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Prosecution of foreign defendants

OG Status: Partially open

Identifying the defendant

General approach

  1. Foreign companies that have a branch 1 or place of business 2 in Great Britain must register a number of particulars in this country with Companies House, and will generally be liable for prosecution.
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[Section 31 (Law enforcement) exemption Freedom of Information Act 2000]
  1. In all cases where you do want to gather evidence abroad, you must consult Legal Adviser’s Office.

Evidence from abroad

  1. Legal Adviser’s Office may apply in writing to a magistrates’ court for the issue of a ‘letter of request’, requesting the assistance of a court, tribunal or other appropriate authority abroad in obtaining evidence outside the UK, which may consist of witness statements, documents or other articles, where:
    • an offence has been committed or there are reasonable grounds for suspecting that an offence has been committed; and
    • proceedings in respect of that offence have been instituted or the offence is being investigated.
  1. These provisions are set out in s.7 of the Crime (International Co-operation) Act 2003. Note that, unlike the Police and certain others, HSE is not a designated prosecuting authority for the purposes of s.7(5), and therefore is not entitled to send letters of request in its own right.
  2. There may be circumstances where overseas investigations proceed with the informal assistance of local investigative or regulatory bodies. Here again, Legal Adviser’s Office will need to be consulted in order to avoid the possibility that essential evidence is not in admissible form.
  3. It is desirable that an inspector is present whenever a witness is to be questioned abroad to deal with matters of both form and content, and to have the opportunity to ask questions and make a note of the answers.

Service of proceedings

  1. Sections 3 and 4 of the Crime (International Co-operation) Act 2003 provide that a summons requiring a person charged with an offence to appear before a court in the United Kingdom to answer a charge, or a person to attend to give evidence as a witness, can be served outside the United Kingdom, either by post (s.3) or, if otherwise than by post, in accordance with arrangements made by the Secretary of State (s.4).
  2. This will not impose an obligation under UK law 3, and therefore no proceedings for contempt of court or for the issue of a warrant can be taken for failing to comply with such a warrant. The summons must also be accompanied by a notice giving the information required by rule 3 of the Magistrates' Courts (Crime (International Co-operation)) Rules 20044.
  3. If the person at whose request the summons is issued believes that the person on whom it is to be served does not understand English, he must inform the Court of this fact and provide a copy of the summons (or so much of it as is material) translated into the appropriate language (s.3(3)).
  4. Where a summons is not served by post, the present arrangement requires the summons and accompanying documents to be forwarded via the United Kingdom Central Authority, which forms part of the Judicial Co-operation Unit of the Home Office.
  5. In all cases where it is proposed to serve a summons outside the UK, the advice of Legal Adviser’s Office must be sought.

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Admissibility of evidence from abroad

  1. If voluntary statements made by witnesses abroad are obtained by a letter of request in accordance with the Crime (International Co-operation) Act 2003 s.7, they can be relied on at committal.5 A statement taken abroad should not include the perjury declaration6, as this is unenforceable abroad and may have the effect of calling the voluntary character of the statement into question.
  2. If a statement is taken abroad otherwise than in accordance with the s.7 procedure, it is unlikely to be admissible for purposes of committal, except in unusual cases, for example where a statement is taken on UK consular premises abroad in the same form as if it were taken in this country.
  3. A statement taken abroad is subject to the same provisions as a statement taken in this country in respect of:
    • its admissibility at trial; and/or
    • the obligation to bring the witness to court to give evidence in person, if so required by a defendant.
  1. While a court can issue a summons to a witness overseas, there is no provision to enable this to be enforced 7.
  2. Statements and documents may be admitted in evidence in criminal proceedings if they meet the conditions set out in the Criminal Justice Act 2003 ("CJA") sections 116 and 117, which are qualified by s.126. Where, at the committal stage, a prosecutor considers that a statement on which s/he relies is likely to be admissible at trial only if he can invoke s.116 or s.117, s/he must notify the court and the other parties to this effect. 8
  3. A statement will be admissible if:
    • the person who made it is outside the United Kingdom and it is not reasonably practicable to secure his/her attendance at trial (s.116(2)(c) CJA); and
    • the statement, if taken abroad, has been obtained in accordance with the Crime (International Co-operation) Act 2003. 9
  1. All reasonable steps to secure a witness's attendance, having regard to the means and resources available to the parties, must have been taken before sections 116 and 117 CJA can be relied on. 10 Therefore, foreign witnesses should be regarded in the same manner as those within the jurisdiction in terms of the obligation to bring them before a court, if required. Every attempt must be made to encourage witnesses to attend as otherwise the court may not allow the prosecution to rely on their written statements.
  2. Section 126 CJA 2003 gives a trial judge or bench an overriding discretion not to admit a statement or document admissible under sections 116 and 117 if the court is satisfied that the case for excluding the statement substantially outweighs the case for admitting it, taking into account the value of the evidence. Section 126 does not prevent the Court from excluding a statement if it is of the opinion that it ought not to be admitted in the interests of justice. In considering the interests of justice, the court would usually consider a number of factors, such as:
    • possible unfairness to the accused (this may, for example, include whether it was possible to challenge a statement made by questioning the witness who made it, and whether, if proceedings have already been instituted, the local court allowed the parties to the proceedings to be legally represented when the evidence was taken); and
    • the likely authenticity of documents.
  1. Section 117 of the Criminal Justice Act 2003 provides that statements in a document will be admissible in evidence of any fact on which oral evidence would be admissible, if certain conditions are fulfilled. Principally, the document must have been created or received in the course of a business trade or profession or the holding of a paid or unpaid office, and the information contained in it supplied by a person who had or may reasonably be supposed to have had personal knowledge of the matters dealt with. Such documents, when obtained abroad, will only be admissible at committal if obtained pursuant to a letter of request 11, and will otherwise be excluded.

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Attendance of defendants

  1. Extradition is the process by which one jurisdiction will seek to have delivered to it a person found within another jurisdiction. It is only available for the prosecution of individuals, and is restricted to offences carrying a penalty of imprisonment of at least one year. Therefore it is available for manslaughter, but not for most of the most frequently encountered offences under HSWA.
  2. Extradition is normally invoked only in the most serious cases. If you are of the opinion that it should be pursued, you should contact Legal Adviser’s Office immediately. Where an overseas defendant, individual or corporation, fails to answer a summons forwarded under a letter of request, proceeding in his/her/its absence will seldom be possible. In such circumstances, there is no explicit provision for dealing with mode of trial in respect of offences triable either way, which include the majority of health and safety offences.

Scotland and Northern Ireland

  1. Service of a summons requiring a person charged with an offence to appear before a court in England and Wales may, in such manner as may be prescribed by rules of court, be served on him/her in Scotland or Northern Ireland 12.
  2. For guidance on serving a summons on a defendant in Scotland or Northern Ireland, see The summons. Should a corporate defendant then fail to appear, the prosecution can proceed in their absence as with a defendant company based within England and Wales.

Footnotes

  1. Companies Act 1985 s.690A & EC Council Directive 89/666.
  2. Companies Act 1985 s.691.
  3. Section 3(4) Crime (International Co-operation) Act 2003.
  4. S.I. 2004 No.1048. For the Crown Court, see the Crown Court (Amendment) Rules 2004 (S.I. 2004 No.1047).
  5. Magistrates’ Courts Act 1980 s.5E.
  6. Magistrates’ Courts Act 1980 s.5B(2)(b) that the maker knows that he would be liable to prosecution if he states anything that he knows to be false or that he does not believe to be true
  7. Crime (International Co-operation) Act 2003, s.3(5) & (6).
  8. Magistrates’ Courts Act 1980 s.5D. This section and other relevant sections in Part II of this Act are to be repealed by the CJA 2003, but at the time of writing, the provision which repeals section 5D had not yet commenced. Accordingly, it is considered that the section 5D procedure should be followed until it is repealed, and the references to ss23 and 24 of the 1998 Act should be read as a reference to ss116 and 117 of the 2003 Act respectively (s17 Interpretation Act 1978).
  9. Crime (International Co-operation) Act 2003, s.7.
  10. R v Maloney [1994] Crim LR 525 (dealing with the former ss 23 and 24 of the CJA 1998).
  11. Magistrates’ Courts Act 1980 s.5E (this section will continue until repealed – see footnote 8 above).
  12. Section 39(1) Criminal Law Act 1977 and Part 4 Criminal Procedure Rules 2005.