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Easy Touch: The Omerta of the English Legal Establishment by Simon Kaberry

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UK Law Lessons - The Law Bank

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Easy Touch: The Omerta of the English Legal Establishment

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This case has marked the beginning of a new policy regarding acquisitions on the part of many Museums all around the world who made themselves available to return many cultural goods stolen in the past. For letters rogatory it is important to know the keys of access to the procedural system to ask for information or procedural elements. For that matter with regard to cultural property there are not many systems to be known, in general: And precise knowledge serves to overcome technical difficulties and sometimes also political difficulties.

Continuous updating is therefore necessary although it is opportune to be as simple as possible to avoid misunderstandings in view of the difference in the systems of proceedings, language and practice. It will therefore be best to start with a simple request, and then to answer in an articulated manner if there is resistance and objections by the countries requested. As to making the requests and the times of the answers to them, everything depends on the systems.

However, here it is possible to give the following, general suggestions from a learned experience. As known, States are required to rely upon letters rogatory, but there are well established police to police channels through which much essential information has been and continues to be shared. These channels range from direct relationships between police officers and police forces, to the posting of police liaison personnel in foreign States, to the auspices of Interpol. All of these measures remain critical to cooperation in evidence gathering and have not been replaced by the more formal process of mutual assistance.

However, the reality is that there are types of assistance which cannot be provided between States, through police or informal channels. The most obvious is where the type of assistance sought will require resort to the legal process within the requested State; where some type of judicial order or compulsory measure must be applied to produce the desired information or evidence, in an acceptable form. However, letters rogatory does not often provide for the scope of assistance required, nor are they efficient enough to allow for the production of the evidence, within a reasonable period of time.

As well, because of fundamental differences between investigative authorities and process in civil and common law States, letters rogatory are in many instances ineffective as between States of a different legal tradition. Unfortunately, in a great number of cases, despite the existence of an applicable instrument, evidence is not forthcoming; it arrives in a form such that it is not useful to requesting authorities; or it is provided so late as to be of little practical value.

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In fact, as assessed, a country may have an excellent legislative and treaty scheme for mutual assistance and an established administrative process and it still may be virtually impossible to provide effective assistance; because the best designed system is only as good as the people who operate it on a practical level.

In many instances, success in mutual assistance is dependent almost entirely on the knowledge and most critically -the flexibility- of the authorities request and, even more importantly, providing the assistance. In this respect, direct personal contact may improve the results of the required assistance.

Without attempting to address all the problems, the following are -according to a shared experience- five basic general tips on the content of requests that would appear to be applicable for all States: Every legal system has its own terminology.

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As a request for assistance is addressed to and intended for a foreign authority, system specific terminology should be avoided. Instead the request should describe what is sought, rather than referring to a term. Moreover, the use of abridgements should be avoided, no matter how common or clear they might be; b relevance. While the test that must be met before a compulsory order will issue can vary from State to State, in almost every legal system the relevance of the evidence sought to the investigation or prosecution will have to be established.

Every request for assistance therefore should address that issue, i. In most legal systems "fishing expeditions" are not permitted. All requests for assistance should be specific as to the assistance sought, at least as to the principal theme of investigation elicited by the requesting authority. The State applied to does not, in fact, have the means to be able to pronounce on the advisability of adopting certain evidence and cannot, therefore, put its own power of assessment in place of that of the foreign authority carrying out the inquiries.

In preparing a request, prosecutors should focus not only on the evidence sought but the form or manner in which the evidence must be provided for it to be admissible at trial.