IN THE MATTER OF A REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE FROM MANCHESTER CITY STIPENDIARY MAGISTRATE 03-February-1999
[1999 CILR 35]
IN THE MATTER OF A REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE FROM MANCHESTER CITY STIPENDIARY MAGISTRATE
GRAND COURT (Murphy, J.): February 3rd, 1999
Evidence—assistance to foreign court—request “by or on behalf of” foreign court—foreign prosecutor’s specific requests for investigations, accompanying general request for assistance from court not request “by or on behalf of” foreign court under Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, Schedule, s.1(a)
Evidence—assistance to foreign court—“court or tribunal”—request to be from court currently exercising jurisdiction, not merely where proceedings instituted—request from magistrates’ court outside scope of Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, Schedule, s.1(a) if accused already committed for trial by higher court
Evidence—assistance to foreign court—examination of documents and witnesses—request for police investigations to be conducted not proper request for obtaining of evidence within Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, Schedule, s.1(b)
    The Attorney General applied for an order that evidence be obtained pursuant to a request for judicial assistance by a foreign court.
    The Stipendiary Magistrate at Manchester City Magistrates’ Court issued a letter of request to the competent judicial authorities of the Cayman Islands stating that a criminal investigation was being carried out by the Manchester police into a conspiracy to rob, in respect of which a person had been charged in the magistrates’ court by the Crown Prosecution Service and awaited committal to the English Crown Court.
1999 CILR 36
The letter gave brief details of the accused and the offence with which he had been charged, and was accompanied by a summary of facts signed by an English Crown Prosecutor, setting out detailed allegations against the accused and listing the inquiries to be made of potential witnesses in the Cayman Islands, from where the accused had made telephone calls to fellow conspirators.
    The letter of request was forwarded by the English Home Office to the Attorney General and was presented to the court in an ex parte application six months later, at a time when the accused had already been committed to the Crown Court.
    Held, dismissing the application:
    The court would not give judicial assistance, since it could do so, under the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, Schedule, s.1(a), only in response to a request issued “by or on behalf of a court exercising jurisdiction,” and in this case the specific requests for inquiries emanated from the Crown Prosecution Service rather than from the Stipendiary Magistrate and there was no evidence that he had considered and approved those requests himself. Moreover, the substantial delay in placing the application before the court meant not only that the information sought was no longer needed for the purpose of the committal proceedings, but also that the magistrates’ court was no longer the court exercising jurisdiction over the case. It was not sufficient that the proceedings had been instituted there within the meaning of s.1(b) of the Schedule, since sub-ss. 1(a) and (b) were to be read together. Furthermore, the application did not relate to the taking of evidence for use in court proceedings, as was required by s.1(b), but to the conduct of police investigations here (page 40, line 35 – page 41, line 32).
Case cited:
(1)      Canton of Berne’s Request, In re, 1996 CILR 179, applied.
Legislation construed:
Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 (S.I. 1978/1890), Schedule, s.1: The relevant terms of this section are set out at page 37, line 43 – page 39, line 9.
s.2(1), as adapted by s.5: The relevant terms of this sub-section are set out at page 38, lines 10–17.
    (2), as adapted by s.5: The relevant terms of this sub-section are set out at page 38, lines 18–23.
A. Akiwumi, Crown Counsel, for the applicant.

              MURPHY, J.: This is an ex parte originating summons brought by the  
      Attorney General pursuant to the provisions of O.70 for an order in  
45      accordance with a request made for judicial assistance by the Stipendiary 
1999 CILR 37

      Magistrate sitting at Manchester City Magistrates’ Court, in the following  
      terms:  
                      “That— 
                      (1) Deborah Rich of Indies Suites Hotel, Grand Cayman,  
5          Cayman Islands, be examined in a form directed by the Grand Court  
          concerning a room occupied by Kevin Joseph Kennedy in or around  
          October 1996;  
                      (2) Deborah Rich of Indies Suites Hotel, Grand Cayman,  
          Cayman Islands be directed to produce printouts of telephone  
10          billings in respect of the room at the said hotel occupied by Kevin  
          Joseph Kennedy in or around October 1996;  
                      (3) A duly authorized officer of Cable & Wireless be examined in  
          a form directed by the Grand Court regarding any telephone billing  
          raised by Kevin Joseph Kennedy in Grand Cayman, Cayman Islands  
15          in or around October 1996; 
                      (4) Detective Const. Bellamy of the Royal Cayman Islands  
          Police Drugs Task Force, Grand Cayman, Cayman Islands be  
          examined in a form directed by the Grand Court concerning  
          evidence collated by him at the request of the Greater Manchester  
20          Police Robbery Unit in connection with an investigation concerning  
          Kevin Joseph Kennedy;  
                      (5) Such other order or directions as the court may deem fit.” 
          Crown Counsel appeared before me on this application late last week. As  
      a matter of principle, I refused to hear it on an emergency basis then as it  
25      was by no means “urgent”; this request from the UK authorities seems to  
      have been made to the local Attorney General’s Chambers last July. I did,  
      however, on that appearance last week make some comments to Crown  
      Counsel as to perceived deficiencies in the material. Crown Counsel has  
      appeared again before me today. I note that the relief sought has been  
30      recast somewhat. The underlying material, however, remains the same.  
              This application is based upon the provisions of the Schedule to the  
      1978 Order. The Order itself extends to the Cayman Islands most of the  
      provisions of the Evidence (Proceedings in other Jurisdictions) Act 1975  
      with certain exceptions, adaptations, and modifications. These provisions  
35      of the 1975 Act are set forth in the Schedule to the Order. What is sought  
      by the Attorney General is evidence for criminal proceedings and so  
      reference must be made to s.5 of the Schedule which deals specifically  
      with that subject-matter. Sections 1, 2, and 3 of the Schedule relate to  
      evidence for civil proceedings, and s.5 adapts those sections for the  
40      purposes of criminal proceedings, with certain changes. Making those  
      changes, the relevant portions of those sections, as adapted to criminal  
      proceedings, read as follows:  
                      “1. Where an application is made to the Grand Court for an order  
          for evidence to be obtained in the Cayman Islands, and the court is  
45          satisfied— 
1999 CILR 38

                          (a)    that the application is made in pursuance of a request  
              issued by or on behalf of a court or tribunal (‘the  
              requesting court’) exercising jurisdiction in a country or  
              territory outside the Cayman Islands; and 
5                          (b)    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 Grand Court shall have the powers conferred on it by the  
          following provisions of this Act. 
10                      2.(1) Subject to the provisions of this section, the Grand Court  
          shall have power, on any such application as is mentioned in section  
          1 above, by order to make such provision for obtaining evidence in  
          the Cayman Islands as may appear to the court to be appropriate for  
          the purpose of giving effect to the request in pursuance of which the  
15          application is made; and any such order may require a person  
          specified therein to take such steps as the court may consider  
          appropriate for that purpose. 
                      (2) Without prejudice to the generality of subsection (1) above  
          but subject to the provisions of this section, an order under this  
20          section may in particular, make provision— 
                          (a)    for the examination of witnesses, either orally or in  
              writing; 
                          (b)    for the production of documents….” 
          For the purposes of disposing of this application, I do not intend to revisit  
25          my “jurisdictional concern” as expressed in In re Canton of Berne’s  
      Request (1) (1996 CILR at 188–190). 
              This application, straightforward though it may seem to be, does  
      however raise basic issues about the applicability of the 1978 Order.  
      What I have before me is a brief affidavit sworn by Crown Counsel  
30      himself to which is exhibited a bundle of materials from the UK criminal  
      authorities. These are as follows: 
              1. A letter dated July 8th, 1998 from the Home Office (Organized and  
      International Crime Directorate—Judicial Co-operation Unit) to the  
      Attorney General of the Cayman Islands enclosing “a letter of request  
35      issued by a magistrate who seeks evidence.” 
              2. The purported letter of request which I reproduce in full: 
                   
          “The Competent Judicial Authorities, The Cayman Islands 
                  Re: Kevin Kennedy 
40                  Section 3(1) of the Criminal Justice (International Co-operation)  
          Act 1990 
                      I, ALAN BERG, Stipendiary Magistrate sitting at Manchester City  
          Magistrates’ Court, have the honour to request your assistance in  
          obtaining certain evidence in relation to the matters set out below  
45          which reveal the commission of a criminal offence which is the 
1999 CILR 39

          subject of a criminal investigation being carried out by officers of  
          the Greater Manchester Police Robbery Unit and which is also the  
          subject of criminal proceedings against Kevin Kennedy, Robert  
          Hughes and David Hill in the Manchester City Magistrates’ Court,  
5          being conducted by the Manchester North and Salford Branch of the  
          Crown Prosecution Service, which has conduct of criminal  
          proceedings (other than certain proceedings in relation to relatively  
          minor offences) instituted by or on behalf of a police force in  
          England and Wales. 
10                      Offences are under investigation in relation to— 
                      Name: Kevin Joseph KENNEDY 
                      Alias: Kevin Peter KENNEDY 
                      Address: 16 Harefield Road, Speke, Liverpool, Merseyside. 
                      D.O.B: 22nd December, 1968 
15                      Nationality: British 
                      Passport: 008705600 
                      The Crown Prosecution Service is conducting the prosecution of  
          Kevin Kennedy for the offence of conspiracy to rob. 
                      Robbery is an offence contrary to s.8 of the Theft Act 1968. The  
20          offence carries a penalty on conviction on indictment of a fine of  
          any amount or imprisonment for life or both. 
                      Conspiracy to rob is an offence contrary to s.1(1) of the Criminal  
          Law Act 1977. The offence carries a penalty on conviction on  
          indictment of a fine of any amount or imprisonment for life or both. 
25                      Copies of the relevant statutory provisions are annexed to this  
          letter. 
                      Dated this 22nd day of June, 1998. 
                      A. Berg, Stipendiary Magistrate, acting in and for the County of  
          Greater Manchester.” 
30           
      It is by no means clear what, if anything, the Magistrate  
      actually appended to his letter. 
              3. A statement dated June 10th, 1998 and signed by a Crown  
      Prosecutor, said to be a “notice of an application for a letter of request to  
35      the Competent Judicial Authorities of the Cayman Islands to be issued by  
      Manchester City Magistrates’ Court.” This document recites the need for  
      a letter of request to satisfy the Cayman Islands 1978 Order. It also recites  
      that “the facts of this matter, the grounds upon which it is suspected that  
      an offence has been committed, and the particulars of the assistance  
40      which is being requested, are contained in the attached letter of request  
      which forms part of this notice of application.” 
              4. I suspect that the document last referred to is actually a “summary of  
      facts” that appears next in the bundle. This sets out in detail allegations of  
      robberies or attempted robberies. The bulk of these need not concern me  
45      here. It is said therein that “Kennedy visited the Cayman Islands in 
1999 CILR 40

      October 1996 and stayed at the Indies Suite Hotel on Grand Cayman. It is  
      also known that whilst staying at the hotel, he telephoned one of the  
      others involved in the conspiracy.” The “summary of facts” ends as  
      follows: 
5                      “INQUIRIES TO BE MADE: 
                      A. To record statements from Deborah RICH, an employee of the  
          Indies Suite Hotel, Grand Cayman, producing computerized  
          printouts of telephone billing from KENNEDY’S room during his stay  
          and to obtain the necessary confirmation that those records form part  
10          of the business records of the Hotel and that the computer that  
          recorded the information and reproduced the same was at all time  
          working correctly. 
                      B. To obtain statements from the appropriate representatives of  
          Cable & Wireless Telecom, Cayman Islands regarding any  
15          telephone billing available relating to KENNEDY whilst staying on  
          Grand Cayman and to obtain the necessary confirmation that those  
          records form part of the business records of the hotel and that the  
          computer that recorded the information and reproduced the same  
          was at all time working correctly. 
20                      C. To obtain a statement from Det. Const. Bellamy of the  
          Cayman Islands Drug Task Force covering the gathering of evidence  
          at the request of the Greater Manchester Police, Robbery Unit and to  
          provide continuity in respect of any exhibits recovered by him  
          during the course of this inquiries into these matters.” 
25              5. Extracts from the Criminal Law Act 1977. 
              6. A letter dated June 16th, 1998 from the Crown Prosecution Service  
      to the Clerk to the Justices, Manchester City Magistrates’ Court, noting  
      that the subject accused “is pending committal to the Crown Court” and  
      seeking a letter of request from the magistrate. It states in part “as  
30      Kennedy has not yet been committed, it would seem that it is Manchester  
      City Magistrates’ Court that must issue the letter of request.” 
              Crown Counsel before me advised that his very recent instructions  
      were to the effect that the subject accused had now, in fact, been  
      committed for trial in the Crown Court. 
35              I have concerns about the propriety of this application. Initially, I must  
      be satisfied that the application is made “in pursuance of a request issued  
      by or on behalf of a court or tribunal.” There is what purports to be a  
      letter of request from the Stipendiary Magistrate but it contains no  
      specific request whatsoever. At best the Stipendiary Magistrate requests  
40      this court’s “assistance in obtaining certain evidence in relation to the  
      matters set out below….” These “matters” are simply bare details of the  
      accused and the offence alleged. The requests contained in the summons  
      before me do not appear in the Stipendiary Magistrate’s letter of request.  
      It is obvious that the “inquiries to be made” referred to in the other  
45      material emanate from the prosecution. 
1999 CILR 41

              Crown Counsel invited me, in effect, to incorporate these by reference  
      into the Stipendiary Magistrate’s letter. I am not prepared to do this. On  
      its face his letter appears to include as an enclosure only “the relevant  
      statutory provisions.” I do not by any means intend to suggest any  
5      impropriety on the part of the UK authorities. However, I simply have  
      nothing before me to satisfy me that the specific requests made by the  
      prosecution were even vetted or considered by this magistrate. 
              In any case, even if I were prepared to treat the prosecution’s “inquiries  
      to be made” as being the court’s request, I would still be obliged to  
10      dismiss this application. These “inquiries” are just that. They amount to  
      nothing more than directives to carry out police investigations in this  
      jurisdiction. For that, this application seeks this court’s imprimatur.  
      Whether in the criminal or civil context, the 1978 Order is not to be used  
      for that purpose; its purpose is to allow the taking of evidence for use in  
15      court proceedings: see In re Canton of Berne’s Request (1) and the cases  
      cited therein. Crown Counsel attempted, in his new summons, to recast  
      accordingly the relief sought, but clearly on the material before me that is  
      not its true nature. I leave aside as unnecessary a consideration of the  
      breadth or vagueness of certain of the “inquiries to be made,” and  
20      whether such “evidence” is actually available. 
              I expressed to Crown Counsel last week my concern about the  
      staleness of this application. My concerns appear to have been justified as  
      I have learned today that the matter has now proceeded beyond the  
      magistrates’ court to the Crown Court. The “request” accordingly seems  
25      redundant as, due to the passage of time, it is clearly no longer necessary  
      for the committal proceedings, the purpose for which it was made. It  
      would seem that the Stipendiary Magistrate no longer “exercises  
      jurisdiction” within the meaning of s.1(a) of the Schedule to the 1978  
      Order. Crown counsel, citing s.1(b), contends that the key instead is that  
30      the proceedings were “instituted before the requesting court.” I do not  
      accept that this is determinative as paras. (a) and (b) must be read  
      conjunctively. 
              For these reasons I do not regard it as “appropriate” (to quote s.2 of the  
      Schedule to the 1978 Order) to grant the relief sought. 
Application dismissed.
Attorneys: Government Legal Dept.