Mutual Legal Assistance in Criminal Matters and Asset Recovery
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The Isle of Man (IOM) can give a comprehensive range of assistance to other jurisdictions dealing with asset recovery matters involving the IOM. These measures are available to judicial and prosecuting authorities with responsibility for criminal investigations and prosecutions. In some cases, assistance can be given in civil recovery (non-conviction based confiscation) proceedings.
The Isle of Man
The Isle of Man is not part of the UK (although our proceeds of crime legislation is very similar to that in the UK) or the EU. European Investigation Orders and European Arrest Warrants do not extend to the IOM. Requests for Mutual Legal Assistance in criminal matters should be sent directly to the Central Authority in the Isle of Man:
Postal Address: Attorney General’s Chambers, Belgravia House, Circular Road, Douglas, Isle of Man, Great Britain. IM1 1AE
Email: icart@gov.im
A wide range of assistance is available at each stage of the asset recovery process:
- Identifying and tracing assets;
- Freezing (restraint) of assets in the IOM so that they may be available to pay a recovery order made in the future; and
- Registration and enforcement of a requesting jurisdiction’s recovery (confiscation / forfeiture / restitution) order.
Although a number of relevant international treaties and conventions extend to the IOM, international assistance in asset recovery in the IOM is not limited by them, and the IOM does not require reciprocity.
Preliminary Enquiries
In most cases, the starting point for asset recovery in the IOM should be police-to-police or intelligence enquiries (FIU-to-FIU. The IOM FIU is a member of the Egmont Group of Financial Intelligence Units). This will ensure that the information required for a comprehensive and viable letter of request (LOR) can be included from the outset.
Law Enforcement and Financial Intelligence contact details:
Economic Crime Unit
Economic Crime Unit, Isle of Man Constabulary, Department of Home Affairs, Tromode Road, Douglas, Isle of Man. Great Britain, IM2 5PA
Telephone: +44 (0) 1624 631212
Email: FCU.DHA@gov.im
Financial Intelligence Unit
Financial Intelligence Unit, PO Box 51, Douglas, Isle of Man. Great Britain. IM99 2TD
Telephone: +44 (0) 1624 686000
Email: fiu@gov.im
Egmont Secure Web: fiu.iom@egmont.org
Mutual Legal Assistance
In all Mutual Legal Assistance matters, an LOR will be required. The LOR will be the basis of the court application, and will be the evidence filed in support of the application for restraint, confiscation or obtaining evidence from financial institutions.
In some cases, where an order is made by the IOM court and is subsequently challenged by a person affected by the order, the IOM court may order that the application and evidence filed in support (i.e. the LOR) be disclosed to the person affected by the order in the interests of justice. The LOR should therefore state whether information contained in it is of a sensitive nature and may compromise the criminal investigation, proceedings or any source of intelligence or evidence if disclosed.
The International Cooperation and Asset Recovery Team (ICART) of the Attorney General’s Chambers will both receive and execute letters of request, with the assistance (where necessary) of the IOM Financial Intelligence Unit and Isle of Man Constabulary Economic Crime Unit. Lawyers from the ICART will make the application to the High Court of Justice of the Isle of Man for evidence, restraint or confiscation as requested in the LOR.
The LOR must be issued by a court or an authority which has responsibility for making a request for restraint of assets, for investigating whether assets have been obtained in connection with criminal conduct or for carrying out money laundering investigations. The LOR must be signed, although in urgent cases the IOM court may permit an application to be filed with a scanned copy received by email, with assurance that the signed original will be filed as soon as it is received by the ICART.
Restraint
Under the law of the IOM, property which may be restrained is property which is needed to satisfy an external order (for confiscation/forfeiture/restitution) which may be, or has been, made. An external order is an order made in relation to property found or believed to have been obtained as a result of criminal conduct. It is an order for the recovery of specified property, or a specified sum of money. Criminal conduct is conduct which would constitute an offence in the IOM if it occurred there, i.e. dual criminality is required for restraint.
Applications to the IOM court may be made ex parte (without notice to the affected parties), but the LOR must set out why it is necessary for the suspect (or others likely to be affected by the restraint) to be excluded from the hearing. As they are not given the opportunity to put their case to the IOM court, it is necessary to demonstrate that all relevant information (including any defence put forward by the suspect, and other information which may be detrimental to the restraint application) has been brought to the attention of the IOM court.
The IOM court may make a restraint order if the following conditions are satisfied:
- a criminal investigation or criminal proceedings have been started (and not concluded) in the requesting jurisdiction;
- relevant property in the IOM has been identified in the request; and
- there is reasonable cause to believe that the suspect or defendant named in the request has benefitted from their criminal conduct.
It is also necessary for the LOR to show that there is a risk of dissipation if the assets are not restrained. The LOR should state to what extent the suspect or defendant has (or is believed to have) benefitted from their criminal conduct so that the IOM court can be satisfied that the value of the asset to be restrained does not exceed that amount. If necessary, an order can be made restraining only the appropriate amount, rather than the whole asset.
If granted, the restraint order must be served upon the suspect or defendant (or the person in whose name the asset is held) and upon the financial institution which holds the asset. Any person affected by the order may give notice to the Attorney General and file an application for the order to be varied or discharged.
The restraint order must be discharged if no external order is made, if no external order is registered within a reasonable time, or if proceedings for an offence are not commenced within a reasonable time.
Confiscation
In the IOM, the process for giving effect to an external order in the IOM court has two stages:
- Upon receipt of the LOR, the ICART will apply to the IOM court to register the external order; and
- After notice of the registration has been given to the suspect or defendant (or the person in whose name the assets are held), a further application for enforcement of the external order is made.
The IOM court must give effect to an external order where all of the following conditions are satisfied:
- The external order was made on the conviction of the person named in the order and no appeal is outstanding in respect of the conviction.
- The external order is in force and no appeal is outstanding in respect of it.
- Giving effect to the external order would not be incompatible with any of the Convention (Human Rights) rights of any person affected by it.
A detailed LOR, and certified copies of court orders from the requesting jurisdiction in relation to conviction and confiscation are required.
Civil Recovery (Non-Conviction Based Confiscation)
Where criminal proceedings have not been instituted in the requesting jurisdiction (for example, where the suspect / defendant is a fugitive or has died) the IOM court may also enforce an external order by means of civil recovery (non-conviction based confiscation).
A civil recovery order is only available in respect of external orders where the IOM court finds that the property specified in the external order is recoverable property. Recoverable property is property obtained as a result of, or in connection with, criminal conduct. In matters of civil recovery the LOR must show a link between the asset in the IOM and the criminal conduct.
Contact
We understand that it can take some time for LORs to be prepared by the relevant authority and then issued by the Central Authority. If you intend to send a LOR involving restraint, confiscation or civil recovery to the IOM, please consider contacting the ICART before finalising the LOR. Each case is different and we will be very happy to review draft LORs and give specific advice in relation to the information which must be included. This will ensure that the application and evidence we put before the IOM court have the best chance of success.
Please contact the ICART at:
International Cooperation and Asset Recovery Team, Attorney General’s Chambers, Belgravia House, Circular Road, Douglas, Isle of Man, Great Britain, IM1 1AE
Telephone: +44 (0) 1624 685452
Email: icart@gov.im
Advice in relation to restraint requests can be dealt with as a matter of urgency, and in most cases will mean that the LOR can be dealt with more quickly and effectively.
International Cooperation and Asset Recovery Team Chambers of H.M. Attorney General for the Isle of Man
(Updated 12 November 2020)