SEEKING ASSISTANCE IN CRIMINAL AND CIVIL MATTERS FROM THE CAYMAN ISLANDS
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These are guidelines from the Honourable Attorney General of the Cayman Islands, please follow
the links below.
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Contents
Part 1: Foreword by the Honourable Attorney
General of the Cayman Islands
Part 2: Introduction
Part 3: Request for assistance under the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 (“EPOJ”)
Part 4: Request for assistance under the Criminal
Justice (International Cooperation) Law (2004 Revision) (“CJICL”)
Part 5: Request for assistance under the Misuse
of Drugs (Drug Trafficking Offences) (Designated Countries) Order 1991 (“MDL”)
Part 6: Request for assistance under the Proceeds
of Criminal Conduct Law (2005 Revision) (“PCCL”) for the Purposes of Restraining Property
Part 7: Request for assistance under the 1980
Hague Convention on the Civil Aspects of International Child Abduction.
Part 8: Request for assistance under the Foreign
Arbitral Awards Enforcement Law – 1997 Revision (“FAAEL”)
Part 9: Requests
for assistance from the Cayman Islands under
the Mutual Legal Assistance (United States of America) law (1999 Revision)
Part 10: Frequently Asked Questions
Part 11: Contacting Us
Annex A:
Criminal Justice (International Cooperation) Law (2004 Revision) (“CJICL”)
Schedule of Designated Countries
Annex B:
Misuse of Drugs (Drug Trafficking Offences) (Designated Countries) (Amendment) Order 1998
Schedule of Designated Countries
Annex C:
Proceeds of Criminal Conduct (Designated Countries) Order (2003 Revision)
Schedule of Designated Countries
PART I
FOREWORD
The Cayman Islands as part of the International Community attaches great importance to providing
assistance to other jurisdictions in combating international crime and is committed to providing assistance in all matters
within the framework of its laws and in accordance with its international obligations.
The Attorney General is the Central Authority under the Criminal Justice (International Cooperation)
Law 2005. By virtue of the wide array of laws within the Cayman Islands and the extensive ambit of these laws, the Central
Authority and the superior courts of the Cayman Islands have a full range of legal resources to deal with international
requests for assistance.
The Central Authority has established a specialised unit of Crown Counsels to process and execute
letters of request and to offer assistance as needed.
Samuel Bulgin Q.C.
Attorney General of the Cayman Islands
PART II
INTRODUCTION
The main avenue for the provision of assistance by the Cayman Islands is the Criminal Justice
(International Cooperation) Law (2004 Revision) (“CJICL”). This Law was originally enacted in June 1997 as an amendment
to the Misuse of Drugs (International Cooperation) Law.
This new Law was introduced to consolidate the Misuse of Drugs (International Cooperation) Law
(2000 Revision) and the Misuse of Drugs (international Co-operation) (Amendment) Law 2003. The new law 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.
Initially the Misuse of Drugs Law (International Cooperation) Law allowed for assistance to be
given to countries who are parties to the Vienna Convention in respect of investigations into drug matters only. By the
2004 amendment the Law was extended to include investigations of non-drug related offences. This development in the legislative
framework of the Cayman Islands also allows for Central Authorities of foreign jurisdictions to seek mutual legal assistance
at an earlier stage in respect of non-drug matters than at the stage where proceedings have been instituted.
Legal System
The Cayman Islands legal system is based on the English legal system and many of the local laws
follow closely that of the English system.
There are 3 tiers of courts
The Summary Court deals with offences which are triable summarily and the proceedings are presided
over by a Magistrate. In addition the Summary Court has the jurisdiction to hear cases in which the offence involves drugs.
Appeals from the Summary Court are heard by a Judge in the Grand Court; the Grand Court is a
Court of Original Jurisdiction.
Appeals from the Grand Court lie to the Court of Appeal.
Prosecutions are brought in the name of the Crown; this usually follows upon an investigation
by the Royal Cayman Islands Police Service, the Customs Department, Immigration Department and/or other investigative agencies.
Relationship with the United Kingdom
The Cayman Islands were discovered on May 10th, 1503 by Christopher Columbus. In 1655, the Islands
came under British control when Jamaica was captured from the Spanish by Oliver Cromwell's army. They officially became
a British territory when the Treaty of Madrid was signed in 1670 and Spain gave the Islands to Britain. The Cayman Islands
have remained a British overseas territory.
PART III
REQUESTS FOR ASSISTANCE FROM THE CAYMAN ISLANDS UNDER
THE EVIDENCE (PROCEEDINGS IN OTHER JURISDICTIONS) (CAYMAN ISLANDS) ORDER
1. The United Kingdom's Evidence (Proceedings
in Other Jurisdictions) Act 1975 was passed to enable the UK to ratify the Hague Convention on the Taking of Evidence Abroad
in Civil or Commercial Matters 1970. Section 10(3) provided for the extension of the Act or any part of the Act to (inter
alia) the Cayman Islands by way of an Order in Council.
2. The Evidence (Proceedings in Other Jurisdictions)(Cayman
Islands) Order 1978 ("the EPOJ") came into force in the Cayman Islands on the 1st March 1980, and extended sections
1 to 3 and 5 to 10 and Schedule 2 of the UK Act to the Cayman Islands.
3. The Order applies to both civil and criminal
proceedings.
MAKING AN APPLICATION UNDER THE EPOJ
4. LETTER OF REQUEST
Designated foreign countries may request the assistance of the Cayman Islands under the EPOJ.
The letter of request must originate from a Court or Tribunal exercising jurisdiction in a country
or territory outside the Cayman Islands.
The requesting court or tribunal must forward the letter of request to the Grand Court of the
Cayman Islands through the Central Authority as defined in the Hague Convention.
In practise the request is sent through diplomatic channels to His Excellency the Governor of
the Cayman Islands, Government Administration Building, George Town, Grand Cayman, British West Indies.
In preparing the Letter of Request the requesting court should ensure that the nature of the
proceedings commenced against a person or entity (whether civil or criminal) are described in detail, and in the case of
criminal proceedings the precise criminal charge brought against the accused person should be particularised.
The request should specify in detail the precise nature of the evidence sought (e.g. specific
information on X's bank account #00000 at Q bank), why the evidence is relevant to the proceedings and the issue in the
proceedings which the evidence will seek to prove.
NOTE: Requests that do not satisfy the above criteria
may be returned for additional details.
5. CIVIL PROCEEDINGS
The letter of request must originate from a Court or Tribunal exercising jurisdiction in a territory
outside the Cayman Islands.
The evidence that is being requested must relate to civil proceedings instituted before the
requesting court or whose institution before that court is being contemplated.
The following orders can be sought in a request under civil proceedings:
the examination of witnesses, either orally or in writing;
the production of documents;
the inspection, photographing, preservation, custody or detention of any property;
the taking of samples of any property and the carrying out of any experiments on or with any
property;
the medical examination of any person;
the taking and testing of samples of blood from any person.
A person cannot be compelled to give any evidence under an order that they would not have been
compelled to give in civil proceedings in the Cayman Islands or in the country where the requesting court exercises its
jurisdiction.
For information on the restraint of property, please refer to the "PCCL" page.
6. CRIMINAL PROCEEDINGS
The letter of request must originate from a Court or Tribunal exercising jurisdiction in a territory
outside the Cayman Islands.
The evidence that is being requested must relate to criminal proceedings instituted before the
requesting court. Evidence cannot be requested in criminal proceedings at the investigatory stage under this law.
The following orders can be sought in a request under criminal proceedings:
the examination of witnesses, either orally or in writing;
the production of documents
A person cannot be compelled to give any evidence under an order that they would not have been
compelled to give in criminal proceedings in the Cayman Islands or in the country where the requesting court exercises its
jurisdiction.
Any documents ordered to be produced must be particular documents specified in the order. For
example, in the case of U. S. v Carver (1982) the Court of Appeal in the Cayman Islands held that
"all correspondence, ledgers, day books and account books used (by the bank) in the ordinary course of business" for recording
the transactions concerning the receipt of particular sums of money on particular days were particular documents as specified
in s.2(4)(b) of the Schedule to the Order. Whereas, asking for the examination of "all other books, documents and papers"
was too vague and would lead to fishing expeditions.
The jurisdiction and powers of the court to make an order under the EPOJ are subject to the
relevant local legislation.
7. INTERNATIONAL PROCEEDINGS
His Excellency the Governor may by order direct that the EPOJ also apply to international proceedings.
An order under this section may direct that sections 89 to 95 inclusive of the Penal Code shall
have effect in relation to international proceedings to which the order applies as it has effect in relation to a judicial
proceeding in a tribunal of a foreign state.
International proceedings means proceeding before the International Court of Justice or any
other court, tribunal, commission, body or authority (consisting of one or more persons) which in pursuance of any international
agreement or any resolution of the General Assembly of the United Nations, exercises any jurisdiction or performs any functions
of a judicial nature or by way of arbitration, conciliation or inquiry or is appointed (whether permanent or temporary)
for the purpose of exercising any jurisdiction or performing any such functions.
8. PROCESSING OF REQUEST
Upon receipt of the request by His Excellency the Governor in accordance with the Convention,
the request is transmitted to the Attorney General who will then instruct counsel in his Chambers to make the application
under Order 70 of the Grand Court Rules.
The application is made by way of an Originating Summons with supporting affidavit (prepared
by Crown Counsel) and usually accompanied by a Draft Order setting out the nature of the relief sought and the manner in
which the evidence sought is to be obtained (e.g. receipt of documents or taking of deposition).
§ If the application is granted
by the Grand Court judge, the procedure identified in the Order of the court will be followed and, in due course, the evidence
will be transmitted by the Clerk of the Grand Court directly to the requesting Court.
In some instance, after the order has been made by the Grand Court, the parties who are subject
to the order must apply under s.4 of the Confidential Relationships (Preservation) Law to the Grand Court for directions
within the time specified before any confidential information can be disclosed or any evidence given. The Grand Court will
determine to what extent and under what conditions the confidential information can be given or produced.
PART IV
REQUESTS FOR ASSISTANCE FROM
THE CAYMAN ISLANDS UNDER THE CRIMINAL JUSTICE (INTERNATIONAL COOPERATION) LAW
(2000 REVISION) (CJICL)
1. Designated countries may request the assistance of the Cayman Islands in criminal investigations
and proceedings under the CJICL. (Please see Appendix A for list of countries)
2. 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.
3. A request should be made in writing in English to the Attorney General who is the Central
Authority of the Cayman Islands under this Law.
4. A request should contain:
(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.
To the extent necessary and possible, a request shall 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.
5. The Authority may refuse to comply with a request:
(a) if the request is not made in conformity
with the requirements for the contents of a request;
(b) if 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) if the Authority is of the opinion that
that the request is likely to prejudice the security, public order or other essential interests of the Islands;
(d) if 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) if it is contrary to the laws of the Islands
to grant mutual legal assistance in the circumstances to which the request relates; or
(f) if the Authority is of the opinion that
the requesting Party would not render assistance to the Authority in accordance with the Convention or under a law corresponding
to this law.
PRODUCTION ORDERS
6. If deemed necessary in pursuance of a request
for mutual legal assistance, the Authority may instruct that an application for the issue of a production order or search
warrant be made to the Grand Court.
7. The Grand Court may make an order that documentation be produced pursuant to the request
of a foreign country if it is satisfied that the following conditions have been met. These are 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
(c) believing that it is in the public interest,
having regard to-
i. the
benefit likely to accrue to the request if the material is obtained;
ii. the
circumstances under which the person is in possession of the material holds it,
that the material should be produced or that access to it should be given.
8. 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.
9. 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 it is visible and legible.
10. 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
11. 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.
12. 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 (para. 13 and 14)
below have been fulfilled.
13. 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)
the conditions in paragraph 7 (a) and (b) above have been fulfilled
in relation to any material on the premises; 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.
14. 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.
15. (a) 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.
(b)
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.
16. This Law provides protection for persons
appearing in the Islands in response to a request and to those persons disclosing confidential information.
17. This Law provides for the transfer of
persons in lawful custody to and from the territory of the requesting party.
18.This
Law provides for confidentiality with regard to a request.
19.Please
refer to Annex A for the list of designated countries to whom the Cayman Islands may provide assistance under this Law.
PART V
REQUESTS FOR ASSISTANCE UNDER THE MISUSE OF DRUGS (DRUG TRAFFICKING OFFENCES) (DESIGNATED
COUNTRIES) ORDER 1991
1. Designated foreign countries may request
the assistance of the Cayman Islands to restrain property that is the proceeds of drug trafficking or as result of a prosecution
for a drug trafficking offence.
2. "Drug trafficking" means doing or being concerned
in any of the following whether in the Islands or elsewhere:
a) producing or supplying a controlled drug
where the production or supply is without lawful excuse or without being authorised;
b) storing a controlled drug where possession
of the drug is without lawful excuse or without being authorised;
c) importing or exporting a controlled drug
where the importation or exportation is without lawful excuse or without being authorised.
3. Restraint orders may be
issued for this purpose under The Misuse of Drugs (Drug Trafficking Offences) (Designated Countries) Order 1991
by the Grand Court.
4. PRACTICAL STEPS
Any request for a restraint order must be transmitted through diplomatic channels to the Attorney
General of the Cayman Islands who is the Central Authority empowered by law to make an application to the Grand Court on
behalf of the government of a designated country.
5. WHAT IS NEEDED FOR THE APPLICATION
An application for a restraint order must be accompanied by an affidavit by the appropriate
authority of the designated country.
6. FORM OF AFFIDAVIT
The supporting affidavit should:
a) state where proceedings have been instituted,
the conduct in which the defendant is alleged to have engaged (exhibiting a copy of the indictment, information or charge),
and the grounds for believing that the defendant engaged in that conduct;
b) state, where applicable, the grounds for
believing that an external confiscation order may be made in the proceedings instituted or to be instituted in the designated
country concerned;
c) to the best of the deponent's ability, give
particulars of the realisable property in respect of which the order is sought and specify the person or person's holding
the property;
d) indicate when it is intended that proceedings
should be instituted in the designated country concerned (in the case where it appears to the Grand Court that proceedings
are to be instituted against a defendant in a designated country and that there are reasonable grounds for believing that
an external confiscation order may be made in them.)
The affidavit may also contain statements of information or belief with the sources and legal
grounds thereof, unless otherwise directed by the court.
7. LEGAL PRINCIPLES
The Grand Court may exercise its powers to grant a restraint order where:
§ proceedings have been instituted
against the defendant in a designated country;
§ the proceedings have not
been concluded; and
§ either an external confiscation
order has been made in the proceedings or it appears to the Grand Court that there are reasonable grounds for thinking that
such an order may be made in them.
8. These powers are also exercisable where it
appears to the Grand Court that proceedings are to be instituted against a defendant in a designated country within a reasonable
period and that there are reasonable grounds for believing that an external confiscation order may be made in them.
9. If the proposed proceedings are not instituted
within a reasonable period, the court will discharge the restraint order.
10. Proceedings for an offence are instituted in a designated country
when:
§ under the law of the designated
country concerned a charge has been brought in respect of alleged drug trafficking by the defendant; or
§ an application has been made
to a court in the designated country for an external confiscation order.
§ Where this will result in there
being more than one time for the institution of proceedings, the proceedings shall be taken to have been instituted at the
earlier of those times.
11. Proceedings for an offence are concluded on the occurrence of one
of the following events:
§ the discontinuance of the proceedings;
§ the acquittal of the person
against whom the proceedings were instituted;
§ the quashing of his conviction
for the offence;
§ the grant of a pardon in respect
of his conviction for the offence;
§ the court sentencing or otherwise
dealing with the defendant in respect of his conviction for the offence without having made an external confiscation order;
§ the satisfaction of an external
confiscation order made in the proceedings, whether by payment of the amount due under the order or by the person serving
imprisonment in default.
12. The Grand Court may make an order prohibiting any person from dealing
with any realisable property, subject to such conditions and exceptions as may be specified in the order.
§ A restraint order may apply:
§ Where an application relates
to an external confiscation order made in respect of specified property, to the property which is specified in that order;
and
§ In any other case:
§ to all realisable property
held by a specified person, whether the property is described in the restraint order or not; and
§ to realisable property held
by a specified person, being property transferred to him after the making of the restraint order.
13. A restraint order:
§ may be discharged or varied
in relation to any property; and
§ will be discharged when the
relevant proceedings are concluded.
14. Where the Grand Court has made a restraint order, it may at any
time appoint a receiver:
§ To take possession of any realisable
property; and
§ To manage and deal with the
property in respect of which he is appointed in accordance with the courts directions;
§ This is subject to any exceptions
and conditions specified by the court; and may require any person having possession of property of which a receiver is appointed
to give possession of it to the receiver.
15. Dealing with any property held by any person includes:
§ Making a payment to the person
to whom the debt is owed in reduction of the debt;
§ Removing the property from
the Islands.
16. Where the Grand Court has made a restraint order, a constable may
seize any realisable property for the purpose of preventing it from being removed from the Islands. Property seized in this
manner will be dealt with as directed by the court.
17. Please refer to Annex B for a list of the Designated Countries to
which the Cayman Islands can provide assistance under this Law.
PART VI
REQUESTS FOR ASSISTANCE UNDER THE PROCEEDS OF CRIMINAL CONDUCT LAW (2005 REVISION)
FOR THE PURPOSES OF RESTRAINING PROPERTY
1. Designated foreign countries may request
the assistance of the Cayman Islands to restrain property.
2. If the property sought to be restrained is
the proceeds of drug trafficking or prosecution for a drug trafficking offence, please refer to the Misuse of Drugs Law.
3. If the property sought to be restrained is
the proceeds of fraud or as a result of a prosecution for fraud or other crime please see below. Restraint orders are issued
for this purpose under the PCCL.
4. PRACTICAL STEPS
Any request for a restraint order is to be transmitted through diplomatic channels to His Excellency
the Governor of the Cayman Islands who will transmit the same to the Attorney General. The Attorney General is empowered
by law to make an application to the Grand Court on behalf of the designated country.
5. WHAT IS NEEDED FOR THE APPLICATION
An application for a restraint order should be accompanied by an affidavit, declaration or written
statement by the appropriate authority of the designated country.
6. FORM OF AFFIDAVIT
The affidavit, declaration or written statement should include the following details:
a) where proceedings have been instituted, the
conduct in which the defendant is alleged to have engaged (exhibiting a copy of the indictment, information or charge),
and the grounds for believing that the defendant engaged in that conduct;
b) where proceedings will be instituted within
the permitted period, the conduct in which the defendant will be alleged to have engaged, and the grounds for believing
that the defendant engaged in that conduct;
c) where an external confiscation order has
been made, the amount payable under the confiscation order;
d) where an external confiscation order has
not been made;
i) the grounds for the belief that the defendant
derived a benefit of a stated amount as a result of the conduct;
ii) the grounds for the belief that the amount
that might be realised is at least the amount stated;
iii) where the defendant proceedings have been
instituted, the grounds for believing that an external confiscation order may be made and the amount likely to be payable
under such a confiscation order; or
iv) where proceedings are to be instituted
within the permitted period, the grounds for believing that an external confiscation order is likely to be made and the
amount likely to be payable under such a confiscation order;
e) a description of the property in which the
order is sought;
f) the grounds for the belief that the property
is realisable property;
g) the name and address of the person who is
believed to be in the possession of the
property; and
h) the names and addresses of any parties who
may have an interest in that property, and the nature of their interest.
7. LEGAL PRINCIPLES~ RESTRAINT ORDERS
The Grand Court has the power to make a restraint order where:
§ proceedings have been instituted
against the defendant in a designated country;
§ the proceedings have not been
concluded; and
§ either an external confiscation
order has been made in the proceedings or it appears to the Grand Court that there are reasonable grounds for thinking that
such an order may be made in the proceedings of at least the minimum amount.
8. These powers are also exercisable where the
Grand Court is satisfied that proceedings will be instituted against the defendant in a designated country within twenty-one
days of the granting of a restraint, or such longer period as the court may grant "the permitted period".
9. A restraint order:
§ may only be made on an application
by the Attorney General on behalf of the government of a designated country, or where an external confiscation order has
been registered, by a receiver appointed;
§ may be made on an ex-parte
application to a judge in chambers; and
§ may provide for service on,
or the provision of notice to, persons affected by the order in such manner as the Grand Court may direct.
10. Where the court has made a restraint order:
§ The Attorney General must notify
the court immediately if proceedings have not been instituted within the permitted period; and
§ The court shall discharge the
order if the proposed proceedings are not instituted within the permitted period.
11. The Grand Court may grant a restraint order prohibiting any person
from dealing with any realisable property, subject to such conditions and expectations as may be specified in the order.
12. The restraint order may make such provision as the court thinks
fit for the living and legal expenses of the defendant.
13. A restraint order may apply:
§ where an application relates
to an external confiscation order made in respect of specified property, to property which is specified in that order; and
in any other case:
§ to all realisable property
held by a specified person, whether the property is described in the restraint order or not; and
§ to realisable property held
by a specified person, being property transferred to him after the making of the restraint order.
14. A restraint order:
§ may be discharged or varied
in relation to any property; and
§ shall be discarded when the
proceedings in relation to which the order was made are concluded.
15. An application for the discharge or variation of a restraint order
may be made by any person affected by it.
16. Where the Grand Court has made a restraint order, it may, at any
time, appoint a receiver:
§ to take possession of any realisable
property; and
§ to manage or otherwise deal
with any property in respect of which he is appointed, in accordance with the court's directions,
§ This is subject to such expectations
and conditions that may be specified by the court, and may require any person having possession of property where a receiver
is appointed under this section to give possession of it to the receiver.
17. Dealing with any property held by another person includes:
§ where a debt is owed to that
person, making a payment to that person to reduce the amount of the debt; and
§ removing the property from
the Islands.
§ Where the Grand Court has made
a restraint order, a constable may seize the realisable property to prevent it being removed from the Islands.
§ Such property seized will be
dealt with in accordance with the court's directions.
18. Restraint orders made in respect of land:
§ will prevent any dealings with
any land, lease or charge; and
§ no restraint order will bind
or affect the land, lease or charge until it has been registered with the Registrar of Lands who shall register it to the
land register of the relevant property; and
§ so long as the restraint order
remains registered no instrument that is inconsistent with it shall be registered.
REGISTERING AN EXTERNAL CONFISCATION ORDER
1. Designated foreign countries may request
assistance from the Cayman Islands to register an external confiscation order.
2. External confiscation orders are registered
under the PCCL.
3. PRACTICAL STEPS
A request to register an external confiscation order is to be transmitted through diplomatic
channels to His Excellency the Governor of the Cayman Islands who will transmit the same to the Attorney General. The Attorney
General is empowered by law to make an application to the Grand Court on behalf of the Government of a designated country.
4. WHAT IS NEEDED TO REGISTER
Any request to register an external confiscation order should be accompanied by a statement
of the facts, whether alleged or proved, in respect of which proceedings have been or are about to be instituted, which
have resulted or may result in an external confiscation order being made.
5. LEGAL PRINCIPLES
The Schedule to the PCCL applies to external confiscation orders and to any proceedings which
have been, or are to be, instituted and which may result in external confiscation orders being made in designated countries.
6. On an application made by the Attorney-General
on behalf of the Government of a designated country, the Grand Court may register an external confiscation order made there
if:
§ The amount payable under the
external confiscation order is at least thirty thousand dollars, however, the court may register an order where the amount
payable is less if the Attorney General certifies that it is in the public interest to register the order;
§ It is satisfied that, at the
time of registration, the order is in force and not subject to appeal. (Appeal includes any proceedings by way of discharging
or setting aside a judgement and an application for a new trial or stay of execution.)
§ It is satisfied, that where
the person against whom the order was made did not appear in the proceedings, that he received notice of the proceedings
in sufficient time to enable him to defend them; and
§ It is of the opinion that enforcing
the order in the Islands would not be contrary to the interests of justice.
7. The Grant Court shall not register an external
confiscation order made in a designated country:
§ Where the Attorney General
has issued a certificate to the effect that the application to register the order is contrary to the public interest of
the Islands; or
§ Where the facts described in
the statement or affidavit do not amount to criminal conduct.
8. The Grand Court shall cancel the registration
of an order where it appears to the court that the person against whom the order is made has satisfied payment of the amount
due under the order by serving imprisonment in default of payment or by any other means.
9. Any order made or judgement given by a court
of a designated country will be deemed without further proof to be duly authorised if certified by any person in his capacity
as a judge, magistrate or officer of the court or, by or on behalf of an appropriate authority of the designated country.
10. A document duly authenticated which purports to be a copy of any
order made or judgement given by a court of a designated country shall be deemed without further proof to be a true copy.
11. A certificate purporting to be issued by or on behalf of the appropriate
authority of a designated country stating the following, will be admissible as evidence in the Grand Court:
§ That proceedings have been
instituted and have not been concluded, or that proceedings are to be instituted, in that designated country;
§ That an external confiscation
order is in force and is not subject to appeal;
§ That all or a certain amount
payable under an external confiscation order remains unpaid in the designated country, or that other property recoverable
under an external confiscation order remains unrecovered there;
§ That any person has been notified
of any proceedings in accordance with the law of the designated country; or
§ That an order (however described)
made by a court of the designated country has the purpose-
§ Of recovering property obtained
as result of or in connection with conduct to which this Law applies or the value of the property so obtained; or,
§ Of depriving a person of a
pecuniary advantage so obtained.
§ These shall in all proceedings
in the Grand Court be admissible in evidence as the facts so stated.
12. Any statement contained in an authenticated document received into
evidence by the Grand Court shall be admissible as evidence of any fact stated therein. A document is authenticated if it
purports to be certified by any person in his capacity as a judge, magistrate or officer of the court of the designated
country, or by or on behalf of the appropriate authority of the designated country, to have been received in evidence whether
as a copy of the original document or the original document itself.
13. Any request to the Attorney General by the appropriate authority
of the designated country must be accompanied by a statement of the facts, whether alleged or proved, in respect of which
proceedings have been or are about to be instituted, which have resulted or may result in an external confiscation order
being made. This request will be deemed to constitute the authority of the government of that country for the Attorney General
to act on its behalf in the Grand Court.
14. Where a confiscation order has been made and the Attorney General
has requested that the appropriate authority of a designated country assist in enforcing the order, and in executing that
request property is recovered in that country, the amount payable under the confiscation order will be reduced by the value
of the property recovered.
15. A certificate purporting to be issued by or on behalf of the appropriate
authority of the designated country stating that the property has been recovered in the execution of a request by the Attorney
General, stating the value of the property and the date it was recovered shall be admissible as evidence of the facts so
stated in any proceedings in the Islands.
16. Where the value of property is not expressed in the currency of
the Islands, the amount by which the confiscation order is to be reduced shall be calculated on the basis of the exchange
rate prevailing in the designated country on the date the property was recovered.
17. Where an amount of money payable under an external confiscation
order registered in the Grand Court is expressed in a currency other than that of the Islands, in relation to any action
taken to that order under this law, the amount shall be converted into the currency of the Islands on the basis of the exchange
rate prevailing at the time that the order was registered.
18. A written certificate purporting to be signed by any person acting
in his capacity as an officer of any bank holding a class "A" license, within the meaning of the Banks and Trust Companies
Law (2001 Revision), and stating the exchange rate prevailing on a specified date shall be admissible as evidence of the
facts so stated.
19. Please refer to Annex C for a list of the designated countries to
which the Cayman Islands may provide assistance.
PART VII
THE 1980 HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
INTRODUCTION
The 1980 Hague Convention on the Civil Aspects of International Child Abduction is an area of
private international law that enables an applicant to seek the expeditious return of wrongfully removed and retained children
by establishing channels of cooperation between signatories to the convention.
The Cayman Islands as a British Dependent Territory of the United Kingdom became a signatory
to the Hague Convention on the Civil Aspects of International Child Abduction (herein after “the convention”) on December
211 1997.
FORMATION OF THE CAYMAN CENTRAL AUTHORITY
The Convention has been incorporated into local legislation by way of Statutory
Instrument namely, The Child Abduction and Custody (Cayman Islands) Order 1997.
Under the 1997 Order, the Attorney General of the Cayman Islands has been designated
as the Central Authority and is responsible discharging the functions under the
Convention.
Requests for assistance may be addressed to the following:
Honourable Attorney General of the Cayman Islands
Attorney General’s Chambers
Government Administration Building
George Town
Cayman Islands W.I.
Telephone: 1 (345) 244-2405
Facsimile: 1 (345) 949-6079
ROLE OF THE CENTRAL AUTHORITY
The Central Authority processes the application and determines whether the application may be
proceeded with before a Court of competent jurisdiction for the summary return of the child under the Convention.
Pursuant to section 11 of the Child Abduction and Custody (Cayman Islands) Order 1997, and the
reservation of the United Kingdom under the Convention the Cayman Islands Central Authority is exempt from bearing the costs
of the Application
However, once the application has been approved, the Central Authority is responsible for assisting
the applicant in locating the appropriate legal counsel to represent him at the hearing of the application.
The Central Authority primary role during the proceedings is to act as an advisor to the Court
in areas of law if necessary.
PREREQUISITES TO MAKING AN APPICATION UNDER THE CONVENTION
- Applications must come from a Central Authority of a contracting state under the Convention.
- Applications can be made either for the return of the child or for access to the child.
At the time of making an application:
- The applicant should have been exercising either “rights of custody” or “rights
of access”. These term as are defined as follows:
“rights of custody” shall include rights relating
to the care of the person of the child, in particular the right to determine the child’s place of residence
“rights of access” shall include the right to taKe
a child for a limited period of time to a place other than a child’s habitual residence.
- The child must be under the age of 16