International Co-operation Recommendations

Author:Gregory, John - Pestaina, Mr Gene
Profession:General Counsel, Policy Branch - Attorney-at-law

Page 56

The Group considered the implications for international co-operation in criminal matters in relation to computer crime. As a result, the Group made several recommendations, in particular for possible amendment of the Harare Scheme for Mutual Assistance in Criminal Matters and the London Scheme for the Rendition of Fugitive Offenders.

A Extradition/Rendition
1. Penalties within scheme for rendition

The Group recommended that countries ensure that the penalties applicable to substantive offences in the area of cyber-crime are sufficient to support all forms of international cooperation and in particular to permit rendition of persons for those offences.

The Group considered possible obstacles to effective rendition for the offences proposed for inclusion in the model law. They were of the view that it would be particularly important that the penalties applied to the offences were sufficient to allow for cooperation generally but in particular that they would meet any statutory requirements imposed with respect to extradition or rendition.

2. Jurisdiction

The Group recommended that the Commonwealth Secretariat review the London Scheme, on Rendition to determine if amendments should be recommended to ensure that effectivePage 57 rendition would not be impeded because of differences in the basis for exercising jurisdiction over offences.

In light of the recommendation in Part I, D on extended jurisdiction for the proposed offences, the Group considered the effect of this on extradition/ rendition. As time did not permit a detailed evaluation of the issue, the Group recommended that the Commonwealth Secretariat consider whether any changes to the London Scheme on Rendition are necessary to ensure that rendition will be possible, even in cases where a country is exercising extraterritorial jurisdiction over the offence in circumstances where the requested jurisdiction does not have similar jurisdiction.

B Mutual Assistance
1. Requests for preservation orders

1. The Harare Scheme for Mutual Assistance should permit requests for the preservation of specified stored computer data, in particular but not limited to traffic data.

  1. The requirements for the content of a request for a preservation order should be less then those required for general mutual assistance, with the most essential points being:

    (a) the authority seeking preservation;

    (b) a brief description of the conduct under investigation;

    (c) a description of the stored data to be preserved and its relationship to the investigation;

    (d) a statement that the requesting jurisdiction intends to submit a request for mutual assistance for the search or access, seizure or similar securing or disclosure of the data.

  2. There should be a provision that any preservation effected in response to a request shall be for a period of not less then 40 days in order to enable the requesting jurisdiction to submit a request for the search or similar access, seizure or similar securing, or disclosure of the data. Following the receipt of such request the data shall continue to be preserved pending a decision on the request.

    4 . The grounds of refusal applicable should be as minimal as possible, perhaps limited solely to prejudice to sovereignty, security, ordre public or essential interest.

  3. Consideration should be given to whether an amendment is required to reflect the principle that if the requested jurisdiction considers that the preservation order willPage 58 not ensure the future availability of the data or will threaten the confidentiality of, or other wise prejudice the requesting jurisdiction's investigation, it shall promptly inform the requesting jurisdiction, which shall then determine whether the request should nevertheless be executed.

    6. There should be no requirement for dual criminality in relation to such requests, jurisdictions that require dual criminality for mutual assistance requests should consider removing the requirement, at the very least for...

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