Mutual Legal Assistance (United States of America) Act (Revised 2020)

Summary

This Act gives legal effect in the British Virgin Islands to the 1986 Treaty between the United States and the United Kingdom (extended to the BVI) on mutual legal assistance in criminal matters. It establishes a domestic legal and procedural framework for the BVI's Central Authority (the Attorney General) to execute US requests for evidence, testimony, documents, and custody transfers, and imposes confidentiality and compliance duties on persons involved in such requests.

• Authority: The Attorney General (or an authorised departmental officer) acts as the BVI Mutual Legal Assistance Authority responsible for receiving and executing US requests under the Treaty.
• Compulsion powers: The Authority has court-equivalent powers to compel a person to testify or produce documentary information requested under the Treaty; non-compliance can be enforced as if a court order had been disobeyed.
• Search, seizure and service: Police officers of Inspector rank or above must assist in serving documents or executing seizures on the Authority's instructions, and a certificate from the Authority is sufficient authority for courts to issue subpoenas, search warrants or seizure orders.
• Protections for witnesses and disclosers: Persons who travel to the BVI to respond to a request receive temporary immunity from process/detention, and persons who testify or disclose confidential information under a request are protected from criminal or civil liability and breach of confidence claims.
• Confidentiality: Where instructed by the Authority, the existence and details of a request must be kept confidential (other than to one's attorney or persons the Authority authorises) for ninety days from receipt of the request, or such longer period as notified.
• Custody transfers: Persons in lawful custody in the BVI or the US may be transferred to give testimony in the other territory with consent, remaining in lawful custody throughout, and must be released no later than they would have been in their home jurisdiction.
• Expenses: Persons seeking reimbursement of expenses under the Treaty must submit claims to the Authority for transmission to the US Authority.
• Offences and penalties: Failure to produce required documents, unlawful disclosure of a confidential request, or refusal to testify or attend as required are criminal offences carrying fines and/or imprisonment.

The Act repeals the earlier Narcotic Drugs (Evidence) (United States of America) Act 1987 upon a future Proclamation by the Governor, and includes the full text of the underlying 1986 Treaty and its evidentiary certification forms as a Schedule.

Key obligations

• A person required by the Authority to produce documents or testify in response to a US mutual legal assistance request must comply within the time specified (or any extension) or commit an offence punishable by a fine of up to ten thousand dollars and/or up to two years' imprisonment.
• A person notified of a request, or required to act, produce documents or supply information in relation to it, must keep the fact and particulars of the request confidential (except to their attorney or persons the Authority authorises) for ninety days from receipt of the request, or such further period as notified; breach is a separate offence.
• A person instructed to appear or subpoenaed to provide testimony in response to a request must attend and testify or face a fine of up to five thousand dollars and/or up to one year's imprisonment.
• Police officers of Inspector rank or above must assist in service of documents or seizure of articles when required by the Authority.
• A person claiming reimbursement of expenses under Article 6 of the Treaty must submit the claim to the Authority for transmission to the United States Authority.

Applies to

persons served with a mutual legal assistance request, witnesses and persons required to produce documents, banks (in relation to disclosure of confidential information), companies (in relation to disclosure of confidential information), attorneys representing persons subject to a request, persons in lawful custody subject to transfer, police officers

Deadlines

• ninety days from the date of receipt of the request (or such further period as notified by the Authority): Period during which the existence and particulars of a mutual legal assistance request must be kept confidential.
• ten days after notification: Immunity for a person who entered the BVI in response to a request ceases ten days after being notified their presence is no longer required.