As with all democratic countries, our ability to assist in obtaining evidence in Gibraltar for use outside is prescribed and regulated by statute.
Letters of Request must be addressed to “The Competent Judicial Authority in Gibraltar” or to “The Attorney General in Gibraltar” and sent to the following address:
The Attorney General in Gibraltar
Attorney General’s Chambers
Joshua Hassan House
3 Secretary’s Lane
GibraltarTel: + 350 78882
Fax: + 350 79891
Email: aggib@gibtelecom.net
The requesting authority should provide the Attorney General with:
When the Attorney General’s Chambers receives a Letter of Request this is vetted to ensure compliance with our legislation. If the Request is compliant it is then forwarded to the Chief Secretary of the Government of Gibraltar for consent to proceed with the execution of the Request. If the Request is non-compliant then the Attorney General’s Chambers will revert to the requesting authority with reasons.
There are currently four different pieces of legislation which allow for Mutual Legal Assistance. These are:
1. Evidence Act;
2. Drug Trafficking Offences Act;
3. Mutual Legal Assistance (Schengen Convention) Act; and
4. Mutual Legal Assistance (International) Act.
The Evidence Act sets out the statutory requirements for the taking of evidence in Gibraltar for use overseas in both civil and criminal cases.
Under this Act the Supreme Court has the power to render assistance to a foreign court to obtain evidence in Gibraltar for use in criminal proceedings outside Gibraltar. Three conditions precedent must be fulfilled before the Supreme Court can exercise the jurisdiction conferred upon it to make an order under this Act, namely:
(i) there must be an application to the Court for an order for evidence to be obtained in Gibraltar;
(ii) the Court must be satisfied that such application is made in pursuance of a request by or on behalf of a Court or tribunal described as “the requesting court” exercising jurisdiction outside Gibraltar; and
(iii) the Court must be satisfied that the evidence to which the application relates is to be obtained for the purposes of criminal proceedings which have been instituted before the requesting court.
The court’s powers are limited to the making of an order for the provision of oral or written testimony and or for the production of documents by way of Special Examination.
In civil cases, it is not a pre-requisite that civil proceedings have been instituted and it would be possible to issue a Letter of Request where civil proceedings are contemplated. There must, however, be sufficient grounds to show that proceedings are contemplated. Fishing expeditions are not permission. The type of evidence which may be obtained for civil proceedings is wider and includes for example the inspection, photographing, preservation, custody or detention of any property, the taking of samples of any property and the medical examination of any person.
The procedure for obtaining the evidence involves: an application to the Supreme Court for an order for the appointment of a Special Examiner to examine the witness to obtain the evidence. The witness is then summonsed before the appointed Special Examiner where he is examined in accordance with the terms of the Court Order, following which the evidence is transmitted to the Requesting authority via the Registrar of the Supreme Court.
In respect of criminal non-drug trafficking offences there is no power to provide assistance by obtaining a Restraint Order or a Charging Order in Gibraltar where the criminal proceedings are being carried on outside Gibraltar.
If, however, an external confiscation order is made following a conviction for laundering the proceeds of criminal conduct (money laundering), then under our Criminal Justice Act we are able to register the External Confiscation Order in Gibraltar provided that the Request is from a designated country. To date, no countries have been designated.
Assistance for the taking of evidence can be provided under the Drug Trafficking Act which provides the Attorney General with the power to nominate a court in Gibraltar to receive such of the evidence (which includes documents) to which the request relates as appears to the court to be appropriate for the purpose of giving effect to the request.
The Attorney General must be satisfied
(i) that the Request for Assistance is either from a court or tribunal exercising jurisdiction in a Convention State, or a State to which the Vienna Convention has been extended, outside Gibraltar, or from another authority in such country or territory which appears to him to have the function of making requests of this kind;
(ii) that the request is in connection with criminal proceedings which have been instituted, or a criminal investigation that is being carried on in that country or territory;
(iii) that the proceedings or investigations are in respect of offences of drug trafficking or offences under a corresponding law
The Supreme Court has the power to make Production Orders in relation to particular material or material of a particular description.
The court must be satisfied of the following:
(i) that criminal proceedings have been instituted against a person in a country or territory, being a Convention State, or a territory of such a State to which application of the Vienna Convention has been extended, outside Gibraltar or that a person has been arrested in the course of a criminal investigation carried on there;
(ii) that the conduct constituting the offence which is the subject of the proceedings or investigation constitutes an offence under the Drug Trafficking Act or the Drugs (Misuse) Act if it had occurred in Gibraltar;
(iii) that there are reasonable grounds for suspecting that a specified person has carried on or has benefited from drug trafficking;
(iv) that there are reasonable grounds for suspecting that the materials to which the application relates:-
(a) is likely to be of substantial value (whether by itself or together with any other material) to the investigation for the purpose of which the application is made; and
(b) does not consist of or include items subject to legal privilege or excluded material; and
(v) that there are reasonable grounds for believing that it is in the public interest, having regard –
(a) to the benefit likely to accrue to the investigation if the material is obtained, and
(b) to the circumstances under which the person in possession of the material holds it,
that the material should be produced or that access to it should be given.
Under S43 (1) of the Drug Trafficking Offences Act a Justice of the Peace has the power to issue a Search Warrant authorising a customs or police officer to enter and search premises and to seize evidence found there if he is satisfied of the matters at (i) and (ii) above as well as that there are reasonable grounds for suspecting that there are on premises in Gibraltar occupied or controlled by that person, evidence relating to the offence other than items subject to legal privilege. This power is only a power to search to the extent that is reasonably required for the purpose of discovering such evidence as is there mentioned.
Requests for Restraint Orders and Charging Orders in respect of drug trafficking matters are regulated by the Drug Trafficking Offences Act 1995 (Designated Countries and Territories) Order 1999. The powers of the Supreme Court to make such Orders are provided by S26 – 28, and the court must be satisfied that:
(i) proceedings have been instituted against the defendant in a designated country;
(ii) the proceedings have not been concluded; and
(iii) either an External Confiscation Order has been made in the proceedings or it appears to the court that there are reasonable grounds for believing that such an order may be made in them.
The court also has power to make such orders where it is satisfied that proceedings are to be instituted against the defendant in a designated country and there are reasonable grounds for believing that an External Confiscation Order may be made in them. However, if such proposed proceedings are not instituted within a reasonable time, the court shall discharge the order.
The Supreme Court also has the power to register in Gibraltar an External Confiscation Order under S47 of the Drug Trafficking Offences Act if satisfied of the following:
(a) the External Confiscation Order is in force and not subject to appeal;
(b) where the person against whom the order is made did not appear in the proceedings, he has received notice of the proceedings in sufficient time to defend them;
(c) enforcing the order in Gibraltar would not be contrary to the interests of justice
To date the following are designated countries under the Drug Trafficking Offences Act (Designated Countries and Territories Order) :
Anguilla, Australia, the Bahamas, Bahrain, Barbados, Bermuda, the Cayman
Islands, Denmark, Guernsey, Hong Kong, India, Isle of Man, Italy, Jersey,
Malaysia, Montserrat, Netherlands, Saudi Arabia, South Africa, Spain,
Sweden, Switzerland, United Kingdom-England and Wales, Scotland, Northern
Ireland, United Mexican States, United States of America.
The Mutual Legal Assistance (European Union) Act allows for arrangements to be made for evidence to be taken in Gibraltar in connection with criminal proceedings or investigations in an EU State.
Additionally under this legislation, there is a power to direct that a search warrant be applied for.
In all cases, the Request must be issued by a court exercising criminal jurisdiction or a prosecution authority in a State or territory outside Gibraltar; or any other authority which has the function of making such requests for assistance.
In such cases the procedure is fairly simply, once consent to proceed has been given, the Attorney General nominates a court to receive the evidence, the witness is then summonsed to court to give the evidence. As a matter of practice, the witness is given sufficient time to prepare the evidence (documents etc.) which he is being compelled to give.
This Act reproduces in identical terms the Mutual Legal Assistance (European Union) Act and allows us to provide the same assistance to non-EU States who have entered into a reciprocal agreement on mutual legal assistance in criminal matters with the Government of Gibraltar.
In order for a country to access this legislation the Government of the requesting state should contact the Chief Secretary of the Government of Gibraltar at No. 6 Convent Place to seek into a reciprocal agreement under this new Act.
Dual Criminality – Our ability to provide assistance is not restricted in law to cases where there is dual criminality. However, certain cases will not be approved as a matter of policy, e.g. pure tax evasion - cheating the public revenue. Each case will depend upon its merits and much will depend on whether there is an element of criminality or fraud in the tax evasion, e.g. falsely claiming back VAT as opposed to pure tax evasion.
If the Request seeks the attendance of foreign police to assist in the obtaining of evidence, reasons must be given in the Request as to why this is necessary.
Kindly note that this document is intended as a guideline only.