multilateral agreements between Member States or
criminal mutual assistance arrangements agreed2 on the basis of uniform legislation or
other special arrangements.
1 OJ 197, 12.07.2000, P 3. See Explanatory Report on the Convention of 29 May 2000 on Mutual
Assistance in Criminal Matters between the Member States of the European Union, OJ C 379,
29.12.2000, P 7.
2 As provided for in the Council of Europe's European Convention on Mutual Assistance in Criminal
Matters, Art 26(4).
Thus the EU Convention aims to encourage and modernise cooperation between judicial, A.7.27
police, and customs authorities within the EU as well as with Norway and Iceland by
supplementing provisions in existing legal instruments and facilitating their application.
The state receiving a request must in principle comply with the formalities and procedures
initiated by the requesting state.
Forms of assistance provided for by the Convention include:
A.7.28
the handing over of objects that have been stolen or obtained by other criminal means
and that are found in another Member State;
hearings by video or telephone;
the setting up of a joint investigation team by two or more EU Member States for a
specific purpose and for a limited period of time, as well as joint covert investigations;
requests for the interception of telecommunications.
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A.7.29 The 2001 Protocol to the EU Convention1 deals with requests for banking information
and is implemented by Chapter 4 of Part 1 of CICA 2003.
1 OJ C 326, 21.11.2001, P 1. See Explanatory Report to the Protocol to the 2000 Convention on mutual
assistance in criminal matters between the Member States of the European Union, OJ C 257,
24.10.2002, P 1.
A.7.30 The European Investigation Order Directive has effectively superseded many of the
Convention's provisions (at para A.7.36 below). However, as noted above (para A.7.17),
once the withdrawal process under Art 50 (including any transitional period) is complete,
some EU law measures, including the EU Convention on Mutual Assistance in Criminal
Matters and the European Investigation Order Directive, will be terminated unless UK
third-country access is successfully negotiated. The EU allows third-state participation in
some of its mutual legal assistance arrangements.¹ An alternative to negotiating third-state
access to the network of existing MLA agreements would be a UK-EU MLA treaty.2 Again,
the role of the CJEU would be highly contentious.
1 See, eg. Agreement between the European Union and the Republic of Iceland and the Kingdom of
Norway on the application of certain provisions of the Convention of 29 May 2000 on Mutual
Assistance in Criminal Matters between the Member States of the European Union and the 2001
Protocol thereto [2000] OJ L26.
2 See R Davidson, "Brexit and Criminal Justice: The Future of the UK's Cooperation Relationship with the
EU' [2017] Crim L R5, 387.
(iii) Council Framework Decision on the execution in the EU of orders freezing
property or evidence
A.7.31 After the Framework Decision on the European Arrest Warrant, the European Council first
extended the mutual recognition principle to mutual legal assistance matters with the
Framework Decision on pre-trial orders freezing property or evidence. This was adopted by
the EU Council of Ministers on 22 July 2003 on an initiative by Belgium, France, and
Sweden. Its purpose is to establish the rules under which a Member State is to recognise and
execute in its territory a freezing order issued by a judicial authority of another Member
State in the framework of criminal proceedings.
1 2003/577/JHA, 22 July 2003; OJ L 196, 2.08.2003.
A.7.32 A 'freezing order' means any measure taken by a judicial authority in a Member State to
prevent the destruction, transformation, displacement, etc of property. The evidence to
which the Framework Decision applies includes objects, documents, or data which could
be produced as evidence in criminal proceedings.
A.7.33 The Framework Decision (2003/577/JHA) was given effect to in Part 1 of CICA 20031
and by the Crime and Courts Act 2013 (which replaces the Serious Organised Crime &
Police Act 2005). However, the scheme remained restricted to the freezing phase, such that
a freezing order still needed to be accompanied by a separate MLA request for the
subsequent transfer of the evidence to the issuing state. Because of this need to resort to
co-existing MLA arrangements in any event, the 2003 scheme was seldom used in practice.
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A. Introduction
[A.7.35]
1 CICA 2003, SS 10-12 and ss 20-27. CICA 2003 also gives effect to the EU Mutual Assistance
Convention 2000 (12 July 2000) (the Convention established by the Council in accordance with Art 34
of the Treaty on European Union, on Mutual Assistance in Criminal Matters between the Member States
of the European Union (O) C 197, 12/07/2000 P 0003-0023)) and the Protocol to the 2000
Convention (21 November 2001) (the Protocol to the Convention on Mutual Assistance in Criminal
Matters between the Member States of the European Union (O) C 326, 21/11/2001 p0001-0008)).
CICA 2003 also implements other EU legislation, including the Convention 98/C 216/01 on Driving
Disqualifications (as to which, see also S.I. 3010 of 2008; The Mutual Recognition of Driving
Disqualifications (Great Britain and Ireland) Regulations 2008).
A Regulation on the Mutual Recognition of Freezing and Confiscation Orders has been A.7.34
proposed to replace and further develop this existing mutual recognition framework (the
2003 Framework Decision and the Council Framework Decision (2006/783/JHA) on the
application of the principle of mutual recognition to confiscation orders). The proposed
Regulation aims to create 'a uniform and more effective legal instrument to improve
cross-border asset recovery'. 2 It is intended to resolve the issues caused by the implemen-
tation of existing instruments. The draft Regulation covers a wider range of confiscation
such as non-conviction-based confiscation (including some preventative confiscation). It
also standardizes procedures to improve efficiency. On 8 December 2017, the Council
agreed a general approach on the proposal.³ The UK has indicated it wishes to opt in but
this initiative, like other mutual recognition instruments, will be affected when and if the
UK withdraws from the EU.
1 Framework Decision 2006/783/JHA on the application of the principle of mutual recognition to
confiscation orders, OJ L 328, 24.11.2006.
2 Proposal for a Regulation of the European Parliament and of the Council on the mutual recognition of
freezing and confiscation orders-General approach, Council Document 15104/17, 8 December 2017.
3 ibid.
(iv) The Council Framework Decision 2008/978/JHA of 18 December 2008 on the
European evidence warrant for the purpose of obtaining objects, documents and
data for use in proceedings in criminal matters
In late 2008, the Framework Decision on the European Evidence Warrant (EEW) was A.7.35
finalised. The main purpose of the proposal was to consolidate the disparate schemes and
to accelerate and simplify the process of gathering and transmitting evidence in criminal
cases with a cross-border element. A simple form was to be sent between Member States'
authorities, including an order from the "issuing state' (the state which sends the form) for
the "executing state' to carry out certain activities. The EEW extended the mutual
recognition principle of the European Arrest Warrant to the transfer of limited types of
'object[s], documents and data' among Member States in criminal proceedings.¹ However,
the EEW remained flawed as an effective cross-border instrument. It was only applicable to
evidence already in existence and therefore restricted the spectrum of judicial cooperation
in criminal matters with respect to such evidence. Because of its limited scope, competent
authorities were free to use the new regime or to use co-existing MLA procedures in any
case applicable to evidence falling outside of the scope of the EEW. The EEW specifically
excluded 'real time' evidence such as the interviewing or taking of statements from
suspects, witnesses or victims, the interception of communications, the taking of DNA or
bodily samples, evidence gathered as a result of ongoing monitoring or surveillance, or
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Chapter A7: Mutual Legal Assistance in Cases of Fraud
evidence that required analysis to be conducted.2 The EEW took eight years to come into
being and its difficult history highlights the problems of pursuing prosecution initiatives in
this area. Even before it could be implemented it was overtaken by a new proposal for a
Directive on the European Investigation Order (EIO). The EIO has now effectively
replaced the EEW.
1 The EEW is limited to obtaining those 'object[s], documents and data' from another member state that
are already in existence-Art 1(1). See J.R. Spencer, "The Problems of Trans-border Evidence and
European Initiatives to Resolve Them', Cambridge Yearbook of European Legal Studies, Vol. 9, Oxford:
Hart Publishing, 2007, PP 477, 478.
2 Article 4(2).
(v) The European Investigation Order
A.7.36 As noted, almost as soon after the EEW had been agreed, the EU's Stockholm Programme
on the Area of Freedom Security and Justice issued a commitment to replace the EEW with
a proposal for a 'comprehensive' instrument for the transfer of all forms of evidence.1 The
Stockholm Programme referred to the existing mutual legal assistance system as 'frag-
mented', complaining that the present arrangements permitted access to only limited
categories of evidence with a large number of grounds for refusal.2 As a result, a compre-
hensive mutual recognition initiative has now been produced-the European Investigation
Order (EIO).³
1 European Council, Stockholm Programme-An open and secure Europe serving and protecting
citizens, OJ C115/01, 4.5.2010.; see also the European Commission, Communication on delivering an
Area of Freedom, Security and Justice for Europe's citizens: Action plan implementing the Stockholm
Programme, COM(2010) 171, Brussels, 2010(a), para. 3.1.1.
2 European Commission, 'Making it easier to obtain evidence in criminal matters from one Member State
to another and ensuring its admissibility', Memo/09/497, Brussels, 11 November 2009(a).
3 Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the
European Investigation Order in criminal matters, OJ L130/1, 1.5.2014.
A.7.37 The EIO Directive provides for a Member State to "have one or several specific investigative
measure(s) carried out in another Member State to obtain evidence'. The key elements of
the Directive include a standardized format for requests; the application of the principle of
mutual recognition to requests, together with timeframes for responding to requests. It also
prescribes the grounds for refusal (eg Art 11(1)(f) of the Directive permits a refusal to
execute an EIO on human rights grounds). Amongst other investigative measures, the
Directive enables the Executing State to:
temporarily transfer persons held in custody for further investigation;
summon witnesses to court to provide evidence by video conference at a hearing;
transfer evidence already in the possession of the Executing State; and
undertake certain covert investigations and intercept telecommunications.
The Directive does not apply to Schengen cross-border surveillance by police officers under
the Schengen Convention, or to the setting up of joint investigation teams and the
gathering of evidence within such a team.
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A. Introduction
[A.7.39]
The EIO replaces the EEW and most other mutual legal assistance measures with a scheme A.7.38
applicable to all investigative measures and is intended to be the sole legal instrument
regulating the exchange of evidence and mutual legal assistance between EU Member
States. The scheme differs from the old framework in two crucial respects: first, it removes
some of the key protections attached to substantive provisions; and second, it operates by
way of mutual recognition.1 Member States had until 22 May 2017 to implement the
Directive into domestic law. The UK opted into the Directive under Protocol 21 of the
TFEU and transposed it via the Criminal Justice (European Investigation Order) Regula-
tions 20172 with effect from 31 July 2017. (The UK General Election accounted for the
delay in transposition.) The Explanatory Memorandum to the Regulations explains: 'It
[the Directive] largely relies on existing law enforcement tools such as search warrants and
production orders, which broadly aligns with existing procedures under the Crime (Inter-
national Cooperation) Act 2003." It also explains that, where there is currently no need for
court involvement in domestic cases, EIOs will normally be made or validated by a
designated public prosecutor (see Part 1 of Schedule 1); there are exceptions to this where
a request for an Order is made by a defendant or other prosecuting authority who will need
to make an application to a court. Where a court would normally be involved in a domestic
case (for instance when issuing a search warrant), only a court will be able to make a
European investigation order.
1 Sayers, "The European Investigation Order: Travelling without a "roadmap". June 2011, CEPS Liberty
and Security in Europe <http://www.ceps.be/book/curopean-investigation-order-travlling-without-96
E2%80%98roadmap%E2%80%99>; S. Peers, "The Proposed European Investigation Order', State-
watch Analysis-Update, November, Statewatch, London, 2010(b) http://www.statewatch.org/analyses/
no-112-eu-cio-update.pdf.
2 SI 2017/730.
3 Explanatory Memorandum, para 4.1 <http://www.legislation.gov.uk/uksi/2017/730/pdfs/uksiem_201
70730_en.pdf>.
(vi) Other mutual recognition initiatives
Other mutual recognition initiatives have been produced to accelerate mutual legal A.7.39
assistance within the EU. They include a Framework Decision 2006/783/JHA on confis-
cation orders (noted briefly above at para A.7.34) which applies the principle of mutual
recognition to confiscation orders issued by a criminal court for the purpose of facilitating
their enforcement in other EU Member States.1 The Framework Decision follows the usual
pattern of mutual recognition initiatives and applies to all offences in relation to which
confiscation orders can be issued. Part 2 of the Criminal Justice and Data Protection
(Protocol No. 36) Regulations 2014 (SI 2014/3141) as amended by the Criminal Justice
and Data Protection (Protocol No. 36) (Amendment) Regulations 2014 (SI 2014/3191)
(the 2014 Regulations) gives effect to this Framework Decision (to the extent that it had
not already been transposed by the Crime (International Co-operation) Act 2003). As
noted, the proposed Regulation on the Mutual Recognition of Freezing and Confiscation
Orders will replace this instrument.
1 Framework Decision 2006/783/JHA on the application of the principle of mutual recognition to
confiscation orders, OJ L 328, 24.11.2006-as amended by Framework Decision 2009/299/JHA in
respect of decisions rendered in absentia. A new Directive on the freezing and confiscation of instru-
mentalities and proceeds of crime in the European Union was agreed (Directive 2014/42/EU on the
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freezing and confiscation of instrumentalities and proceeds of crime in the EU, replacing certain
provisions of the above-mentioned Council framework decisions, OJ L 127, 29.4.2014) but the UK did
not opt in to it under Protocol 21 to the TFEU.
A.7.40 There are also Framework Decisions on the mutual recognition of custodial penalties,¹
alternative sentences,2 as well as decisions on pre-trial bail (the European Supervision
Order)3 A mutual recognition Framework Decision on financial penalties has also been
implemented.4 On the other hand, the Framework Decision on the mutual recognition of
alternative sentences was not included in the list of measures subject to the 2014 opt-in.5
1 Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to
judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty
for the purpose of their enforcement in the European Union, OJ L 327, 5.12.2008 - as amended by
Framework Decision 2009/299/JHA in respect of decisions rendered in absentia.
2 Framework Decision (2008/947/JHA) on the application of the principle of mutual recognition to
judgments and probation decisions with a view to the supervision of probation measures and alternative
sanctions, OJ L337/102, 16.12.2008. For Scotland, provision is made for implementation by S 27 of the
Criminal Justice & Licencing (Scotland) Act 2010).
3 Framework Decision (2009/829/JHA) on the application, between Member States of the European
Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to
provisional detention, OJ L 294/20, 11.11.2009.
4 Framework Decision (2005/214/JHA) on the application of the principle of mutual recognition of
financial penalties, OJ L 76/16, 22.3.2005 - as amended by Framework Decision 2009/299/JHA in
respect of decisions rendered in absentia. 2005/214/JHA was implemented in England & Wales by the
Criminal Justice & Immigration Act 2008, SS 80-92, which came into force 1 October 2009 and as
amended by Sch 3 of SI 2014/3141 and in Scotland by the Mutual Recognition of Criminal Financial
Penalties in the European Union (Scotland) Order 2009 which came into force 12 October 2009. As to
the application of 2005/214/JHA, see eg Criminal Proceedings Concerning Balaz [2014] RTR 61, ECJ.
5 HM Government, Decision Pursuant to Article 10(5) of Protocol 36 to The Treaty on the Functioning of
the European Union', July 2014, Cm 8897. See also the Table of Measures, September 2014 <https://ww
w.gov.uk/government/uploads/system/uploads/atachment_data/file/369066/Protocol_36_meaures_
october.pdf>.
(vii) Council Framework Decision 2001/413/JHA of 28 May 2001 on Combating
Fraud and Counterfeiting Non-cash Means of Payment
A.7.41 The aim of this Framework Decision is to ensure that all fraud involving non-cash means
of payment is recognized as a criminal offence punishable by effective sanctions in all
Member States, and that mechanisms are put in place for cooperation between Member
States and between public and private departments or agencies to prosecute these offences
efficiently.
1 OJ L 140, 2.06.2001, P 1.
A.7.42 The Framework Decision requires Member States to criminalize the misuse of specified
'payment instruments'. Misuse includes theft, counterfeiting, receiving, fraudulent use,
and possession. The UK's existing criminal law implements most of the Framework
Decision, but SS 88 and 89 of CICA 2003 provide full compliance by incorporating the
provisions of Art 2. The UK has not, however, opted back into this Framework Decision
(see para A.7.17 above).
1 Article 2.
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A. Introduction
[A.7.47]
(viii) Agreement on Mutual Legal Assistance between the EU and the USA
On 20 September 2001, in the aftermath of the terrorist attacks in the USA, the EU's A.7.43
Justice and Home Affairs Council called for the adoption of measures aimed at enhancing
cooperation in criminal matters including mutual assistance arrangements between the EU
and the USA.
The Agreement on Mutual Legal Assistance between the EU and the USA was signed on 25 A.7.44
June 20031 and entered into force on 1st February 2010.2 It establishes a common
framework for cooperation alongside existing bilateral agreements between the USA and
individual Member States.
1 OJ L 181, 19.07.2003, P 34, referred to in this S as 'the Agreement'. Cf the Agreement on Extradition
between the EU and the USA, OJ L181, 19.07.2003, P 27.
2
http://e.europa.eu/world/agreements/prepareCreate TreatiesWorkspace/treatiesGeneralData.do2step
=0&redirect=true&treatyld=5441&back=5461>.
Although initial impetus for the Agreement was the events of 11 September 2001, it goes A.7.45
further than addressing mutual legal assistance merely in relation in relation to terrorism
and organized crime.1
1 See, eg, Art 4(4)(a).
In summary, the Agreement gives USA law enforcement authorities access to bank A.7.46
accounts throughout the EU (and vice versa) in the context of investigations into serious
crimes, including terrorism, organized crime, and financial crime. It is intended to improve
practical cooperation by reducing delays in mutual legal assistance. It also allows for the
creation of joint investigative teams and the possibility of videoconferencing. It also
contains extensive provisions in relation to data protection and the provision of evidence
and information.
A recent Agreement between the United States and the European Union on the protection A.7.47
of personal information relating to the prevention, investigation, detection, and prosecu-
tion of criminal offences1 applies privacy protections to data that is exchanged between law
enforcement agencies in the EU and the USA. Those safeguards include limitations on data
use, prior consent from EU authorities before any onward transfer of data, a requirement
to define data retention periods, and citizens' rights to access and correct data held about
them. The EU-USA umbrella agreement entered into force on 1 February 2017. The data
protection umbrella agreement is separate from the EU-USA privacy shield that facilitates
the transfer of personal data from the EU to the USA by businesses.2 Once the UK ceases
to be a member of the EU, the EU-USA umbrella agreement will not apply to it.
1 OJ L 336/3-13, 5.12.2016. In terms of standards within the EU, see the new EU General Data
Protection Regulation 2016/679, OJ L 119, 4.5.2016, which comes into force on 25 May 2018.
2 European Commission, EU-US Privacy Shield, <https://ec.europa.eu/info/law/law-topic/data-
protection/data-transfers-outside-eu/eu-us-privacy-shield_en#relatedlinks>.
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[A.7.48]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
A.7.48 The EU-USA MLA Agreement applies to all offences irrespective of when they were
committed and, in particular, whether they were committed before or after the Agreement
entered into force.¹ The Agreement only applies to requests for assistance made after its
entry into force. However, Arts 6 and 7 (video conferencing and expedition) apply to
requests pending in a requested state at the time the Agreement enters into force.2
1 Article 12(1).
2 Article 12(2).
A.7.49 Art 3 provides that the EU and the USA shall ensure that the provisions of the Agreement
are applied in relation to bilateral mutual legal assistance treaties between the Member
States and the USA, in force at the time of the entry into force of the Agreement. In
particular:
Art 4 is to be applied to provide for identification of financial accounts and transactions
in addition to any authority already provided under bilateral treaty provisions;
Art 5 is to be applied to authorize the formation and activities of joint investigative teams
in addition to any authority already provided under bilateral treaty provisions;
Art 6 is to be applied to authorize the taking of testimony of a person located in the
requested state by use of video technology, in addition to any authority already provided
under bilateral treaty provisions;
Art 7 shall be applied to provide for the use of expedited means of communication in
addition to any authority already provided under bilateral treaty provisions;
Art 8 shall be applied to authorize the providing of mutual legal assistance to the
administrative authorities concerned, in addition to any authority already provided
under bilateral treaty provisions;
Art 9 shall, subject to Art 9(4) and (5), be applied in place of, or in the absence of bilateral
treaty provisions governing limitations on use of information or evidence provided to the
requesting state, and governing the conditioning or refusal of assistance on data
protection grounds;
Art 10 shall be applied in the absence of bilateral treaty provisions pertaining to the
circumstances under which a requesting state may seek the confidentiality of its request.
A.7.50 Under Art 4(a) and (b) a request for assistance may be made to identify whether a person
identified in the request and suspected of, or charged with, a criminal offence holds bank
accounts in the requested country's territory; to identify information regarding natural or
legal persons convicted of or otherwise involved in a criminal offence; to identify informa-
tion in the possession of non-bank financial institutions; or to identify financial transac-
tions unrelated to accounts.
A.7.51 Despite its title, the scope of information covered in the Agreement is broader than offences
relating to terrorism and organized crime, and could cover a wide range of information
about legitimate everyday transactions of innocent third parties.¹ The term 'otherwise
involved in a criminal offence' in Art 4 does not specify whether a person must be under
criminal investigation before information about him can be transmitted. For example, an
innocent third party who is the victim of money laundering without their knowledge could
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A. Introduction
[A.7.56]
be described as "involved in a criminal offence' and his account transaction information
transmitted for the purpose of a US request.2
1 Session 2002-2003, 38th Report of the House of Lords Select Committee on the European Union, HL
Paper 153.
2 In Parliament the Minister of State indicated that the Government would require 'some assurance that
there was an actual investigation going on': see the Session 2002-2003, 38th Report of the House of
Lords Select Committee on the European Union, HL Paper 153.
Art 5 provides for joint investigative teams from the US and a Member State. These can be A.7.52
established and operated for the purpose of facilitating criminal investigations or prosecu-
tions involving one or more Member State and the USA. The procedure under which the
team is to operate, such as its composition, duration, location, organization, functions,
purpose, and terms of participation, are to be agreed between the competent authorities
responsible for the investigation or prosecution of criminal offences, as determined by the
respective states concerned.
Art 6 of the Agreement requires parties to enable the use of video technology for taking the A.7.53
testimony of a witness in proceedings for which mutual legal assistance is available. The
cost of establishing and servicing the transmission is borne by the requesting state.
Although the EU agreements have now entered into force, existing Members States' A.7.54
procedures will have to be amended to remove any inconsistencies between existing
domestic legislation and/or bilateral treaties and these new multi-lateral agreements. Post
Brexit, the UK will have to negotiate such agreements individually.
(d) UK mutual assistance legislation in outline
(i) Crime (International Co-operation) Act 2003
Part 1 of CICA 2003 largely replaces the UK's mutual legal assistance legislation, previously A.7.55
contained in Part 1 of the Criminal Justice (International Co-operation) Act 1990,
although S 5 and S 6 remain in force.
The structure of CICA 2003 is as follows.
A.7.56
Part 1: 'Mutual Assistance in Criminal Matters': this part re-enacts the mutual assistance
provisions of the Criminal Justice (International Co-operation) Act 1990. It also
implements the mutual legal assistance provisions of the Schengen Convention;1 the EU
Convention on Mutual Assistance in Criminal Matters 2000;2 and the evidence-freezing
provisions of the Council Framework Decision 2003/577/JHA of 22 July 2003.3
Chapter 4 of Part 1 also implements the 2001 Protocol to the EU Convention on Mutual
Assistance in Criminal Matters4 which creates obligations for participating countries to
respond to requests for assistance with locating banking accounts and to provide banking
information relating to criminal investigations.
Part 2: "Terrorist Acts and Threats: Jurisdiction': this part implements the Framework
Decision on Combating Terrorism, including the provisions relating to extra-territorial
jurisdiction in respect of listed offences, in SS 52 and 53.
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[A.7.57]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
Part 3: "Road Traffic': this part contains new provisions implementing the Convention
on Driving Disqualifications (ss 54-75) and to provide for the mutual recognition of
driving disqualifications within the UK (ss 76-79).
Part 4: Contains miscellaneous provisions.
1 See para A.7.19.
2 See para A.7.26.
3 See para A.7.31.
4 See para A.7.26.
(1) Commencement
A.7.57 Different parts of CICA 2003 have come into force at different times, and parts of it are not
yet in force.1 The Crime (International Co-operation) Act 2003 (Savings) Order 20042
contains detailed savings and transitional provisions.
1 See Crime (International Co-operation) Act 2003 (Commencement No 1) Order 2004 (SI 2004/786);
Crime (International Co-operation) Act 2003 (Commencement No 2) Order 2004 (SI 2004/2624);
Crime (International Co-operation) Act 2003 (Commencement No 3) Order 2006 (SI 2006/2811);
Crime (International Co-operation) Act 2003 (Commencement No 4) Order 2008 (SI 2008/3009);
Crime (International Co-operation) Act 2003 (Commencement No 5) Order 2009 (SI 2009/2605);
Crime (International Co-operation) Act 2003 (Commencement No. 6) Order 2014 (SI 2014/3192).
2 SI 2004/787.
(ii) Proceeds of Crime 2002 (External Requests and Orders) Order 2005¹
A.7.58 The POCA Order is made under the Proceeds of Crime Act 2002 (POCA). It enables the
UK to restrain assets at the request of foreign states and also to enforce external confiscation
orders. It also provides the machinery whereby foreign states can utilize civil restraint
powers akin to those contained in Part 5 of POCA.2
1 SI 2005/3181, as amended by the Proceeds of Crime Act 2002 (External Requests and Orders)
(Amendment) Order 2008 (SI 2008/302). The Proceeds of Crime Act 2002 (External Requests and
Orders) Order 2005 (England and Wales) (Appeals under Pt 2) Order 2012, SI 2012/138 makes
provisions corresponding to provisions (subject to specified modifications) in the Criminal Appeal Act
1968, which sets out the procedure to be followed for general domestic criminal appeals.
2 The absence of any extraterritorial reach in Pt 5 of POCA was considered and affirmed by the Supreme
Court in Perry " Serious Organised Crime Agency [2013] 1 AC 182. As a result, Pt 2 of Sch 18 to the Crime
and Courts Act 2013 amends Chapter 2 of Pt 5 of the POCA by inserting new SS 282B-F into POCA.
The new provisions facilitate the enforcement outside the UK of orders made under Chapter 2 of Pt 5
of POCA and the transmission of requests for evidence held outside the UK. These new provisions are
modelled on existing mutual legal assistance provisions in Chapter 2 of Pt 1 of the Crime (International
Co-operation) Act 2003 and $ 74 of POCA.
A.7.59 The POCA Order is considered in detail in para A.7.613.
(e) The UK Central Authority
A.7.60 The term 'central authority' refers to the government department within a jurisdiction that
acts as a central point for the transmission of incoming and outgoing requests for mutual
legal assistance in criminal matters and also the product of those requests.
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A. Introduction
[A.7.63-100]
Responsibility for mutual assistance in criminal matters in England and Wales lies with the A.7.61
Secretary of State for the Home Department. His functions under the legislation are in
practice exercised by the UK Central Authority. The address of the UK Central Authority is:
United Kingdom Central Authority
International Criminality Unit
Home Office
3rd Floor, Seacole Building
2 Marsham Street
London
SW1P 4DF
Tel: +44 207 035 4040
Fax: +44 207 035 6985
Email: UKCA-ILOR@homeoffice.gsi.gov.uk
The UK Central Authority's role in the mutual legal assistance process includes:
A.7.62
ensuring that requests for legal assistance conform with the requirements of law in the
relevant part of the UK and the UK's international obligations;
ensuring that execution of requests is not inappropriate on public policy grounds (for
example, requests involving double jeopardy will not be executed);
deciding how requests might most appropriately be executed (for example, some
requests asking for search and seizure of evidence may be executed effectively by a witness
producing the evidence to a court);
maintaining confidentiality of requests where necessary;
ensuring, so far as possible, that assistance is provided within an appropriate time scale
(for example, taking account of trial dates);
drawing to the attention of the courts, the police, and other UK authorities or agencies
requests for evidence to be obtained in the presence of foreign law enforcement officers,
prosecutors, or defence lawyers;
seeking requesting authorities' agreement to meet extraordinary costs of executing
requests and for services such as interpreters or stenographers or for duplication of
documents (ordinarily, the UK authorities, in accordance with established international
practice will meet costs, with the exception of TV/video link evidence);
transmitting evidence received to the requesting authorities when it is not returned
directly (and checking whether any part of the request remains outstanding).
The UK Central Authority also publishes the Mutual Legal Assistance Guidelines for the A.7.63-100
United Kingdom (12th edn, Home Office, March 2015) (the MLA Guidelines). The
MLA Guidelines are an essential source of information for anyone wishing to seek mutual
legal assistance from the UK, and any person in the UK seeking assistance from a foreign
state.
1 Available at <chttps://www.gov.uk/government/uploads/system/uploads/attachment_data/file/269208/
MLA_Guidelines_2014.pdf>.
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[A.7.101]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
A.7.101 The UK Central Authority does not have responsibility for judicial cooperation with
Scotland, the Channel Islands, the Isle of Man, or the British Overseas Territories. Relevant
contact points for these countries and territories are listed in the MLA Guidelines.
(f) The Serious Fraud Office
A.7.102 S 1(1) of the Criminal Justice Act 1987 constituted a Serious Fraud Office (SFO) for
England, Wales, and Northern Ireland. S 1(3) empowers the Director of the SFO to
investigate "any suspected offence which appears to him on reasonable grounds to involve
serious or complex fraud'.
A.7.103 The SFO's address is:
2-4 Cockspur Street
London
SW1Y 5BS
Tel: 020 7239 7272
Fax: 020 7084 4700
A.7.104 The SFO has a unit devoted to handling incoming international requests for mutual legal
assistance. The SFO may assist foreign authorities in cases of serious or complex fraud1
using its investigative powers under $ 2 of the Criminal Justice Act 1987.2 The SFO may
also provide assistance in restraint and confiscation matters under the POCA Order.3 To
receive this kind of help, the overseas authority must first make the request for assistance to
the UK Central Authority. If the UK Central Authority refers the case to the SFO it is for
the SFO to examine the request in detail to judge whether it can assist.
1 See Chapter A.1.
2 See ibid.
3 See ibid.
A.7.105 The SFO's MLA Unit can be contacted on telephone: +44 (0)20 7239 7380; fax: +44 (0)20
7833 5442; and email: mla@sfo.gsi.gov.uk.
(g) HM Revenue and Customs
A.7.106 HM Customs and Excise merged with the Inland Revenue on 18 April 2005 to form one
new government department: HM Revenue and Customs (HMRC).
A.7.107 Since 21 November 2013, MLA requests concerning direct tax (eg income tax, corporation
tax, capital gains tax, National Insurance contributions), in addition to indirect tax (eg
VAT on goods and services), evasion of duties (excise fraud) and importation and
exportation offences may now be sent directly to HMRC for execution.1
1 Crime (International Co-operation) Act 2003 (Exercise of Functions) Order 2013, SI 2013/2733,
which removed the previous restriction (see para 14 of Sch 52 to the Commissioners for Revenue &
Customs Act 2008; repealed by S 97 of the Criminal Justice and Immigration Act 2008) on the CICA
2003 applying to direct matters.
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A. Introduction
[A.7.111]
The relevant contact details are:
A.7.108
Criminal Law Advisory Team
HM Revenue and Customs Solicitor's Office
Room 2/74
100 Parliament Street
London
SW1A 2BQ
Tel: +44 (0)20 7147 0433
mla@hmrc.gsi.gov.uk
(h) UK Border Agency (UKBA)
The UKBA is responsible for the detection and prosecution of cross border crime in the UK. A.7.109
The UKBA deal with a high number of MLA requests as well as Mutual Administrative As-
sistance requests for intelligence. MLA requests to UKBA must be sent via the UK Central
Authority. The UKBA can receive intelligence requests directly, but only from countries
with which they have a data sharing agreement or memorandum of understanding.
UK Border Force Mutual Assistance Team
WG2 Customs House
Lower Thames Street
London
EC3R 6EE
Tel: +44 (0)870 785 7419/7699
Fax: +44 (0)870 785 3029
(i) The National Crime Agency
Not all mutual cooperation in the investigation of crime requires the involvement of the A.7.110
UK Central Authority. Although requests which require the UK to provide formal legal
assistance in the form of search warrants, etc, must in general be sent to the UK Central
Authority for processing in accordance with the CICA 2003 or other legislation,1 where
more informal investigative assistance is required then the authorities of the foreign state
may approach the UK directly via Interpol with a request to provide assistance.
1 But note the power of HMRC to process requests directly pursuant to Crime (International Co-
operation) Act 2003 (Exercise of Functions) Order 2013, SI 2013/2733.
The Serious Organised Crime and Police Act 2005 (SOCPA) created new law enforcement A.7.111
powers and established a new agency, the Serious Organised Crime Agency (SOCA).1
SOCA commenced work on 1 April 2006 and replaced the National Criminal Intelligence
Service and the National Crime Squad.2 It also took over the investigative work formerly
undertaken by the Revenue and Customs in so far as it relates to revenue fraud, subject to
the agreement of the Commissioners for Her Majesty's Revenue and Customs.3
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[A.7.112]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
1 SOCPA, S 1(1).
2 SOCPA, $ 1(3); NCIS and NCS (Abolition) Order 2006 (SI 2006/540). In April 2008 the Assets
Recovery Agency was merged with SOCA. See Serious Crime Act 2007, S 74.
3 SOCPA, S 2(4).
A.7.112 SOCA was abolished by Part 1 of the Crime and Courts Act 2013 (ss 1-16) and replaced
by the National Crime Agency (NCA), under the direction of a director general.
A.7.113 The NCA (previously SOCA) has an important role to play in mutual assistance matters.
It is the UK National Central Bureau of Interpol and the UK Liaison Bureau for Europol.
It has primary responsibility for processing requests for investigative help from overseas. S
8(3)-8(4) of the Crime and Courts Act 2013 provides that:
The Director General may provide assistance to-
(a) a government in a country or territory outside the British Islands, or
(b) another overseas body exercising functions of a public nature in a country or
territory outside the United Islands
if the government, or the body, requests assistance to be provided
If such a request if made, the Director General may provide such assistance as the
Director General considers appropriate in all the circumstances.¹
1 Note, however, S 8(5), which provides that S 8(3) does not apply to any request for assistance which could
be made under 13 CICA 2003 (requests by overseas authorities to obtain evidence), unless the NCA has
functions under that S in relation to the request by virtue of an order under S 27(2) (general power of
Secretary of State to delegate his functions to a designated body).
A.7.114 All formal requests for assistance must be sent to a central authority for consideration.
However, the MLA Guidelines confirm that this is subject to the following exceptions:
EU Freezing Orders for property must be sent to the relevant UK prosecuting authority
for the purposes of recognition and execution (except 'property related to terrorism
offences or investigations', which must be sent to a central authority);
EU Confiscation Orders must be sent to the relevant UK prosecuting authority for the
purposes of recognition and execution.1
1 MLA Guidelines, PP 4-5.
(j) Letters of request and commissions rogatoires
A.7.115 The terms 'letter of request' and 'letters rogatory' (or commission rogatoires) both refer to the
formal document sent from one state to another in order to seek mutual legal assistance.
Strictly speaking, a commission rogatoires is a document issued by a judicial authority of one
state to a foreign judicial authority seeking its assistance in a specified manner; however in
the UK the two terms have acquired a virtually synonymous meaning.1 Although the term
'letters rogatory' is used in Chapter II of the European Convention on Mutual Assistance
in Criminal Matters 1959,2 later instruments simply refer to a 'request' or 'letter of request',
and those are the terms which will be used in this chapter. A Letter of Request is the formal
written document by which MLA is requested in England and Wales; in French, it is called
a commission rogatoire, a term widely understood internationally. There is no requirement
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B. UK Requests to Foreign States for Assistance
[A.7.118]
that either of these expressions be used; the Crime (International Co-operation) Act 2003
speaks only of requests for assistance in obtaining evidence abroad.3
1 D McClean, International Cooperation in Civil and Criminal Matters (2012), 176.
2 ETS No 030.
3 S7.
B. UK Requests to Foreign States for Assistance
This $ examines the means by which UK prosecuting authorities and criminal defendants A.7.116
can seek the assistance of foreign authorities in relation to criminal investigations and
proceedings in the UK.¹ The majority of the relevant powers are contained in Part 1 of
CICA 2003. Sections 7 to 9 deal with requests to obtain evidence from abroad in relation
to a prosecution or investigation taking place in the UK.
1 Mutual Legal Assistance can also be of relevance in the context of disclosure in ongoing domestic
criminal proceedings. As to the nature and extent of the Crown's obligation to initiate MLA procedures
so as to fulfill its duty, under the CPIA 1996 and the Attorney General's Disclosure Guidelines, to
undertake all reasonable lines of inquiry, see R " Flook [2010] 1 Cr App R 30.
(a) Persons able to request assistance
(i) Requests by a judicial authority on the application of a prosecuting authority
or the defendant
Both prosecutors and defendants may apply to a court that it makes a request to a foreign A.7.117
state for assistance. CICA 2003, $ 7(1) provides that if it appears to a judicial authority in
the UK on an application made by a person mentioned in $ 7(3) that an offence has been
committed or that there are reasonable grounds for suspecting that an offence has been
committed, and that proceedings in respect of the offence have been instituted or that the
offence is being investigated, the judicial authority may request assistance under $ 7. The
assistance that may be requested is assistance in obtaining outside the UK any evidence
specified in the request for use in the proceedings or investigation (s 7(2)).
1 CICA 2003, $ 7(4) defines judicial authority, in relation to England and Wales, to be any judge or Justice
of the Peace (JP).
S 7(3) provides that the application may be made in relation to England and Wales and A.7.118
Northern Ireland, by a prosecuting authority,1 and, where proceedings have been insti-
tuted, by the person charged in those proceedings.²
1 In relation to Scotland, by the Lord Advocate or a procurator fiscal (s 7(3)(b)).
2 In relation to confidentiality, the UK Central Authority does not disclose letters of request to the
prosecution. However, the possibility that the foreign authority will do so, or will supply any evidence
gathered pursuant to the request to the prosecution, cannot be ruled out. Defence letters of request
should always make clear that the material sought is confidential to the defence.
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[A.7.119]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
A.7.119 Prosecuting agencies are also able to make requests for assistance directly to the foreign state
if they have been designated in an order by the Secretary of State. S 7(5) provides that in
relation to England and Wales or Northern Ireland, a designated prosecuting authority may
itself request assistance under $ 7 if it appears to the authority that an offence has been
committed or that there are reasonable grounds for suspecting that an offence has been
committed, and the authority has instituted proceedings in respect of the offence in
question or it is being investigated.
A.7.120 The following prosecuting authorities have been designated in the Crime (International
Co-operation) Act 2003 (Designation of Prosecuting Authorities) Order 20041 for the
purposes of S 7, and are thus able to make requests for assistance directly to foreign
authorities:
The Attorney General for England and Wales; the Attorney General for Northern
Ireland; the Financial Conduct Authority; the Bank of England; the Prudential
Regulation Authority; the Director of Public Prosecutions and any Crown Prosecu-
tor; the Director of Public Prosecutions for Northern Ireland; the Director of the
Serious Fraud Office and any person designated under S 1(7) of the Criminal Justice
Act 1987; the Environment Agency; the Secretary of State for Business, Energy and
Industrial Strategy; the Secretary of State for Health; the Secretary of State for
Transport and the Secretary of State for Work and Pensions.2
1
SI 2004/1034, as amended by SI 2004/1747; SI 2005/1130; SI 2009/2748; SI 2012/146,SI 2013/472
and SI 2016/992.
2 The Public Bodies (Merger of the Director of Public Prosecutions and the Director of Revenue and
Customs Prosecutions) Order 2014, SI 2014/834, Sch 3, para 15 (27 March 2014) removed the
Revenue and Customs following the Public Bodies Act 2011. The Secretaries of State for Business,
Energy and Industrial Strategy, for International Trade and for Exiting the European Union and the
Transfer of Functions (Education and Skills) Order 2016, SI 2016/992 Sch 1(2) para 29 (9 November
2016) amended the name of the Secretary of State for Business, Energy and Industrial Strategy.
A.7.121 S 7(7) provides that if a request for assistance under $ 7 is made in reliance on Art 2 of the
2001 Protocol1 to the EU Convention on Mutual Assistance in Criminal Matters2
(requests for information on banking transactions) in connection with the investigation of
an offence, the request must state the grounds on which the person making the request
considers the evidence specified in it to be relevant for the purposes of the investigation.3
1 OJ C 326, 21.11.2001. Art 2(1) provides: 'On request by the requesting State, the requested State shall
provide the particulars of specified bank accounts and of banking operations which have been carried out
during a specified period through one or more accounts specified in the request, including the particulars
of any sending or recipient account.'
2 OJ C 197, 12.07.2000, P 3.
3 Cf Art 2(4) of the 2001 Protocol.
(b) Meaning of 'evidence'
A.7.122 CICA 2003, S 7(2) refers to the request being for 'evidence for use in the proceedings or
investigation'. S 51(1) provides that 'evidence' includes 'information in any form and
articles, and giving evidence includes answering a question or producing any information
or article'. Thus the request for assistance need not be for admissible evidence.
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B. UK Requests to Foreign States for Assistance
[A.7.126]
(c) Procedure for obtaining a letter of request from a judicial authority
The application for a letter of request should be made to the court seized of the matter. A.7.123
Therefore, once the case has been committed, transferred, or sent to the Crown Court the
application should be made to that court.
The application should contain particulars of the offence which it is alleged has been A.7.124
committed or the grounds upon which it is suspected that an offence has been committed;
a statement of whether proceedings in respect of the offence have been instituted or the
offence is being investigated; and particulars of the assistance requested in the form of a
draft letter of request. The common law duty of candour and disclosure attaching to an
applicant for a domestic search warrant is not applicable, even in modified form, to an
authority requesting assistance by way of a letter of request under S 7 (R (Unaenergy Group
Holding Pte Ltd) v Director of the Serious Fraud Office [2017] 1 WLR 3302).
There are no general statutory provisions prescribing the contents of a letter of request;1 A.7.125
however, in order to be effective, the letter must be as specific as possible about the
circumstances of the case and the assistance required. The requested state will almost
certainly know little about the case save what is contained in the letter of request and it is
therefore necessary to explain as much about the case as possible and to indicate precisely
what assistance is required. S 2 of the MLA Guidelines contain detailed guidance on what
should be included in a letter of request.
1 However, Art 14 of the European Convention on Mutual Assistance provides that every request must
contain details of: (i) the authority making the request; (ii) the object of and the reason for the request;
(iii) where possible, the identity and nationality of the person concerned; (iv) the name and address of the
person to be served; (v) the offence involved and a summary of the facts. The content of some requests
for specialized assistance are prescribed in CICA 2003, see eg $ 43(6).
(d) Transmission of the request under the Crime (International Co-operation)
Act 2003, section 8¹
CICA 2003, $ 8(1) provides that a request for assistance under S 7 may be sent directly to A.7.126
a court exercising jurisdiction in the place where the evidence is situated or to any authority
recognized by the government of the country in question as the appropriate authority for
receiving requests of that kind.2
1 CICA 2003, $ 8 implements Art 6 of the EU Convention on Mutual Assistance in Criminal Matters.
This provides that requests for mutual assistance may be transmitted directly between judicial authorities
of Member States concerned, rather than through central authorities. Art 6(2) allows for transmission via
central authorities to continue in specific cases, and Art 6(3) allows for the UK and Ireland to continue
to route requests through a central authority.
2 Under the Criminal Justice (International Co-operation) Act 1990 direct transmission was only
permissible in urgent cases.
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[A.7.127]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
A.7.127 Rule 49.3 of the Criminal Procedure Rules 20151 provides that where a request for
assistance under $ 7 is made by a justice of the peace or a judge exercising the jurisdiction
of the Crown Court, and is sent in accordance with $ 8(1), the justices' clerk or the Crown
Court officer must send a copy of the letter of request to the Secretary of State as soon as
practicable after the request has been made.
1 SI 2015/1490, in force 5 October 2015.
A.7.128 S 8(2) provides that if it is a request by a judicial authority or a designated prosecuting
authority it may be sent to the Secretary of State1 for forwarding to the court or authority
mentioned in $ 8(1). Indirect transmission via the Secretary of State2 under $ 8(2) is
necessary if the requested country is not a Member State, if the executing authority is
unknown, or if Art 6(8) of the EU Convention on Mutual Assistance requires transmission
via the central authority.3 Art 6(8) requires that certain types of request for assistance,
including requests for the temporary transfer of prisoners and notices of information from
judicial records,4 be made through Members States' central authorities.
1 In Scotland, the Lord Advocate.
2 In practice, the UK Central Authority.
3 See the Explanatory Notes to CICA 2003, para 40.
4 Cf European Convention on Mutual Assistance in Criminal Matters, Art 22.
A.7.129 S 8(3) implements Art 6(4) of the EU Convention on Mutual Assistance and provides that
in cases of urgency, a request for assistance may be sent to the International Criminal Police
Organisation (Interpol), or any body or person competent to receive it under any
provisions adopted under the Treaty on European Union, for forwarding to any court or
authority mentioned in $ 8(1).2
1 The NCA is the UK's National Bureau of Interpol.
2 Ie, Eurojust, established under Title VI of the Treaty on European Union.
(e) Execution of the request and transmission of the evidence to the UK
A.7.130 Once the letter has been transmitted, responsibility for its execution lies with the relevant
authorities in the requested state.¹ Mutual legal assistance treaties place obligations on
signatories to comply with requests for assistance. Art 1 of the European Convention on
Mutual Assistance requires signatories to provide 'the widest measure of mutual assistance',
and Art 3 requires signatories to execute any letter of request in the manner provided for
by its law'.
1 See generally R " I [2008] EWCA Crim 3062.
2 Para 5(1) of the Harare Scheme provides that the requested country shall 'take all reasonable steps to
ensure that the request is complied with expeditiously'.
A.7.131 Mutual assistance treaties generally provide discretionary grounds for refusing to provide
assistance. For example, Art 2 of the European Convention on Mutual Assistance in
Criminal Matters permits a requested state to refuse assistance if the request concerns an
offence which it considers to be a political offence, an offence connected with a political
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B. UK Requests to Foreign States for Assistance
[A.7.134]
offence,1 or a fiscal offence; or where execution of the request is likely to prejudice the
sovereignty, security, ordre public, or other essential interests of the requested state.
1 R v Secretary of State for the Home Department ex P Fininvest Spa [1997] 1 WLR 743, 758-64.
Where assistance is refused then mutual assistance treaties generally require reasons to be A.7.132
given.¹ Art 4(3) of the EU Convention on Mutual Assistance in Criminal Matters provides
that if the request cannot, or cannot fully, be executed in accordance with the requirements
set by the requesting Member State, the authorities of the requested Member State must
inform the requesting Member State and indicate the conditions under which it might be
possible to execute the request.
1 Eg European Convention on Mutual Assistance, Art 19; EU Convention on Mutual Assistance, Art
4(3); Commonwealth Scheme, para 5(2)(b).
(f) Permitted use, admissibility, and return of the evidence
(i) Restrictions on collateral use
CICA 2003, S 9, applies to evidence obtained pursuant to a request for assistance under S A.7.133
7. 9(2) limits the use to which the evidence can be put in the UK. The evidence may not,
without the consent of the "appropriate overseas authority', be used for any purpose other
than that specified in the request.¹ The appropriate overseas authority means the authority
recognized by the government of the country in question as the appropriate authority for
receiving requests of the kind in question (s 9(6)).
1 This rule is analogous to the specialty rule in extradition law.. For a discussion of the relevant principles
see R " [2008] EWCA Crim 3062. See also XYZ " Revenue and Customs Comrs [2010] EWHC 1645
(Ch), Megantic v HMRC [2011] STC 1000, and Crown Prosecution Service " Gohil [2013] Fam 276.
The effect of this provision is to render inadmissible in evidence material obtained under A.7.134
7 in any criminal investigations or proceedings other than those materials explicitly
specified in the letter of request. S9 also renders evidence so obtained inadmissible in civil
proceedings.2 The prohibition on onward use also includes onward disclosure.3 The
prohibition continues notwithstanding that evidence is adduced in open court in the
United Kingdom.4 However, once the materials are adduced in open court, $ 9 does permit
the information so adduced to be used by others as a springboard for conducting
independent enquiries with a view to obtaining evidence.5
1 Gooch [1999] 1 Cr App R (S) 283. It is not, however, necessary for evidence to be obtained pursuant to
a mutual legal assistance request in order for it to be admissible in proceedings in the UK. The Crime
(International Cooperation) Act 2003 (and related international agreements) are enabling in their
nature; in other words, they simply provide a mechanism through which the UK is able formally to seek
assistance. They do not operate to preclude countries from providing material on other bases, nor is there
any bar to the UK authorities seeking evidence via less formal means: see, eg. R v Redmond [2009] 1 Cr
App R 25 at para 25 in particular. See, to similar effect, R (Akarcay) v Chief Constable of West Yorkshire
[2017] EWHC 159 (Admin).
2 Authority to the contrary (BOC Ltd and another v Instrument Technology Ltd and others [2002] QB 537)
was held in Crown Prosecution Service v Gobil [2013] Fam 276 to have been decided per incuriam.
3 Crown Prosecution Service v Gobil [2013] Fam 276, para 38.
4 Gooch [1999] 1 Cr App R (S) 283; Crown Prosecution Service v Gobil [2013] Fam 276 para 40.
5 Crown Prosecution Service v Gobil [2013] Fam 276, para 41.
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[A.7.135]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
(ii) Admissibility
A.7.135 The fact that evidence has been obtained pursuant to a request under CICA 2003, S 7 does
not per se render it automatically admissible at that trial; the normal rules of evidence
continue to apply. Therefore, hearsay evidence will be inadmissible unless one of the
common law exceptions to the hearsay rule is applicable¹ or the hearsay provisions in the
Criminal Justice Act 2003 apply.2 S 117 of the 2003 Act governs the admissibility of
statements made in business documents. If a statement was obtained pursuant to a request
for assistance under S 7 of CICA 2003 (or, inter alia, under Part 2 of the Criminal Justice
(European Investigation Order) Regulations 2017) then by virtue of S 117(4)(b) the
conditions in $ 117(5) do not need to be satisfied.
1 For example, see Radak [1999] 1 Cr App R 187.
2 See Chapter C.2.
(iii) Return of evidence to the requested state
A.7.136 When the evidence is no longer required for that purpose specified in the request (or for any
other purpose for which such consent has been obtained), it must be returned to the
appropriate overseas authority, unless that authority indicates that it need not be returned
(s 9(3)).1
1 Cf European Convention on Mutual Assistance in Criminal Matters, Art 6(2); the Harare Scheme, para
31(3).
(g) Hearing witnesses abroad by television link
A.7.137 An alternative to requiring a witness to travel from abroad is the use of television links.1
Outgoing requests from the UK are currently covered by the provisions contained in $ 32
of the Criminal Justice Act 1988, which allow the use of video links in UK domestic
proceedings in limited circumstances. S 32(1)(a) provides that, with the leave of the court,
a person other than the accused may give evidence through a live television link in
proceedings to which S 32(1A) applies if the witness is outside the UK. Telephone evidence
is not permissible.² These proceedings are trials on indictment; appeals to the Court of
Appeal (Criminal Division); hearings of references under S 9 of the Criminal Appeal Act
1995; proceedings in youth courts; appeals to the Crown Court arising out of such
proceedings; hearings of references under $ 11 of the Criminal Appeal Act 1995 so arising
and, from 22 July 2013, proceedings under the Extradition Act 2003.
1 See for example Art 10(1) of the EU Convention on Mutual Assistance in Criminal Matters. This general
provision is subject to the limitations and restrictions in Art 10(2)-(8).
2 R v Diane (Hammala) [2010] 2 Cr App R 1, CA. Cf. SS 31-31 of CICA which permits television and
telephone links for a witness based in the United Kingdom giving evidence in foreign proceedings. See
further below at paras 7.426 et seq. See also Art 11(1) of the EU Convention on Mutual Assistance in
Criminal Matters 2000 in relation to witnesses and experts.
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B. UK Requests to Foreign States for Assistance
[A.7.141]
S 29(1) of the Crime (International Co-operation) Act 2003 provides that the Secretary of A.7.138
State may by order provide for S 32(1A) of the Criminal Justice Act 1988 (proceedings in
which evidence may be given through television link) to apply to any further description of
criminal proceedings, or to all criminal proceedings. Thus, the $ makes provision for the
Secretary of State to extend the use of television links to other types of proceeding.¹
1 See the Evidence Through Television Links (England and Wales) Order 2013, SI 2013/1598, extending
the application of S 32(1A) to proceedings under the Extradition Act 2003.
Where such evidence is given under oath the evidence is treated for the purposes of $ 1 of A.7.139
the Perjury Act 1911 as if it had been given in the proceedings in the UK.1
1 Criminal Justice Act 1988, S 32(3); Forsyth (Elizabeth) [1997] 2 Cr App R 299.
(h) Requests to foreign states to freeze evidence1
The paras that follow examine CICA 2003, SS 10-12, which provide for the making, A.7.140
transmission, and varying of domestic freezing orders made in the UK and sent abroad for
execution.2 These sections implement the Council Framework Decision on the execution
in the EU of orders freezing property or evidence (referred to in this $ as the Freezing
Framework Decision).³
1 In force from 19.10.09, SI 2009/2605.
2 By CICA 2003, $ 51(1), 'evidence' includes 'information in any form and articles, and giving evidence
includes answering a question or producing any information or article'.
3 2003/577/JHA, 22 July 2003; OJ L 196, 2.08.2003.
A domestic freezing order is an order for protecting evidence1 which is in a 'participating A.7.141
country' pending its transfer to the UK (s 10(2)). A participating country is Denmark or
the Republic of Ireland and any other country designated by an order made by the Secretary
of State or, in relation to Scotland, the Scottish Ministers (s 51(2)).2
1 Sch 4 to CICA 2003 deals with orders to freeze terrorist assets, but orders to freeze property are not
otherwise covered by the Act.
2 For proceedings in England, Wales, and Northern Ireland, under $ 51(2)(b), following ratification of the
Second Additional Protocol of the European Convention on Mutual Legal Assistance in Criminal
Matters: Austria, Belgium, Croatia, France, Germany, Greece, Italy, Luxembourg, Netherlands, Portu-
gal, Spain, and Sweden are designated for the purposes of ss 4 and 4B of CICA 2003 (SI 2017/730).
Albania, Bosnia and Herzegovina, Cyprus, the Czech Republic, Estonia, the Former Yugoslav Republic
of Macedonia, Hungary, Israel, Latvia, Lithuania, Malta, Montenegro, Poland, Serbia, Slovakia, and
Slovenia are designated for the purposes of ss 4, 4B, 31, 47, and 48 of, and para 15 of Sch 2 to, CICA
2003 (SI 2009/613; SI 2010/36). Bulgaria, Romania, and Switzerland are designated for the purposes of
ss 4, 4B, 31, 32, 35, 43, 44, 45, 47, and 48 of, and para 15 of Sch 2 to, CICA 2003 (SI 2009/613; SI
2009/1764; SI 2010/36). Iceland and Norway are designated for the purposes of ss 31, 32, 35, 43, 44,
45, 47, and 48 of, and para 15 of Sch 2 to, CICA 2003 (SI 2009/1764). Japan and the USA are
designated for the purposes of SS 32, 35, 43, 44, and 45 of CICA 2003 (SI 2008/2156; SI 2011/229).
Armenia, Chile, and Ukraine are designated as participating countries for the purposes of SS 31, 47, and
48 of, and para 15 of Sch 2 to, CICA 2003 (SI 2013/296). For proceedings in Scotland, designation
orders in respect of all of the above countries are in force (SI 2008/264; SI 2009/106; SI 2009/206;
SI/2009/441; and SI 2011/7).
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[A.7.142]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
A.7.142 Sched 4 to CICA 2003 contains amendments to Sched 4 to the Terrorism Act 2000 which
provide for mutual recognition of freezing orders in relation to terrorist property which
gives further effect to Council Framework Decision 2003/577/JHA of 22 July 2003 in
respect of terrorist investigations.
1 See generally above at para A.7.31.
(i) Conditions for issuing a domestic freezing order
A.7.143 Under $ 10(2), a domestic freezing order is an order for protecting evidence which is in the
participating country pending its transfer to the United Kingdom. If it appears to a judicial
authority in the UK,1 on an application made by a person mentioned in CICA 2003, $
10(4), that proceedings in respect of a listed offence2 have been instituted or such an
offence is being investigated; that there are reasonable grounds to believe that there is
evidence in a participating country which satisfies the requirements of S 10(3); and that a
request has been made, or will be made, under S 7 for the evidence to be sent to the
authority making the request, the judicial authority may make a domestic freezing order in
respect of the evidence.
1 The judicial authorities are, in relation to England and Wales, any judge or JP; in relation to Scotland,
any judge of the High Court or sheriff; in relation to Northern Ireland, any judge or resident magistrate
(s 10(5)).
2 A listed offence means an offence described in Art 3(2) of the Freezing Framework Decision, or an
offence prescribed or of a description prescribed by an order made by the Secretary of State (s 28(5)).
A.7.144 S 10(4) provides that the application may be made in relation to England and Wales and
Northern Ireland, by a constable,¹ and in relation to Scotland, by the Lord Advocate or a
procurator fiscal.
1 CICA 2003, S 27(1)(b) provides that the Treasury may make an order in relation to England and Wales
and Northern Ireland for any function conferred on a constable under various provisions including S 10
to be exercisable instead in prescribed circumstances by an officer of Revenue and Customs or a person
acting under his direction. The Crime (International Co-operation) Act 2003 (Exercise of Functions)
Order 2013, SI 2013/2733 has been made under $ 27.
A.7.145 The requirements of 10(3) are that the evidence is on premises specified in the application
in the participating country; that it is likely to be of substantial value (whether by itself or
together with other evidence) to the proceedings or investigation; that it is likely to be
admissible in evidence at a trial for the offence; and that it does not consist of or include
items subject to legal privilege.
A.7.146 S 10 does not prejudice the generality of the power to make a request for assistance under
$ 7 (s 10(6)).
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B. UK Requests to Foreign States for Assistance
[A.7.203]
(ii) Transmission of the domestic freezing order
CICA 2003, $ 11 is headed "Sending freezing orders'. A domestic freezing order made in A.7.147
England and Wales or Northern Ireland must be sent by the judicial authority which made
it within 14 days1 to the Secretary of State2 for forwarding to a court exercising jurisdiction
in the place where the evidence is situated, or any authority recognized by the government
of the country in question as the appropriate authority for receiving orders of that kind
(s 11(1)).
1 CICA 2003, S 11(3).
2 In Scotland, the order must be sent to the Lord Advocate (s 10(2)).
The order must be accompanied by a certificate giving the specified information and, A.7.148-200
unless the certificate indicates when the judicial authority expects such a request to be
made, by a request under 7 for the evidence to be sent to the authority making the request
(s 11(4)).
S 28(7) defines 'specified information' to be any information required to be given by the A.7.201
form of certificate annexed to the relevant Framework Decision, or any information
prescribed by an order made by the Secretary of State. The Annex to the Council
Framework Decision specifies a standard form for the certificate. It includes details of the
judicial authority issuing the freezing order, the transmitting central authority and the
executing authority; a precise description of the location of the evidence; details of
the person suspected of having committed the offence; the action to be taken by the
executing state after the freezing order has been executed; a summary of the grounds for
issuing the order and the facts; and identification of the category which the offence falls
into and a statement that is punishable by custodial sentence for at least three years.
The certificate must include a translation of it into an appropriate language of the A.7.202
participating country (if that language is not English) (s 11(5)). The certificate must be
signed by or on behalf of the judicial authority who made the order and must include a
statement as to the accuracy of the information given in it (s 11(6)). The signature may be
an electronic signature.
(iii) Amending or revoking a freezing order
S 12 provides that the judicial authority that made a domestic freezing order may vary or A.7.203
revoke it on an application by the person who applied for the order; in relation to England
and Wales and Northern Ireland, a prosecuting authority; in relation to Scotland, the Lord
Advocate; and any other person affected by the order.
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[A.7.204]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
(i) Requests for foreign bank information
A.7.204 Chapter 4 of Part 1 of CICA 2003 deals with disclosure of banking information in
connection with criminal investigations. It implements the 2001 Protocol to the EU
Convention on Mutual Assistance in Criminal Matters.2 Requests for bank transaction
information can generally relate to one of two things: (i) foreign bank account information,
or (ii) the monitoring of banking transactions. This section examines how, and when,
requests for overseas banking information can be made by the UK to foreign countries.
1 There are separate powers available to the Director General of the NCA under POCA in relation to
confiscation investigations.
2 OJ C 326, 21.11.2001, P 1. See also the Explanatory Report to the Protocol to the 2000 Convention on
mutual assistance in criminal matters between the Member States of the European Union, OJ C 257,
24.10.2002, P 1.
(i) Requests for information about a person's bank account (Crime (International
Co-operation) Act 2003, section 43)
A.7.205 CICA 2003, $ 43 sets out the circumstances in which a request for information about an
individual's bank account can be made to a foreign state.
A.7.206 S 43(1) provides that if it appears to a judicial authority1 in the UK, on an application made
by a prosecuting authority, that a person is subject to an investigation in the UK into
serious criminal conduct;2 that the person holds, or may hold, an account at a bank which
is situated in a participating country;3 and the information which the applicant seeks to
obtain is likely to be of substantial value for the purposes of the investigation, the judicial
authority may request assistance under this section.
1 The judicial authorities are, in relation to England and Wales, any judge or JP; in relation to Scotland,
any sheriff; in relation to Northern Ireland, any judge or resident magistrate (s 43(2)).
2 'Serious criminal conduct is defined by CICA 2003, $ 46(3) to be conduct which constitutes an offence
to which Art 1(3) of the 2001 Protocol applies, or an offence specified in an order made by the Secretary
of State, or, in relation to Scotland, the Scottish Ministers for the purpose of giving effect to any decision
of the Council of the European Union under Art 1(6).
3 For the meaning of participating country' see CICA 2003, $ 51(2).
A.7.207 If it appears to a prosecuting authority mentioned in $ 43(4) that the conditions in $
43(1)(a) to (c) are met, the authority may itself request assistance under $ 43. The
prosecuting authorities mentioned in $ 43(4) are in relation to England and Wales and
Northern Ireland, a prosecuting authority designated by an order made by the Secretary of
State, and in relation to Scotland, the Lord Advocate or a procurator fiscal.
A.7.208 The assistance that may be requested under S 43 is any assistance in obtaining from a
participating country one or more of the following (s 43(5)):
information as to whether the person in question holds any accounts at any banks
situated in the participating country;
details of any such accounts;
details of transactions carried out in any period specified in the request in respect of any
such accounts.
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B. UK Requests to Foreign States for Assistance
[A.7.215]
S 43(6) provides that a request for assistance under $ 43 must state the grounds on which A.7.209
the authority making the request thinks that the person in question may hold any account
at a bank which is situated in a participating country and (if possible) specify the bank or
banks in question; state the grounds on which the authority making the request considers
that the information sought to be obtained is likely to be of substantial value for the
purposes of the investigation, and include any information which may facilitate compli-
ance with the request.
For the purposes of $ 43, a person holds an account if the account is in his name or is held A.7.210
for his benefit, or he has a power of attorney in respect of the account (s 43(7)).
(ii) Monitoring banking transactions (Crime (International Co-operation)
Act 2003, section 44)
CICA 2003, S 44 governs requests for the monitoring of banking transactions. It imple- A.7.211
ments Art 3 of the 2001 Protocol for the purpose of outgoing requests from the UK to
other participating countries to monitor transactions conducted on a specified account or
accounts.
S 44(1) provides that if it appears to a judicial authority1 in the UK on an application made A.7.212
by a prosecuting authority, that the information which the applicant seeks to obtain is
relevant to an investigation in the UK into criminal conduct, the judicial authority may
request assistance (CICA 2003, S 44).
1
The judicial authorities are, in relation to England and Wales, any judge or JP; in relation to Scotland,
any sheriff; in relation to Northern Ireland, any judge or resident magistrate (CICA 2003, $ 44(2)).
S 44(3) and S 44(4) are identical to $ 43(3) and $ 43(4) and permit designated prosecuting A.7.213
authorities to make requests for assistance directly.
The assistance that may be requested under $ 44 is any assistance in obtaining from a A.7.214
participating country details of transactions to be carried out in any period specified in the
request in respect of any accounts at banks situated in that country.
(iii) Sending requests under the Crime (International Co-operation) Act 2003,
sections 43 and 44
Requests for assistance under CICA 2003, SS 43 or 441 are to be sent to the Secretary of A.7.215
State for forwarding to a court specified in the request and exercising jurisdiction in the
place where the information is to be obtained, or to any authority recognized by the
participating country in question as the appropriate authority for receiving requests for
assistance of the kind to which this S applies (s 45(1)). In cases of urgency the request may
be sent directly to the court (s 45(2)).
1 Other than Scottish requests: see CICA 2003, $ 45(3) and (4).
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[A.7.216]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
C. Requests by Foreign States to the UK for Assistance
in Providing Evidence
(a) Introduction
A.7.216 This section considers the relevant principles where the assistance requested from the UK
involves the provision of evidence and information, including banking information.
Provisions relating to restraint, confiscation, and forfeiture are considered later in this
chapter.¹
1 See para A.7.612.
(b) Requests from foreign states for assistance in obtaining evidence
A.7.217 This section examines the methods by which the UK grants assistance in obtaining
evidence for use in criminal proceedings or investigations abroad.1 The scheme for
compelling evidence for use outside the jurisdiction is exclusively statutory under CICA
2003. Therefore, where Norwich Pharmacal proceedings were brought to obtain evidence
(as distinct from information2) for use overseas in criminal proceedings, it was held in R
(Omar) v Secretary of State for Foreign and Commonwealth Affairs3 that the UK courts have
no jurisdiction to order the provision of such evidence. The CICA 2003 regime accords
ministerial discretion, the confinement of requests to foreign courts and prosecuting
authorities, national security4 and Crown servant exemptions a paramountcy which the
common law remedy does not. The differences are so substantial that Parliament could not
have intended that the common law remedy should survive the introduction of CICA
2003. Had Norwich Pharmacal proceedings been permissible in principle, $ 13(2) CICA
2003 would have required either the foreign prosecutor or the court to make an application
to the UK. No request having been made to the foreign court, no foreign court had asked
the UK to assist. It is an integral part of the CICA 2003 statutory scheme that assistance is
sought by the requesting court.5 To permit the proceedings to proceed without a request
from a foreign court would evade this principal requirement of the CICA 2003 statutory
regime. In deciding whether to make a request to the UK, the foreign court would have to
consider the submissions of the foreign government as a party to its proceedings; which
process should not be circumvented. In any event, the Court also held that it would not be
in the interests of comity to entertain the application when a deliberate decision had been
made not to make an application in the foreign court and the fairness of the foreign court
had not been called into question.
1 The UK can also provide assistance in relation to administrative and clemency proceedings, which are
defined in CICA 2003, $ 51(1). These are not covered in this chapter.
2 Although the Court of Appeal held that the distinction was immaterial: [2014] QB 112, para 12.
3 [2013] EWCA Civ 118.
4 See, eg. Al Fawwaz v Secretary of State for the Home Department [2015] EWHC 468 (Admin).
5 See para A.7.222.
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C. Requests by Foreign States to the UK
[A.7.222]
The principal provisions are contained in Chapter 2 of Part 1 of CICA 2003. Processing A.7.218
such a request for assistance under CICA1 involves essentially three stages:
assessment of the request and determination of the most appropriate method of giving
effect to it;
execution of the request;
transmission of the evidence.
1
It should be noted that there exists legal authority for intelligence sharing outside the CICA regime in S
1(5) of the Crime and Courts Act 2013 (previously S 3 of the Serious Organised Crime and Police Act
2005 and previously S 2 of the Police Act 1997). Therefore, the voluntary provision of intelligence to
foreign law enforcement agencies does not offend CICA, nor the Human Rights Act, even where that
information is subsequently used to seek extradition from the United Kingdom: H " Lord Advocate 2011
SCL 978.
(i) Incoming requests for assistance: initial steps
CICA 2003, S 13 provides that where a request for assistance in obtaining evidence in a part A.7.219
of the UK is received by the 'territorial authority' for that part of the UK, the authority may:
if the conditions in S 14 are met, arrange for the evidence to be obtained under S 15, or
direct that a search warrant be applied for under or by virtue of SS 16 or 17.¹
1 Or, in relation to evidence in Scotland, S 18.
S 28(9) defines the 'territorial authority' in relation to evidence in England and Wales or A.7.220
Northern Ireland as the Secretary of State, and in relation to Scotland as being the Lord
Advocate.1
1 Although the EU Convention on Mutual Assistance in Criminal Matters allows for direct transmission
of requests (see Art 6(3)) the Explanatory Notes to CICA 2003, para 53, explain why the UK decided to
opt out of direct transmission for incoming requests: "Direct transmission is difficult to apply in our
domestic system where jurisdiction is based largely on function rather than geography, and where the
same authorities are not necessarily competent to both issue and execute letters of request. Misdirection
of requests sent directly to the wrong authority would create delays, defeating the purpose of direct
transmission which is to speed up the process.'
S 27(1)(a) states that the Treasury may by order provide, in relation to England and Wales A.7.221
or Northern Ireland, that the territorial authority's functions under various sections of
CICA 2003, including SS 13-15, are to be exercisable instead in prescribed circumstances
by the Commissioners of Customs and Excise. In exercise of this power the Treasury has
made the Crime (International Co-operation) Act 2003 (Exercise of Functions) Order
2013.1
1 SI 2013/2733.
(1) The overseas authorities which may request assistance
S 13(2) provides that the request for assistance may be made only by a court exercising A.7.222
criminal jurisdiction, or a prosecuting authority, in a country outside the UK; any other
authority in such a country which appears to the territorial authority to have the function
of making such requests for assistance;¹ or any international authority mentioned in S
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[A.7.223]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
13(3), namely, the International Criminal Police Organisation (Interpol) or any other body
or person competent to make a request of the kind to which this $ applies under any
provisions adopted under the Treaty on European Union (ie Eurojust).2 For the purposes of
$ 13(2)(a), a 'prosecuting authority' does not mean a prosecuting authority with the
requisite authority to transmit a request for assistance. An entity either is or is not a
prosecuting authority'. If it is, it does not cease to be a 'prosecuting authority' because of a
challenge (successful or otherwise) to its competence in issuing any particular request for
assistance. A prosecutor which lacked authority under the law of the requesting state to
issue the letter or request remained a prosecuting authority for the purposes of $ 13(2)
CICA 2003.3 However, as discussed below,4 'obvious unlawfulness' under the law of the
requesting state remains a matter relevant to the exercise of the Secretary of State's
discretion.
1 eg. examining magistrates, see Government Explanatory Notes to CICA 2003, para 51.
2 Government Explanatory Notes to CICA 2003, para 51.
3 JP Morgan Chase Bank National Association " Director of the Serious Fraud Office [2012] Lloyd's Rep FC
655, para 56.
4 See para Morgan Chase Bank National Association " Director of the Serious Fraud Office [2012]
Lloyd's Rep FC 655, para 66.
(2) The decision whether or not to grant assistance: general
A.7.223 In all cases the territorial authority must be satisfied that the request for assistance can
properly be described as a request for obtaining 'evidence' and thus that it falls within CICA
2003, $ 13(1). However having regard to the broad definition of evidence in S 51(1) it is
unlikely that a request for assistance will fail for this reason.¹ The Secretary of State must,
however, satisfy himself that a request is not ambiguous or lacking in precision.²
1 Cf R v Secretary of State for the Home Department ex P Fininvest Spa [1997] 1 WLR 743, 753; Morgan
Chase Bank National Association v Director of the Serious Fraud Office [2012] Lloyd's Rep FC 655, para
29. Concerns were expressed during the debates on the Crime (International Co-operation) Bill about
the risk of 'fishing expeditions' which might arise as a result of the absence of statutory provisions
limiting the use that requesting states can make of evidence supplied to them under SS 14 to 19 of the Act
(unlike S 9, which restricts the use that can be made in the UK of requested evidence to the purpose
specified purpose): see HL Deb 25 February 2003, col 166.
2 R (Hafner) " Secretary of State for the Home Department [2007] 1 WLR 150, para 33.
A.7.224 The territorial authority must then determine whether the statutory conditions in CICA
2003 for the grant of assistance are satisfied. If they are, the authority must then decide
whether it is appropriate for the UK to grant assistance. The territorial authority has a
discretion whether to grant assistance. In exercising this discretion the territorial authority
must take into account any relevant treaty grounds for refusing assistance.¹ A decision
whether or not to grant assistance is amenable to judicial review.2
1 R v Secretary of State for the Home Department ex P Fininvest Spa [1997] 1 WLR 743, 758.
2 R (Hafner) " Secretary of State for the Home Department [2007] 1 WLR 150. para 28. It is not however for
the High Court to assume or arrogate to itself the role of decision maker. It is only for the High Court to
intervene if, on well-recognised grounds, relief by way of judicial review should be granted: JP Morgan
Chase Bank National Association v Director of the Serious Fraud Office [2012] Lloyd's Rep FC 655, para
55.
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C. Requests by Foreign States to the UK
[A.7.225]
Thus the fact that statutory conditions for the grant of assistance are satisfied does not A.7.225
necessarily compel the territorial authority to grant assistance. The grant of assistance is an
exercise of the power of the State. The UK executing authority has a discretion whether to
grant assistance.¹ There may be rare cases where it is not appropriate to do so.2 The ambit
of the discretion is, however, informed by the policy of mutual assistance underlying CICA
2003, together with the reality of what the Secretary of State is equipped and resourced to
do.3 As the High Court has observed, the process is not a trial; it leads only to the
transmission of evidence to the requesting state where, if it is to be used, one can assume
that the criminal defendant will have the opportunity of answering it. Secondly, such
requests are made by friendly, foreign countries with which the UK has treaty or similar
obligations of mutual cooperation. The expectation is therefore that the UK will comply
with the request unless there are "compelling reasons' for not doing so and will do so as
quickly as possible. Any requirement of procedural fairness must be fashioned with those
considerations firmly in mind.4 The mere fact that evidence obtained under a letter of
request would be made available to third parties in the requesting state is not of itself a
compelling reason.5 Neither is mere delay, proportionality, or asserted futility.6 Relevant
"compelling reasons' do include,7 but are however not limited to those instances enumer-
ated in the applicable Convention.8 Other considerations include whether the requesting
state has acted in good faith in the interests of justice,9 and whether there are particular
factors making assistance inappropriate, for example, if a person affected by the request has
already been tried for the alleged offence.10 It would also generally be wrong for the
Secretary of State to exercise the discretion in favour of answering a request when it was
"obviously unlawful' in the sense that it was undisputed or incapable of being properly
disputed that the request was made unlawfully according to the law of the requesting state.
It will however only be possible to establish this where there exists no, or no room for
proper, dispute as to the unlawfulness in question on the evidence. Otherwise, it is not the
function of the Secretary of State to determine genuine and live rival contentions of foreign
law.11
1 These principles are not limited to assistance granted under $ 13. Ismail " Secretary of State for the Home
Department [2016] 1 WLR 2814, SC concerned a request for assistance in serving an overseas judgment,
pursuant to $ 1 CICA 2003.
2 In R " Central Criminal Court ex P Propend Finance Property Limited [1996] 2 Cr App R 26, 33.
3 JP Morgan Chase Bank National Association " Director of the Serious Fraud Office [2012] Lloyd's Rep FC
655, paras 49-52. See Ismail v Secretary of State for the Home Department [2016] 1 WLR 2814, SC, in the
context of a request for assistance in serving an overseas judgment, pursuant to $ 1 CICA 2003
4 R (Abacha) " Secretary of State for the Home Department [2001] EWHC 787 (Admin), para 17;JP Morgan
Chase Bank National Association " Director of the Serious Fraud Office [2012] Lloyd's Rep FC 655, para
51. However, see Ismail v Secretary of State for the Home Department 2016] 1 WLR 2814, para 26, In the
context of a request for assistance in serving an overseas judgment, pursuant to S 1 CICA 2003, the Act
provides a power and not an obligation to effect service of foreign process and it was therefore
contemplated that there would be circumstances in which service would not be appropriate.
5 JP Morgan Chase Bank National Association " Director of the Serious Fraud Office [2012] Lloyd's Rep FC
655, para 58.
6 JP Morgan Chase Bank National Association " Director of the Serious Fraud Office [2012] Lloyd's Rep FC
655, para 59.
7 R v Secretary of State for the Home Department ex P Fininvest Spa [1997] 1 WLR 743.
8 JP Morgan Chase Bank National Association " Director of the Serious Fraud Office [2012] Lloyd's Rep FC
655, para 53.
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[A.7.226]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
9 Inferences of bad faith will not be drawn lightly: JP Morgan Chase Bank National Association v Director
of the Serious Fraud Office [2012] Lloyd's Rep FC 655, para 60. It is not however necessary for a
defendant to prove bad faith: ibid, para 53.
10 (Abacha) " Secretary of State for the Home Department [2001] EWHC 787 Admin. In R v Bow Street
Magistrates Court ex P Zardari, Unreported, 29 April 1998 (CO/1593/98) the applicant alleged that
material had come to light since the court was nominated under S 4(2) which showed that the
Government of Pakistan had lied in the letter of request. Latham J held that although the court had no
jurisdiction to decline to give effect to the request on the grounds of abuse of process, this was material
which the Secretary of State should take into account before making a nomination. Further, if the
material only came to light after a nomination had been made, he held it was arguable that the Secretary
of State had the power to retract a nomination.
11 JP Morgan Chase Bank National Association " Director of the Serious Fraud Office [2012] Lloyd's Rep FC
655, paras 53, 63-70, 72. See also Malabu Oil and Gas Ltd " Director of Public Prosecutions [2016] Lloyd's
Rep FC 108.
A.7.226 In taking the decision whether to grant assistance the territorial authority is under a duty to
act lawfully, rationally, and in a procedurally fair way. In particular, the territorial authority
is a public authority for the purposes of S 6(1) of the Human Rights Act 1998 and so must
act compatibly with the Convention rights of any person likely to be affected by the grant
of assistance. A grant of assistance may, for example, involve the infringement of a person's
privacy rights under Art 8(1)1 and so need to be justified under Art 8(2). It may also raise
issues about the fairness of any trial in the requesting state, in cases of past or prospective
flagrant denial of justice.2 Accordingly, the territorial authority is required to assess the
circumstances of each request to ensure that the measures it authorizes are both necessary
and proportionate. However, ordinarily and a fortiori where the requesting country is party
to the ECHR, any Art 6 or Art 8 concerns are best left for resolution in the courts of the
requesting state.3 In Ismail v Secretary of State for the Home Department,4 the Supreme
Court considered the extent of the Secretary of State's discretion when serving a foreign
judgment under the Crime (International Co-operation) Act 2003, S 1. It concluded that
service of a judgment was not the same as enforcement of it. The Supreme Court held that,
in circumstances where service would not have a direct and material impact on the
recipient, the Secretary of State was not under an obligation to investigate any conse-
quences of it. However, the court also noted that there may be cases where service of a
judgment would engage Art 6 ECHR, necessitating further investigation.
1 R (Abacha) " Secretary of State for the Home Department [2001] EWHC 787 Admin. See Ismail " Secretary
of State for the Home Department [2016] 1 WLR 2814, SC, in the context of a request for assistance in
serving an overseas judgment, pursuant to $ 1 CICA 2003.
2 Government of United States of America v Montgomery (No 2) [2004] 1 WLR 2241. The Act of State
doctrine does not prevent an investigation or adjudication upon the conduct of the judiciary of a foreign
state: Yukos Capital Sarl v OJSC Rosneft Oil Co (No. 2) [2014] QB 458, paras 86-90. See Ismail " Secretary
of State for the Home Department [2016] 1 WLR 2814, SC, in the context of a request for assistance in
serving an overseas judgment, pursuant to $ 1 CICA 2003.
3 JP Morgan Chase Bank National Association " Director of the Serious Fraud Office [2012] Lloyd's Rep FC
655, para 54.
4 [2016] 1 WLR 2814, SC.
A.7.227 The territorial authority is not bound to give effect to whole of the request, nor is it required
to grant the form of assistance requested by the foreign state.1 Equally, once the letter has
been referred to a prosecuting agency for execution it is not confined to seeking only those
documents specified in the request.2 That said, a flawed decision to act upon the whole of
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C. Requests by Foreign States to the UK
[A.7.230]
a request cannot be saved by a "blue pencil' test removing only the parts of the request to
which the flawed reasoning attached.3
1
R v Central Criminal Court ex P Propend Finance Property Ltd [1996] 2 Cr App R 26, 35-6.
2 R (Energy Financing Team Limited) v Director of the Serious Fraud Office [2006] 1 WLR 1316, para 24.
3 JP Morgan Chase Bank National Association " Director of the Serious Fraud Office [2012] Lloyd's Rep FC
655, para 71.
A person affected by a decision to grant assistance can challenge it by way of judicial review A.7.228
and, if appropriate, the court can order a stay pending the hearing.1
1 R (Hafner) v Secretary of State [2007] 1 WLR 150, para 26.
(3) Disclosure of the letter of request
The UK Central Authority treats letters of request confidentially in accordance with A.7.229
relevant treaty provisions and general international practice.¹ The UK Central Authority
will not disclose the existence or content of letters of request outside government depart-
ments or agencies or the courts or enforcement agencies in the UK. Requests are not shown
or copied to any witness or other person, nor is any witness informed of the identity of any
other witness. In the event that confidentiality requirements make execution of a request
difficult or impossible, the UK Central Authority consults the requesting authorities. It will
normally be the case that the requesting authority will be given the opportunity to
withdraw the request before disclosure to third parties is made. 2
1 See, eg, para 32 of the Commonwealth Scheme. Art 7 of the Treaty between the Government of Great
Britain and Northern Ireland and the Government of the United States of America on Mutual Legal
Assistance in Criminal Matters 1994 is headed "Confidentiality and Limitations on Use' and begins:
"The requested party shall, upon request, keep confidential any information which might indicate that
a request has been made or responded to. If the request cannot be executed without breaching
confidentiality, the requested party shall so inform the requesting party which shall then determine the
extent to which it wishes the request to be executed.'
2 MLA Guidelines, P 6.
The wishes of the requesting state cannot be relied upon to keep a request confidential if to A.7.230
do so would result in unfairness. The fact that the requesting state may have an expectation
that the request will be kept confidential cannot outweigh the territorial authority's duty to
act fairly.1 The courts have found that the starting point is that letters of request are
confidential and, as a matter of principle, are not disclosed to the court or to a party
affected, but that the principles of fairness might require information about the nature of
the criminal investigation be provided.² Thus, a person affected by a letter of request may
be entitled to know the gist of the letter in order that he can take advice as to whether to
comply with any process resulting from it.³
1 R v Secretary of State for the Home Department ex P Zadari, Unreported, 11 March 1998, CO/345/98.
2 National Crime Agency Abacha [2016] 1 WL. 4375, CA; R (River East Supplies Ltd) " Nottingham Crown
Court [2017] 4 WLR 135 (Admin), paras 28-29, 36-37.
3 R (Evans) " Director of the Serious Fraud Office [2003] I WLR 299, paras 11-12; R (Energy Financing
Team Limited) v Director of the Serious Fraud Office [2006] WLR 1316, para 17; R (Hafner) " Secretary of
State for the Home Department [2007] 1 WLR 150, para 34.
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[A.7.231]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
A.7.231 There is no statutory right to make representations either upon receipt of a request or at the
transmission stage,¹ and the UK Central Authority does not generally invite representa-
tions from parties potentially affected by a request. Nevertheless, in some cases fairness may
require that a party affected should be permitted to make representations either as to why
assistance should not be given or evidence should not be transmitted.2
1 Cf the rights given to the suspect under the Extradition Act 2003.
2 R (Abacha) v Secretary of State for the Home Department [2001] EWHC 787 (Admin).
(ii) Proceedings before a nominated court
(1) Conditions for granting assistance under the Crime (International
Co-operation) Act 2003, section 15
A.7.232 CICA 2003, S 15 allows a nominated court to take the evidence of a witness on oath. By
$ 14(1), the territorial authority may arrange for the evidence to be taken under S 15 if the
request for assistance in obtaining evidence received under $ 13 is made inter alia in
connection with criminal proceedings and criminal investigations being carried on outside
the UK.
A.7.233 In respect of requests falling within $ 14(1)(a) the territorial authority may only arrange for
the evidence to be obtained where it is satisfied that an offence1 under the law of the
country has been committed, or that there are reasonable grounds for suspecting that such
an offence has been committed, and that proceedings in respect of the offence has been
instituted in that country, or that an investigation into the offence is being carried on there
(s 14(2)). In respect of these matters the territorial authority is to regard a certificate issued
by the appropriate authority in the country as conclusive (s 14(3)).2
1 An offence includes an act punishable in administrative proceedings.
2 Cf R (Abacha) v Secretary of State for the Home Department [2001] EWHC Admin 787, para 23.
A.7.234 S 14(4) contains an additional requirement where the request appears to relate to a fiscal
offence.1 A fiscal offence is one connected with taxes, duties, customs, or exchange.2 S
14(4) provides that if it appears to the territorial authority that the request for assistance
relates to a fiscal offence in respect of which proceedings have not yet been instituted, the
authority may not arrange for the evidence to be obtained under $ 15 unless the request is
from a country which is a member of the Commonwealth, or is made pursuant to a treaty
to which the UK is a party, or the authority is satisfied that if the conduct constituting the
offence were to occur in a part of the UK, it would constitute an offence in that part.³
1 Art 2(a) of the European Convention on Mutual Assistance in Criminal Matters permits assistance to be
refused if the request relates to a fiscal offence. Article 1 of the Additional Protocol provides that
signatories would not exercise the right provided for in Art 2(a) to refuse assistance solely on the ground
that the request concerns an offence which the requested Party considers a fiscal offence. The UK ratified
the Additional Protocol in 1991.
2 R " Chief Metropolitan Stipendiary Magistrate ex p. Secretary of State for the Home Department [1988]
1 WLR 1204.
3 R Secretary of State for the Home Department ex p a Private Family Trust, Unreported, 13 November 1998
(CO/4164/98).
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C. Requests by Foreign States to the UK
[A.7.239]
(2) The hearing
If the territorial authority nominates a court under $ 15 a notice of nomination is sent to the A.7.235
court.¹ Schedule 1 to CICA 2003 is headed 'Proceedings of a Nominated Court under $ 15'
and contains detailed provisions concerning these proceedings.
1 By convention, the court nominated is that at which the Chief Magistrate sits. Until 2011, that was the
"City of Westminster' magistrates court in Horseferry Road. Following its closure, the Chief Magistrates'
court is now the 'Westminster' magistrates' court in Marylebone Road. The court's address is 181
Marylebone Road, London NW1 5BR; tel: 020 3126 3010; fax: 020 3126 3011.
Para 1 of Schedule 1 provides that the nominated court shall have the like powers for A.7.236
securing the attendance of a witness for the purpose of the proceedings as it has for the
purpose of other proceedings before it. The court can therefore issue a witness summons to
secure the witnesses' attendance in precisely the same manner as in domestic matters.
1 Domestic powers include Magistrates' Courts Act 1980, $ 97 (magistrates' courts); Criminal Procedure
(Attendance of Witnesses) Act 1965 $ 2, (Crown Court).
Para 3 of Schedule 1 empowers the court to administer oaths in the normal manner.
A.7.237
The procedure is governed by Part 49 of the Criminal Procedure Rules 2015.¹ Rule 49.4 A.7.238
provides that a court nominated under 15(1) may determine who may appear or take part
in the proceedings under Schedule 1 before the court and whether a party to the
proceedings is entitled to be legally represented; and may direct that the public be excluded
from those proceedings if it thinks it necessary to do so in the interests of justice. Generally,
the requesting state and the witness are entitled to be represented, and, if he has notice of
the nomination, the defendant in the foreign proceedings may also be represented. The
provisions of ss13-15 have been held to be compatible with the Human Rights Act 1998.
In particular, the ability of the UK court to withhold notification of the process from the
suspect in the interests of an ongoing investigation does not offend Art 8 of the European
Convention on Human Rights.2
1 2015/1490, in force 5 October 2015.
2 Calder v Frame 2007 JC 4
Rule 49.5 provides that where a court is nominated under S 15(1) the justices' clerk or A.7.239
Crown Court officer shall enter in an overseas record details of the request in respect of
which the notice under $ 15(1) was given; the date on which, and place at which, the
proceedings under Schedule 1 took place; the name of any witness who gave evidence at the
proceedings in question; the name of any person who took part in the proceedings as a legal
representative or an interpreter; whether a witness was required to give evidence on oath or
(by virtue of 5 of the Oaths Act 1978) after making a solemn affirmation; and whether the
opportunity to cross-examine any witness was refused. As to the keeping of an overseas
record, see rule 49.9.
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[A.7.240]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
A.7.240 The nominated court's task under S 15(1) is to receive any evidence to which the request
relates which appears to the court to be appropriate for the purpose of giving effect to the
request'.¹ This may entitle the court to receive evidence beyond the scope of that sought in
the request if it is necessary to do so fully to give effect to it.2 Because its jurisdiction and
function are prescribed by statute, the court has no jurisdiction to inquire into whether the
proceedings are an abuse of process, for example, because the requested state has acted in
bad faith. A court nominated under $ 15 must, when considering evidence, have regard to
the rights conferred by Art8(1) of the European Convention on Human Rights. It is for the
nominated court to decide upon the appropriate procedure where a decision has to be
made as to whether an interference with the right under Art 8(1) is justified under Art 8(2).
In so doing the court must consider whether to give notice of the application to and to hear
submissions from any person whose Article 8 rights will be or may be infringed by giving
effect to the application.4
1 Evidence is not necessarily restricted to direct evidence for use at trial; R " Secretary of State for the Home
Department ex P Fininvest SpA [1997] 1 WLR 743. See above at para A.7.223.
2 R (Energy Financing Team Limited) " Director of the Serious Fraud Office [2006] 1 WLR 1316, para 24.
3 R " Bow Street Magistrates Court ex P Zardari, Unreported, 29 April 1998 (CO/1593/98). Query,
however, whether this decision survives the Human Rights Act. In extradition proceedings, for instance,
Art 5 ECHR implies a jurisdiction to consider bad faith (R (Kashamu) v Governor of Brixton Prison
[2002] QB 887) and abuse of process (R (Birmingham) v Director of the Serious Fraud Office [2007]
QB 727).
4 R (Hafner) " City of Westminster Magistrates Court [2009] 1 WLR 1005, para 25.
A.7.241 A letter of request seeking to have evidence taken on oath should state precisely what
evidence is required. The MLA Guidelines prescribes what such a request should contain.1
1 MLA Guidelines, P 19.
A.7.242 Where the requesting state is unrepresented at the hearing the questions will be asked by
the magistrate or the legal adviser and the answers recorded in a deposition. If the
requesting state is represented then cross-examination is permitted. It should be remem-
bered, however, that the process envisaged by sections 14 and 15 is not a trial but a process
of gathering evidence, and the court is undertaking an investigatory rather than an
adjudicatory function.
1 R " Secretary of State for the Home Department ex P Zardari, Unreported, 11 March 1998 (CO/6345/98)
per Lord Bingham CJ.
A.7.243 Para 5(1) of Sched 1 provides that a person cannot be compelled to give any evidence which
he could not be compelled to give in criminal proceedings in the part of the UK in which
the nominated court exercises jurisdiction (para 5(1)(a)), or subject to para 5(2), in
criminal proceedings in the country from which the request for the evidence has come
(para 5(1)(b)).
A.7.244 Para 5(2) provides that para 5(1)(b) does not apply unless the claim of the person
questioned to be exempt from giving the evidence is conceded by the court or authority
which made the request. Where the person's claim is not conceded, he may be required to
give the evidence to which the claim relates (subject to the other provisions of this para);
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C. Requests by Foreign States to the UK
[A.7.249]
but the evidence may not be forwarded to the court or authority which requested it if a
court in the country in question, on the matter being referred to it, upholds the claim
(para 5(3)).
Thus para 5 of Sch 1 applies the domestic rules regarding compellability of witnesses and A.7.245
the privilege against self-incrimination to proceedings before the nominated court under S
15(1). Para 5(1)(a) makes clear that in considering whether the privilege applies, the court
must transpose the foreign proceedings to the UK and consider the question of whether, if
the foreign proceedings were English domestic criminal proceedings, and the foreign
offence an English domestic offence, the witness would be entitled to refuse to answer.
Para 5(1)(b) also allows a witness to claim the benefit of any equivalent rules in the
requesting state to give evidence.2
1 R v Bow Street Magistrates Court ex P King, unreported, 8 October 1997 (CO/3489/97).
2 MLA Guidelines, PP 19-20, require any relevant privilege to be specifically noted in the request.
If, on the other hand, the claim is not conceded then para 5(3) provides that the witness can A.7.246
be compelled to give evidence but that the evidence will not be transmitted if the claim to
be exempt is upheld by the foreign court, tribunal, or authority upon the matter being
referred to it.
Witnesses and those required to attend to produce documents in proceedings before a A.7.247
nominated court are entitled to rely on their common law privilege against self-
incrimination. This privilege permits a witness in criminal proceedings to refuse to answer
questions which might tend to incriminate him or her by exposing him to proceedings for
a criminal offence, for forfeiture, or for the recovery of a penalty.2 The judge must be
satisfied from the circumstances that there is reasonable ground to apprehend danger to the
witness from his being compelled to answer.3 If objection is overruled and the witness gives
evidence, the accused cannot afterwards object.4
1 MLA Guidelines, P 18.
2 Rio Tinto Zinc Corpn " Westinghouse Electric Corpn [1978] AC 547; Blunt v Park Lane Hotel [1942] 2 KB
253.
3 Boyes (1861) 1 B & S 311 (witness pardoned for offence: possibility of impeachment too remote to afford
privilege); Rio Tinto Zinc Corpn " Westinghouse Electric Corporation [1978] AC 547; Den Norske Bank
ASA " Antonatos [1999] QB 271.
4 Kinglake (1870) 11 Cox 499.
A witness may also refuse to produce documentary evidence or give oral testimony on the A.7.248
ground that the information sought is privileged. In respect of documents he is protected
from giving oral evidence as to their content, or as to his knowledge or belief founded on
them.
A person cannot be compelled to give any evidence if his doing so would be prejudicial to A.7.249
the security of the UK (para 5(4)). A certificate signed by or on behalf of the Secretary of
State or, where the court is in Scotland, the Lord Advocate, to the effect that it would be so
prejudicial for that person to do so is conclusive evidence of that fact (para5(5)). A person
cannot be compelled to give any evidence in his capacity as an officer or servant of the
Crown (para 5(6)). Para 5(4) and (6) is without prejudice to the generality of para 5(1). The
Fraud
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[A.7.250-300]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
prohibition on compelling evidence from an officer of the Crown in Schedule 1, para 5(6)
limits all other provisions in the 2003 Act1 and cannot be circumvented by an application
for Norwich Pharmacal equitable relief.2
1
Re Pan American World Airways Inc's Application [1992] QB 854; R (Omar) v Secretary of State for Foreign
and Commonwealth Affairs [2012] EWHC 1737 (Admin).
2 R (Omar) " Secretary of State for Foreign and Commonwealth Affairs [2012] EWHC 1737 (Admin),
paras 67-72.
A.7.250-300 No order for costs can be made (para 8).
(3) Forwarding the evidence to the foreign state
A.7.301 This is dealt with below.1
1 See para A.7.417.
(iii) Referring a request to the Serious Fraud Office under the Crime (International
Co-operation) Act 2003, section 15(2)
A.7.302 CICA 2003, S 15(2) permits the Secretary of State to refer a letter of request to the Director
of the SFO1 as an alternative to nominating a court under S 15(1) where the offence to
which the request relates appears to the Secretary of State to be an offence involving serious
or complex fraud and the conditions in $ 14(2)(a) and (b) are satisfied.2 It is then for the
Director (provided he accepts the case) to obtain any evidence to which the request relates
which appears to him to be appropriate for the purpose of giving effect to the request.
1 For Scotland, see S 15(3).
2 Also, the condition in S 14(4), if the offence appears to be a fiscal offence.
A.7.303 The phrase 'serious or complex fraud' is not defined in either CICA 2003 or the Criminal
Justice Act 1987. Whether or not a fraud is serious is a question of fact. In deciding what
cases to adopt, the SFO has stated that: 'the Director will take into account all the
circumstances of the case and consider: whether the apparent criminality undermines UK
Plc commercial or financial interests in general and in the City of London in particular;
whether the actual or potential financial loss involved is high; whether actual or potential
economic harm is significant; whether there is a significant public interest element; and
whether there is new species of fraud'.¹
1 See <https://www.fo.gov.uk/publications/guidance-policy-and-protocols>.
A.7.304 Where a case has been referred to the Director of the SFO under $ 15(2) he may use his
investigatory powers under $ 2 of the Criminal Justice Act 1987. S 2(1) of that Act provides
that the powers of the Director under $ 2 shall be exercisable but only for the purposes of
an investigation under $ 1 or, on a request made by an authority entitled to make such a
request, in any case in which it appears to him that there is good reason to do so for the
purpose of investigating the affairs, or any aspect of the affairs, of any person. By 2(1A)(b),
the Secretary of State acting under S 15(2) of CICA 2003 is an authority entitled to make
such a request.
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C. Requests by Foreign States to the UK
[A.7.307]
If a request is sent to the Director under S 15(2) by the Secretary of State the Director is A.7.305
entitled to decline to give effect to it if, upon examination, it does not concern serious or
complex fraud. S 2(1B) of the Criminal Justice Act 1987 provides that the Director shall
not exercise his powers on a request from the Secretary of State acting in response to a
request received from an overseas authority within S 2(1A)(b) unless it appears to the
Director on reasonable grounds that the offence in respect of which he has been requested
to obtain evidence involves serious or complex fraud. If the Director decides this condition
is not satisfied then he will return the letter of request to the Secretary of State for execution
by alternative means.
(1) The Serious Fraud Office's powers under section 2 of the Criminal Justice Act
1987
As an investigating authority, the SFO may conduct voluntary interviews and interviews A.7.306
under caution in the normal manner. However, the SFO also has a range of coercive powers
at its disposal under S 2 of the Criminal Justice Act 1987 in relation to interviews and the
production of documents. They are coercive in the sense that a person who fails to answer
questions or produce documents as required is liable to be prosecuted for a criminal offence
under $ 2(13), (14), or (16).
In summary the SFO's coercive powers are as follows:¹
A.7.307
S 2(2) allows the SFO to require any person to answer any relevant questions or otherwise
furnish information with respect to any matter relevant to the investigation, including
questions about confidential matters; however, S 2(9) entitles the person interviewed to
refuse to answer on the grounds of legal professional privilege;
S 2(3) allows the SFO to require any person to produce to it any relevant documents,2
including confidential documents, but not including documents subject to legal profes-
sional privilege.³ It can also require the person producing them to provide an explana-
tion4 of them;
where the SFO considers that to require a person to produce relevant documents would
be likely to result in them being destroyed, hidden, or moved from the jurisdiction, so as
to frustrate any criminal investigation, $ 2(4) allows it to apply to a court for a warrant to
search that person's premises and seize the documents. Before granting a search warrant,
S 2(4)(a) requires the JP to be satisfied either that the person concerned has failed to
comply with a notice under $ 2(3), that it is not practicable to serve such a notice, or that
service would jeopardise the investigation.
1 See Chapter A.2 for more detail.
2 Hamilton " Naviede [1995] 2 AC 75.
3 Criminal Justice Act 1987, $ 2(9).
4 For the meaning of 'explanation' in the similarly worded S 447(5)(a)(ii) of the Companies Act 1985 see
Attorney-General's Reference (No 2) of 1998 [2000] QB 412. S 447 has since been amended by the
Companies (Audit, Investigations and Community Enterprise) Act 2004, Pt 1, S 21 to remove the
requirement to provide an explanation. This is replaced in S 447(2) and (3) with a broader power for
the Secretary of State to direct the company to produce documents or provide information.
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Chapter A7: Mutual Legal Assistance in Cases of Fraud
A.7.308 S 2(13) makes it an offence for a person to fail to comply without reasonable excuse with
a requirement imposed on him under $ 2.¹ S 2(14) makes it an offence knowingly or
recklessly to make a false statement in purported compliance with a requirement made
under S 2. S 2(16) makes it an offence to destroy or conceal, etc, documents which the
person knows or suspects are relevant to an investigation. These offences are punishable by
fines and imprisonment.
1 R " Metropolitan Stipendiary Magistrate ex P Serious Fraud Office [1995] COD 77.
(2) Interviews under the Criminal Justice Act 1987, section 2(2)
A.7.309 These are commonly referred to as 's 2 interviews' and are an important tool in the hands
of the SFO. The power which they give the SFO is draconian.1
1 R v Director of the Serious Fraud Office ex P Johnson [1993] COD 58.
A.7.310 The interview may be carried out by SFO investigators. If representatives of the foreign
state have requested to be present then this is usually allowed; however they will not be
permitted to conduct the interview or to take part in it.¹ However, they may consult with
the SFO in relation to the interview. The interviewee is entitled to be legally represented
during the interview, which is conducted in private and tape recorded.
1 Unless the Director has exercised his powers to designate a foreign investigator under S 2(11) of the
Criminal Justice Act 1987.
A.7.311 Prior to conducting as 2 interview the SFO are not under a common law duty of disclosure,
although some disclosure may be necessary in some cases.¹
1 R " Serious Fraud Office ex P Maxwell (Kevin) The Times, 9 October 1992.
A.7.312 In Marlwood Commercial Inc v Kozeny¹ the Court of Appeal dealt with an application made
by a party to civil proceedings for permission to disclose to the SFO (in compliance with a
notice given under $ 2 of the Criminal Justice Act 1987 made as a result of a request
pursuant to the Criminal Justice (International Co-operation) Act 1990), documents
disclosed by another party pursuant to its obligations in the civil proceedings and which
had been brought to England for that purpose. It was held that $ 3(3) of the Criminal
Justice Act 1987 did not override rule 31.22 of the Civil Procedure Rules. However the
court held that the public interest in the investigation or prosecution of a specific offence
of serious or complex fraud took precedence over the merely general concern of the courts
to control the collateral use of compulsorily disclosed documents. In the absence of other
factors, the court's discretion should, as a matter of principle, prima facie be exercised in
favour of compliance with a notice under S 2(3) of the 1987 Act; by itself the additional
factor that the documents had been brought within the jurisdiction for the purposes of
disclosure by a foreign litigant himself brought compulsorily before the English court
should not be regarded as a reasonable excuse for non-compliance with the notice; and the
courts should be prepared to grant permission under CPR 31.22 for their collateral use in
production to the Director of the SFO.
1 [2005] 1 WLR 104.
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An interviewee does not have to disclose information which would be protected by legal A.7.313
professional privilege in proceedings in the High Court.¹
1 Criminal Justice Act 1987 $ 2(9); R v Cox and Railton (1884) 14 QBD 153; R v Central Criminal Court
ex P Francis and Francis (a firm) [1989] AC 346.
(3) Notices under the Criminal Justice Act 1987, section 2(3)
A $ 2(3) notice is an order issued by the SFO which requires the person named (who may A.7.314
be the person under investigation or another person) to produce to the SFO any specified
documents which appear to the SFO to relate to any matter relevant to the investigation
or any documents of a specified description which appear to him so to relate.2 If the
documents are produced the SFO can take copies or extracts from them,3 or require the
person producing them to provide an explanation of them.4 If the documents are not
produced the SFO can require the person to state where they are.5 A failure without
reasonable excuse to comply with a requirement issued under $ 2(3) is an offence, as is
intentionally or recklessly making a false statement.6
1 As defined in Criminal Justice Act 1987 S 2(18). The SFO can require the documents to be produced in
legible form if they are held electronically.
2 Criminal Justice Act 1987, S 2(3).
3 ibid, S 2(3)(a)(i).
4 ibid, S 2(3)(a)(ii).
5 ibid, S 2(3)(b).
6 ibid, S 2(13) and (14).
S 2(3) notices are subject to the same requirements as to width and specificity as search A.7.315
warrants.1 The specified documents, or the category of documents specified, must 'relate to
any matter relevant to the investigation'.² A notice which fails to satisfy this criterion will
be unlawful and liable to be quashed on judicial review. Two factors in particular may result
in a notice being unlawful. First, the notice may be so widely drawn that it includes
documents or categories of documents which on any view could not be relevant to an
inquiry.3 Secondly, where the category of documents is specified by reference to a time
period, the period may be wholly disproportionate to the period of the alleged offence.4
1 Search warrants are considered below at para A.7.317.
2 Criminal Justice Act 1987, S 2(3).
3 R " Secretary of State for the Home Department ex P Fininvest Spa [1997] 1 WLR 743, 753 (although relief
was refused as a matter of discretion); cf R " Central Criminal Court ex P AJD Holdings Ltd [1992] Crim
L R 669; R v Southampton Crown Court ex P / & P [1993] Crim LR 962.
4 R " Southampton Crown Court ex [1993] Crim LR 962; Williams " Summerfield[1972] 2 QB 512;
R v Nottingham Justices ex P Lynn (1984) 79 Cr App R 238.
Under $ 3, the SFO may pass on information gleaned through interviews and through the A.7.316
disclosure of documents in certain specified situations.¹ A party to whom the SFO has
disclosed documents during a criminal investigation may be able to rely on those docu-
ments in civil proceedings.²
1 The situations listed in S 3(5) in which the SFO may disclose information to third parties on a
confidential basis are not exhaustive, and disclosure pursuant to a court order in civil proceedings is not
prohibited by $ 3(5): Tchenguiz v Director of the SFO [2014] 1 WLR 1476.
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2 Standard Life Assurance Ltd & any " Topland Co Ltd & ors [2011] 1 WLR 2162. But no such disclosure
or use may be made of materials obtained pursuant to a mutual legal assistance request made by the
United Kingdom: Crown Prosecution Service " Gohil [2013] Fam 276.
(4) Search warrants under the Criminal Justice Act 1987, section 2(4)
A.7.317 In this $ the law relating to search warrants under CJA 1987, $ 2(4) is analysed. Many of
these principles are applicable to search warrants in general, including those issued under
Part 2 and Schedule 1 of the Police and Criminal Evidence Act 1984 (PACE). These latter
warrants are considered below.1
1 Pursuant to the recommendation in R (Rawlinson and Hunter Trustees) v Central Criminal Court [2013]
1 WLR 1364, applications for S 2 CJA 1987 search warrants are now governed by Pt 47, S 7 of the
Criminal Procedure Rules 2015 (rr 47.29-47.33; SI 2015/1490, in force 5 October 2015) and the forms
issued thereunder by the Lord Chief Justice.
A.7.318 $2(4) provides that on information¹ laid on oath by a member of the SFO, a JP,2 if satisfied,
in relation to any documents, that there are reasonable grounds for believing that either a
person has failed to comply with a $ 2(3) notice; that it is not practicable to serve a $ 2(3)
notice in relation to them; or that the service of such a notice in relation to them might
seriously prejudice the investigation; and there are reasonable grounds for believing that
there are such documents on the premises specified in the information, he may issue a
warrant as is mentioned in $ 2(5).
1 The person affected by the warrant is generally entitled to sight of the information in order that he can
take advice as to its legality (R (Energy Financing Team Limited) " Director of the Serious Fraud Office
[2006] 1 WLR 1316, para 24(10)). Authorities possess no right to unilaterally redact that letter or
Information (R (S, F & L) D Chief Constable of the British Transport Police [2014] 1 WLR 1647, paras
109-115); and, in the event that they wish to withhold any of its contents from the person affected, they
must apply for a PII order (Commissioner of Police for the Metropolis " Bangs [2014] EWHC 546
(Admin)). The same applies to the transcript of the warrant application (R (Golfrate Property Manage-
ment Ltd) " Southwark Crown Court [2014] 2 Cr App R 12, paras 15-18). Mere potential for
embarrassment is no ground for non-disclosure (Canadian Broadcasting Corporation v The Queen (2014)
305 CCC (3d) 1).
2 In Scotland, a sheriff. In England and Wales, applications are invariably made to a Crown Court judge:
R (Rawlinson and Hunter Trustees) v Central Criminal Court [2013] 1 WLR 1364, para 80.
A.7.319 A warrant under $ 2(5) is a warrant authorising any constable to enter (using such force as
is reasonably necessary for the purpose) and search the premises, and to take possession of
any documents1 appearing to be documents of the description specified in the information
or to take in relation to such documents any other steps which may appear to be necessary
for preserving them and preventing interference with them.
1 As defined in CJA 1987, $ 2(19). Where the documents are held in electronic form then the constable
can require them to be produced in legible form: PACE, S 20.
A.7.320 Unless it is not practicable in the circumstances, a constable executing a warrant issued
under 2(4) shall be accompanied by an appropriate person'. Where an appropriate person
accompanies a constable, he may exercise the powers conferred by $ 2(5) but only in the
company, and under the supervision, of the constable (s 2(6A)). An appropriate person'
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[A.7.322]
means a member of the SFO or some person who is not a member of that Office but whom
the Director has authorized to accompany the constable (s 2(7)).
The issue of a search warrant is a serious matter. In addition to the duty to place before the A.7.321
court all the material necessary to the grant of a warrant,1 there is a duty of candour upon
the SFO; there must be full and complete disclosure to the judge, including disclosure of
anything that might militate against the grant.2 Misrepresentation or non-disclosure in
either the information or the oral evidence to the judge will invalidate any warrant obtained
where the errors or omissions might well (not would in fact) have made a difference to the
decision to grant the warrant.3 The current practice under $ 2(4) of not placing the
underlying material before the judge4 means that the duty of candour is even more
important than usual; there is a very heavy duty placed on the SFO to ensure that what is
put before the judge is clear and comprehensive so that the judge can rely on it and form his
judgment on the basis of a presentation in which he has complete trust and confidence as
to its accuracy and completeness. Cases in the financial markets investigated by the SFO are
likely to require the judge to be familiar with the commercial and market background. That
background must be set out in the written presentation to the judge. The transactions must
then be explained in a coherent and analytical manner. The allegations of reasonable
suspicion must then be set out. What is alleged must be verified by persons expert in the
market or accounting practices whose independent advice has been expressly sought. A
record of that verification should be retained by the SFO. Not only must the case for
reasonable suspicion be put, but the matters that might undermine that case must be
enumerated. The skill and experience required to prepare a presentation of that kind
cannot be underestimated.5
1 R (Redknapp) v Commissioner of the City of London Police [2009] 1 WLR 209.
2 Re Stanford [2010] 1 WLR 941, para 191; R (Rawlinson and Hunter Trustees) v Central Criminal Court
[2013] 1 WLR 1364, paras 81-2; G " Commissioner of Police of the Metropolis [2011] EWHC 3331
(Admin); R (Dulai) v Chelmsford Magistrates' Court [2013] 1 WLR 220; R " Zinga [2013] Lloyd's Rep.
FC 102, para 15; R (AB & CD) v Huddersfield Magistrates' Court [2015] 1 WLR 4737, paras 11-20; R
(Golfrate Property Management Ltd) " Southwark Crown Court [2014] 2 Cr App R 12, paras 22-28; R
(Mills) " Sussex Police [2015] 1 WLR 2199, paras 38-40. This includes issues of law: R (Vuciterni) " Brent
Magistrates' Court (2012) 176 JP 705.
3 R (Mills) " Sussex Police [2015] 1 WLR 2199, paras 47-64; overturning R (Rawlinson and Hunter
Trustees) " Central Criminal Court [2013] 1 WLR 1364, paras 171-179 and R (Goode) " Nottingham
Crown Court [2014] ACD 6.
4 A practice which should be considered by a body such as the Criminal Procedure Rule Committee or an
ad hoc body established for that purpose: R (Rawlinson and Hunter Trustees) " Central Criminal Court
[2013] 1 WLR 1364, para 90. But the practice has been approved: R (Newcastle United Football Club) "
Commissioner of HM Revenue and Customs [2017] 4 WLR 187.
5 R (Rawlinson and Hunter Trustees) v Central Criminal Court [2013] 1 WLR 1364, paras 87-88, 92-93.
The duties upon the judge are no less onerous. A judge to whom an application for a A.7.322
warrant is made must therefore be scrupulously careful to ensure that all the relevant
statutory conditions are satisfied. It is not sufficient that the judge considers that the
information and evidence presented is reasonable. The judge must personally be satisfied
that there is before the judge sufficient material on which it is proper to grant the warrant,
including grounds for reasonable suspicion.¹ In particular, he must give reasons for his
decision to issue a warrant and must state his reasons for being satisfied as to the conditions
in S 2(4)(a).2
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1 Williams v Summerfield [1972] QB 512, 518; R (Bright) " Central Criminal Court [2001] 1 WLR 662,
667; R (Rawlinson and Hunter Trustees) v Central Criminal Court [2013] 1 WLR 1364, paras 83-85, 89.
2 R " Central Criminal Court ex P Propend Finance Property Ltd, [1996] 2 Cr App R 26; R v Lewes Crown
Court ex P Nigel Weller & Co. unreported, 12 May 1999 (CO/2890/98): Energy Financing Team Ltd and
others " Director of SFO [2006] 1 WLR 1316; R (Rawlinson and Hunter Trustees) " Central Criminal Court
[2013] 1 WLR 1364, paras 89, 202-208. Although failure to do so will rarely be fatal to the legality of the
warrant: Brookfield Aviation International Ltd v Guildford Crown Court [2015] EWHC 3465 (Admin); R
(Newcastle United Football Club) " Commissioner of HM Revenue and Customs [2017] 4 WLR 187.
A.7.323 Warrants issued under S 2(4) are subject to the safeguards contained in $$ 15 and 16 of
PACE.1 These are considered below.2
1 PACE, $ 15(1).
2 See para A.7.422.
A.7.324 Items which a constable has reasonable grounds to believe are subject to legal professional
privilege may not be seized under any circumstances.¹ Problems may arise, however, where
items subject to legal professional privilege are contained within a large number of other
documents which can lawfully be seized. In such a case, the 'seize-and-sift' powers of Part
2 of the Criminal Justice and Police Act 2001 contain provisions allowing all the material
to be seized for later examination and return of the privileged material.2 The practice then
is for the documents to be examined by independent counsel3 to determine which items, if
any, are privileged in accordance with the procedure in Part 2.4
1 CICA 2003, $ 26; PACE, $ 19(6); R v Chesterfield Justices ex P Bramley [2000] QB 576; R (Rawlinson and
Hunter Trustees) " Central Criminal Court [2013] 1 WLR 1364, paras 258 et seq.
2 R (A) " Central Criminal Court [2017] 1 WLR 3567.
3 R v Middlesex Guildlball Crown Court ex P Tamosius [2000] 1 WLR 453; R (Faisaltex Ltd) v Preston Crown
Court [2009] 1 WLR 1687 An employee of the SFO is not independent: R (Rawlinson and Hunter
Trustees) " Central Criminal Court [2013] 1 WLR 1364, paras 264-267.
4 See also the amendments to Sch 1 to the Criminal Justice and Police Act 2001, made by $ 26(3) CICA
2003; cf R v Customs and Excise Commissioners ex P Popely [1999] STC 1016.
A.7.325 A search warrant which is excessively wide is liable to be quashed.¹ Limitations are required
by Art 8 of the European Convention on Human Rights - respect for private and family
life.2 The warrant must specify, so far as practicable, the items to be sought.3 There is no
legal requirement to specify individual documents in the warrant, but, it is good practice to
do so, to the extent practicable.⁴ A $ 2 warrant is much simpler and wider than one under
$ 8 of PACE which requires the material to be likely to be 'relevant evidence'. The warrant
must only specify items that are relevant to the specific investigation and the specific
offence being investigated.5 Where categories of documents to be seized are defined by
reference to a time period, the period must bear some reasonable relationship of propor-
tionality to the period relevant to the alleged offence.
1 R " Central Criminal Court ex P AJD Holdings Ltd [1992] Crim LR 669. The particularity required will
depend upon the breadth of the investigation in issue, and the question of where the balance lies in an
individual case will rarely be answered by reference to prior authority. A broad scope of an investigation
may require a correspondingly broad power of search: R (Glenn & Co (Essex)) " Revenue & Customs
Commissioners [2012] 1 Cr App R 22. For examples of unlawfully broad warrants, see R (Anand) " Her
Majesty's Revenue & Customs [2012] EWHC 2989 (Admin): R (Hoque) v City of London Magistrates'
Court [2013] EWHC 725 (Admin); R (Golfrate Property Management Ltd) " Southwark Crown Court
[[2014] 2 Cr App R 12, paras 129-134. Cf. R (AB & CD) " Huddersfield Magistrates' Court [2015] 1
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[A.7.327]
WLR 4737, paras 20-28; R (on the application of Chatwani) " National Crime Agency [2015] EWHC
1283 (Admin), paras 105-129; Re O'Neill's Application for Judicial Review [2017] NIQB 37. paras
32-36, 39-41.
2 So, eg, the making of a video record of a search, not being one expressly authorised by the terms of the
warrant, may violate Art 8: R (AB & CD) " Huddersfield Magistrates' Court [2015] 1 WLR 4737, paras
37-39. Article 8 might also, eg, require a radical overhaul of the way in which computer-related searches
are authorized and executed (see the Supreme Court of Canada in R v Vu (2014) 302 CCC (3d) 427).
3 PACE, $ 15(6)(b). R (Faisaltex Ltd) " Preston Crown Court [2009] 1 WLR 1687, para 58; Lees " Solibull
Magistrates' Court [2013] EWHC 3779 (Admin); R (Sweeney) Westminster Magistrates' Court [2014]
EWHC 2068 (Admin). A telephone, for instance, is capable of being the subject of a warrant even if not
everything in it will be relevant: R (A) v Central Criminal Court [2017] 1 WLR 3567.
4 R " Thames Magistrates, Customs and Excise ex P Da Costa [2002] Crim LR 504; R (Kent Pharmaceuticals
Ltd) v Director of Serious Fraud Office and others [2005] 1 WLR 1302.
5 R v Central Criminal Court ex P AJD Holdings Ltd [1992] Crim LR 669.
An unlawful seizure may not be saved by a repeat "here and now' notice under S 2 of the A.7.326
1987 Act. It follows that, although a request from a foreign country may be widely framed,
once the Secretary of State has made a reference under S 15(2) of CICA 2003, the SFO has
the responsibility for ensuring that any search warrant under $ 2(5) is sufficiently narrowly
focused to ensure that it does not amount to an unlawful fishing expedition. However,
equally, the warrant need not be confined to the material sought in the letter of request.2
1 Likewise, PACE, $ 19 may not be used to re-seize property at a police station and commute what had
been an unlawful seizure into a lawful seizure: R (Cook) " Serious Organised Crime Agency [2011] 1 WLR
144. Rather, the procedure in $ 59 of the Criminal Justice and Police Act 2001 must be followed: R
(Rawlinson and Hunter Trustees) v Central Criminal Court [2013] 1 WLR 1364, paras 274-281. The
provisions of $ 59 apply equally to MLA cases: Van der Pijl v Secretary of State for the Home Department
[2014] EWHC 281 (Admin). Depending upon the nature of the defect in the search, it may be
appropriate to suspend any order for return of the seized property pending application under 59 for the
notional re-issuance of the warrant with the defect remedied: see Van der Pijl " The Crown Court at
Kingston [2013] 1 WLR 3706, paras 85-88; R (Mills) " Sussex Police [2015] 1 WLR 2199, para 54. For
the principles to be applied on such an application, see R (El Kurd) v Winchester Crown Court [2012]
Crim LR 138; R (Windsor) v Bristol Crown Court [2011] EWHC 1899 (Admin); R (Dulai) v Chelmsford
Magistrates' Court [2013] 1 WLR 220; R (Panesar) " Central Criminal Court [2015] 4 All ER 754, paras
34-38, 48. The procedure for an application under S 59 is now contained in Crim PR 47, $ 4
(47.35-47.40). Applications under S 59 ought to be made on notice: Van der Pijl v The Crown Court at
Kingston [2013] 1 WLR 3706, para 84. Unlawfully seized material that has already been passed to the
foreign state may be the subject of a 'best endeavours' order to persuade the foreign state to return them:
Van der Pijl " The Crown Court as Kingston [2013] 1 WLR 3706, para 89. Non-compliance with the time
limits applicable to $ 59 applications will not necessarily be fatal: R (Malik) v Manchester and Salford
Magistrates' Court [2017] EWHC 2901 (Admin).
2 R (Energy Financing Team Limited) " Director of the Serious Fraud Office [2006] 1 WLR 1316, para 24
at (4).
(5) Privilege against self-incrimination in mutual assistance proceedings
Whilst a person giving evidence before a nominated court is entitled to rely on his common A.7.327
law privilege against self-incrimination,¹ evidence obtained from a suspect by the SFO
under $ 2 of the Criminal Justice Act 1987 overrides the privilege.2 A suspect is not entitled
to refuse to answer on the grounds that it might incriminate him. It follows that, but for the
restrictions on use contained in $ 2(8), its use against the suspect at his trial in the UK would
violate his right to a fair trial under Article 6 of the ECHR.3 As a result, it is common
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Chapter A7: Mutual Legal Assistance in Cases of Fraud
practice for those involved in $ 2 interviews to require precedent undertakings from the
requesting state to prevent end use in any subsequent prosecution.
1 Para 5 of Sch 1 to CICA 2003.
2 R v Director of the Serious Fraud Office ex P Smith [1993] AC 1.
3 Lyons [2003] 1 AC 976; Brown V Stott (Procurator Fiscal, Dunfermline) [2003] 2 AC 681; R v
Hertfordshire County Council ex P Green Environmental Industries Ltd [2000] 2 AC 412.
(iv) Use of general search warrants to give assistance to a foreign state
A.7.328 S 13(1)(b) of CICA 2003 provides that where a request for assistance in obtaining evidence
is received in a part of the UK the territorial authority may direct that a search warrant be
applied for under or by virtue of SS 16 or 17.¹
1 Or, in relation to evidence in Scotland, S 18.
A.7.329 Art 3 of the Crime (International Cooperation) Act 2013 (Exercise of Functions) Order
2013¹ provides that the Commissioners of Customs and Excise may exercise the function
under $ 13 of directing that a search warrant be applied for under or by virtue of SS 16 or 17
where a request for assistance has been made wholly or mainly in connection with a relevant
offence.2
1 SI 2013/2733. These functions were initially exercised the Commission for Customs and Excise and
then transferred to the HMRC and then the Borders, Citizenship and Immigration Act 2009 transferred
customs functions to a new agency-the UK Border Agency. The Crime (International Co-operation)
Act 2003 (Exercise of Functions) Order 2009 SI 2009/3021 now permits the powers conferred on a
constable to be used, in certain circumstances by a general customs official or by a customs revenue
officials of the UK Border Agency.
2 Defined in Art 2.
A.7.330 S 16 provides for the extension of the statutory search powers in Part 2 of the PACE to cover
overseas conduct. S 17 provides a free-standing power for a JP to grant a search warrant. In
both cases, the question of whether material is likely to be relevant and of substantial value
falls to be assessed on a necessarily more circumscribed basis than if the warrant were being
sought in aid of a domestic prosecution or investigation. International MLA instruments
operate on the basis of a high level of mutual trust between signatory states and mini-trials
to determine the degree of relevance of materials to a future trial in another state is not
consistent with that principle. In general, assertions of relevance in an MLA request will be
sufficient to trigger the UK's duty to obtain and submit the materials.¹ Continuity evidence
is capable of passing the test for relevance and materiality.
1 Van der Pijl v Secretary of State for the Home Department [2014] EWHC 281 (Admin).
A.7.331 Although $ 16 and the provisions of PACE refer to 'constables', the Crime (International
Co-operation) Act 2003 (Exercise of Functions) Order 2013,1 Article 3, provides that any
function conferred on a constable by virtue of S 16 in relation to a warrant or order under
$ 8 of, or Schedule 1 to the PACE may be exercised by a customs officer instead where the
Commissioners have given a direction under $ 13, or by an officer of Revenue and Customs
for the purposes of an investigation relating wholly or mainly to a relevant offence2 by an
international joint investigation team of which he is a member.3
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[A.7.333]
1 SI 2013/2733, made under $ 27(1).
2 Defined in Art 2 of the Order.
3 An 'international joint investigation team' has the meaning given by $ 88(7) of the Police Act 1996.
In order to understand the operation of S 16 it is first necessary to consider the powers in A.7.332
Part 2 of PACE.
(1) Warrants under section 8 of the Police and Criminal Evidence Act 1984
S 8(1) of PACE permits a JP to issue a search warrant where there are reasonable grounds A.7.333
for believing:1
(i) an indictable offence has been committed;
(ii) there is material on the premises mentioned in S 8(1A) which is likely to be of
substantial value to the investigation and likely to be relevant evidence;2
(iii) the material does not consist of or include items subject to legal professional privilege,3
excluded material,4 or special procedure material;5 and
(iv) any of the conditions in $ 8(3) is satisfied in relation to each set of premises specified in
the application.6
1 Application of a different test will lead to the quashing of the warrant: R (Global Cash & Carry Ltd.) "
Birmingham Magistrates' Court [2013] EWHC 528 (Admin): R (S, F & L) " Chief Constable of the British
Transport Police [2014] 1 WLR 1647, para 61. Pursuant to the recommendation in R (Rawlinson and
Hunter Trustees) " Central Criminal Court [2013] 1 WLR 1364, applications for $ 8 PACE search
warrants are now governed by Pt 47, S 3 of the Criminal Procedure Rules 2015 (rr 47.24-47.28) and the
forms issued thereunder by the Lord Chief Justice.
2 That is, anything that would be admissible in evidence at a trial for the offence: PACE, S 8(2). This is an
additional requirement where the vehicle for seeking mutual legal assistance is the 1984 Act. In choosing
under CICA 2003, $ 13 to direct a request to the police, rather than another body such as the SFO, this
additional requirement is engaged. However, it is not the case that a request must expressly address this
requirement in order for an ensuing PACE search warrant to be lawful; the condition may be satisfied by
inferences drawn from the content of the request: see Van der Pijl D The Crown Court at Kingston [2013]
1 WLR 3706.
3 As defined in $ 10 of PACE: see R " Central Criminal Court ex P Francis and Francis (a firm) [1989] AC
346; R v Guildhall Magistrates' Court ex P Primlaks Holdings (Panama) Inc [1990] 1 QB 261.
4 As defined in S 11 of PACE.
5 As defined in $ 14 of PACE. But note that excluded material and special procedure material may lawfully
be seized under S 8(2) where the 'sifting' powers in Pt 2 of the Criminal Justice and Police Act 2001
(CJPA 2001) may be utilised. S 59 provides for a statutory procedure by which a claimant who asserts
that material has been improperly seized using these powers may seek a court order for its return. In R
(Hoque) " City of London Magistrates' Court [2013] EWHC 725 (Admin), where a $ 8 PACE search
warrant was held to be unlawful on the basis that it failed to identify the materials sought with sufficient
particularity, pursuant to which the original exhibits would be returned, determination of whether the
applicant (HMRC) were nonetheless entitled to retain copies of the seized documents for the purpose of
continuing criminal proceedings fell to be determined under S 59 CJPA 2001. The position may have
been different had the warrants been obtained in the absence of reasonable grounds to suspect that an
offence had been committed, or if copies had been made in contravention of a court order, or if the court
issuing the warrant had been misled.
6 It is not a condition precedent to the grant of a warrant under S 8 that other methods of obtaining the
material have been tried without success or not been tried because they were bound to fail: R v Billericay
Justices ex P Frank Harris (Coaches) Limited [1991] Crim LR 472.
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[A.7.334]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
A.7.334 The premises mentioned in $ 8(1A) are one or more sets of premises specified in the
application (in which case the application is for a 'specific premises warrant'); or any
premises occupied or controlled by a person specified in the application, including such
sets of premises as are so specified (in which case the application is for an 'all premises
warrant').
A.7.335 S 8(1B) provides that if the application is for an all premises warrant, the JP must also be
satisfied that because of the particulars of the offence referred to in $ 8(1)(a), there are
reasonable grounds for believing that it is necessary to search premises occupied or
controlled by the person in question which are not specified in the application in order to
find the material referred to in para 8(1)(b); and that it is not reasonably practicable to
specify in the application all the premises which he occupies or controls and which might
need to be searched.
A.7.336 The conditions in S 8(3) are that it is not practicable to communicate with any person
entitled to grant entry to the premises; that it is practicable to communicate with a person
entitled to grant entry to the premises but it is not practicable to communicate with any
person entitled to grant access to the evidence; that entry to the premises will not be granted
unless a warrant is produced; and that the purpose of a search may be frustrated or seriously
prejudiced unless a constable arriving at the premises can secure immediate entry to them.1
1 The relevant provision of $ 8(3) relied on by the applicant for the warrant must be specified in the
application: Redknapp v Metropolitan Police Commissioner [2008] EWHC Admin 1177.
A.7.337 Where a warrant is issued, $ 8(2) permits a constable to seize and retain anything for which
a search has been authorized under S 8(1).
A.7.338 S 8 warrants are the most common type of search warrant,1 nevertheless the courts have
repeatedly emphasized that a JP to whom application is made under S 8 must be careful to
ensure that the applicant is entitled to the warrant. He must be personally satisfied on the
material before him that the conditions are satisfied. He is not entitled simply to accept the
assertion of the applicant for the warrant.2
1 R v Guildhall Magistrates Court ex P Primlaks Holdings (Panama) Limited [1990] 1 QB 261, 272-3.
2 See R (Faisaltex Ltd) v Preston Crown Court [2009] 1 WLR 1687; (Redknapp v Metropolitan Police
Commissioner [2008] EWHC Admin 1177; R (on the application of C) v The Chief Constable of A' Police
[2006] EWHC 2352 (Admin).
(2) Production orders and warrants under section 9 of, and Schedule 1 to,
the Police and Criminal Evidence Act 1984
A.7.339 Where a constable wishes to obtain excluded material or special procedure material¹ then
PACE, $ 9 provides that an application to a judge under Schedule 1 of PACE may be made.2
Schedule 1 permits a judge to issue production orders and search warrants for material
which cannot be obtained using a S 8 warrant.3
1 In R " Preston Crown Court exp McGrath, The Times, 27th October 1992, the Divisional Court held that
where the material the subject of the application is mixed in that it consists of special procedure material
and other material, all of the material can be the subject of a special procedure order under Sch 1. Mann
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[A.7.342]
LJ said that Parliament could not have intended sequential applications under Sch 1 and $ 8; see also R "
Snaresbrook Crown Court ex P Director of Public Prosecutions (1988) 86 Cr App R 227.
2 The judge has discretion to hear an application for access to excluded material or special procedure
material under Sch 1 in chambers: R " Central Criminal Court ex P Director of Public Prosecutions, The
Times, 1 April 1988.
3 Redknapp " Metropolitan Police Commissioner [2008] EWHC Admin 1177.
The provisions of Schedule 1 are complicated and have been the subject of a considerable A.7.340
number of cases. The case law emphasizes the heavy responsibility on those applying for
such orders and on judges considering applications under Schedule 1.1
1 R v Lewes Crown Court ex P Hill (1991) 93 Cr App R 60, 65. See also R (S, F & L) " Chief Constable of
the British Transport Police [2014] 1 WLR 1647 which gives guidance on the proper procedure to be used
in applications to search premises or homes of practising lawyers. See also R (AB & CD) " Huddersfield
Magistrates' Court [2014] EWHC 1089 (Admin).
The applicant is under a duty to make full disclosure when applying under Schedule 1.¹ In A.7.341
particular, it is the duty of the applicant to set out, either in the notice itself or in further
documentation, a description of all that is sought to be produced.2 The judge must also
give reasons for making an order or granting a warrant under Schedule 1.³
1 R " Lewes Crown Court ex P Hill (1991) 93 Cr App R 60, 69; R " Acton Crown Court ex P Layton [1993]
Crim LR 458; R (S, F & L) v Chief Constable of the British Transport Police [2014] 1 WLR 1647.
2 R v Central Criminal Court ex P Adegbesan 84 Cr App R 219; R v Inner London Crown Court ex P Baines
and Baines (a Firm) [1988] QB 579.
3 R " Central Criminal Court ex P Propend Finance Property Ltd [1996] 2 Cr App R 26; R v Lewes Crown
Court ex P Nigel Weller & Co. (a firm), 12 May 1999 (CO/2890/98): R (S, F L) v Chief Constable of the
British Transport Police [2014] 1 WLR 1647.
Para 4 of Schedule 1 permits¹ a judge to issue a production order provided that either of the A.7.342
sets of access conditions in para 2 is satisfied. A production order requires the person to
whom it is addressed to produce the material to a constable for him to take away or give him
access to it within seven days from the date of the order (para 4). An application for a
production order must be made inter partes2 and a notice served on the person concerned
under para 7.3 Where such a notice has been served the person must not destroy, alter, or
dispose of the material without the leave of the judge or a constable (para 11).
1 Even where the access conditions are satisfied the judge retains a discretion whether or not to make an
order or issue a warrant under para 12: R (Bright) " Central Criminal Court [2000] 1 WLR 662, 678.
However once a judge has concluded under para (2)(a)(i) of Sch 1 that a serious offence has been
committed, it is inconsistent to refuse an application for access to material by finding under para 2(c)
that it is not in the public interest that access should be given: R v Crown Court at Northampton ex P
Director of Public Prosecutions 93 Cr App R 376.
2 See the discussion in R (BSkyB) " The Commissioner of Police of the Metropolis [2014] AC 885, SC. Such
proceedings do not permit of closed procedures (paras 30-31) other than PII applications (para 32). Cf
general search warrant proceedings (Haralambous v Crown Court at St Albans [2018] UKSC 1).
3 There is, however, no requirement to give notice of the proceedings to the accused or suspected person.
Para 7 of Sch 1 applies as between the applicant and the person or institution in whose custody special
procedure material is believed to be held: R v Crown Court at Leicester ex P Director of Public Prosecutions
86 Cr App R 254.
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[A.7.343]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
A.7.343 Para 12 permits a circuit judge to issue a search warrant where (i) either of the sets of access
conditions in paras 2 or 3 and the conditions in para 14 are fulfilled in relation to each set
of premises specified in the application;1 or (ii) the access conditions in para 3 are fulfilled
and an order under para 4 has not been complied with.2
1 PACE, Sch 1, para 12(a).
2 ibid, para 12(b).
A.7.344 The warrant authorizes a constable to enter and search the premises or (as the case may be)
all the premises occupied or controlled by the person referred to in para 2(a)(ii) or 3(a),
including such sets of premises as are specified in the application (an 'all premises warrant').
A.7.345 The power to allow access to excluded and special procedure material under a search
warrant is a draconian power which should only be used as a last resort where no other
method of obtaining the material is available.¹
1 R v Southwark Crown Court ex P Bowles [1998] AC 641, 649. In R " Central Criminal Court ex P AJD
Holdings [1992] Crim LR 669, Nolan LJ observed that the scheme of Sch 1 is that applications should
normally be made inter partes save for certain exceptions. The fact that a solicitor is under investigation
does not of itself justify intruding ex P into his affairs and those of his clients. All the circumstances must
be considered, including the seriousness of the matter being investigated, evidence already available to
the police, and the extent to which the solicitor already knows of the interest in his affairs such as might
cause him to destroy or interfere with documents; cf R " Maidstone Crown Court, ex P Waitt [1988] Crim
L R 384 (ex parte applications should never become a matter of common form); R v Leeds Crown Court
ex P Switalski [1991] COD 199 where the court said that where a search was to be made of solicitors'
premises one would expect the application to be inter partes, but not where the firm itself was under
investigation.
A.7.346 In R v Central Criminal Court ex p AJD Holdings the court said that it was important before
any search warrant was applied for that careful consideration was given to what material it
is hoped a search might reveal, so as to be clear to anyone subsequently considering the
lawfulness of the warrant. The application should make clear that the material sought
related to the crime under investigation. A written note should be made of anything said in
support of the application beyond what was set out in the written application. There should
be careful briefing of the officers who were to execute the search, including how material to
be searched for might be thought to relate to the crime under investigation. The warrant
was quashed because it permitted the officers to search for material which could not have
been relevant to their investigation. The court also quashed the warrants on two other
grounds, namely that they wrongly included material subject to legal privilege, and that in
any event they should have been applied for inter partes.
1 [1992] Crim LR 669.
A.7.347 A number of decisions have emphasized that it is not sufficient for a constable simply to
assert that the access conditions had been met. The judge should not make an order unless
personally satisfied after a full inquiry¹ that one or other of the sets of access conditions is
fulfilled.2
1 ibid.
2 R (Bright) " Central Criminal Court [2000] 1 WLR 662, 677; R v Crown Court as Lewes ex P Hill (1991)
93 Cr App R 60; R D Guildhall Magistrates Court ex P Primlaks Holdings (Panama) Inc [1990] 1 QB 261,
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[A.7.401]
272; R " Southampton Crown Court P[1993] Crim LR 962; R (BskyB) v Chelmsford Crown Court
[2012] EWHC 1295 (Admin), paras 13-19.
Search warrants issued under Part 2 and Schedule 1 are subject to the protections in SS 15 A.7.348-400
and 16 of PACE. These protections are designed to protect the person whose premises are
being searched and are stringent in their effect.1 A failure to comply with any of the
requirements of either $ 15 or $ 16 may, depending upon the nature of the breach, render
the entry, search, and seizure unlawful, and render the SFO and the relevant police force
liable to an action for damages even where officers follow Home Office guidance.2
1 R v Central Criminal Court ex P AJD Holdings Ltd [1992] Crim LR 669.
2 R v Chief Constable of Warwickshire ex P Fitzpatrick [1999] 1 WLR 564, 574; R v Chief Constable of
Lancashire ex P Parker [1993] QB 577, 584. Bhatti " Croydon Magistrates [2010] EWHC 522 (Admin).
But see, more recently, R (Glenn & Co (Essex) Ltd) v HM Commissioner for Revenue & Customs [2012] 1
Cr App 22; R (Hicks) v Commissioner of Police of the Metropolis [2012] EWHC 1947 (Admin),
paras 244-247.
S 15 requires the warrant to contain essential information such as the name of the person A.7.401
to whom it is directed,1 the articles sought,2 the offences to which the warrant relates,3 the
person who applies for it, the name of the enactment under which is was issued, the address
of the premises to be searched, and the date on which it is issued.4 It is not permissible to
look outside the four corners of the warrant to determine its validity.5 The warrant must
also authorize entry on one occasion only unless it specifies that it authorizes multiple
entries.6 If it specifies that it authorizes multiple entries, it must also specify whether the
number of entries authorized is unlimited, or limited to a specified maximum.7 No
premises may be entered or searched for the second or any subsequent time under a warrant
which authorizes multiple entries unless a police officer of at least the rank of inspector has
in writing authorized that entry to those premises.8
1 Mere reference to 'the suspects' is too vague to satisfy S 15(6): Van der Pijl " The Crown Court at Kingston
[2013] 1 WLR 3706.
2 R v Central Criminal Court ex P AJD Holdings Ltd [1992] Crim LR 669. The particularity required will
depend upon the breadth of the investigation in issue, and the question of where the balance lies in an
individual case will rarely be answered by reference to prior authority. A broad scope of an investigation
may require a correspondingly broad power of search: R (Glenn & Co (Essex)) v Revenue & Customs
Commissioners [2012] 1 Cr App R 22. For examples of unlawfully broad warrants, see R (Anand) " Her
Majesty's Revenue & Customs [2012] EWHC 2989 (Admin); R (Hoque) v City of London Magistrates'
Court [2013] EWHC 725 (Admin).
3 R (Energy Financing Team) " Director of the SFO [2006] 1 WLR 1316; Power-Hynes v Norwich Magistrates'
Court [2009] EWHC 1512 (Admin). Authority to the contrary (R (Fitzpatrick) " Chief Constable of
Warwickshire [1999] 1 WLR 564) has not been followed; R (Anand) " HMRC [2012] EWHC 2989
(Admin).
4 PACE, $ 15(6). Specification in a schedule which is not provided to the occupier will lead to the warrant
being quashed: R (Global Cash & Carry Ltd.) v Birmingham Magistrates' Court [2013] EWHC 528
(Admin),
5
R (Energy Financing Team) " Director of the SFO [2006] 1 WLR 1316; Power-Hynes v Norwich Magistrates'
Court [2009] EWHC 1512 (Admin); R (Anand) v HMRC [2012] EWHC 2989 (Admin); Van der Pijl
v The Crown Court at Kingston [2013] 1 WLR 3706, paras 51-67. Authority to the contrary (R (Fitz-
patrick) " Chief Constable of Warwickshire [1999] 1 WLR 564) has not been followed. Cf. the approach
in R (Ahmed) " York Magistrates' Court [2012] EWHC 3636 (Admin).
6 ibid, $ 15(5).
7 ibid, $ 15(5A).
8 ibid, S 16(3B).
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[A.7.402]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
A.7.402 S 16 contains procedural requirements for the conduct of searches.1 Persons named on the
warrant may accompany the constable.2 A person so authorized has the same powers as the
constable whom he accompanies in respect of the execution of the warrant, and the seizure
of anything to which the warrant relates.3 However, he may exercise those powers only in
the company, and under the supervision, of a constable.4
1 See also Code B, issued under S 66 of PACE.
2 PACE, S 16(2). If a person not named on the warrant accompanies the constable in the execution of the
warrant then the entry, search, and seizure will be unlawful: Gross v Southwark Crown Court [1999] QB
538 (presence of American investigator not named on the warrant unlawful). Therefore, if foreign
investigators wish to be present then this must be made clear in the request and they should be named
on the warrant.
3 ibid, $ 16(2A).
4 ibid, $ 16(2B).
A.7.403 The entry and search must take place within one month of the date of the warrant,1 and
must take place at a reasonable hour unless the constable executing it considers that this
would frustrate the purpose of the search.2 The constable must identify himself to the
occupier (or other person present), produce the warrant, and supply him with a copy of it.³
If no one is present then a copy of the warrant must be left at the premises.4 S 16(8)
provides that the search must be a search to the extent required for the purpose for which
the warrant was issued.5 It follows that if items are seized which fall outside the terms of the
warrant then their seizure will be unlawful unless the items seized can properly be described
as de minimis or unless their seizure is permitted by $ 19.7
1 ibid, $ 16(3).
2 ibid, $ 16(4).
3 ibid, $ 16(5) and 16(6).
4 ibid, $ 16(7).
5 The dominant purpose for execution (although not necessarily the timing of the execution) must be that
for which the power of search has been conferred: R v Southwark Crown Court ex P Bowles [1998] AC
641; R (Pearce) v Metropolitan Police Commissioner [2013] EWCA Civ 866.
6 R " Chief Constable of Warwickshire ex P Fitzpatrick [1999] 1 WLR 564, 575; R " Southwark Crown Court
exp Sorsky Defries [1996] Crim LR 195; but cf Rv Chesterfield Justices ex P Bramley [2000] QB 576 at 588
where these decisions were doubted on this point. Part 2 of the Criminal Justice and Police Act 2001
contains provisions allowing all the material to be seized for later examination and return of the
privileged material to address the issues raised by Bramley see R (on the application of El Kurd) v
Winchester Crown Court & anr [2012] Crim LR 138.
7 The trial judgment of Poole J in International Paper Converters " Chief Constable of the City of London
Police [2004] EWHC 957 (QB), paras 57-61, reviews the relationship between SS 16 and 19 PACE and
concludes that a search that extends beyond the terms of the warrant and engages $ 19 is not, by virtue
of that, rendered unlawful by S 16(8). Having entered premises, the officers may search and seize
pursuant to a warrant or may seize pursuant to their powers under $ 19 of the Act. A search under the
warrant is limited to the extent required for the purpose for which the warrant was issued. But an officer
engaged in a search under a warrant may seize under $ 19 if he has reasonable grounds for believing that
an item has been obtained in consequence of the commission of an offence or if it is evidence in relation
to an offence he is investigating or of any other offence. Even if items outside the warrant or $ 19 are
removed, that does not render the whole search unlawful. It is unlawful only in respect of those items. See
also generally R (Hicks) v Commissioner of Police of the Metropolis [2012] EWHC 1947 (Admin),
paras 228-243.
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C. Requests by Foreign States to the UK
[A.7.406]
Once a circuit judge has made an ex parte order issuing a warrant pursuant to Schedule 1, A.7.404
para 12, he has no power to review or rescind the order, even if it can be shown that he made
it on an erroneous basis, having been given inaccurate or incomplete information. 1 Instead,
the aggrieved party must apply directly for judicial review.2 In Barclays Bank plc (Trading as
Barclaycard) v Taylor3 the Court of Appeal held that, irrespective of whether a notice under
Schedule 1 of PACE is defective, an access order once made, being valid on its face, is fully
effective until set aside by due process; and that since a banker's duty of confidentiality to
his client is qualified by the exception of disclosure under compulsion of law, a bank which
complies with an access order is not thereby in breach of its duty to its client.4 The same
principles apply to search warrants generally.5
1 Whether under $ 59 of the Criminal Justice and Police Act 2001 (R (Goode) v Nottingham Crown Court
[2013] EWHC 1726 (Admin), para 51; R (Chaudhary) v Bristol Crown Court [2016] 1 WLR 631); or
otherwise (R " Liverpool Crown Court ex Wimpey plc [1991] COD 370).
2 R (Goode) " Nottingham Crown Court [2013] EWHC 1726 (Admin), para 51; Lees V Solihull
Magistrates' Court [2013] EWHC 3779 (Admin), para 56; Haralambous v St Albans Crown Court
[2018] UKSC 1, para 10.
3 [1989] 1 WLR 1066.
4 The court went on to say that since such an order could not be made by consent and the responsibility
for deciding whether the access conditions were satisfied rested with the judge making the order, and
since the public interest in assisting the police investigation of crime might be frustrated if the account
holder knew of the application, it is not necessary for the purpose of giving business efficacy to the
banker-client relationship to imply an obligation that the bank, in the absence of special circumstances
known only to itself, should either oppose or probe the application or supporting evidence, or that it
should inform its client of the application.
5 A warrant is 'valid unless and until it is quashed. Until quashed it remains a lawful authority and
justification for any entry or seizure if such is in accordance with its terms': AC Nottingham Magistrates'
Court [2013] EWHC 3790 (Admin), para 25, citing R (Goode) " Nottingham Crown Court [2013]
EWHC 1728 (Admin), para 52 and McGrath v Chief Constable of the Royal Ulster Constabulary [2001]
2 AC 731.
In R (Bright) v Central Criminal Court [2000] 1 WLR 662 the Divisional Court held that A.7.405
where the first set of access conditions in Schedule 1 is found to be fulfilled, the fact that
compliance with the order by the person ordered to make production may involve him in
incriminating himself is not per se a reason for not making an order.
(3) Use of the powers in Part 2 of the Police and Criminal Evidence Act 1984
following a request for mutual assistance
Having considered their domestic effect, the use of the Part 2 procedures in the mutual A.7.406
assistance context can now be examined. In summary, the territorial authority may under
CICA 2003, $ 13(1)(b) direct that a search warrant or production order1 be applied for
under S 16 of the Act.2 S 16 provides that search warrants under Part 2 of PACE may be
issued in respect of overseas criminal conduct provided that the condition of dual
criminality is satisfied.
1 S 13(1)(b) in fact refers only to warrants and not orders. That was a legislative oversight and $ 13(1)(b)
should be read as if it did include power to direct that a production order should be applied for under
PACE 1984, Sch 1: R (Secretary of State for the Home Department) " Southwark Crown Court [2014] 1
WLR 2529.
2 Note, however, that the question of whether material is likely to be relevant and of substantial value is to
be assessed on a necessarily more circumscribed basis than if the warrant were being sought in aid of a
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[A.7.407]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
domestic prosecution or investigation. International MLA instruments operate on the basis of a high
level of mutual trust between signatory states, and mini-trials to determine the degree of relevance of
materials to a future trial in another state are not consistent with that principle. In general, assertions of
relevance in an MLA request will be sufficient to trigger the UK's duty to obtain and submit the
materials: Van der Pijl v Secretary of State for the Home Department [2014] EWHC 281 (Admin).
Continuity evidence is capable of passing the test for relevance and materiality.
A.7.407 S 16(1) of the CICA 2003 provides that Part 2 of PACE is to have effect as if references to
indictable offences in $ 8 of and Schedule 1 to the Act included any conduct which
constitutes an offence under the law of a country outside the UK, and would, if it occurred
in England and Wales, constitute an indictable offence.
1 See CICA 2003 S 16(3) in relation to Northern Ireland. As with extradition, that dual criminality
assessment requires an essentially factual rather than legal comparison, and does not require precise
correlation of the elements of the respective offences. Where, therefore, on a fraud allegation, the
equivalent German offence required no showing of dishonesty, but allegations of dishonesty ran through
the factual allegations, the requirement was satisfied: Brookfield Aviation International Ltd v Guildford
Crown Court [2015] EWHC 3465 (Admin).
A.7.408 But an application for a warrant or order by virtue of $ 16(1) may be made only in
pursuance of a direction given under S 13 (s 16(2)(a)), or if it is an application for a warrant
or order under $ 8 of, or Schedule 1 to, the Police and Criminal Evidence Act by a constable
for the purposes of an investigation by an international joint investigation team of which he
is a member (s 16(2)(b)).
A.7.409 An 'international joint investigation team' has the meaning given by S 88(7) of the Police
Act 1996.1 Thus, where the application has been made by the member of such a team, a
direction by the Secretary of State need not have been given. S 16(2)(b) thus allows joint
investigation teams to investigate cases of serious criminal activity with links to one or more
Member State2 in the UK.
1 ie, any investigation team formed in accordance with any Framework Decision on joint investigation
teams OJ L162/1, 20.6.02; the EU Convention on Mutual Assistance in Criminal Matters and its
Protocol; or any international agreement to which the UK is a party and which is specified for the
purposes of this $ in an order made by the Secretary of State.
2 This provision implements Art 13 of the EU Convention on Mutual Assistance in Criminal Matters
(entitled 'Joint investigation teams'). Their purpose is to carry out joint investigations into crimes with
cross-border elements, with a view to improving and speeding up the investigation of such crimes.
(4) Warrants under section 17 of the Crime (International Co-operation) Act 2003
A.7.410 S 17(1) of CICA 2003 provides that a JP may issue a warrant under $ 17 if he is satisfied,
on an application made by a constable, that criminal proceedings have been instituted
against a person in a country outside the UK, or a person has been arrested in the course of
a criminal investigation carried on there; the conduct constituting the offence which is the
subject of the proceedings or investigation would, if it occurred in England and Wales
constitute an indictable offence;1 or there are reasonable grounds for suspecting that there
is on premises in England and Wales2 occupied or controlled by that person evidence
relating to the offence.3
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[A.7.415]
1 In Northern Ireland, an arrestable offence.
2 Or Northern Ireland.
3 As under S 16, assessment of relevance will be addressed primarily by reference to the content of, and
assertions within, the MLA request: Van der Pijl v Secretary of State for the Home Department [2014]
EWHC 281 (Admin).
A warrant under 17 may authorize a constable to enter the premises in question and search A.7.411
the premises to the extent reasonably required for the purpose of discovering any evidence
relating to the offence, and to seize and retain any evidence for which he is authorized to
search.
By virtue of $ 26(1) a court in England and Wales or Northern Ireland, or a JP, may not issue A.7.412
a warrant under $ 17 in respect of any evidence unless the court or justice has reasonable
grounds for believing that it does not consist of or include items subject to legal privilege.
A warrant issued under S 17 is subject to the safeguards in SS 15 and 16 of PACE. An A.7.413
application for a warrant under $ 17(1) may be made only in pursuance of a direction given
under $ 13.
Article 10 of the Crime (International Co-operation) Act 2003 (Exercise of Functions) A.7.414
Order 2013' provides that any function conferred on a constable under S 17 may be
exercised by an officer of Revenue and Customs where the Commissioners have given a
direction under $ 13 that an application be made for a search warrant.
1 SI 2013/2733.
(5) Giving the direction under the Crime (International Co-operation)
Act 2003, section 13
Where the Secretary of State has made a direction under CICA 2003, $ 13(1)(b) following
A.7.415
a request for mutual assistance, one of four¹ forms of application may be made by either a
constable or an officer of Revenue and Customs under SS 16-17:2
an application for a search warrant under S 8 of PACE;
an application for a production order under Schedule 1 of PACE;3
an application for a search warrant under Schedule 1 of PACE, in each case, with the
term indictable offence being read as including any conduct which is an offence under
the law of a country or territory outside the UK and would constitute such an offence if
it had occurred in the UK; or
an application for a warrant under $ 17.
1
R v Central Criminal Court ex P Propend Finance Property Ltd [1996] 2 Cr App R 26, 32.
2 Crime (International Co-operation) Act 2003 (Exercise of Functions) Order 2013 (SI 2013/2773).
3 S 13(1)(b) in fact refers only to warrants and not orders. That was a legislative oversight and $ 13(1)(b)
should be read as if it did include power to direct that a production order should be applied for under
PACE 1984, Sch 1: R (Secretary of State for the Home Department) " Southwark Crown Court [2014] 1
WLR 2529.
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[A.7.416]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
A.7.416 In R v Central Criminal Court ex P Propend Finance Property Ltd [1996] 2 Cr App R 26 the
Divisional Court considered whether the Secretary of State was required under the
equivalent provision to $ 16 in the Criminal Justice (International Co-operation) Act 1990
to specify in his direction what form of warrant or order should be obtained Laws J held
that it should have done so, and that the failure to do so rendered the warrants unlawful:
In our judgment, the Secretary of State has not only the responsibility of deciding
whether assistance should be given to the requesting state; in our view he must also
decide what assistance should so be given. S 7(4) authorizes only a unitary direction,
specifying a particular form of application It was submitted to us by [counsel for
the Secretary of State] that the police possess an experience and expertise in the
administration of the PACE procedures which the Secretary of State does not share.
But he has specific responsibilities under the Act of 1984 to oversee certain processes
by the police: see $ 66. So that submission does not, in our judgment, assist the
Secretary of State.¹
1 This passage was, however, doubted by Brooke LJ in an obiter dicta in R " Southwark Crown Court ex P
Gross, Unreported, 24 July 1998 (CO 1759/98). He preferred a construction of S 7 which permitted the
Secretary of State to leave it to the police to decide whether a production order or search warrant under
Sch 1 of PACE should be obtained.
(v) Transmission of the evidence
A.7.417 Once the request has been executed and the evidence been obtained either in proceedings
under CICA 2003, S 15 before a nominated court, by the SFO, or using the powers in $ 16
and 17, the evidence may be transmitted to the requesting state either directly or indirectly.
A.7.418 In relation to proceedings before a nominated court, para 6(1) of Schedule 1 of the CICA
2003 provides that the evidence received by the court is to be given to the court or authority
that made the request or to the territorial authority for forwarding to the court or authority
that made the request. So far as may be necessary in order to comply with the request where
the evidence consists of a document, the original or a copy is to be provided, and where it
consists of any other article, the article itself, or a description, photograph, or other
representation of it, is to be provided (para 6(2)).
A.7.419 By S 2(8A) of the Criminal Justice Act 1987, any evidence obtained by the Director for use
by an overseas authority must be given to the overseas authority which requested it, or given
to the Secretary of State for forwarding to that overseas authority. If the Director makes a
direct transmission he will normally require the provision of an undertaking that the
document or other information obtained will not be used other than in criminal prosecu-
tions arising from the investigation set out in this letter of request, without the prior
consent of the Secretary of State for the Home Department.
A.7.420 S 19(1) of CICA 2003 allows any evidence seized under SS 16-18 to be sent directly by a
constable to the requesting court or authority, unless the requesting territory is not a party
to the EU Convention on Mutual Legal Assistance on Criminal Matters, in which case the
evidence will be sent to the territorial authority for forwarding to the requesting court or
authority.1
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[A.7.424]
1 See Government Explanatory Notes to CICA 2003, para 65.
Art 11 of the Crime (International Co-operation) Act 2003 (Exercise of Functions) Order A.7.421
2013' provides that any function conferred under S 19 on a constable in England and Wales
or Northern Ireland must be exercised by an officer of Revenue and Customs instead of a
constable where the evidence has been seized by an officer of Revenue and Customs under
a search warrant or production order issued by virtue of $ 16, or a search warrant issued
under S 17. Art7 provides that the Commissioners may exercise the function under $ 19 of
forwarding evidence to the court or authority which made a request for assistance where
that evidence has been obtained by an officer of Revenue and Customs under or by virtue
of the 2013 Orders.
1 SI 2013/2733.
Whilst the point is not free from doubt, it would appear that the Secretary of State or other A.7.422
territorial authority retains a discretion to transmit the evidence and that it could decline to
do so if it would not be appropriate. Specifically, the Secretary of State is bound to act in
accordance with the obligations of the Human Rights Act. Whilst in the absence of any
objection from the persons affected the Secretary of State is entitled to forward the material
received from the executing authority to the requesting state, where an objection is raised
the Secretary of State should not forward the material until the question has been resolved.1
1
Gross v Southwark Crown Court, Unreported, 24 July 1998 (CO/1759/98).
The representatives of the foreign state are permitted to have some limited access to the A.7.423
documentation prior to its transmission for bona fide purposes connected with the
execution of the request, and no unlawful transmission takes place if they are merely
permitted to see the documents or to take notes about them.¹
1 R v Secretary of State for the Home Department ex P Fininvest Spa [1997] 1 WLR 743, 757-8; R v Central
Criminal Court ex P Propend Property Ltd [1996] 2 Cr App R 26, 32-3; R " Southwark Crown Court ex
P Sorsky Defries [1996] COD 117.
(1) Use of the evidence in the requesting state
CICA 2003 does not on its face limit the use of the evidence to the reasons it is needed as A.7.424
listed in the request. However, once the evidence has been transmitted to the requesting
state it is not free to use it as it wishes. Before transmission takes place, the UK Central
Authority generally requires the requesting authority to provide an undertaking that the
evidence will only be used for the purposes for which assistance was granted, that is, that no
document or other information obtained will be used other than in the criminal prosecu-
tions arising from the investigation set out in the letter of request without the prior consent
of the Secretary of State.¹
1 Para 32(3) of the Harare Scheme contains a specific restriction to this effect. Some countries, eg
Switzerland, have entered reservations to Art 2(b) of the European Convention on Mutual Assistance
1959 requiring such an undertaking before assistance will be given. The UK did not enter a reservation
but does require an undertaking; cf CICA 2003, $ 9 which provides a statutory limitation in respect of
evidence obtained from abroad for use in the UK. See, generally, the discussion of the genesis of S 9 in
Crown Prosecution Service v Gobil [2013] Fam 276.
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[A.7.425]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
A.7.425 This form of undertaking provides a form of 'specialty protection' analogous to that which
exists for extradition defendants.
(vi) Hearing evidence from the UK by television or telephone link
A.7.426 Sections 30 and 31 of CICA 2003 introduce new measures to allow evidence of witnesses
(not defendants) to be taken in the UK and transmitted by television or telephone to
criminal proceedings being conducted abroad.
(1) Television links
A.7.427 S 30 applies where the Secretary of State receives a request from an authority mentioned in
$ 30(2) (the external authority), for a person in the UK to give evidence through a live
television link in criminal proceedings before a court in a country outside the UK. For these
purposes, criminal proceedings include any proceedings on an appeal before a court against
a decision in administrative proceedings.
A.7.428 The authority referred to in $ 30(2) is the authority in that country which appears to the
Secretary of State to have the function of making requests of the kind to which this $
applies.
A.7.429 Unless he considers it inappropriate to do so, the Secretary of State must by notice in
writing nominate a court in the UK where the witness may be heard in the proceedings in
question through a live television link (s 30(3)).
A.7.430 By $ 30(4) anything done by the witness in the presence of the nominated court which, if
it were done in proceedings before the court would constitute contempt of court, is to be
treated for that purpose as done in proceedings before the court. Any statement made on
oath by a witness giving evidence in pursuance of S 30 is to be treated for the purposes of $
1 of the Perjury Act 1911 as made in proceedings before the nominated court.
A.7.431 Part 1 of Schedule 2 (evidence given by television link) contains detailed provisions
concerning evidence by television link. Subject to $ 30(4) and (5) and the provisions of that
Schedule, evidence given pursuant to this S is not to be treated for any purpose as evidence
given in proceedings in the UK.
(2) Telephone links
A.7.432 S 31 applies where the Secretary of State receives a request, from an authority mentioned in
$ 31(2) ('the external authority) in a participating country, for a witness in the UK to give
evidence by telephone in criminal proceedings before a court in that country. Criminal
proceedings include any proceedings on an appeal before a court against a decision in
administrative proceedings.
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[A.7.441]
The authority mentioned in $ 31(2) is the authority in that country which appears to the A.7.433
Secretary of State to have the function of making requests of the kind to which this S
applies.
A request under S 31(1) must specify the court in the participating country; give the name A.7.434
and address of the witness; and state that the witness is willing to give evidence by telephone
in the proceedings before that court (s 31(3)).
By $ 31(4), unless he considers it inappropriate to do so, the Secretary of State must by A.7.435
notice in writing nominate a court in the UK where the witness may be heard in the
proceedings in question by telephone.
Anything done by the witness in the presence of the nominated court which, if it were done A.7.436
in proceedings before the court would constitute contempt of court, is to be treated for that
purpose as done in proceedings before the court. Any statement made on oath by a witness
giving evidence in pursuance of this S is to be treated for the purposes of $ 1 of the Perjury
Act 1911 as made in proceedings before the nominated court (s 31(5)).
Part 2 of Schedule 2 contains detailed provisions concerning telephone link evidence.
A.7.437
Subject to $ 31(5) and (6) and the provisions of Schedule 2, evidence given in pursuance of A.7.438
S 31 is not to be treated for any purpose as evidence given in proceedings in the UK.
(3) Overseas requests to freeze evidence in the UK
This section examines the way in which overseas orders to freeze evidence located in the UK A.7.439
can be received and executed in the UK. CICA 2003, SS 20-27 give effect to the principle
of mutual recognition of overseas freezing orders, and implements in part the Framework
Decision Council Framework Decision on the execution in the EU of orders freezing
property or evidence (referred to in this $ as the Freezing Framework Decision).
1 2003/577/JHA, 22 July 2003; OJ L 196, 2.08.2003. See para 66 of the Explanatory Notes to CICA
2003. See generally A v Director of Public Prosecutions [2017] 1 WLR 713, CA: a challenge to the
substantive reasons for making an overseas restraint order may only be made in the courts of the
requesting state and is not justiciable in the UK courts.
Schedule 4 of CICA 2003 contains amendments to Schedule 4 of the Terrorism Act 2000 A.7.440
which provide for mutual recognition of freezing orders in relation to terrorist property.
(vii) Receiving an overseas freezing order
S 20 of CICA 2003 sets out the conditions that must be met before the territorial authority A.7.441
in the UK, namely the Secretary of State or the Lord Advocate, sends the overseas freezing
order to a court to be considered for execution under $ 21.
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[A.7.442]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
A.7.442 S 20(1) provides that $ 21 applies where an overseas freezing order made by a court or
authority in a 'participating country is received from the court or authority which made
or confirmed the order by the territorial authority for the part of the UK in which the
evidence to which the order relates is situated.
1 By CICA 2003, $ 51(2), a participating country means Denmark or the Republic of Ireland and any
other country designated by an order made by the Secretary of State or, in relation to Scotland, the
Scottish Ministers. Existing Orders made under $ 51(2) are set out at n 156. paraparaparaparapara
A.7.443 An overseas freezing order is an order for protecting, pending its transfer to the participat-
ing country, evidence which is in the UK, and may be used in any proceedings or
investigation in the participating country, and in respect of which the following require-
ments are met.
the order must have been made by a court exercising criminal jurisdiction in the country;
a prosecuting authority in the country; or any other authority in the country which
appears to the territorial authority to have the function of making such orders (s 20(3));¹
the order must relate to criminal proceedings instituted in the participating country in
respect of a listed offence,2 or a criminal investigation being carried on there into such an
offence (s 20(4));
the order must be accompanied by a certificate which gives the specified information;3
but a certificate may be treated as giving any specified information which is not given in
it if the territorial authority has the information in question. References in Chapter 2 of
Part 1 of CICA 2003 to an overseas freezing order include its accompanying certificate
(s 20(5));
the certificate must be signed by or on behalf of the court or authority which made or
confirmed the order; include a statement as to the accuracy of the information given in
it; if it is not in English, include a translation of it into English (or, if appropriate, Welsh)
(s 20(6));
the order must be accompanied by a request for the evidence to be sent to a court or
authority mentioned in S 13(2), unless the certificate indicates when such a request is
expected to be made (s 20(7)).
1 In relation to clause 20(3)(c) of the Bill (now CICA 2003, $ 20(3)(c)) the Attorney-General said during
the Committee stage in the House of Lords (see HL Deb 23 January 2003, GC84 and 85): the
purpose of Clause 20(3)(c) is to cover all judicial authorities in other EU countries. I say "other EU
countries" because that is the limit on the application of this provision. EU judicial authorities are
designated under the 1959 Council of Europe convention, so they are clearly identified For many
years, we have been able to execute requests for mutual legal assistance, including for search and seizure,
by authorities of this type. S 7(4)(b) of the 1990 Act includes that type of person. That is re-enacted by
Clause 13(2)(b) of the Bill. So the provision merely applies to the new concept of the freezing order the
same approach that has already been adopted in relation to mutual legal assistance. It has not caused any
difficulties in practice. It must be available for the enforcement of overseas freezing orders.'
2 A listed offence means an offence described in Art 3(2) of the Council Framework Decision, or an
offence prescribed or of a description prescribed by an order made by the Secretary of State (s 28(5)).
3 By $ 28(7), this is any information required to be given by the form of certificate annexed to the Council
Framework Decision, or any information prescribed by an order made by the Secretary of State. The
standard form of certificate annexed to the Council Framework Decision includes: details of the issuing
judicial authority; details of the authority competent to enforce the freezing order in the issuing state;
details of the central authority responsible for transmission and reception of the freezing order (UK and
Ireland only); details about the freezing order itself (date, purpose, executing procedure, for example);
information about the evidence subject to the overseas freezing order (a precise description of the
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C. Requests by Foreign States to the UK
[A.7.448]
property and its last known location); details about the identity of the natural or legal person suspected
of the offence (or convicted thereof); details as to whether the executing state should confiscate, secure
and/or transfer the evidence to the issuing state; a description of the relevant grounds for the freezing
order; and a summary of facts as known to the issuing judicial authority as well as the legal remedies
against the freezing order for interested parties, including bona fide third parties, available in the issuing
state.
(viii) Nominating a court
S 21(1)(a) of CICA 2003 provides that if the conditions of S 20 are met the territorial A.7.444
authority must nominate a court in England and Wales or (as the case may be) Northern
Ireland to give effect to the overseas freezing order; send a copy of the overseas freezing
order to the nominated court and to the chief officer of police for the area in which the
evidence is situated; and tell the chief officer which court has been nominated.
The nominated court is to consider the overseas freezing order on its own initiative within A.7.445
a period prescribed by rules of court (s 21(3)). Before giving effect to the overseas freezing
order, the nominated court must give the chief officer of police an opportunity to be heard
(s 21(4)).
The court may decide not to give effect to the overseas freezing order only if, in its opinion,
A.7.446
one of the following conditions is met (s 21(4)). The first condition is that, if the person
whose conduct is in question were charged in the participating country with the offence to
which the overseas freezing order relates or in the UK with a corresponding offence, he
would be entitled to be discharged under any rule of law relating to previous acquittal or
conviction (s 21(6)). The second condition is that giving effect to the overseas freezing
order would be incompatible with any of the Convention rights within the meaning of the
Human Rights Act 1998 (s 21(7)).
(ix) Giving effect to the overseas freezing order
S 22 of CICA 2003 provides the mechanism whereby the nominated court gives effect to A.7.447
the overseas freezing order.
S 22(1) provides that the nominated court is to give effect to the overseas freezing order by A.7.448
issuing a warrant authorizing a constable to enter the premises to which the overseas
freezing order relates and search the premises to the extent reasonably required for the
purpose of discovering any evidence to which the order relates, and to seize and retain any
evidence for which he is authorized to search. But, in relation to England and Wales and
Northern Ireland, so far as the overseas freezing order relates to excluded material or special
procedure material¹ the court is to give effect to the order by making a production order
(s 22(2)).
1 As defined in CICA 2003, S 28(3).
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[A.7.449]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
A.7.449 S 26(1) provides that the court may not issue a warrant under $ 22 in respect of any
evidence unless the court has reasonable grounds for believing that it does not consist of or
include items subject to legal privilege, excluded material, or special procedure material. S
26(1) does not prevent a warrant under $ 22(5) being issued for special procedure material
or excluded material.
A.7.450-500 A production order is an order for the person who appears to the court to be in possession
of the material to produce it to a constable before the end of the period of seven days
beginning with the date of the production order or such longer period as the production
order may specify. The constable may take away any material produced to him under a
production order; and the material is to be treated for the purposes of $ 21 of PACE as if it
had been seized by the constable (s 22(3)).
A.7.501 If a person fails to comply with a production order, the court may (whether or not it deals
with the matter as a contempt of court) issue a warrant under S 22(1) in respect of the
material to which the production order relates (s 22(5)).
A.7.502 S 23 provides that the nominated court may postpone giving effect to an overseas freezing
order in respect of any evidence in order to avoid prejudicing a criminal investigation which
is taking place in the UK or, if under an order made by a court in criminal proceedings in
the UK, the evidence may not be removed from the UK.
(x) Evidence seized under the order
A.7.503 S 24(1) of CICA 2003 provides that any evidence seized by or produced to the constable
under $ 22 is to be retained by him until he is given a notice under S 24(2) or authorized to
release it under $ 25(2).
A.7.504 By $ 24(2), if the overseas freezing order was accompanied by a request for the evidence to
be sent to a court or authority mentioned in $ 13(2), or the territorial authority subse-
quently receives such a request, the territorial authority may by notice require the constable
to send the evidence to the court or authority that made the request.
(xi) Release of evidence held under the order
A.7.505 On an application made by a person mentioned in CICA 2003, $ 25(1), the nominated
court may authorize the release of any evidence retained by a constable under S 24 if, in its
opinion the condition in S 21(6) or (7) is met (double jeopardy and human rights), or the
overseas freezing order has ceased to have effect in the participating country.
A.7.506 In relation to England and Wales and Northern Ireland, the persons who may make such
an application are the chief officer of police to whom a copy of the order was sent, the
constable, or any other person affected by the order (s 25(2)).
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[A.7.511]
If the territorial authority decides not to give a notice under S 24(2) in respect of any A.7.507
evidence retained by a constable under that section, the authority must give the constable
a notice authorising him to release the evidence (s 25(4)).
(c) Requests for UK bank transaction information
Chapter 4 of Part 1 of CICA 2003 provides for the disclosure of banking information in A.7.508
connection with criminal investigations in EU Member States or other designated states.¹
Chapter 4 implements the 2001 Protocol to the EU Convention on Mutual Assistance in
Criminal Matters.2 The purpose of the Protocol is to tackle serious crime, in particular
economic crime and money laundering. Countries participating in the 2001 Protocol are
obliged to identify, provide information about, and monitor bank accounts at the request
of other participating countries, subject to certain restrictions and conditions which are
explained in more detail below. The 2001 Protocol obliges participating countries to
establish mechanisms whereby they can provide the stipulated information. The manner in
which they do so is left to individual participating countries.
1 CICA 2003, SS 37-41 apply to Scotland. CICA 2003, ss 32-36 came into force on 1 November 2006:
Crime (International Co-operation) Act 2003 (Commencement No 3) Order 2006 (SI 2006/2811).
2 OJ C 326, 21.11.2001, 1. See also the Explanatory report to the Protocol to the 2000 Convention on
mutual assistance in criminal matters between the Member States of the European Union, OJ C 257,
24.10.2002, P 1.
(i) Request for customer information from a UK financial institution
(1) Receipt of request
CICA 2003, $ 32 applies where the Secretary of State receives a request from an authority A.7.509
mentioned in $ 32(2) for customer information to be obtained in relation to a person who
appears to him to be subject to an investigation in a participating country1 into serious
criminal conduct.
1 A participating country means Denmark or the Republic of Ireland, and any other country designated
by an order made by the Secretary of State or, in relation to Scotland, the Scottish Ministers: CICA 2003,
S 51(2). Existing Orders made under $ 51(2) are set out at n 156.
The authority mentioned in S 32(2) is the authority in a participating country which A.7.510
appears to the Secretary of State to have the function of making requests of the kind to
which this $ applies.
After receiving a request the Secretary of State may direct a senior police officer1 to apply, A.7.511
or arrange for a constable to apply, for a customer information order; or direct a senior
customs officer2 to apply, or arrange for a customs officer to apply, for such an order
(s 32(3)).3 During the debate on the Crime (International Co-operation) Bill the Minister
said:
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[A.7.512]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
One of the matters that the Secretary of State will take into account will be whether
the request contains the information specified in Article 1 of the protocol, in
particular the conditions in Article 1(4). That includes, for example, the requirement
that the requesting authority state why it is considered that the requested information
is likely to be of substantial value to the investigation. If that information is not given,
refusal may follow. The test is the same as one of the tests under domestic law in
PACE.4 We are confident, therefore, that we will not be allowing fishing expeditions.
1
ie, a police officer who is not below the rank of superintendent: CICA 2003, S 46(1).
2 ie, a customs officer who is not below the grade designated by the Commissioners of Customs and Excise
as equivalent to the rank of superintendent: CICA 2003, $ 46(1).
3 HL Deb 27 January 2003, CC 128GC.
4 The question of whether material is likely to be relevant and of substantial value is to be assessed on a
necessarily more circumscribed basis than if the warrant were being sought in aid of a domestic
prosecution or investigation. International MLA instruments operate on the basis of a high level of
mutual trust between signatory states, and mini-trials to determine the degree of relevance of materials
to a future trial in another state are not consistent with that principle. In general, assertions of relevance
in an MLA request will be sufficient to trigger the UK's duty to obtain and submit the materials: Van der
Pijl " Secretary of State for the Home Department [2014] EWHC 281 (Admin). Continuity evidence is
capable of passing the test for relevance and materiality.
A.7.512 S 32(4) defines a customer information order to be an order made by a judge¹ that a
financial institution2 specified in the application for the order must, on being required to
do so by notice in writing given by the applicant for the order, provide any such customer
information as it has relating to the person specified in the application.
1 ie in England and Wales, a judge entitled to exercise the jurisdiction of the Crown Court: CICA 2003,
S 46(5)(a).
2 CICA 2003, $ 46(4) defines a 'financial institution' to be a person who is carrying on business in the
regulated sector, and in relation to a customer information order or an account monitoring order,
includes a person who was carrying on business in the regulated sector at a time which is the time to
which any requirement for him to provide information under the order is to relate. "Business in the
regulated sector' is to be interpreted in accordance with Sch 9 to POCA.
A.7.513 A financial institution which is required to provide information under a customer infor-
mation order must provide the information to the applicant for the order in such manner,
and at or by such time, as the applicant requires (s 32(5)). A customer information order
has effect in spite of any restriction on the disclosure of information (however imposed)
(s 32(7)). Thus a financial institution may lawfully disclose information under a customer
information order in spite of the duty of confidentiality it owes to the account holder.
A.7.514 "Customer information' is defined in $ 32(6) by reference to the definition of that term in
POCA. S 32(6) of CICA 2003 provides that S 364 of POCA (meaning of customer
information), except S 364(2)(f) and (3)(i), has effect for the purposes of S 32 as if it were
included in Chapter 2 of Part 8 of POCA. S 364(1) provides that 'customer information',
in relation to a person and a financial institution, is information whether the person holds,
or has held, an account or accounts or any safe deposit box at the financial institution
(whether solely or jointly with another) and (if so) information as to the matters specified
in $ 364(2) if the person is an individual; and the matters specified in $ 364(3) if the person
is a company or limited liability partnership or a similar body incorporated or otherwise
established outside the UK.
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[A.7.520]
Customer information obtained in pursuance of a customer information order is to be A.7.515
given to the Secretary of State and sent by him to the authority which made the request
(s 32(8)).
It is an offence for a financial institution to fail to comply with a customer information A.7.516
order. S 34(1) provides that a financial institution is guilty of an offence if without
reasonable excuse it fails to comply with a requirement imposed on it under a customer
information order. A financial institution guilty of an offence under S 34(1) is liable on
summary conviction to a fine not exceeding level 5 on the standard scale.
A financial institution is also guilty of an offence if, in purported compliance with a A.7.517
customer information order, it makes a statement which it knows to be false or misleading
in a material particular, or recklessly makes a statement which is false or misleading in a
material particular. A financial institution guilty of an offence under S 34(3) is liable, on
summary conviction, to a fine not exceeding the statutory maximum, or on conviction on
indictment, to a fine.
(2) Making, varying, and discharging a customer information order
A judge may make a customer information order, on an application made to him pursuant A.7.518
to a direction under $ 32(3), if he is satisfied that the person specified in the application is
subject to an investigation in the country in question; the investigation concerns conduct
which is serious criminal conduct;1 the conduct constitutes an offence in England and
Wales or (as the case may be) Northern Ireland, or would do were it to occur there; and the
order is sought for the purposes of the investigation (s 33(1)).
1 CICA 2003, S 46(3) provides that serious criminal conduct means conduct which constitutes an offence
to which Art 1(3) of the 2001 Protocol applies, or an offence specified in an order made by the Secretary
of State or, in relation to Scotland, the Scottish Ministers for the purpose of giving effect to any decision
of the Council of the EU under Art 1(6). Article 1(3) of the Protocol includes inter alia offences which
are punishable by a maximum term of imprisonment of at least four years in the requesting Member
State and two years in the requested state.
The application may be made ex parte to a judge in chambers (s 33(2)). The application A.7.519
may specify: all financial institutions; a description, or particular descriptions, of financial
institutions; or a particular financial institution or particular financial institutions
(s 33(3)).
The court may discharge or vary a customer information order on an application made by
A.7.520
the person who applied for the order, a senior police officer, a constable authorized by a
senior police officer to make the application, a senior customs officer, or a customs officer
authorized by a senior customs officer to make the application (s 33(4)).
Fraud
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[A.7.521]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
(ii) Requests to the UK to monitor bank accounts
A.7.521 Sections 35 and 36 implement Art 3 of the 2001 Protocol in relation to incoming requests
for account monitoring orders. Art 3 provides for requests to be made for a specified bank
account to be monitored during a specified period of time. Such a request might be made
subsequent to an Art 1 request for bank details or in cases where the investigator already has
the details of the relevant account. Account monitoring procedures were introduced in the
UK under the Proceeds of Crime Act 2002,1 but separate provision is required in this Act
to ensure that the UK can respond to all requests that meet the requirements of the 2001
Protocol, which has a wider scope than POCA.
1 See POCA, S 370.
(1) Request for an account monitoring order
A.7.522 S 35 of CICA 2003 applies where the Secretary of State receives a request from an authority
mentioned in $ 35(2) for account information to be obtained in relation to an investigation
in a participating country1 into criminal conduct.
1 A participating country means Denmark or the Republic of Ireland and any other country designated by
an order made by the Secretary of State or, in relation to Scotland, the Scottish Ministers.: CICA 2003,
S 51(2). For existing Orders made under S 51(2), see n 156.
A.7.523 The authority referred to in $ 35(2) is the authority in that country which appears to the
Secretary of State to have the function of making requests of the kind to which this $
applies.
A.7.524 The Secretary of State may direct a senior police officer1 to apply, or arrange for a constable
to apply, for an account monitoring order; or direct a senior customs officer2 to apply, or
arrange for a customs officer to apply, for such an order.
1 ie, a police officer who is not below the rank of superintendent: CICA 2003, S 46(1).
2 ie, a customs officer who is not below the grade designated by the Commissioners of Customs and Excise
as equivalent to the rank of superintendent: CICA 2003, $ 46(1).
A.7.525 An account monitoring order is an order made by a judge that a financial institution
specified in the application for the order must, for the period stated in the order,2 provide
account information of the description specified in the order to the applicant in the
manner, and at or by the time or times, stated in the order (s35(4)). An account monitoring
order has effect in spite of any restriction on the disclosure of information (however
imposed) and so overrides the institution's duties of confidentiality (s 35(6)).
1 CICA 2003, $ 46(4) defines a 'financial institution' to be a person who is carrying on business in the
regulated sector, and in relation to a customer information order or an account monitoring order,
includes a person who was carrying on business in the regulated sector at a time which is the time to
which any requirement for him to provide information under the order is to relate. "Business in the
regulated sector' is to be interpreted in accordance with Sch 9 to POCA.
2 In relation to this period the Government's Explanatory Notes to CICA 2003, para 98 comment: 'Article
3(3) of the 2001 Protocol provides that the order shall be made with due regard for the national law of
the requested Member State. Under the Proceeds of Crime Act 2002, account monitoring orders may be
made for a period of up to 90 days and the same restriction will apply to requests under the 2001
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C. Requests by Foreign States to the UK
[A.7.534]
Protocol. No limit is stated because the arrangements will be made between the relevant authorities on
a case by case basis, as provided for in article 3(4) of the 2001 Protocol.'
Account information is information relating to an account or accounts held at the financial A.7.526
institution specified in the application by the person so specified (whether solely or jointly
with another) (s 35(5)).
Account information obtained in pursuance of an account monitoring order is to be given A.7.527
to the Secretary of State and sent by him to the authority which made the request (s 35(7)).
(2) Making, varying, or discharging account monitoring orders
CICA 2003, S 36(1) provides that a judge may make an account monitoring order, on an A.7.528
application made to him in pursuance of a direction under $ 35(3), if he is satisfied that
there is an investigation in the country in question into criminal conduct, and the order is
sought for the purposes of the investigation.
The application may be made ex parte to a judge in chambers (s 36(2)).
A.7.529
The application may specify information relating to all accounts held by the person A.7.530
specified in the application for the order at the financial institution so specified; a particular
description, or particular descriptions, of accounts so held; or a particular account, or
particular accounts, so held (s 36(3)).
The court may discharge or vary an account monitoring order on an application made by A.7.531
the person who applied for the order; a senior police officer, a constable authorized by a
senior police officer to make the application, a senior customs officer, or a customs officer
authorized by a senior customs officer to make the application (s 36(4)).
Account monitoring orders have effect as if they were orders of the court (s 36(5)).
A.7.532
(3) The offence of disclosure in relation to customer information orders and account
monitoring orders
In order to be effective it is obvious that customer information orders and account A.7.533
monitoring orders must remain confidential. S 42 of CICA 2003 makes it an offence for a
financial institution or its employees to disclose information about these orders.
S 42 applies where a financial institution is specified in a customer information order or A.7.534
account monitoring order made in any part of the UK, or the Secretary of State or the Lord
Advocate receives a request under S 13 for evidence to be obtained from a financial
institution in connection with the investigation of an offence in reliance on Article 2
(requests for information on banking transactions) of the 2001 Protocol.
Fraud
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[A.7.535]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
A.7.535 If the institution, or an employee of the institution, discloses any of the following
information, the institution or (as the case may be) the employee is guilty of an offence
(s 42(2)). That information is that the request to obtain customer information or account
information, or the request mentioned in $ 42(1)(b), has been received; that the investiga-
tion to which the request relates is being carried out; or that, in pursuance of the request,
information has been given to the authority which made the request.
A.7.536 An institution guilty of an offence under S 42 is liable on summary conviction to a fine not
exceeding the statutory maximum, and on conviction on indictment to a fine.
A.7.537 Any other person guilty of an offence under this $ is liable on summary conviction to
imprisonment for a term not exceeding six months, or to a fine not exceeding the statutory
maximum, or to both, and on conviction on indictment to imprisonment for a term not
exceeding five years, or to a fine, or to both.
D. Mutual Legal Assistance in Relation to Restraint
and Confiscation
(a) Introduction
A.7.538 The statutory provisions analysed in this section give effect to the UK's international
obligations to assist other states in relation to restraint and confiscation of the proceeds of
crime.¹ Specific powers relating to the gathering of evidence for use in confiscation matters
are also considered in this section.2 General powers relating to the gathering of evidence
and information including banking information have been considered above in the context
of mutual assistance in the provision of evidence.³
1 See in particular the European Convention on Laundering, Search Seizure and Confiscation of the
Proceeds of Crime (CETS 141; European Convention on Mutual Assistance in Criminal Matters
(CETS 30); the EU Convention on Mutual Assistance in Criminal Matters (2000/C197/01) and the
Council Framework Decision of 26 June 2001 on Money Laundering, the Identification, Tracing,
Freezing, Seizing and Confiscation of Instrumentalities and the Proceeds of Crime (O) 2001 L182/1).
2 See paras A.7.608 and A.7.714.
3
A number of general powers for requesting evidence from overseas are contained in Chapter 2 of Pt 1 of
CICA 2003. Sections 43-45 of CICA 2003 permit UK judicial authorities to make requests for banking
information to foreign states at the request of designated prosecuting authorities in cases of serious
criminal conduct.
A.7.539 The relevant statutory provisions are contained in both primary and secondary legislation.
Part 2 of POCA contains provisions which allow requests for assistance to be made to
foreign states by prosecutors in connection with restraint and confiscation.1 Part 11 of
POCA is entitled "Co-operation" and contains enabling provisions for the making of
subordinate legislation for the freezing and realization of the proceeds of crime at the
request of foreign states,2 and for the enforcement of orders in the different parts of the
UK.3
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D. Mutual Legal Assistance in Relation to Restraint
[A.7.543]
1
The Asset Recovery Agency's functions were transferred to SOCA in April 2008: see Serious Crime Act
2007, $ 74. SOCA's functions were transferred to the NCA in 2013: see Crime and Courts Act 2013.
2 POCA 2002, $ 444. SOCA's functions under $ 444 were transferred to the NCA in 2013: see Crime and
Courts Act 2013, Sch 8, para 149.
3 POCA 2002, $ 443.
Three orders have been made using the powers in Part 11 of POCA that are of particular A.7.540
relevance to this section:
in relation to requests from foreign states, the Proceeds of Crime Act 2002 (External
Requests and Orders) Order 20051 (referred to in this chapter as the POCA Order) came
into force on 1 January 2006;
within the different parts of the UK, the relevant orders are the Proceeds of Crime Act
2002 (Enforcement in different parts of the United Kingdom) Order 20022 and the
Proceeds of Crime Act 2002 (Investigations in different parts of the United Kingdom)
Order 2003.3
1 SI 2005/3181, as amended by the Proceeds of Crime Act 2002 (External Requests and Orders)
(Amendment) Order 2008 (SI 2008/302).
2 SI 2002/3133.
3 SI 2003/425, as amended by Proceeds of Crime Act 2002 (Investigations in Different Parts of the United
Kingdom) (Amendment) Order 2008 (SI 2008/298).
(b) Requests by the UK for assistance in relation to restraint and confiscation
This section considers the powers available to prosecuting authorities in the UK to seek the A.7.541
assistance of foreign states in relation to restraint and confiscation orders made in the UK.
(i) Requests by the UK for assistance in restraining property abroad
and enforcing confiscation orders
The confiscation provisions of Parts 2-4 of POCA 2002 apply to all of the defendant's A.7.542
property wherever it happens to be situated.¹ It follows that assistance may be required
from foreign states in order to preserve the defendant's property to prevent it from being
dissipated prior to confiscation.2 The High Court can also order the defendant to repatriate
his assets held abroad,3 and assistance from foreign states may also be needed in order to
facilitate this process.
1 POCA 2002, $ 84(1).
2 Perry v Serious Organised Crime Agency [2013] 1 AC 182, paras 38, 72, 116. The risk of dissipation may
be inferred from the nature of the offence alleged: see VTB Capital plc " Nutrietek International Corp
[2012] 2 Lloyd's Rep 313, paras 176-178; AkcinE BendrovE Bankas Snoras (In Bankruptcy) " Antonov
[2013] EWHC 131 (Comm), paras 65-67.
3 Director of Public Prosecutions v Scarlett [2000] 1 WLR 515.
Where the UK requires assistance from a foreign state then a letter of request may be sent A.7.543
under CICA 2003, $ 7. In addition, a prosecutor may make a request for assistance under
POCA, $ 74 (or in the case of Scotland, $ 141 and Northern Ireland, $ 222).¹ Assistance in
investigations often also takes place informally between police forces via Interpol.2 No
authority is required under English law for a person to request information from another
Fraud
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[A.7.544]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
person anywhere in the world.3 The extent to which the foreign state will be able to provide
the assistance sought will depend upon its domestic law.
1 Perry " Serious Organised Crime Agency [2013] 1 AC 182, paras 38, 72, 116.
2 R (Akarcay) " Chief Constable of West Yorkshire [2017] EWHC 159 (Admin).
3 Perry v Serious Organised Crime Agency [2013] 1 AC 182, para 94.
A.7.544 Part 2 of POCA is entitled "Confiscation: England and Wales'. S 74 is entitled 'Enforce-
ment abroad' and sets out the conditions which must be satisfied before a request for
assistance in the freezing and realization of property abroad may be made by authorities in
England and Wales to jurisdictions outside the UK. It applies if: any of the conditions in $
40 is satisfied; the prosecutor believes that realisable property is situated in a country or
territory outside the UK (the receiving country); and the prosecutor sends a "request for
assistance' to the Secretary of State with a view to it being forwarded under S 74.
A.7.545 In a case where no confiscation order has been made, a request for assistance is a request to
the government of the receiving country to secure that any person is prohibited from
dealing with realisable property (s 74(2)). In a case where a confiscation order has been
made and has not been satisfied, discharged, or quashed, a request for assistance is a request
to the government of the receiving country to secure that any person is prohibited from
dealing with realizable property; that realizable property is realized; and that the proceeds
are applied in accordance with the law of the receiving country (s 74(3)).
A.7.546 S74(4) provides that no request for assistance may be made for the purposes of 74 in a case
where a confiscation order has been made and has been satisfied, discharged, or quashed.
A.7.547 If the Secretary of State believes it is appropriate to do so then, under S 74(5), he may
forward the request for assistance to the government of the receiving country.
A.7.548 If property is realized in pursuance of a request under S 74(3) the amount ordered to be paid
under the confiscation order must be taken to be reduced by an amount equal to the
proceeds of realization. A certificate purporting to be issued by or on behalf of the requested
government is admissible as evidence of the facts it states if it states: that property has been
realized in pursuance of a request under $ 74(3); the date of realization; and the proceeds of
realization (see $ 74(7)).
(1) The conditions in the Police and Criminal Evidence Act 1984, section 40
A.7.549 S 40 of POCA 2002 sets out the conditions which need to be satisfied before a restraint
order can be made by the Crown Court. If any of these conditions is satisfied then the
prosecutor may seek the assistance of a foreign state under POCA, $ 74. S 40(1) provides
that the Crown Court may exercise the powers conferred by $ 41 if any of the following
conditions is satisfied.
A.7.550-600 The first condition is that a criminal investigation has been started in England and Wales
with regard to an offence, and there are reasonable grounds to suspect that the alleged
offender has benefited from his criminal conduct (s 40(2), as amended).
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D. Mutual Legal Assistance in Relation to Restraint
[A.7.607]
The second condition is that proceedings for an offence have been started in England and A.7.601
Wales and not concluded, and there is reasonable cause to believe that the defendant has
benefited from his criminal conduct (s 40(3)). The second condition is not satisfied if the
court believes that there has been undue delay in continuing the proceedings, or the
prosecutor does not intend to proceed (s 40(7)).
The third condition is that an application by the prosecutor has been made under SS 19, 20, A.7.602
27, or 28 and not concluded, or the court believes that such an application is to be made,
and there is reasonable cause to believe that the defendant has benefited from his criminal
conduct (s 40(4)).
The fourth condition is that an application by the prosecutor has been made under 21 and A.7.603
not concluded, or the court believes that such an application is to be made, and there is
reasonable cause to believe that the court will decide under that $ that the amount found
under the new calculation of the defendant's benefit exceeds the relevant amount (as
defined in that section) (s 40(5)).
The fifth condition is that an application by the prosecutor has been made under $ 22 and A.7.604
not concluded, or the court believes that such an application is to be made, and there is
reasonable cause to believe that the court will decide under that $ that the amount found
under the new calculation of the available amount exceeds the relevant amount (as defined
in that section) (s 40(6)).
If an application mentioned in the third, fourth, or fifth condition has been made the A.7.605
condition is not satisfied if the court believes that there has been undue delay in continuing
the application, or the prosecutor does not intend to proceed (s 40(8)).
(2) Temporal limitations in respect of requests for assistance
Art 5 of the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, A.7.606
Savings and Amendment) Order 2003¹ provides that S 41 (restraint orders) and $ 74
(enforcement abroad) of POCA shall not have effect where the powers in those sections
would otherwise be exercisable by virtue of a condition in $ 40(2) or S 40(3) of POCA being
satisfied, and the offence mentioned in $ 40(2)(a) or $ 40(3)(a), as the case may be, was
committed before 24 March 2003.
1 SI 2003/333.
(3) Contents of the request
Letters of request for the restraint of property should include, inter alia, the following A.7.607
information:1
name, address, nationality, date and place of birth and present location of the
suspect(s) or defendants whose criminal conduct has given rise to anticipated
confiscation or forfeiture proceedings;
Fraud
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[A.7.608-611]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
details of the ongoing (not concluded) criminal investigation into an acquisitive
crime or money laundering or proceedings in the requesting state;
the material facts of the case-including any defence or explanation put forward by
the defendant/suspect, any facts that have come to light after the restraint order was
made. This will enable the court to decide whether to maintain or discharge the
restraint order;
confirmation that there is reasonable cause to believe that the defendant/accused
named in the request has benefited (by obtaining money or other property) from
his criminal conduct;
an explanation as to why there are reasonable grounds to believe that the property
may be needed to satisfy an external order which has been or which may be made;
details of why the order is necessary-including an explanation that will enable the
court to consider whether there is a real risk that the identified property will be
dissipated if no order is made;
details of the property to be restrained in the UK, the persons holding it and the
link between the suspect and the property (this is important if the property to be
restrained is held in the name of a third party such as a company or another person;
where applicable, details of any court orders already made in the UK against the
defendant in respect of his or her property. If any court order has been made a duly
authenticated copy should be included with the request.
1 MLA Guidelines, P 31.
(ii) Requests for assistance in evidence gathering in connection with potential
restraint and confiscation
A.7.608-611 S7 of CICA 2003 allows prosecuting authorities to seek the assistance of foreign states in
connection with the provision of evidence. Requests to foreign states for banking informa-
tion may also be made under CICA 2003, SS 43 and 44.
(c) Foreign requests to the UK for assistance with restraint and confiscation
(i) Introduction
A.7.612 The UK can provide assistance in enforcing foreign forfeiture and confiscation orders in
respect of assets held in the UK. The UK is also able to restrain assets at the request of
foreign states.
A.7.613 Prior to the coming into force of the POCA Order, foreign requests for assistance in
restraint and confiscation matters were dealt with by different statutory regimes depending
upon whether the request related to a drugs offence or a non-drugs offence. The POCA
Order simplifies the law by providing a single scheme for the enforcement of foreign
confiscation orders and the provision of assistance in obtaining restraint orders.
1 Drug Trafficking Act 1994 (Designated Countries and Territories) Order 1996, SI 1996/2880; Criminal
Justice Act 1988 (Designated Countries and Territories) Order 1991, SI 1991/2873.
A.7.614 Whereas under the previous statutory regimes applications for restraint orders at the
request of foreign states and the enforcement or overseas confiscation orders were made to
the High Court, under the POCA Order the application is made to the Crown Court.
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D. Mutual Legal Assistance in Relation to Restraint
[A.7.619]
(ii) Commencement and temporal scope of the Proceeds of Crime Act 2002
(External Requests and Orders) Order 2005
The POCA Order came into force on 1 January 2006. From that date, requests to the UK A.7.615
for assistance in restraint and confiscation matters have been dealt with according to its
terms.1
1 See Perry " Serious Organised Crime Agency [2013] 1 AC 182, paras 58-64, 134-135.
Art 8 of the POCA Order provides that the Crown Court may make a restraint order if A.7.616
either of the conditions in Art 7 is satisfied. Art 7(4) of the POCA Order provides that in
determining whether these conditions are satisfied, the court must have regard to the
definitions in $ 447(1), (4)-(8), and (11) of POCA. S 447(8) of POCA defines 'criminal
conduct' to include conduct that is criminal in the UK and conduct which would be
criminal if it had been committed in the UK.
It follows that the Crown Court can make a restraint order under the POCA Order at the A.7.617
request of a foreign state provided that the conduct alleged would have been criminal in the
UK at the time it was committed. Unlike in the case of domestic restraint and confiscation
orders made under Part 2 of POCA, the POCA Order is not restricted to offences
committed after 24 March 2003, or after the date it came into force, because it does not
contain any equivalent of Arts 3 and 5 of the Proceeds of Crime Act 2002 (Commence-
ment No. 5, Transitional Provisions, Savings and Amendment) Order 2003,1 and $ 447(7)
of POCA does not restrict the meaning of "criminal conduct' to conduct occurring after
any particular date.
1 SI 2003/333.
Thus, the UK can grant assistance and the court can make a restraint order in relation to an A.7.618
offence whenever it was committed.1 The application is usually made without notice
although there is an obligation to make material disclosure.²
1 Cf Government of the United States of America v Montgomery [2001] 1 WLR 196, para 30, in relation to
the Criminal Justice Act 1988 (Designated Countries and Territories) Order 1991, SI 1991/2873.
2 Director of the SFO " A [2007] EWCA Crim 1927; AkcinE BendrovE Bankas Snoras (In Bankruptcy) "
Antonov [2013] EWHC 131 (Comm), paras 50-55. As to the consequences of material non-disclosure,
see paras 61-64.
(iii) Definitions
The POCA Order uses the following terms:
A.7.619
External request: this is a request by an overseas authority to prohibit dealing with
relevant property which is identified in the request.¹
Relevant property. property is relevant property if there are reasonable grounds to believe
that it may be needed to satisfy an external order which has been or which may be made.2
External order. this is an order which is made by an overseas court where property is
found or believed to have been obtained as a result of or in connection with criminal
conduct, and is for the recovery of specified property or a specified sum of money.3
Fraud
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[A.7.620]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
1 POCA Order, Art 2 and POCA 2002, $ 447(1).
2 POCA Order, Art 55 and POCA 2002, S 447(7).
3 POCA Order, Art 2 and POCA 2002, $ 447(2).
(iv) Reference of an external request by the Secretary of State
A.7.620 Art 6(1) of the POCA Order provides that except where Art 6(2) applies, the Secretary of
State may refer an external request in connection with criminal investigations or proceed-
ings in the country from which the request was made and concerning relevant property in
England or Wales to the DPP1 to process it.
1 The Public Bodies (Merger of the Director of Public Prosecutions and the Director of Revenue and
Customs Prosecutions) Order 2014, SI 2014/834, Sch 3, para 15 (27 March 2014) removed the
Revenue and Customs following the Public Bodies Act 2011.
A.7.621 Art 6(2) deals with cases of serious or complex fraud. Where it appears to the Secretary of
State that the request is made in connection with criminal investigations or proceedings
which relate to an offence involving serious or complex fraud, and concerns relevant
property in England or Wales, then the Secretary of State may refer the request to the
Director of the SFO to process it.¹
1 POCA Order, Art 6(3).
A.7.622 In the POCA Order 'the relevant Director' means the Director to whom an external request
is referred under Art 6(1) or 6(3). By Art 6(5) the relevant Director may ask the overseas
authority which made the request for such further information as may be necessary to
determine whether the request is likely to satisfy either of the conditions in Art 7.A request
under Art 6(5) may include a request for statements which may be used as evidence.
A.7.623 Where a request concerns relevant property which is in Scotland or Northern Ireland as
well as England or Wales, so much of the request as concerns such property is to be dealt
with under Part 3 or 4 of the POCA Order, respectively.
(v) The Crown Courts power to make a restraint order at the request
of a foreign state
A.7.624 The Crown Court's powers to make a restraint order pursuant to an external request are
contained in Chapter 1 of Part 2 of the POCA Order. Art 8 provides that the Crown Court
may make a restraint order if either condition in Art 7 is satisfied.
A.7.625 Art 7(4) provides that in determining whether the conditions in Art 7 are satisfied and
whether the request is an external request within the meaning of POCA, the court must
have regard to the definitions in $ 447(1), (4)-(8), and (11). Evidence must not be excluded
in restraint proceedings on the grounds that it is hearsay evidence.1
1 ibid, Art 13.
A.7.626 The definitions in S 447(1), (4)-(8), and (11) of POCA are as follows:
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D. Mutual Legal Assistance in Relation to Restraint
[A.7.629]
447(1) provides that an external request is a request by an overseas authority to prohibit
dealing with relevant property which is identified in the request.¹
S 447(4)-(8) provides as follows. Property is all property, wherever situated,2 and
includes money; all forms of property, real or personal, heritable or moveable; things in
action and other intangible or incorporeal property (s 447(4)). Property is obtained by a
person if he obtains an interest in it (s 447(5)). References to an interest, in relation to
property other than land, include references to a right (including a right to possession)
(s 447(6)). Property is relevant property if there are reasonable grounds to believe that it
may be needed to satisfy an external order which has been or which may be made
(s 447(7)). Criminal conduct is conduct which constitutes an offence in any part of the
UK, or would constitute an offence in any part of the UK if it occurred there (s 447(8)).
S 447(11) provides that an overseas authority is an authority which has responsibility in
a country or territory outside the UK for making a request to an authority in another
country or territory (including the UK) to prohibit dealing with relevant property; for
carrying out an investigation into whether property has been obtained as a result of or in
connection with criminal conduct; or for carrying out an investigation into whether a
money laundering offence has been committed.
1 The Proceeds of Crime Act 2002 (External Requests and Orders) (Amendment) Order 2013/2604 (in
force 11 November 2013) makes provision for the obtaining by an 'enforcement authority' (as to which
see Art 141R) to obtain from the High Court (in England, Wales, or Northern Ireland) or the Court of
Session (in Scotland) a prohibition order to prevent dealing with relevant property in the UK which is
the subject of an external request, within the meaning of S 447(1) of POCA. The provisions (new Pts 4A
and 4B inserted into the External Requests Order 2005) correspond (subject to specified modifications)
to the civil recovery provisions in POCA. Overseas requests that are criminal in nature will continue to
be dealt with through the provisions in the CICA 2003.
2 In the context of the POCA Order, this means wherever situated in the UK: King " Serious Fraud Office
[2009] 1 WLR 718, paras 36-38, HL. This applies to Pt 5 of the POCA Order concerning civil recovery
freezing orders as well as Pts 2-4 concerning confiscation: Perry " Serious Organised Crime Agency [2013]
1 AC 182, paras 63, 135.
(1) The Article 7 conditions
Art 8 of the POCA Order provides that the Crown Court may make a restraint order if A.7.627
either condition in Art 7 is satisfied.
The first condition in Art 7 is that relevant property in England and Wales1 is identified in A.7.628
the external request; a criminal investigation has been started in the country from which the
external request was made with regard to an offence; and there is reasonable cause to believe
that the alleged offender named in the request has benefited from his criminal conduct.
1 For property situated in Scotland or Northern Ireland, Pts 3-4 of the POCA Order contain correspond-
ing provisions. The order may only extend to property situated in the UK: King v Serious Fraud Office
[2009] 1 WLR 718, paras 36-38, HL.
The second condition in Art 7 is that relevant properly in England and Wales1 is identified A.7.629
in the external request; proceedings for an offence have been started in the country from
which the external request was made and not concluded; and there is reasonable cause to
believe that the defendant named in the request has benefited from his criminal conduct.
1 ibid.
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Chapter A7: Mutual Legal Assistance in Cases of Fraud
(2) Procedure
A.7.630 The procedure for applying for a restraint order is set out in Rule 33.12 and
Rules 33.51-33.55 of the Criminal Procedure Rules 2015.¹ The application must be in
writing and be supported by a witness statement which must give the grounds for the
application; give full details of the realisable property in respect of which the applicant is
seeking the order and specify the person holding that realisable property; and give the
grounds for, and full details of, any application for an ancillary order under Art 8(4) for the
purposes of ensuring that the restraint order is effective.
1 SI 2015/1490, in force 5 October 2015.
A.7.631 The court is required to have regard to the legislative steer contained in Art 46 which
requires it to have regard to the need to preserve the value for the time being of realisable
property or specified property so that it can be made available for satisfying an external
order. No account is to be taken of any obligation of a defendant or a recipient of a tainted
gift if the obligation conflicts with the object of satisfying any external order against the
defendant that has been or may be registered under Art 22.
A.7.632 However the court's powers must be exercised with a view to allowing a person other than
the defendant or a recipient of a tainted gift to retain or recover the value of any interest
held by him. In the case of realisable property or specified property held by a recipient of a
tainted gift, the powers must be exercised with a view to realising no more than the value
for the time being of the gift.
A.7.633 An application to discharge or vary a restraint order may be made under Art 9. Arts 10 and
11 provide a right of appeal to the Court of Appeal and the Supreme Court against a refusal
to grant a restraint order, an order made under Art 8(4), and a decision made on an
application to vary or discharge the order under Art 9(2). Through oversight, the POCA
Order was not originally amended by the Constitutional Reform Act 2005 so as to
substitute Supreme Court for House of Lords. That was remedied in 2011' and the
Supreme Court held in Stanford International Bank Ltd. (acting by its joint liquidators) v
Director of the Serious Fraud Office that appeals lie to the Supreme Court in respect of
Court of Appeal decisions made prior to the commencement of the 2011 Order (6 June
2011).
1 The Constitutional Reform Act 2005 (Consequential Amendments) Order 2011, SI 2011/1242.
2 Stanford International Bank Ltd. (acting by its joint liquidators) " Director of the Serious Fraud Office
[2012] UKSC 3.
A.7.634 Unlike conventional POCA restraint orders, 1 under Art 11 to the POCA Order there also
existed no requirement of leave or certification for appeals to the Supreme Court. Thus
there existed an absolute, unqualified right of appeal to the Supreme Court against the
making of an external restraint order. That too was remedied, as from 29 February 2012, by
the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (England and
Wales) (Appeals under Part 2) Order 2012, SI 2012/138 which makes detailed provision
for such appeals, corresponding in general terms to the Criminal Appeal Act 1968 and
imposes, amongst other things, certification and leave requirements in respect of appeals
concerning external restraint orders.2 However, the 2012 Order does not have retroactive
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D. Mutual Legal Assistance in Relation to Restraint
[A.7.638]
effect and the pre-2012 Order position remains for all Court of Appeal decisions made
prior to 29 February 2012.3
1 S44 POCA; as to which, see the Proceeds of Crime Act 2002 (Appeals under Pt 2) Order 2003; SI
2003/82.
2 Similar provision is now made for all POCA Pt 2 cases by the amendments made to the Proceeds of
Crime Act 2002 (Appeals under Pt 2) Order 2003 (SI 2003/82) by the Proceeds of Crime Act 2002
(Appeals under Pt 2) (Amendment) Order 2013 (SI 2013/24).
3 Rule 42.10 of the Criminal Procedure Rules 2015 (SI 2015/1490), in force 5 October 2015, does not
purport to impose an obligation to obtain leave to appeal from the Court of Appeal: it simply provides
the manner in which any obligation to seek leave takes effect. It cannot be read as imposing an obligation,
particularly having regard to the requirement in rule 33.12 that the rules are to apply 'with the necessary
modifications'. In any event, the power to make rules is procedural. It could not validly be exercised so
as to impose a restriction on a previously unrestricted right of appeal; Stanford International Bank Ltd.
(acting by its joint liquidators) " Director of the Serious Fraud Office [2012] UKSC 3.
By Art 12, if a restraint order is in force, a constable or a relevant officer of Revenue and A.7.635
Customs may seize any property which is specified in it to prevent its removal from
England and Wales. Any property so seized must be dealt with in accordance with the
court's directions.
The court may appoint a management receiver under Art 15 who may then exercise the A.7.636
powers specified in Art 16 in relation to property specified in the order.
(vi) The Crown Courts' power to enforce an external order
The Crown Court's power to enforce an external order is contained in Chapter 2 of Part 2 A.7.637
of the POCA Order. There are three principal stages in the enforcement of such an order:
reference to the Director of the appropriate prosecution agency by the Secretary of State;
application by the relevant Director to the Crown Court for the registration of the order;
enforcement of the order by the relevant Director. Art 27 also allows for the appointment
of an enforcement receiver to manage the property and to realize it in satisfaction of the
confiscation order in accordance with Art 28.
The first step in the enforcement of an external order following its receipt from a foreign A.7.638
state is its referral to the Director of Public Prosecutions. Art 18(1) provides that, except
where Art 18(2) applies (cases of serious and complex fraud), the Secretary of State may
refer an external order arising from a criminal conviction in the country from which the
order was sent and concerning relevant property in England and Wales1 to the DPP.2 In a
case falling under Art 18(2) the order may be referred to the Director of the SFO.3
1 By Art 18(5), where an order concerns relevant property which is in Scotland or Northern Ireland as well
as England or Wales, so much of the request as concerns such properly shall be dealt with under Pt 3 or
4 of the POCA Order 2005, respectively.
2 POCA Order, Art 18(1). The Public Bodies (Merger of the Director of Public Prosecutions and the
Director of Revenue and Customs Prosecutions) Order 2014, SI 2014/834, Sch 3. para 15 (27 March
2014) removed the Revenue and Customs following the Public Bodies Act 2011.
3 For the powers of the SFO and the meaning of 'serious and complex fraud' see Chapter A.1.
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[A.7.639]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
A.7.639 Following a reference by the Secretary of State, the relevant Director may apply to the
Crown Court to give effect to the external order under Art 20(1). The request may be ex
parte to a judge in chambers and must include a request that the relevant Director be
appointed as the enforcement authority for the order.
(1) Conditions for giving effect to an external order
A.7.640 By Art 21 of the POCA Order, the Crown Court must decide to give effect to the external
order by registering it where all of the following conditions are satisfied.
A.7.641 The first condition is that the external order was made consequent on the conviction of the
person named in the order and no appeal is outstanding in respect of that conviction.
A.7.642 The second condition is that the external order is in force and no appeal is outstanding in
respect of it.
A.7.643 The third condition is that giving effect to the external order would not be incompatible
with the Convention rights (within the meaning of the Human Rights Act 1998) of any
person affected by it.¹ In Government of the United States of America v Montgomery (No 2)2
the House of Lords considered whether the enforcement of an external order would violate
the defendants' Convention rights. Their Lordships held that it could do so, but only in an
exceptional case where there would be a flagrant denial of justice3 (which was not the case
on the facts).
1 Government of the United States of America " Montgomery (No 2) [2004] 1 WLR 2241.
2 [2004] 1 WLR 2241, para 24.
3 On the meaning of this phrase see Othman " United Kingdom (2012) 55 EHRR 1.
A.7.644 The fourth condition applies only in respect of an external order which authorizes the
confiscation of property other than money that is specified in the order. In such a case, the
specified property must not be subject to a charge under the legislation specified in
Art 21(6).
A.7.645 In determining whether the order is an external order within the meaning of the POCA the
court must have regard to the definitions in $ 447(2), (4), (5), (6), (8), and (10).¹
1 POCA Order, Art 21(7).
A.7.646 By Art 22, where the Crown Court decides to give effect to an external order it must register
the order in that court; provide for the notice of the registration to be given to any person
affected by it; and appoint the relevant Director as the enforcement authority for the order.
A.7.647 The Crown Court may cancel the registration of the external order, or vary the property to
which it applies, on an application by the relevant Director or any person affected by it if
or to the extent that the court is of the opinion that any of the conditions in Art 21 are not
satisfied.¹ The court must cancel the registration of the external order on such an
application if it appears that the order has been satisfied by payment of the amount due
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D. Mutual Legal Assistance in Relation to Restraint
[A.7.650-700]
(where the order is for the payment of a sum of money), or the property has been
surrendered (where the order is for the recovery of specified property), or by any other
means.2
1 ibid, Art 22(3).
2 ibid, Art 22(4).
Arts 23 and 24 provide a right of appeal to the Court of Appeal and the Supreme Court1 A.7.648
against a refusal to register an external confiscation order or a refusal to cancel or vary it.
1 So far as appeal to the Supreme Court under Art 24 is concerned, the relevant amendments were made
by the Constitutional Reform Act 2005 (Consequential Amendments) Order 2011 (SI 2011/1242); as
to the effect of which, see Stanford International Bank Ltd (acting by its joint liquidators) " Director of the
Serious Fraud Office [2012] UKSC 3, discussed above at para A.7.633.
Art 26 contains provisions for the time within which money specified in the external order A.7.649
must be paid.
(vii) Orders which may be made in addition to and in aid of restraint orders
and external orders
By Art 8(4) of the POCA Order the Crown Court may make such orders as it believes are A.7.650-700
appropriate for the purpose of ensuring the restraint order is effective. Examples of such
orders that have been granted in domestic restraint cases include:
a disclosure order requiring the defendant to swear an affidavit as to the whereabouts of
his assets;2
an order for cross-examination on the defendant's disclosure affidavit.3 This power
should only be used in exceptional circumstances where there are justifiable concerns
over whether the defendant has given full disclosure of his assets.4 The only legitimate
purpose of the cross-examination is to establish the extent of a defendant's assets, and
hence would be unnecessary if sufficient assets are known about to meet the claim;5
an order requiring the defendant to repatriate his assets;6
an order for the delivery up of the defendant's passport.⁷
1 CFPOCA 2002, $ 41(7).
2 Re 0 (Disclosure Order) [1991] 2 QB 520. Article 8(4) can only apply to assets within England and
Wales: King v Serious Fraud Office [2009] 1 WLR 718, para 39, HL. The same is true of the
corresponding provisions in Pts 3-4 of the POCA Order concerning Scotland and Northern Ireland. For
a discussion of the general principles applicable where a defendant fears that compulsory disclosure of
assets may be utilised by the foreign investigator in violation of his Art 6 right not to incriminate himself,
see AkcinE BendrovE Bankas Snoras (In Bankruptcy) " Antonov [2013] EWHC 131 (Comm),
paras 73-77. There is no right to withhold disclosure of assets on the basis of a risk of incrimination in
relation to actual or threatened criminal proceedings abroad. In such a case, the court instead has a
discretion as to whether to grant protection against the risk of incrimination.
3 AJ Bekhor & Co Ltd v Bilton [1981] QB 923.
4 Den Norske Bank ASA " Antonatos [1999] QB 271.
5 Great Future International Ltd " Sealand Housing Corporation [2001] CPLR 293.
6 Director of Public Prosecutions v Scarlett [2000] 1 WLR 515. This was a repatriation order made in
ordinary domestic criminal proceedings; however, the reasoning is equally applicable to restraint
proceedings brought at the instance of a foreign state.
7 Bayer AG " Winter [1986] 1 WLR 497; B v B [1997] 3 All ER 258.
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[A.7.701]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
A.7.701 The extent to which these orders can properly be made in respect of restraint orders made
at the request of a foreign state remains to be considered.1 Some are more likely to be
appropriate than others.
1 See King " Serious Fraud Office [2008] EWCA Crim 530.
A.7.702 As already noted, the Crown Court may also appoint a management receiver in aid of a
restraint order under Art 15 of the POCA Order. The receiver may exercise the powers in
Art 16, which include the power to take possession of the property; the power to manage
or otherwise deal with it; the power to start, carry on, or defend legal proceedings in
connection with the property; and the power to realise the property to meet the receiver's
expenses.
A.7.703 Rule 33.56 of the Criminal Procedure Rules 2015' contains rules relating to the appoint-
ment of management or enforcement receivers. Chapter 3 of Part 2 of the POCA Order
contains procedural provisions concerning receivers.
1 SI 2015/1490, in force 5 October 2015.
(viii) Confiscation orders which may be made by a UK court¹
A.7.704-705 Art 27 contains provisions allowing for the appointment of enforcement receivers by the
Crown Court on the application of the relevant Director where (in the case of a monetary
external order, ie an external order requiring payment of a sum of money) the time specified
under Art 26 has expired. An enforcement receiver appointed under Art 27 has the powers
contained in Arts 28 and 29.
1 POCA Order, Arts 27-29, 33-34, 37-38 and Ch 3 of Pt 2.
A.7.706 Chapter 3 of Part 2 contains procedural provisions concerning receivers.
(ix) The procedure for enforcing foreign orders in the UK
A.7.707 Where a designated country wishes to enforce an external order in the UK the appropriate
authority seeking assistance should send a letter of request including the order to the UK
Central Authority. Requests for the enforcement of an external order should include the
original order or a duly authenticated copy of it, and evidence showing that the confisca-
tion order is in force and that neither the order nor any conviction to which it may relate
is subject to appeal. The request ideally should also indicate that all or a certain amount of
the sum payable under the order remains unpaid in the territory of the requesting state or
that other property recoverable under the order remains unrecovered there.¹
1 MLA Guidelines, P 36.
A.7.708 Once a letter of request containing the relevant information has been received by the UK
Central Authority, and the Secretary of State has decided that it is appropriate to provide
assistance, the letter is sent to the Director of an appropriate prosecuting authority who will
act on behalf of the designated state in proceedings in the UK.¹
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[A.7.712]
1 See para A.7.620.
The procedure for obtaining a restraint order in the Crown Court and for enforcing an A.7.709
external order is contained in Rule 33.12 of the Criminal Procedure Rules 2015.1 Rule
33.12 provides that the rules in Parts 33 and 42 apply with the necessary modifications to
proceedings under the POCA Order in the same way that they apply to corresponding
proceedings under Part 2 of POCA.2 Rule 33.12 contains a useful table showing how
provisions of the 2005 Order correspond to provisions of the 2002 Act.
1 SI 2015/1490, in force 5 October 2015.
2 See T Moloney and D Atkinson, Blackstone's Guide to the Criminal Procedure Rules 2010 (2010).
(x) Remitting confiscated property to the requesting state
Property (or its equivalent in money) recovered under a foreign confiscation or forfeiture A.7.710
order in the UK is not automatically transmitted to the foreign enforcement authority or
state. Property (or its equivalent in money) recovered under a foreign confiscation order is
placed in the UK Government's Consolidated Fund.¹ There is no legal power which enables
the UK court to remit the property to a foreign state or other recipient. Forfeited property,
in England and Wales, is disposed of at the direction of the High Court, which must give
persons holding any interest in the property in question a 'reasonable opportunity' to make
representations to the court.
1 In the same way, where the UK seeks the assistance of a foreign state in enforcing a domestic confiscation
order under POCA, $ 74, any property recovered in the foreign state falls to be dealt with under that
state's law and is not automatically remitted to the UK: POCA, $ 74(3).
The UK has entered into agreements with Canada1 and the US2 to determine the ultimate A.7.711
destination of property or sums of money confiscated (in the UK, as defined by UK law) or
forfeited (in Canada or the US). These agreements permit the UK to share property (or an
equivalent amount of money) confiscated in the UK with the requesting state.
1 Agreement between the Government of the United Kingdom and the Government of Canada Regarding
the Sharing of Forfeited or Confiscated Assets or their Equivalent Funds, signed in London on 21
February 2001, Treaty Series 028/2001, CM 5180. The Agreement provides for the sharing of assets
forfeited in Canada or confiscated in the UK. An exchange of Notes between the United Kingdom and
Canada to Extend the Agreement Regarding the Sharing of Forfeited or Confiscated Assets or their
Equivalent Funds was signed on 21 January 2003.
2 Agreement between the Government of the United Kingdom and the Government of the United States
of America Regarding the Sharing of Forfeited or Confiscated Assets or their Equivalent Funds, signed
in Washington on 31st March 2003 and ratified by the UK on that date.
Some international criminal conventions also contain provisions relating to the return of A.7.712
confiscated property to the requesting state.¹
1 See, eg, Art 57(2) of the United Nations Convention Against Corruption: <http://www.unodc.org/pdf/
crime/convention_corruption/signing/Convention-e.pdfs.
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[A.7.713]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
A.7.713 Where there is no such agreement the foreign state must request the remittance of property
or sums of money on a diplomatic basis. If the requesting state is one which itself would
remit property or sums of money, which it recovers in its own procedures, this is likely to
give rise to a diplomatic expectation of reciprocal remittance from the UK. Where it is the
case that remittance is requested by a foreign state on the basis that the property and or
money would, if remitted, be returned to a victim or paid as compensation to a victim of
crime, the request for remittance has more force still. The UK Central Authority deals with
these requests and may agree to remit a portion of funds recovered (after itself obtaining the
approval of the Treasury). All other funds recovered are paid to the Consolidated Fund and
are not remitted to other states or persons.
(d) Foreign requests for assistance in gathering evidence in relation
to confiscation
(i) Investigations using powers in the Crime (International Co-operation) Act 2003
A.7.714 The methods by which assistance may be provided by the UK to foreign states in relation
to evidence gathering have been summarized in earlier chapters. These powers are available
for use in relation to restraint and confiscation investigations. In summary, the powers
available under CICA 2003 and other statutes include:
search and seizure warrants: warrants authorising an appropriate person to enter and
search specified premises and to seize and retain any material found there which is likely
to be of substantial value to the civil recovery investigation;1
production orders: orders requiring a specified person appearing to be in possession or
control of material to produce it to an appropriate officer for him to take away, or
requiring a specified person to give an appropriate officer access to the material;2
voluntary and compulsory interviews;3
proceedings before a nominated court;4
customer information orders: orders requiring financial institutions to provide certain
information in relation to a specified customer of the institution;5
account monitoring orders: orders requiring financial institutions to provide certain
account information in relation to an account held by the financial institution.6
1 CICA 2003, SS 13(1)(b), 16, and 17; CICA 2003, $ 15(2); and Criminal Justice Act 1987, S 2(4).
2 CICA 2003, SS 13(1)(b), 16, and 17; CICA 2003, S 15(2); and Criminal Justice Act 1987, S 2(3).
S 13(1)(b) in fact refers only to warrants and not orders. That was a legislative oversight and S 13(1)(b)
should be read as if it did include power to direct that a production order should be applied for under
Sch 1 to PACE 1984: R (Secretary of State for the Home Department) v Southwark Crown Court [2014] 1
WLR 2529.
3 CICA 2003, $ 15(2) and Criminal Justice Act 1987, $ 2(2).
4 CICA 2003, $ 15 and Sch 1.
5 CICA 2003, S 32.
6 CICA 2003, SS 35 and 36.
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D. Mutual Legal Assistance in Relation to Restraint
[A.7.718]
(ii) Investigations using powers in the Proceeds of Crime Act 2002
Prior to the enactment of POCA 2002 there were different statutory provisions dealing A.7.715
with investigations in drugs and non-drugs cases.¹ However, the investigatory powers
contained in POCA apply to "criminal conduct' and 'unlawful conduct' generally, and
these expressions include any conduct that constitutes an offence or is unlawful in any part
of the UK, or would constitute an offence or be unlawful in any part of the UK if it
occurred there.2
1 Criminal Justice Act 1988, ss 931, 93H (non-drugs); Drug Trafficking Act 1994, ss 55 and 56 (drugs):
see generally R " Crown Court at Southwark ex P Bowles [1998] AC 641.
2 POCA, SS 241(2), 413(1), $ 447(8).
Part 8 of POCA is entitled 'Investigations' and Chapter 2 contains an extensive range of A.7.716
investigatory powers including search warrants and production orders for use in tracing the
proceeds of crime and money laundering investigations in England and Wales. S 445(1)
provides that Her Majesty may by Order in Council make provision to enable orders
equivalent to those under Part 8 to be made, and warrants equivalent to those under Part 8
to be issued, for the purposes of an 'external investigation', and make provision creating
offences in relation to external investigations which are equivalent to offences created by
Part 8 and $ 435B.
An 'external investigation' is defined in S 447(3) to be an investigation by an overseas A.7.717
authority into whether property has been obtained as a result of or in connection with
criminal conduct; the extent or whereabouts of property obtained as a result of or in
connection with criminal conduct; or whether a money laundering offence has been
committed.
Two Orders have been made thus far: the Proceeds of Crime Act 2002 (External Investi- A.7.718
gations) Order 2013¹ (re civil recovery investigations) and the Proceeds of Crime Act 2002
(External Investigations) Order 2014 (other investigations).² Both Orders make provisions
to assist external investigations by way of orders and warrants from the court. Neither
Order encompasses external money laundering investigations.³
1 The Proceeds of Crime Act 2002 (External Investigations) Order 2013, SI 2013/2605 (in force 11
November 2013) makes provision to assist an external investigation, within the meaning of $ 447(3) of
POCA, by obtaining orders and warrants from the court. The provisions correspond (subject to specified
modifications) to the civil recovery investigation provisions in Pt 8 of POCA. Overseas requests to
investigate that are criminal in nature will continue to be dealt with through the provisions in the CICA
2003. Article 35 applies the domestic codes of practice that govern POCA. Pt 8 (see SI 2018/84 and SI
2018/93) to external civil recovery investigations.
2 The Proceeds of Crime Act 2002 (External Investigations) Order 2014, SI 2014/1893 complements SI
2013/2605 and makes further provision to assist an external investigation, within the meaning of S
447(3) of POCA, by obtaining orders and warrants from the court. The provisions again correspond
(subject to specified modifications) to confiscation investigation provisions in Pt 8 of POCA. Article 35
applies the domestic codes of practice that govern POCA, Pt 8 (see SI 2018/84 and SI 2018/93) to
external investigations.
3 SI 2013/2605, Art 3(5); SI 2014/1893, Art 3(4).
Fraud
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[A.7.719]
Chapter A7: Mutual Legal Assistance in Cases of Fraud
E. Mutual Enforcement within the UK
A.7.719 S 443 of POCA contains enabling provisions which allow Orders in Council to be made to
allow for the mutual enforcement of restraint and confiscation in the different parts of the
UK.
A.7.720 The Proceeds of Crime Act 2002 (Enforcement in different parts of the United Kingdom)
Order 2002¹ has been made under $ 443. This makes provision for orders relating to
restraint and receivership made under POCA made in one part of the UK to be enforced in
another part. Part I is introductory and contains an extensive set of definitions. Part II deals
with the enforcement of Scottish and Northern Ireland orders in England and Wales. Part
III deals with the enforcement of English or Welsh orders and Northern Ireland orders in
Scotland. Part IV deals with the enforcement of English or Welsh orders and Scottish
orders in Northern Ireland.
1 SI 2002/3133.
A.7.721 The Proceeds of Crime Act 2002 (Investigations in different parts of the United Kingdom)
Order 2003¹ has also been made, under $ 443(1)(d) and (e), (3) and (4) and 459(2) of
POCA.
1
SI 2003/425 as amended by SI 2008/298, SI 2015/925, SI 2016/291, SI 2016/498, and SI 2017/1280.
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