The Harare Scheme on Mutual Assistance in Criminal Matters: Possible Amendments to the Scheme and Discussion of Interception of Communications and Related Matters

Summary

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Introduction and terms of reference. Possible amendments to the harare scheme on mutual assistance. Preservation of Computer Data. Possible action. Interception of communications. Possible action. Annex 1. Summary of Recommendations of the expert working group. Annex 2. Scheme relating to mutual assistance in criminal matters within the commonwealth including amendments made by Law Ministers in April 1990 and November 2002. Purpose and scope. Meaning of country. Criminal matter. Requests for computer data definitions. Central authorities. Action in the requesting country. Action in the requested country. Refusal of assistance. Measures of compulsion. Scheme not to cover arrest or extradition. Confidentiality. Limitation of use of information or evidence. Expenses of compliance. Contents request for assistance. Requests for the preservation of computer data. Identifying and locating persons. Service of documents. Examination of witnesses. Search and seizure. Other assistance in obtaining evidence. Privilege. Production of judicial or official records. Transmission and return of material. Authentication. Personal appearance of witnesses in the requesting country. Personal appearance of persons in custody. Immunity of persons appearing. Tracing the proceeds or instrumentalities of crime. Seizing and confiscating the proceeds of instrumentalities of crime. Disposal or release of property. Consultation. Other assistance. Notification of designations. Annex 3.

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The Harare Scheme on Mutual Assistance in Criminal Matters: Possible Amendments to the Scheme and Discussion of Interception of Communications and Related Matters

Introduction and terms of reference

1. At their meeting at St. Vincent and the Grenadines in November 2002, Law Ministers asked their Senior Officials to consider amendments to the Harare Scheme to allow for provisions relating to the interception of communications (including computer communications) and to the preservation of computer data.

2. In 2004, Senior Officials considered possible amendments/additions to the Harare Scheme to provide for the interception of communications, including the preservation and interception of computer communications as part of a series of proposed amendments to the Scheme. Several member countries raised concerns about the amendments, in particular the non-admissibility of evidence gathered through interception and the limited use of the contents of such intercept at the investigation stage. Consequently, Senior Officials were of the view that further consideration should be given to the entire issue.

3. Senior Officials agreed to establish an expert working group charged with preparing draft proposals for the treatment in the Harare Scheme of the preservation of computer data and to examine in depth the issues surrounding the interception of communications, both in domestic law and in the context of mutual legal assistance. Senior Officials stated that work done under the auspices of international agreements should be taken into account and they specifically requested the Expert Working Group to, inter alia:

* prepare draft proposals for the treatment in the Harare Scheme of the preservation of computer data; * consider the interception of communications in domestic law and in the context of Mutual Legal Assistance

* consider the need for adequate safeguards; and

* consider the issue of costs relating to these measures.

4. The Expert Working Group met in Marlborough House, London from 7-9 September 2005 and compiled a report for presentation to Senior Officials at the meeting immediately before the Law Ministers Meeting in October 2005. This paper is a summary of that report. The recommendations of the Expert Working Group are set out in Annex 1.

Possible amendments to the harare scheme on mutual assistance

Preservation of Computer Data

5. The importance of the preservation of data and interception of communications in the investigation of crime has been discussed previously in the paper on Evidence (SOLM(04)6) and the paper by the Commonwealth Secretariat on the Harare Scheme on mutual legal assistance in criminal matters SOLM(04)4.

6. At the meeting the Expert Working Group considered whether proposed amendments to the Harare Scheme could be extended to incorporate both the preservation of data (computer and telephonic) and interception of communications (computer and telephonic). However, interception of communications is an intrusive measure and a sensitive issue amongst member states and requests for mutual legal assistance are routinely d...

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