Mutual Legal Assistance in Criminal Matters Ratification Act 2000

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.
No. 12 of 2000. Mutual Legal Assistance in Criminal 1 ANTIGUA
Matters (the Government of Antigua and AND

Barbuda, and the Government of the United BARBUDA
States of America) RatiJication Act 2000

[ L.S. ]
I Assent,

James B. Carlisle,
Governor-General.

9th August, 2000.

ANTIGUA AND BARBUDA

No. 12 of 2000

AN ACT to ratify the Treaty on Mutual Legal Assistance in
Criminal Matters signed on the 31st of October, 1996 by
the Government of Antigua and Barbuda and the Gov-
ernment of the United States of America.

[ 10th August, 2000 ]

ENACTED by the Parliament of Antigua and Barbuda as fol-
lows:

1. This Act may be cited as the Mutual Legal Assistance in short t~tle
Criminal Matters (the Government of Antigua and Barbuda and
the Government of the United States of America) Ratification
Act 2000.

2. In this Act - Interpretation.

"Act" means the Mutual Legal Assistance in Criminal No.2 of 1993
Matters Act, 1993;

"Treaty" means the Treaty on Mualal Legal Assistance
in Criminal Matters which was signed on the 3 1st of Oc-
tober, 1996 by the Go~ernrnent of Antigua and Barbuda
and the Government of the United States of America, the
text of which is set out in the Schedule.

ANTIGUA 2 Mutual Legal Assistance in Criminal No. 12 of 2000.
AND Matters (the Government ofAntigua and

BARBUDA Barbuda and the Government of the United
States of America) Ratifieation Act 2000

Ratification. 3. The Treaty on Mutual Legal Assistance in Criminal Mat-
No. Of 1993. ters which was signed on the 3 1st of October, 1996 by the Gov-

ernment of Antigua and Barbuda and the Government of the
United States of America is hereby ratified and is deemed to
have entered into force with respect to Antigua and Barbuda on
the 18th day of January 1999.

Application of 4. The procedures prescribed in the Act shall apply to the
A C ~ . execution of any request made by the Competent Authority of
No. 2 of 1993. United States of America to the Competent Authority of Antigua

and Barbuda.

Assistance under 5. Any request for assistance under the Money Laundering
Money Laundering (Prevention) Act shall be executed in accordance with the pro-
(Prevent~on) Act.
No. 9 of 1996.

visions of the Treaty.

SCHEDULE

Treaty between the Government of Antigua and Barbuda and the Government
of the United States of America on Mutual Legal Assistance in Criminal Matters.

No. 12 of 2000. Mutual Legal Assistance in Criminal 3 ANTIGUA
Matters (the Government of Antigua and AND

Barbuda and the Government of the United
States of America) Ratification Act 2000

TABLE OF CONTENTS

Article 1 Scope of Assistance

Article 2 Central Authorities

Article 3 Limitation on Assistance

Article 4 Form and Contents of Requests

Article 5 Execution of Requests

Article 6 Costs

Article 7 Limitations on Use

Article 8

Article 9

Article 10

Article 11

Article 12

Article 13

Article 14

Article 15

Article 16

Article 17

Article 18

Article 19

Testimony or Evidence in the Requested State

Records of Government Agencies

Testimony in the Requesting State

Transfer of Persons in Custody

Location or Identification of Persons or Items

Service of Documents

Search and Seizure

Return of Items

Assistance in Forfeiture Proceedings

Compatibility with Other Arrangements

Consultation

Ratification, Entry Into Force, and Termination

ANTIGUA
AND

BARBUDA

4 Mutual Legal Assistance in Criminal No. 12 of 2000.
Matters (the Government of .4ntigua and

Barbuda and the Government of the United
States ofAmerica) Ruecation Act 2000

The Government of Antigua and Barbuda and the Government of the United
States of America.

Desiring to improve the effectiveness of the law enforcement authorities of
both countries in the investigation, prosecution, and prevention of crime through
cooperation and mutual legal assistance in criminal matters,

Have agreed as follows:

Article 1

Scope of Assistance

1. The Contracting Part,es shall provide mutual assistance, in accordance with
tLe provisions of this Treaty, in connection with the investigation, prosecution,
and prevention of criminal offenses, and in proceedings related to criminal mat-
ters.

2. Assistance shall include:

(a) taking the testimony or statements of persons;

(b) providing documents, records, and articles of evidence;

(c) locating or identifying persons;

(d) serving documents;

(e) transferring persons in custody for testimony or other purposes:

fjj executing requests for searches and seizures;

(g) assisting in proceedings related to immobilization and forfeiture of
assets; restitution; collection of fines; and

('h) any other form of assistance not prohibited by the laws of the Re-
quested Stare.

3. Except as otherwise provided in this Treaty, assistance shall be provided
without regard to whether the conduct which is the subject of the investigation,
prosecution, or proceeding in the Requesting State would constitute an offense
under the laws of the Requested State.

4. This Treaty is intended solely for mutual legal assistance in criminal mat-
ters between the Parties as set forth in paragraph (I) above. The provisions of this

No. 12 of 2000. Mutual Legal Assistance in Criminal 5 ANTIGIJA
Matters (the Government of Antigua and AND

Barbuda and the Government of the United BARBUDA States of America) Ratifcation Act 2000

Treaty shall not give rise to a right on the part of any private person to obtain,
suppress, or exclude any evidence, or to impede the execution of a request.

Article 2

Central Authorities

1. Each Contracting Party shall designate a Central Authority to make and
receive requests pursuant to this Treaty.

2. For the United States of America, the Central Authority shall be the Attor-
ney General or a person designated by the Attorney General. For the Government
of Antigua and Barbuda, the Central Authority shall be the Attorney General or a
person designated by the Attorney General.

3. The Central Autl~orities hall comnlunicate directly with one another for the
puIpose of this Treaty.

Article 3

Limitations on Assistance

1. The Central Authority of the Requested State may deny assistance if:

(a) the request relates to an offense under military law which would not
be an offense under ordinary criminal law;

(b) the execution of the request would prejudice the security or other
essential public interests of the Requested State;

(c) the request is not made in conformity with the Treaty;

(d) the request relates to a political offense;

(e) the request is made pursuant to Article 14 or 16 of this Treaty and
relates to conduct which if committed in the Requested State would
not be an offense in that Stare; or

(f) the execution of the request would be contrary to the Constitution sf
the Requested State.

2. Before denying assistance pursuant to this Article, the Central Authority of
the Requested State shall consult with the Central Authority of the Requesting

ANTIGUA 6 Mutual Legal Assistance in Criminal No. 12 of 2000.
AND Matters (the Government of Antigua and

BARBUDA Barbuda and the Government of the United
States of America) Ratification Act 2000

State to consider whether assistance can be given subject to such conditions as it
deems necessary. If the Requesting State accepts assistance subject to these con-
ditions, it shall comply with the conditions.

3. If the Central Authority of the Requested State denies assistance, it shall
inform the Central Authority of the Requesting State of the basis for the denial.

Article 4

Form and Contents of Requests

1. A request for assistance shall be in writing except that the Central Authority
of the Requested State may accept a request in another form in emergency situa-
tions. If the request is not in writing, the request shall be confirmed in writing
within ten days thereafter unless the Central Authority of the Requested State
agrees otherwise.

2. The request shall include the following:

(a) the name of the authority conducting the investigation. prosecution,
or proceeding to which the request relates;

(b) a description of the subject matter and nature of the investigation,
prosecution, or proceeding, including the specific criminal offenses
which relate to the matter;

(c) a description of the evidence, information, or other assistance sought;
and

(d) a statement of the purpose for which the evidence, information, or
other assistance is sought.

3. To the extent necessary and possible, a.request shall also include:

(a) information on the identity and location of any person from whom
evidence is sought;

(b) information on 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;

(c) information on the identity and whereabouts of a person to be lo-
cated;

(d) a precise description of the place or person to be searched and of the
articles to be seized;

No. 12 of 2000. Mutual Legal Assistance in Criminal 7 ANTIGUA
Matters (the Government of iQntigua and AND

Barbuda and the Government of the United
States of America) Ratification Act 2000

(e) a description of the manner in which any testimony or statement is to
be taken and recorded;

If) a list of questions to be asked of a witness;

(g) a description of any particular procedure to be followed in executing
the request;

(h) information as to the allowances and expenses to which a person asked
to appear in the Requesting State will be entitled; and

(i) any other information which may be brought to the attention of the
Requested State to facilitate its execution of the request.

Article 5

Execution of Requests

1. The Central Authmity of the Requested State shall promptly execute the
request or, when appropriate, shall transmit it to the authority having jurisdiction
to do so. The competent authorities of the Requested State shall do everything in
their power to execute the request. The competent judicial or other authorities of
the Requested State shall have power to issue subpoenas, search warrants, or
other orders necessary to execute the request.

2. The Central Authority of the Requested State shall make all necessary ar-
rangements for and meet the costs of the representation in the Requested State of
the Requesting State in any proceedings arising out of a request for assistance.

3. Requests shall be executed according to the internal laws and procedures of
the Requested State except to the extent that this Treaty provides otherwise. Pro-
cedures specified in the request shall be followed except to the extent that those
procedures cannot lawfully be followed in the Requested State. Where neither
the Treaty nor the request specifies a particular procedure, the request shall be
executed in accordance with the appropriate procedure under the laws applicable
for investigations or proceedings in the Requested State.

4, If the Central Authority of the Requested State determines that execution of
a request would interfere with an ongoing criminal investigation, prosecution, or
proceeding in that State, it may postpone execution, or make execution subject to
conditions determined to be necessary after consultations with the Central Au-
thority of the Requesting State. If the Requesting State accepts the assistance
subject to the conditions, it shall comply with the conditions.

5. The Requested State shall use its best efforts to keep confidential a request
and its contents, if such confidentiality is requested by the Central Authority of

ANTIGUA 8 Mutual Legal Assistance in Criminal No. 12 of 2000.
AND Matters (the Government of Antigua and

BARBUDA Barbuda and the Government of the United States ofAmerica) Ratification Act ZOO0

the Requesting State. If the request cannot be executed without breaching such
confidentiality, the Central Authority of the Requested State shall so inform the
Central Authority of the Requesting State, which shall .then determine whether
the request should nevertheless be executed.

6. The Central Authority of the Requested State shall respond to reasonable
inquiries by the Central Authority of the Requesting State concerning progress
toward execution of the request.

7. The Central Authority of the Requested State shall promptly inform the
Central Authority of the Requesting State of the outconle of the execution of the
request. If the request is denied, the Central Authority of the Requested State
shall inform the Central Authority of the Requesting State of the basis for the
denial.

Article 6

Costs

The Requested State shall pay all costs relating to the execution of the request,
except for the fees of expert witnesses, the costs of translation, interpretation, and
transcription, and the allowances and expenses related to travel of persons pursu-
ant to Articles 10 and 1 1, which costs, fees, allowances, and expenses shall be
paid by the Requesting State.

Article 7

Limitations on Use

1. The Requesting State shall not use any information or evidence obtained
under this Treaty for any purposes other than for the investigation, prosecution or
suppression in the territory of the Requesting State of those criminal offenses
stated in the request without the prior consent of the Requested State.

2. The Central Authority of the Requested State may request that information
or evidence furnished under this Treaty be kept confidential or be used only sub-
ject to terms and conditions it may specify. If the Requesting State accepts the
information or evidence subject to such conditions, the Requesting State shall
use its best efforts to comply with the conditions.

3. Nothing in this Article shall preclude the use or disclosure of information to
the extent that there is an obligation to do so under the Constitution of the Re-
questing State in a criminal prosecution. The Requesting State shall notify the
Requested State in advance of any such proposed disclosure and the provision of
the Constitution under which such disclosure is required.

No. 12 of 2000. Mutual Legal Assistance in Criminal 9 ANTIGUA
Matters (the Government of Antigua and AND

Barbuda and the Government of the United BARBUDA
States of America) Ratification Act 2000

4. Information or evidence which has been made public in the Requesting
State in accordance with paragraphs 1 or 2 may thereafter be used for any pur-
pose.

Article 8

Testimony or Evidence in the Requested State

1. A person in the Requested State from whom testimony or evidence is re-
quested shall be compelled, if necessary, to appear and testify or produce items,
including documents, records, and articles of evidence.

2. Upon request, the Central Authority of the Requested State shall furnish
information in advance about the date and place of the taking of the testimony or
evidence pursuant to this Article.

3. The Requested State shall permit the presence of such persons as specified
in the request during the execution of the request, and shall allow such persons to
question the person giving the testimony or evidence.

4. If the person referred to in paragraph 1 asserts a claim of immunity, inca-
pacity, or privilege under the laws of the Requesting State, the testimony or evi-
dence shall nonetheless be taken and the claim made known to the Central Au-
thority of the Requesting State for resolution by the authorities of that State.

5. Evidence produced in the Requested State pursuant to this Article or which
is the subject of testimony taken under this Article may be authenticated by an
attestation, including, in the case of business records, authentication in the man-
ner indicated in Form A appended to this Treaty. Documents authenticated by
Form A shall be admissible in evidence in the Requesting State.

Article 9

Records of Government Agencies

1. The Requested State shall provide the Requesting State with copies of pub-
licly available records, including documents or information in any form, in the
possession of government departments and agencies in the Requested State.

2. The Requested State may provide copies of any records, including docu-
ments or information in any form, which are in the possession of a government
department or agency in that State, but which are not publicly available, to the
same extent and under the same conditions as such copies would be available to
its own law enforcement or judicial authorities. The Requested State may in its
discretion deny a request pursuant to this paragraph entirely or in part.

ANTIGUA 10 Mutual Legal Assistance in Criminal No. 12 of 2000.
AND Matters (the Government ofAntigua and

BARBUDA Barbuda and the Government of the United
States ofAmerica) Ratwcarion Act 2000

3. Official records produced pursuant to this Article may be authenticated by
the official in charge of maintaining then through the use of Form B appended to
this Treaty. No further authentication s',lalI be necessary. Documents authenti-
cated under this paragraph shall be admissible in evidence in the Requesting State.

Article 10

Testimony in the Requesting State

1. When the Requesting State requests the appearance of a person in that State,
the Requested State shall invite the person to appear before the appropriate au-
thority in the Requesting State. 71he Requesting State shall indicate the extent to
which the expenses will he pald. The Central Authority of the Requested State
shall promptly inform thi. Central Authority of the Requesting State of the re-
sponse of the person.

2. The Central Authority of the Requesting State shall inform the Central Au-
thority of the Requested State whether a decision has been made by the compe-
tent authorities of the Requesting State that a person appearing in the Requesting
Stare pursuant to this article shall not be subject to service of process, or be de-
tained or subjected to any restriction of personal liberty, by reason of any acts or
convictiorls which preceded his departure from the Requested State.

3. The safe conduct piovided for by this Article shall cease seven days after
the Central Authority of the Requesting state has notified the Central Authority
of the Requested State that the person's presence is no longer required, or when
the person, having left the Requesting State, voluntarily returns. The competent
authorities of the Requesting State may, in their discretion, extend this period for
up to fifteen days if they determine that there is good cause to do so.

Article 11

Transfer of Persons in Custody

1. A person in the custody of the Requested State whose presence in the Re-
questing State is sought for purposes of assistance under this Treaty shall be trans-
ferred from the Requested State to the Requesting State for that purpose if the
person consents and if the Central Authorities of both States agree.

2. A person in the custody of the Requestmg State whose presence in the Re-
quested State is sought for purposes of assistance under this Treaty may be trans-
ferred fro^ the Requesting State to the Requested State for that Curpose if the
person consents and if the Central Authorities of both States agree.

No. 12 of 2000. hiutual Legal Assistance in Criminal 1 1 ANTIGUA
Matters (the Government of Antigua and AND

Barbuda and the Government of the United BARBUDA
States of America) Ratifcation Act 2000

3. For purposes of this Article:

(a) the receiving State shall have the authority and the obligation to keep
the person transferred in custody unless otherwise authorized by the
sending State;

(b) the receiving State shall return the person transferred to the custody
of the sending State as soon as circumstances permit or as otherwise
agreed by both Central Authorities;

(c) the receiving State shall not require the sending State to initiate extra-
dition proceedings for the return of the person transferred; and

(d) the person transferred shall receive credit for service of the sentence
imposed in the sending State for time served in the custody of the
receiving State.

Article 12

Location or Identification of Persons or Items

The Requested State shall use its best efforts to ascertain the location or iden-
tity of persons or items specified in the request.

Article 13

Service of Documents

1. The Requested State shall use its best efforts to effect service of any docu-
ment relating, in whole or in part, to any request for assistance made by the Re-
questing State under the provisions of this Treaty.

2. The Requesting State shall transmit any request for the service of a docu-
ment requiring the appearance of a person before an authority in the Requesting
State a reasonable time before the scheduled appearance.

3. The Requested State shall return a proof of service in the manner specified
in the Request.

Article 14

Search and Seizure

1. The Requested State shall execute a request for the search, seizure, and
delivery of any item to the Requesting State if the request includes the informa-
tion justifying such action under the laws of the Requested State.

ANTIGUA
AND

BARBUDA

12 Mutual Legal Assistance in Criminal No. 12 of 2000.
Matters (the Government of Antigua and

Barbuda and the Government of the United
States of America) Ratification Act 2000

2. Upon request, every official who has custody of a seized item shall certify,
through the use of Form C appended to this Treaty, the continuity of custody, the
identity of the item, and the integrity of its candition. No further certification
shall be required. The certificate shall be admissible in evidence in the Request-
ing State.

3. The Central Authority of the Requested State may require that the Request-
ing State agree to the terms and conditions deemed to be necessary to protect
third party interests in the item to be transferred.

Article 15

Return of Items

The Central Authority of the Requested State may require that the Central
Authority of the Requesting State return any items, including documents, records,
or articles of evidence furnished to it in execution of a request under this Treaty
2s soon as possible.

Article 16

Assistance in Forfeiture Proceedings

1. If the Central Authority of one Contracting Party becomes aware of pro-
ceeds or instrumentalities of offenses which are located in the territory of the
other Party and may be forfeitable or otherwise subject to seizure under the laws
of that Party, it may so inform the Central Authority of the other Party. If the
Party receiving such information has jurisdiction in this regard, it may present
this information to its authorities for a determination whether any action is appro-
priate. These authorities shall issue their decision in accordance with the laws of
their country. The Central Authority of the Party that received the information
shall inform the Central Authority of the Party that provided the information of
the action taken.

2. The Contracting Parties shall assist each other to the extent permitted by
their respective laws in proceedings relating to the forfeiture of the proceeds and
lilstrumentalities of offenses, restitution to the victims of crime, and the collec-
tion of fines imposed as sentences in criminal prosecutions. This may include
action to temporarily immobilize the proceeds or instrumentalities pending fur-
ther proceedings.

3. The Party that has custody over proceeds or instrumentalities of offenses
shall dispose of them in accordance with its laws. Either Party may transfer all or
part of such assets, or the proceeds of their sale, to the other Party, to the extent

No. 12 of 2000. Mutual Legal Assistance in Criminal 13 ANTIGUA
Matters (the Government of Antigua and AND

Barbuda and the Government of the United BARBUDA States of America) Ratification Act 2000

permitted by the transferring Party's laws and upon such terms as it deems appro-
priate.

4, To the extent permitted under the law of the Requested State, a conviction
in the Requesting State may serve as a basis for forfeiture in the Requested State.

Article 17

Compatibility with Other Arrangements

Assistance and procedures set forth in this Treaty shall not prevent either Con-
tracting Party from granting assistance to the other Party through the provisions
of other applicable international agreements, ox through the provisions of its na-
tional laws. The Parties may also provide assistance pursuant to any bilateral
arrangement, agreement, or practice which may be applicable.

Article 18

Consultation

The Central Authorities of the Contracting Parties shall consult, at times mu-
tually agreed to by them, to promote the most effective use of this Treaty. The
Central Authorities may also agree on such practical measures, including training
and technical assistance, as may be necessary to facilitate the implementation of
thip?&aty.

Article 19

Ratification, Entry Into Force, and Termination

1. This Treaty shall be subject to ratification, and the instruments of ratifica-
tion shall be exchanged at Washington as soon as possible.

2. This Treaty shall enter into force upon the exchange of instruments of rati-
fication.

3. This Treaty shall apply to any request presented after the date of its entry
illto force whether the relevant acts ox omissions occurred prior to or after that
date.

4. Either Party may terminate this Treaty by means of written notice to the
other Party. Termination shall take effect six months following the date of receipt
of the notification.

ANTIGUA 14 Mutual Legal Assistance in Criminal No. 12 of 2000.
AND Matters (the Government of Antigua and

BARBIDA Barbuda and the Government of the United
States ofAmerica) Ratification Act 2000

TN WITNESS WHEREOF, the undersigned, being duly authorized by thek
respective Governments have signed this Treaty.

DONE at St. John's, in duplicate, this 3 1st day of October, 1996.

LESTER BIRD JEANETTE W. HYDE

FOR THE GOVERNMENT OF FOR THE GOVERNMENT OF THE
ANTIGUA AND BARBUDA UNITED STATES OF AMERICA

No. 12 of 2000. Mutual.Lega1 Assistance in Criminal 15 ANTIGUA
Matters (the Government ofAntigua and AND

Barbuda and the Government of the United BARBUDA
States of .4nzerica) Ratzj?cation Act 2000

Form A

CERTIFICATE OF AUTHENTICITY OF BUSINESS RECORDS

1, , attest on penalty of
[name]

criminal punishment for false statement or attestation that I am employed by

- -- -- - - -

[name of business from which documents are sought]

and that my official title is
[official state]

I further state that each of the records attached hereto is the original or a duplicate

of the original record in the custody of -

[name of business from which documents are sought]

I further state that:

A) such records were made, at or near the time of the occurrence of the
matter set forth, by (or from information transmitted by) a person with knowl-
edge of those matters;

B) such records are kept in the course of a regularly conducted business
activity;

C) the business activity made such records as a regular practice; and

D) if any such record is not the original, it is a duplicate of the original

-

[signature] [date]

Sworn to or affirmed befo'olr: me, -- , a judi

cia1 officer, this day of -- , I 9

ANTIGUA 16 Mutual Legal Assistance in Criminal No. 12 of 2000.
AND Matters (the Government of Antigua and

BARBUDA Barbuda and the Government of the United
States of America) Ratification Act 2000

Form B

ATTESTATION OF AUTHENTICITY OF FOREIGN
PUBLIC DOCUMENTS

1, - attest on penalty
[name]

of criminal punishment for false statement or attestation that my position with the

Government of is
[country] [official title]

and that in that position I am authorized by the law of
[country]

to attest that the documents attached and described below are true and accurate

copies of original official records which are recorded or filed in

[name of office or agency]

which is a government office or agency of
[country] -

cl

Description of Documents:

[signature]

[title]

-

[date]

12 of 2000. Mutual Legal Assistance in Criminal 17 ANTIGUA
Matters (the Government of Antigua and AND

Barbuda and the Government of the United BARBUDA
States of America) Ratification Act 2000

Form C

ATTESTATION WITH RESPECT TO SEIZED ARTICLES

1, attest on penalty
[name]

of criminal punishment for false statement or attestation that my position with the

Government of
[country1

is . I
[official title]

I received custody of the articles listed below from

on
[name of person] [date]

at in the same condition as when I received
[place]

them (or, if different, as noted below).

Description of Articles:

Changes in condition while in my custody:

[signature]

[title]

Official Seal

[date]

ANTIGUA 18 Mutual Legal Assistance in Criminal No. 12 of 2000.
AND Matters (the Government of Antigua and

BARBUDA Barbuda and the Government of the United
States of America) Ratification Act 2000

EMBASSY OF THE
UNITED STATES OF AMERTCA

No. 109

Excellency:

I have the honor to refer to the Treaty on Mutual Legal Assistance in Criminal
Matters between the Government of the United States of America and the Gov-
ernment of Antigua and Barbuda ("the treaty") and to express the understanding
of the United States regarding the application of the Treaty to criminal tax mat-
ters.

Article 1 (1) of the Treaty provides that assistance may be granted in connec-
tion with "the investigation, prosecution, and prevention of criminal offenses,
and in proceedings relaxed to criminal matters." Article 1 (4) further states: "This
treaty is intended solely for mutual legal assistance in criminal matters between
the parties as set forth in paragraph (1) above."

During the negotiations, the United States delegation was asked whether these
provisions could be interpreted to exclude assistance under the Treaty for civil
and administrative income tax matters that are unrelated to any criminal matter.
The TJnited States delegation agreed that the provisions could be so interpreted,
and confirmed that the United States does not intend to seek assistance under the
Treaty in the routine civil and administrative enforcement of our income tax laws,
including the regulation, imposition, calculation and collection of such income
taxes.

1 have been advised by the Tax Division of the United States Department of
Justice that criminal tax cases in the United States always involve a voluntary and
international violation of a known legal duty. Under United States law, this stan-
dard entails willful conduct and would not be met where a defendant has acted
negligently or carelessly. Moreover, to establish the required level of willful con-
duct under United States law, the Govenunent prosecutor must show that the
defendant took affirmative action, the likely effect of which was to mislead or
conceal. Examples of such willful activity include keeping a double skt of books,
making false entries or alterations to financial records, or concealing assets or
covering up sources of income.

Further, although the treaty has no general dual criminality requirement, my
Govenln~ent understallds United States and Antiguan law to be consistent with
respect to criminalizing willful, fraudulent misconduct by private persons in rep-
resentations to the Government. As a result, the conduct underlying a United
States Government request to Antigua and Barbuda for assistance in a criminal
tax evasion case would in all likelihood also be criminalized under the law in
Antigua and Barbuda.

No. 12 of 2000. Mutual Legal Assistance in Criminal 19 ANTIGUA
Matters (the Government of Antigua and AND

Barbuda and the Government of the United BARBUDA
States of America) RatiJication Act 2000

Firrally, Article 9 of the treaty has additional provisions that
,are relevant when a Party requests Government records in a
criminal taxation matter. The law and policy of both the United
States and Antigua and Barbuda recognize the need in that the
Requested State may provide the Requesting State with non-
public records. The Requested State retains "discretion to deny
a request pursuant to this paragraph entirely or in part."

I would appreciate Your Excellency confirrningth3 the un-
derstanding described above is also the understanding of the
Government of Antigua and Barbuda.

Accept, Excellency, the assurances of my highest consideration.

Jeanette W. Hyde, Ambassador

Embassy of the United States of America

Bridgetown, October 3 1, 1996.

ANTIGUA 20 Mutual Legal Assistance in Criminal No. 12 of 2000.
AND Matters (the Government ofAntigua and

BARBUDA Barbuda and the Governmqnt of the United
States of America) Ratzfication Act 2000

GOVERNMENT OF ANTIGUA AND BARBUDA

Ministry of Foreign Affair
Oueen Elizabeth Highway
Antigua, W.I.

Telex: 2 122 AK
'Telephone: 809-462-1052

Fax: 809-462-2482

October 3 1, 1996

Her Excellency Mrs Jeanette Hyde
Ambassador of United States
sf America.

Excellency:

I have the honour to acknowledge receipt of Your Excellency's Note No. 109
of todays date, which reads as follows:

"I have the honour to refer to the Treaty on Mutual Legal Assistance in
Criminal Matters between the Govemnent of the United States of America and
the Government of Antigua and Barbuda ("the treaty") and to express the undes-
standing of the United States regarding the application of the treaty to criminal
tax rnatlers.

Ai-ticle l(1) of the Treaty provides that assistance may be granted in canner,-
tion with the investigation, prosecution, and prevention of crimixial offences, and
in proceedings related to criminal matters." Article l(4) further states: This treaty
is intended solely for mutual legal assistance in criminal matters between the
parties as set forth in paragraph (1) above."

During the negotiations, the United States delegation was asked whether these
Provisions could be intexpretated to exclude assistance und& the treaty for Civil

No. 12 of 2000. Mutual Legal Assistance in Criminal 2 1 ANTIGUA
Matters (the Government of Antigua and AND

Barbuda and the Government of the United BARBLmA
States of America) Ratification Act 2000

and administrative income tax matters that are unrelated to any criminal matter.
The United States delegatiom agreed that the provisions could be so interpretated,
and confirmed that the United States does not intend to seek assistance under the
treaty in the routine civil and administrative enforcement of our income tax laws,
including the regulation, imposition, calculation and collection of such income
taxes.

I have been advised by the Tax Division of the Unites States Department of
justice that criminal tax in the United States always involve a voluntary and in-
te~ltional violation of a known legal duty. Under United States law, this standard
entails wilful conduct and would not be met where a defendant has acted negli-
gently or carelessly. Moreover, to establish the required level of wilful conduct
under United States law, the Government prosecutor must show that the defen-
dant took effirmative action, the likely effect of which was to mislead or conceal.
Examples of such wilful activity include keeping a double set of books, making
false entries or alterations to fmantial records, or covering up sources of income.

Further, although the Treaty has no general dual criminality requirement, my
Government understands United States and Antigua law to be consistent with
rspect to criminalizing wilful, fraudulent misconduct by private persons in
repersentation to the Government. As a result, the conduct underlying a Unbites
Sates to the Government request to A-ntigua and Barbuda for assistance in a
criminal tax evasion case would in all likelihood also be crimilized under the law
in Antigua and Barbuda.

Finally Article 9 of the Treaty has additional provisions that are relevant when
a party requests Governmen records in a crimhal taxation matter. The law and
poiicy of both the United States and Antigua and barbuda recognise the need in
many cases to restrict access to information collected by revenue authorities.
Article 9(2) embodies this approach that the Requested State may provide the
Requesting State with non-public records. The requested State retains "discretion
[to] deny a request pursuant to this paragraph entirely or in part"

1 would appreciate Your Excellency confirming that the understanding de-
sc~ibed above is also the -mderstm~dhg of h e Goverrment of Antigua and Barbuda.

Accept, Excellency, the assurances of my highest consideration.

1 Rave the further honor to confi~m to Your Exselleney that the understanding
described above is also the understandmg of the Govermert of Antigua and
Barbuda,

Please accept, Excellency, the assurances of my highest consideration."'

Lester Bird,
Minister of Foreign Aflairs.

ANTIGUA
AND

BARBUDA

22 Mutual Legal Assistance in Criminal No. 12 of 2000.
Matters (the Government of Antigua and

Barbuda and the Government of the United
States of America) Ratification Act 2000

Passed the House of Representatives Passed the Senate this 20th day of
this 8th day of June ,2000. June, 2000.

B. Harris,
Speaker.

Yvonne Henry,
DeputyClerk to the House of

Representatives.

Senator Llewellyn Smith,
Vice President.

Sylvia Walker,
Clerk to the Senate.

Printed at the Government Printing Office, Antigua and Barbuda,
by Donovan Southwell, Government Printer

- By Authority, 2000.
800--8-00 [Price $8.201