2  Sections 1, 2 and 3 of the Schedule relate to evidence for civil proceedings and s.5 adapts those sections for the 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 satisfied—

(a)    that the application is made in pursuance of a request issued by or on behalf of a court or tribunal (‘the requesting court’)

(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.

    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 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 section may, in particular, make provision –

(a)    for the examination of witnesses, whether orally or in writing;

(b)    for the production of documents. . .”

3  The principles for compliance with a foreign request for evidence are conveniently set out in 1 The Supreme Court Practice 1999, para. 70/6/3, at 1321. The court will ordinarily give effect to such a request so far as it is proper and practicable and to the extent that it is permissible under [Cayman] Law. This principle reflects judicial and international comity: see the cases cited in para. 70/6/3.

4  In dealing with a request for evidence from a foreign court, this court must decide first whether it has jurisdiction to make the order sought and, secondly, if it has, whether as a matter of discretion it ought to make or refuse such an order. Mr. Clifford, counsel for the Aall Foundation, submitted that the request could not be granted because—

    1. The request does not constitute a request issued by or on behalf of a court or tribunal, but in substance amounts to inquiries emanating from a prosecution authority. It thus fails to satisfy the provisions of s.1(a) of the Schedule to the 1978 Order.

    2. Criminal proceedings have not yet been instituted, the matter still being at the investigatory rather than adjudicatory stage. The request therefore fails to satisfy the provisions of s.1(b) of the Schedule to the 1978 Order.

    3. Even if the tax charges do amount to the institution of criminal proceedings, the request is defective because it fails to distinguish between evidence sought for the purpose of such charges and evidence required for the ongoing investigation of other suspected offences in respect of which no proceedings have been instituted.

    4. The request constitutes fishing in that it fails to specify particular documents required to be produced. Section 2(4)(b) of the Schedule to the 1978 Order thus precludes the making of an order.

    5. Alternatively, Mr. Clifford submitted that the court should not exercise its discretion on the particular facts of this case.

5  Mr. Clifford relies upon the decision of Murphy, J. in this court in In re Manchester City Stipendiary Magistrate’s Request (3) to argue that since this request is nothing more than a request from the prosecutor, it is not from a court or tribunal. Murphy, J said (1999 CILR at 40–41):

  “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 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 material emanate from the prosecution.

  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 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.”

“Decision:

  The National Authority for Investigation and Prosecution of Economic and Environmental Crime in Norway, OKOKRIM, has on September 25th, 2000 and with reference to the County Governor’s

  OKOKRIM states in the application that the rogatory commission is not a taking of evidence within the meaning of s.47 of the Courts Act, which means that neither the suspect nor the defence counsel need be warned. The same rules apply here as for use of corresponding enforcement measures in Norway, and it would cause substantial damage to the case were this request to become known to the suspects at this stage. It is thus of particular importance to handle the case confidentially.

The court would comment:

  The rogatory commission has been drawn up in English and the Court of Examining and Summary Jurisdiction has obtained an unauthorized Norwegian translation, received October 26th, 2000 from OKOKRIM. Both documents are appended to the decision.

  After reviewing the documents the court finds that the formal criteria have been met. The petitioning authority, the persons covered by the request and the suspected criminal acts are adequately described as regards both facts and law.

  Regarding the facts, the court would remark, first, that the prosecution authority has been given a certain jurisdiction as regards the use of enforcement measures: see s.197 of the Criminal Procedure Act. As regards domestic Norwegian law otherwise, the court has concluded that the criteria of s.192 of the Criminal Procedure Act have been met. The court finds that there is reason to suspect Bjorn Bettum of acts that under the law may involve a custodial sentence. Moreover, there are special grounds for considering that there may exist evidence or objects that can be confiscated as described in the rogatory commission.

  The court also considers that the proportionality principle of s.170 of the Criminal Procedure Act has not been violated and that under Norwegian law enforcement measures may be employed. In this case the proportionality principle requires that no limitation date is set for the use of the measures. The court sees no reason to deal in greater detail with the proportionality assessment. It is sufficient to refer to the serious circumstances described in the rogatory commission.

Conclusion:

  Sandefjord Court of Examining and Summary Jurisdiction consents to a [request] for seizure as petitioned for by OKOKRIM being sent to the appropriate authorities on the Cayman Islands.

True Translation Certified—Government Authorised Translator”

  “1. Bjorn Bettum; date of birth November 2nd, 1935; Ovre Gogstadvei 21; 3228 Sandefjord, is hereby charged with violation of the Assessment of Tax Act, s.12–1.

  The basis is the following circumstances or complicity therein:

  On one or several occasions in the period 1984 to 1992 Bettum arranged for various building/improvement works to be carried out on his private residence, Gogstad Gard, and/or his private summer house at Bergantangen on Osteroya, both in Sandefjord. The work was done by contractor Arne Sti or one of his firms. Part of the work—in all estimated at NKr. 2.5m.—was not disclosed in the building accounts.

  The work was compensated by funds that Bettum held abroad—Aall Trust & Banking Ltd. and/or Euro Canadian Bank Ltd. The amount was not disclosed for taxation in Sti’s tax returns filed with Andebu Municipal. The work was compensated by funds that Bettum held abroad—Aall Trust Authority.

  The omission of notification of the said building works and the way they were funded caused or may have caused Bettum to have been assessed too little tax.”

Also accompanying the letter of request and charge was a 19-page document entitled “Endorsement Paper.” It may be described as a summary of various allegations of theft, tax fraud and/or embezzlement against Bjorn Bettum as well as several others. It is alleged that his theft and fraud have been going on for more than 20 years. The paper is far broader in scope than the charge.

8  In the present case, the Norwegian magistrate has ordered that the information requested by the prosecutor in the endorsement paper be provided in total. The first question is whether or not the request has come from the Norwegian court or is simply a request from the Norwegian prosecutor that has been rubber-stamped by the Norwegian court with no judicial determination involved. I think in the present case there has been an apparent review of the facts by the Norwegian court. District Magistrate Hazeland said:

  “After reviewing the documents the court finds that the formal criteria have been met. The petitioning authority, the persons covered by the request and the suspected criminal acts are adequately described as regards both facts and law.

. . .[T]he Criminal Procedure Act has not been violated. . .”

Accordingly, there appears to have been an exercise of an adjudicatory nature and not merely a passing on of the prosecutor’s request as was observed by Murphy, J. in In re Manchester City Stipendiary Magistrate’s Request (3).

“in dealing with a request for evidence from a foreign Court, the English Court has first to decide whether it has jurisdiction to make an order to give effect to the request, and secondly, if it has, whether as a matter of discretion it ought to make or refuse to make such an order. As a matter of jurisdiction, in the ordinary way and in the absence of evidence to the contrary the English Court should be prepared to accept the statement of the foreign Court in its request that the evidence is required for the purposes of civil proceedings in that Court (see, per Lord Diplock in Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation . . .). On the other hand, the form of the letter of request is not conclusive; the Court must examine the request objectively by the nature of the testimony sought (see, per Lord Wilberforce in Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation . . .) and it has to look at the substance of the matter (see, per Lord Goddard in Radio Corporation of America v. Rauland Corporation . . .) but it may have regard to what was said in the foreign Court when the request for evidence was issued. If there is any doubt about the matter, the English Court may allow the parties to refer back to the foreign Court or Judge who issued the request for evidence (see American Express Warehousing Ltd. v. Doe . . .).”

Mr. Hall-Jones submitted that this court, when determining whether or not it has jurisdiction to make such an order, should bend over backwards to accommodate the request of a foreign court. I am not persuaded that the court should undergo such contortions. I think that this court should examine the foreign court’s requests objectively and must be satisfied that the material filed has established that it has jurisdiction to make the order requested. Then this court will give effect to any request from the foreign court, if it is proper and practicable and permitted under the Cayman law.

10  I am satisfied that in order for this court to have jurisdiction to make the order sought, the court of tribunal requesting the information must

11  Section 1(b) requires that criminal proceedings have been instituted before the requesting court. The Cayman Islands Court of Appeal held in Worldwide Fin. Holdings v. CITEL (4) (1994–95 CILR at 401) that where there was no evidence that criminal proceedings had been instituted in a foreign court this court had no jurisdiction to order examination of witnesses or documents.

12  The letter of request in the present case does not refer to any specific charge. The document headed ‘Endorsement Paper’ refers to:

  “Criminal investigations in OKOKRIM case No. 63/93 against the charged Norwegian citizen. The evidence should include any material relevant to the enquiry.

  OKOKRIM maintains that there are reasonable grounds to believe that the charged Norwegian citizen, Bjorn Bettum, committed a tax fraud and theft and/or embezzlement. Set out in the section ‘Details about the case’ below, OKOKRIM alleges that the tax fraud has been going on for a period of 20 years. . .”

I have not been told that Bettum has been charged with any of these other alleged offences. The endorsement paper continues:

  “The information obtained on our behalf by the Grand Court of the Cayman Islands under this letter of request, would be only for the purpose of our criminal investigation in the affairs of the Norwegian citizen, Bjorn Bettum, with a view to prosecution for criminal offences set out in the enclosed memorandum dated September 13th, 2000.

I note that the referred to memorandum of September 13th, 2000, was not attached but I was advised by Mr. Hall-Jones that that memorandum refers to Charge No. 63/93, a copy of which was attached.

13  There was no document produced showing that there was any process before the Norwegian court that Mr. Bettum is required to answer to. There is no evidence of what has happened since 1992, and whether or not he has had to appear nor if there is any trial date set or about to be set.

  “In the circumstances, I have made certain enquiries as to the position with Mr. Bettum’s Norwegian lawyers. There is now produced and shown to me marked ‘NC 1’ a copy of Hunter & Hunter’s letter of June 29th, 2001 to Mr. Lyngtveit, Mr. Bettum’s lawyer, and a copy of Mr. Lyngtveit’s response dated July 2nd, 2001. It appears from the information provided by Mr. Lyngtveit that there has been an investigation of a criminal case against Mr. Bettum that has been going on for almost two decades. Furthermore, Mr. Bettum has been charged with a tax offence, although there is no indication of any criminal proceedings being under way in respect of such charge. As to other matters of alleged theft and/or embezzlement on the part of Mr. Bettum, the stage has not even been reached of there being any charges.”

The letter attached to Mr. Clifford’s affidavit states as follows:

  “The prosecuting authorities have brought two preliminary charges of current interest against Mr. Bettum—both primarily made to preserve the limitation period and pending further investigation. The final outcome of this is still uncertain. If the prosecuting authorities considered that they had any real evidence they would have to make a formal charge in the form of an indictment. For nearly 18 years they have not done so.

  Thus, I find it somewhat misleading to characterize the present situation as ‘criminal proceedings now pending before the Sandefjord Court of Examining and Summary Jurisdiction.’ The involvement of that court has been strictly limited to deciding whether to consent to a request for seizure by OKOKRIM being sent to the appropriate authorities on the Cayman Islands.”

15  I am therefore not persuaded that there are criminal charges pending against Mr. Bettum in Norway. The evidence before me, particularly the fact that there has been such a long delay and no apparent court date is set, together with the correspondence from Mr. Bettum’s counsel, lead me to conclude that this is still an investigation as to whether or not there is sufficient evidence upon which an indictment could be laid. I am not satisfied that Mr. Bettum has been charged with an offence in the sense that we understand a criminal charge.

16  This ground of objection alleges that even if the tax charges do amount to the institution of criminal charges, the request is defective because it fails to distinguish between evidence sought for the purposes of those charges and the evidence required for the ongoing investigation

17  The details of the charge contained in Case No. 63/93 appear to relate to alleged failure by Mr. Bettum to report that he made expenditure on improvement to his properties. I assume that the alleged tax offence is failure to pay tax on the correct value of his property and that his alleged failure to report these improvements has resulted in tax being paid on property valued below its true worth. This is to be contrasted to the 19-page summary of evidence which goes well beyond the alleged offence. It covers a span of many years and involves dozens of other individuals and companies and transfers of moneys. It is apparent to me that the Norwegian authorities are seeking information which goes well beyond that which relates to the charge alleged. No attempt has been made to distinguish between documentary evidence sought for the purpose of the existing tax charges and documentary evidence sought for the ongoing investigation of other suspected offences in respect of which no proceedings have been brought.

18  I also conclude from the above that there is a further ground to object to the request, namely, that it constitutes fishing. I do not think it is the function of this court in responding to letters of request from the foreign court to review the particular request with an editing pen and scrutinize and determine which requests are likely to be relevant for the foreign proceedings. If it is apparent on the face of the request that the majority of the information requested goes well beyond the ambit of the charges that have been laid, then I think it would be improper for this court to go through and determine what is really relevant for the foreign proceedings. Accordingly, I think the appropriate remedy is simply to deny the request, and should the foreign court wish to provide a further request limited to the information that is relevant to the charges in the foreign court, then it may do so.

19  For the foregoing reasons, I conclude that this court does not have jurisdiction to make the order requested. It is therefore not necessary for me to determine whether or not it would be appropriate in the circumstances of this case to exercise the court’s discretion in favour of the application. The application is dismissed.