The Criminal Justice (International Cooperation) Act (2021 Revision) (“CJICA” or “Act”) is now in force, having been published with Legislation Gazette No. 7 of 22 January 2021.

The Act provides the main legal channel for obtaining international assistance from the Cayman Islands in crime related matters. It enables mutual legal assistance to be provided in respect of any conduct in a designated country which would constitute a criminal offence had the conduct occurred in the Cayman Islands.

Designated countries may request the assistance of the Cayman Islands in criminal investigations and proceedings. Such mutual legal assistance may be given for any of the following purposes:

a) taking evidence or statements from persons;
b) effecting service of judicial documents;
c) executing searches and seizures;
d) examining objects and sites;
e) providing information and items of evidence;
f) providing originals or certified copies of relevant documents and records, including bank, financial, corporate or business records;
g) identifying or tracing proceeds, property, instruments or such other things for the purposes of evidence;
h) immobilising criminally obtained assets; and
i) assisting in proceeds related to forfeiture and restitution.

The Director of Public Prosecutions (“DPP” or “the Authority”) is the Central Authority under the Act. The DPP has established a specialised unit of attorneys to process and execute letters of request and to offer legal assistance as necessary. A request may be made to DPP containing:

a) the identity of the party making the request;
b) the subject matter and nature of the investigation, prosecution or proceeding to which the request relates;
c) the name and functions of the persons conducting such investigation, prosecution or proceeding;
d) a summary of all relevant facts respecting the request, except in respect of requests for the purpose of service of judicial documents;
e) a description of the assistance sought and details of any particular procedure the requesting Party requires to be followed;
f) where possible, the identity, location and nationality of any person concerned; and
g) the purpose for which the evidence, information or action is sought.

A request may also include:

a) the identity and location of a person to be served, that person’s relationship to the proceedings and the manner in which service is to be made;
b) a precise description of the place or person to be searched and of the articles to be seized;
c) a description of the manner in which any testimony or statement is to be taken and recorded;
d) a list of questions to be posed to a witness;
e) a description of any particular procedure to be followed in executing the request;
f) information as to the allowances and expenses to which a person asked to appear in the territory of a party will be entitled; and
g) any other information which may be brought to the attention of the Authority to facilitate its execution of the request.

Production Orders

By way of illustration, the key features involved in obtaining a production order in pursuance of a request for mutual legal assistance are set out below.

The Grand Court may make an order that documentation be produced pursuant to the request of a foreign country if it is satisfied that there are reasonable grounds for-

a) suspecting that a specified person has carried on or has benefited from an offence to which this law applies;
b) suspecting that the material to which the application relates-

i. is likely to be of substantial value (whether by itself or together with other material) to the request for the purpose of which the application is made; and
ii. does not consist of or include items subject to legal privilege; and
believing that it is in the public interest that the material should be produced or that access to it should be given having regard to-
iii. the benefit likely to accrue to the request if the material is obtained;
iv. the circumstances under which the person is in possession of the material holds it.

If the court is satisfied that the above conditions are fulfilled, it may make an order that the person who appears to be in possession of the material to which the application relates, produce it to a constable to take away, or give a constable access to it, within 7 days or such time as the court may specify.

Where the material to which the application relates consists of information contained in a computer, an order shall have the same effect as an order to produce the material in a form that is visible and legible or an order to give access to the material in a form in which is visible and legible.

Any documents or other written information seized under a production order shall be brought immediately to the Authority to be dealt with according to the Law or the Convention.

Search warrants

If deemed necessary in pursuance of a request for mutual legal assistance, the Authority may instruct a constable to apply to the Grand Court for a warrant in relation to specified premises.

The Court may issue a warrant authorising a constable to enter and search premises if it is satisfied that-

a) a production order has not been complied with; or
b) the conditions outlined immediately below have been fulfilled.

The conditions are that:

a) there are reasonable grounds for suspecting that a specified person has carried on or has benefited from an offence to which this Law applies;
b) suspecting that the material to which the application relates-

i. is likely to be of substantial value (whether by itself or together with other material) to the request for the purpose of which the application is made; and
ii. does not consist of or include items subject to legal privilege; and

c) it would not be appropriate to make a production order in relation to the material because-

i. it is not practicable to communicate with any person entitled to produce the material;
ii. it is not practicable to communicate with any person entitled to grant access to the material or entitled to grant entry to the premises on which the material is situated; or
iii. the investigation for the purposes of which the application is made might be seriously prejudiced unless a constable could secure immediate access to the material.

The Court must also be satisfied that there are reasonable grounds for suspecting that:

a) a specific person has carried on or benefited from an offence to which this Law applies;
b) there is on the premises material relating to the specified person or to an offence to which this Law applies which is likely to be of substantial value (whether by itself or together with other material) to the request for the purpose of which the application is made, but that the material cannot at the time be particularised; and

i. it is not practicable to communicate with any person entitled to grant entry to the premises;
ii. entry to the premises will not be granted unless a warrant is produced; or
iii. the request for the purpose of which the application is made might be seriously prejudiced unless a constable arriving at the premises could secure immediate entry to them.

Where a constable has entered premises in the execution of a search warrant, he may seize and retain any material, other than items subject to legal privilege, which is likely to be of substantial value (whether by itself of together with other material) to the investigation for which the warrant was issued.

Any documents or other written information seized under a search warrant shall be brought immediately to the Authority to be dealt with according to the Law or the Convention.

Other features of the Act

This Act provides protection for persons appearing in the Islands in response to a request and to those persons disclosing confidential information.

This Act provides for the transfer of persons in lawful custody to and from the territory of the requesting party.

This Act provides for confidentiality with regards to a request.

Defending an application

Such orders will frequently be sought ex parte in the first instance following which notice will be served on a party that is required to comply with the Court order. Such parties should not hesitate in seeking legal counsel to advise on their legal rights and duties in such circumstances.

A party affected by such an order has standing to challenge the order made. The Court may be persuaded to refuse or set aside orders sought by the DPP pursuant to an application for mutual legal assistance if:

a) the request is not made in conformity with the requirements for the contents of a request;
b) the request does not establish that there are reasonable grounds for believing-

i. that the criminal offence specified in the request has been committed; and
ii. that the information sought relates to the offence and is located in the Islands;

c) the Court is of the opinion that that the request is likely to prejudice the security, public order or other essential interests of the Islands;
d) the authorities in the Islands would be prohibited by any law of the Islands from carrying out the action requested with regard to any similar offence in the Islands;
e) it is contrary to the laws of the Islands to grant mutual legal assistance in the circumstances to which the request relates.

The content of this article, which forms part of McGrath Tonner’s business crime and anti-money laundering series, is intended to provide a general guide to the subject matter. It is not legal advice. Specialist assistance should be sought about your specific circumstances.