Mutual Legal Assistance (Criminal Matters) Act


Published: 1990-08-20

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Mutual Legal Assistance (Criminal Matters) Act
MUTUAL LEGAL ASSISTANCE (CRIMINAL MATTERS) [CH.98 – 1



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LRO 1/2002 STATUTE LAW OF THE BAHAMAS

MUTUAL LEGAL ASSISTANCE (CRIMINAL MATTERS)
CHAPTER 98

LIST OF AUTHORISED PAGES

1 LRO 1/2002
2 Blank
3 – 4 LRO 1/2002
5 – 16 Original


MUTUAL LEGAL ASSISTANCE (CRIMINAL MATTERS)

ARRANGEMENT OF SECTIONS


SECTION

1. Short title.
2. Interpretation.
3. Inconsistencies between different laws.
4. Requests to Competent Authority.
5. Requests relating to fines.
6. Requests relating to search and seizures.
7. Request relating to evidence for use abroad.
8. Contempt of Court.
9. Request relating to transfer of persons in custody.
10. Provision of assistance in lending exhibits.
11. Admissibility of evidence obtained abroad.
12. Confidentiality.
13. Powers ancillary to execution of a request.
14. Subsidiary Legislation by the Minister.
15. Protection of persons appearing in response to a request.
16. Offences.
17. Extension of Courts’ jurisdiction in the taking of evidence.
18. Manner of executing requests.
19. Charge upon the Consolidated Fund.

SCHEDULE — Mutual Legal Assistance Treaties in Criminal Matters.

MUTUAL LEGAL ASSISTANCE (CRIMINAL MATTERS) [CH.98 – 3



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LRO 1/2002 STATUTE LAW OF THE BAHAMAS

CHAPTER 98

MUTUAL LEGAL ASSISTANCE
(CRIMINAL MATTERS)

An Act to provide for the implementation of treaties for
mutual legal assistance in criminal matters.

[Assent 31st March, 1988]
[Commencement 20th August, 1990]

1. This Act may be cited as the Mutual Legal
Assistance (Criminal Matters) Act, 1988.

2. (1) In this Act —
“Competent Authority” means the Attorney-General;
“data” means representation in any form of informa-

tion or concepts;
“foreign state” means a state that is a party to a

treaty;
“offence” means an offence within the meaning of the

relevant treaty;
“record” means any material on which data are

recorded or marked and which is capable of
being read or understood by a person or a
computer system or other device;

“request” means a request for assistance presented
pursuant to a treaty;

“treaty” means a treaty, convention or other inter-
national agreement providing primarily for
mutual legal assistance in criminal matters
between a foreign state and The Bahamas and
referred to in the Schedule;

“law enforcement officer” means any peace officer, a
member of the Royal Bahamas Defence Force, a
Customs Officer as defined in the Customs
Management Act 1976, an officer of the Depart-
ment of Immigration or an officer in the Prison


2 of 1988
S.I. 54/1990

Short title.

Interpretation.

CH.98 – 4] MUTUAL LEGAL ASSISTANCE (CRIMINAL MATTERS)





STATUTE LAW OF THE BAHAMAS LRO 1/2002

Service when acting in relation to the carrying
out of any request approved by the Competent
Authority.

(2) Subject to subsection (1) other terms and
expressions used in this Act shall unless the context
otherwise requires have the meanings assigned to them in
the relevant treaty.

3. (1) In the event of any inconsistency between the
provisions of this Act and of any other written law, other
than the provisions of an Act prohibiting the disclosure of
information or prohibiting its disclosure except under certain
conditions, the provisions of this Act prevail to the extent of
the inconsistency.

(2) Nothing in this Act or a treaty shall be construed
as to abrogate or derogate from an agreement, arrange-
ment or practice respecting co-operation between any
governmental agency of The Bahamas and a foreign or
international authority or organisation.

4. (1) Where a request is presented in accordance
with the provisions of a treaty to the Competent Authority by
a foreign state the Competent Authority shall deal with that
request in such a manner as is requisite to discharge the
obligations of The Bahamas under that treaty.

(2) The Competent Authority may not give effect by
means of the provisions of this Act to a request unless the
relevant treaty provides for mutual assistance with respect
to the subject matter of the request.

5. (1) Where the Competent Authority approves of a
request to enforce the payment of a fine imposed by a court
of criminal jurisdiction of a foreign state the enforcement
thereof may be pursued in a court of The Bahamas by way
of civil proceedings instituted in the name of the foreign
state as if the fine had been imposed by the latter court.

(2) No proceedings under subsection (1) shall be
instituted more than five years after the fine was imposed.

Inconsistencies
between different
laws.

Requests to
Competent
Authority.

Requests relating
to fines.

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6. (1) The provisions of any written law respecting
the grant of authority to and powers and privileges of a law
enforcement officer to carry out searches or seizures shall
extend with such modifications as the circumstances
require to any search or seizure which is the subject matter
of a request approved by the Competent Authority.

(2) Where the Competent Authority approves of a
request for a search or seizure to be carried out in The
Bahamas regarding an offence with respect to which the
foreign state has jurisdiction the Competent Authority shall
ensure that all documents or information necessary to
apply for a search warrant are provided to the relevant
authority concerned in the execution of the request.

(3) The authority to whom an application is made
pursuant to subsection (2) for the issue of a search warrant
may issue the warrant authorising a law enforcement
officer named therein to execute it anywhere in The
Bahamas where the authority is satisfied by statements
under oath that there are reasonable grounds for believing
that —

(a) an offence has been committed within the foreign
state which has made the request for the relevant
search;

(b) evidence of the commission of the offence or
information that may reveal the whereabouts of
a person who is suspected of having committed
the offence will be found in a building, vessel,
aircraft, receptacle or other place in The Baha-
mas; and

(c) it would not, in the circumstances, be appro-
priate for an order under section 7(1) to be made.

(4) A law enforcement officer who executes a search
warrant in relation to a request shall before entering the
place or premises to be searched or as soon as practicable
thereafter give a copy of the warrant to any person who is
present and appears to be in charge of the place or
premises or where the place or premises are unoccupied the
officer shall on entering or as soon as practicable thereafter
cause a copy of the warrant to be affixed in a prominent
position within the place or premises.

Requests relating
to search and
seizures.

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STATUTE LAW OF THE BAHAMAS [Original Service 2001]

(5) A law enforcement officer on executing a search
warrant in relation to a request may in addition seize any
thing that he believes on reasonable grounds will afford
evidence of, has been obtained by, or used in, or is
intended to be used in, the commission of an offence under
the laws of The Bahamas.

(6) No record or thing seized for the purpose of
compliance with a request shall be sent to the foreign state
until the Competent Authority is satisfied that the foreign
state has agreed to comply with any terms or conditions
imposed in respect of the sending abroad of the record or
thing seized.

7. (1) Where the Competent Authority approves of a
request to obtain evidence to be used in proceedings in a
foreign state a court to which any application is made by
the Competent Authority for the purpose shall have
jurisdiction to entertain the application and to make such
order as it sees fit to give effect to the request having regard
to the provisions of the treaty under which the request was
made.

(2) Subject as hereinafter provided in this section the
procedure applicable to any application under any other
written law pertaining to the obtaining of evidence for use
abroad and the mode of carrying out and enforcement of
any order of the court therefor shall mutatis mutandis
apply to an application referred to in subsection (1).

(3) At the conclusion of an examination carried out
for the taking of evidence in relation to a request the
Registrar of the Supreme Court shall forward duly
certified under the seal of the court to the Competent
Authority all depositions, exhibits or things taken or seized
pursuant to the order obtained for the examination.

(4) A person named in an order made under
subsection (1) may refuse to answer one or more questions
or to produce certain records or things to the examiner if
not a judge if —

(a) the refusal is based on a law in force in The
Bahamas;

(b) to require the person to answer the questions or
to produce the records or things would constitute
a breach of a privilege recognised by a law in
force in the foreign state that presented the
request;

Request relating
to evidence for
use abroad.

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(c) to answer the questions or produce the records
or things would constitute the commission by
the person of an offence against a law in force in
the foreign state that presented the request.

(5) Where a request by the Competent Authority is
presented to a foreign state and a person there refuses to
answer one or more questions or to give up certain records
or things by reason of a law in force in The Bahamas a
judge may determine the validity of the refusal on an
application made, after reasonable notice to the person, by
the Competent Authority.

(6) Where a person refuses to answer a question or
to produce a record or thing, the examiner shall continue
the examination and ask any other question or request the
production of any other record or thing mentioned in the
order.

(7) A person named in an order made under
subsection (1) who refuses to answer one or more
questions or to produce certain records or things shall,
within five days, give to the examiner if not a judge a
detailed statement in writing of all the reasons on which
the person bases the refusal to answer each question that
the person refuses to answer or to produce each record or
thing that the person refuses to produce.

(8) The examiner shall make a report to the Registrar
accompanied by —

(a) a transcript of every examination made in the
relevant matter;

(b) a general description of every record or thing
produced at the examination pursuant to the
order appointing the examiner; and

(c) a copy of every statement given under subsection
(7) of the reasons for a refusal to answer any
questions or to produce any record or thing.

(9) Where the Registrar is in possession of a statement
referred to in paragraph (c) of subsection (8) the Registrar
shall refer the documents and anything received under that
subsection to a judge who shall determine whether the
reasons contained in any statement given under subsection
(7) that purport to be based on a law in force in The
Bahamas are well-founded and where the judge determines
that they are, that determination shall be mentioned in any


CH.98 – 8] MUTUAL LEGAL ASSISTANCE (CRIMINAL MATTERS)





STATUTE LAW OF THE BAHAMAS [Original Service 2001]

order that the judge makes under subsection (11) but
where the judge determines that they are not, the judge
shall order that the person named in the order made under
subsection (1) answer the questions or produce the records
or things.

(10) A copy of every statement given under subsection
(7) that contains reasons that purport to be based on a law
in force in the foreign state shall be appended to any order
that the judge makes under subsection (11).

(11) A judge to whom a report is made under
subsection (8) may order that there be sent to the foreign
state the report and any record or thing produced, as well
as a copy of the order accompanied by a copy of any
statement given under subsection (7) that contains reasons
that purport to be based on a law in force in the foreign
state as well as any determination of the judge made under
subsection (9) that the reasons contained in a statement
given under subsection (7) are well-founded.

(12) The Competent Authority may when complying
with a request upon receipt of the results of an examina-
tion for the taking of evidence make those results available
to the foreign state subject to such terms and conditions as
are permitted by the relevant treaty.

(13) No record or thing that may be sent pursuant to
subsection (11) shall be so sent until the Competent
Authority is satisfied that the foreign state that made the
request has agreed to comply with any terms or conditions
imposed in respect of the sending abroad of the record or
thing.

(14) The execution of an order made under subsection
(1) that was not completely executed because of a refusal,
by reason of a law in force in the foreign state, to answer
one or more questions or to produce certain records or
things to an examiner may be continued where a person
designated by the foreign state determines that the reasons
are not well-founded and the foreign state so advises the
Competent Authority.

(15) No person named in an order made under
subsection (1) whose reasons for refusing to answer a
question or to produce a record or thing are determined, in
accordance with subsection (14) not to be well-founded,


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shall, during the continued execution of the order, refuse to
answer that question or produce that record or thing to the
examiner except with the permission of a judge.

8. A person named in an order made under section
7(1) commits a contempt of court if the person refuses to
answer a question or to produce a record or thing to the
examiner —

(a) without giving the detailed statement required by
section 7(7); or

(b) where the person was already asked the same
question or requested to produce the same record
or thing and all of the reasons on which the
person based the earlier refusal were determined
not to be well-founded by —

(i) a judge, if the reasons were based on a in
force in The Bahamas; or

(ii) a person designated by the foreign state or
by a court of the foreign state, if the reasons
were based on a law in force in the foreign
state.

9. (1) Where the Competent Authority approves a
request to have a person who is detained in lawful custody
by order of a court transferred to a foreign state the
Competent Authority may, where the Competent Author-
ity is satisfied that the person detained consents to the
transfer for the purposes of the request, submit to —

(a) in the case of a person who is detained but not
undergoing a term of imprisonment, the court
which ordered the detention, an application for
the transfer of the person detained; and

(b) in the case of a person who is undergoing a term
of imprisonment, the Superintendent of Prisons
a transfer order under the hand of the Competent
Authority.

(2) The application or transfer order mentioned in
subsection (1) shall —

(a) state the name of the detained person;
(b) state the place of confinement of the detained

person;

Contempt of
Court.

Request relating
to transfer of
persons in
custody.

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STATUTE LAW OF THE BAHAMAS [Original Service 2001]

(c) designate a person or class of persons into whose
custody the detained person is sought to be
delivered;

(d) state the place to which the detained person is
sought to be transferred;

(e) state the reasons why the detained person is
sought to be transferred; and

(f) specify a period of time at or before the
expiration of which the detained person is to be
returned.

(3) Where a court is in receipt of an application under
subsection (1) and is satisfied that the detained person
consents to the transfer to the foreign state the court may
issue a transfer order to the Superintendent of Prisons or
other person in whose custody the person is being detained
and in respect thereto the court may have the person
detained to be brought up and be examined with respect to
the transfer.

(4) A transfer order issued pursuant to subsection
(1)(b) or (3) shall be sufficient authority for the Super-
intendent of Prisons or other person in whose custody the
person is detained or imprisoned to permit the removal of
the person named in the order from such custody in
accordance with the directions of the Competent Author-
ity.

(5) Directions issued by the Competent Authority for
the transfer of a person shall —

(a) set out the name of the detained person and his
place of confinement;

(b) direct the person who has custody of the
detained person to deliver him into the custody
of a person who is designated in the directions
or who is a member of a class of persons so
designated;

(c) direct the person designated under paragraph (b)
to take the detained person to the foreign state
and, on the return of the detained person to The
Bahamas, to return him to the place of confine-
ment where he was when the order was made;

(d) state the reasons for the transfer; and
(e) fix the period of time at or before the expiration

of which the detained person must be returned.

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[Original Service 2001] STATUTE LAW OF THE BAHAMAS

(6) A person transferred pursuant to subsection (4)
shall be deemed to be in lawful custody during the transfer
and during the period in which he is in the foreign state in
accordance with the transfer and such time shall count for
all purposes under the laws of The Bahamas as if he had
been in custody in The Bahamas.

(7) A person who is in lawful custody in a foreign
state and who is transferred to The Bahamas in
consequence of a request made by the Competent
Authority to that state shall be deemed to be in lawful
custody.

(8) Any person who is the subject of a transfer
referred to in subsection (6) or (7) may be released from
custody upon such conditions as to bail or otherwise as
may be agreed between the Competent Authority of The
Bahamas and that of a foreign state and shall in any event
be released no later than the date on which he would have
been released if he had not been so transferred.

(9) The Competent Authority may give directions for
the detention in The Bahamas of a person who has been
transferred to The Bahamas out of custody in a foreign
state pursuant to a request by the Competent Authority
and any such directions shall be sufficient authority for the
detention and shall not be questioned in or be the subject of
any proceedings in The Bahamas.

10. (1) Where the Competent Authority approves of a
request to have an exhibit that was admitted in evidence in a
criminal proceeding in a court lent to the requesting state the
Competent Authority may make an application to the court
that has possession of the exhibit for a loan order.

(2) Reasonable notice of the intended application
should be given to the parties concerned in the criminal
proceeding and shall —

(a) contain a description of the exhibit requested to
be lent;

(b) designate a person or class of persons to whom
the exhibit is sought to be given;

(c) state the reasons for the request, as well as
contain a description of any tests that are sought
to be performed on the exhibit and a statement
of the place where the tests will be performed;

Provision of
assistance in
lending exhibits.

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STATUTE LAW OF THE BAHAMAS [Original Service 2001]

(d) state the place or places to which the exhibit is
sought to be removed; and

(e) specify a period of time at or before the
expiration of which the exhibit is to be returned.

(3) Where the court to which an application under
subsection (1) is made is satisfied that the foreign state has
requested the loan for a fixed period and has agreed to
comply with the terms and conditions that the court
proposes to include in any loan order, the court may after
considering any representations of the persons to whom
notice of the application was given in accordance with
subsection (2) make a loan order.

(4) A loan order made under subsection (3) shall —
(a) contain a description of the exhibit;
(b) order the person who has possession of the exhibit

to give it to a person designated in the order or
who is a member of a class of persons so
designated;

(c) contain a description of any tests thereby
authorised to be performed on the exhibit, as
well as a statement of the place where the tests
may be performed;

(d) fix the place or places to which the exhibit may
be removed; and

(e) fix the period of time at or before the expiration
of which the exhibit must be returned.

(5) A loan order made under subsection (3) may
include any terms or conditions that the court making it
considers desirable, including those relating to the
preservation of the exhibit.

(6) A court that made a loan order may vary its terms
and conditions.

(7) The burden of proving that an exhibit lent to a
foreign state pursuant to a loan order made under
subsection (3) and returned to The Bahamas is not in the
same condition as it was when the loan order was made or
that it was tampered with after the loan order was made is
on the party who makes that allegation and, in the absence
of that proof, the exhibit shall be deemed to have been
continuously in the possession of the court which made the
loan order.

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11. (1) A record or a copy thereof and any affidavit,
certificate or other statement pertaining to the record made
by a person who has custody or knowledge of the record,
sent to the Competent Authority by a foreign state in
accordance with a request made by The Bahamas is not
inadmissible in evidence in any proceedings by reasons
only that a statement contained in the record, copy,
affidavit, certificate or other statement is hearsay or a
statement of opinion.

(2) For the purpose of determining the probative
value of a record or copy thereof admitted in evidence
under this Act a court or other tribunal may examine the
record or copy, receive evidence orally or by affidavit,
including evidence as to the circumstances in which the
information contained in the record or copy was written,
recorded, stored or reproduced, and draw any reasonable
inference from the form or content of the record or copy.

(3) A thing and any affidavit, certificate or other
statement pertaining to the thing made by a person in a
foreign state as to the identity and possession of the thing
from the time it was obtained until its sending to the
Competent Authority by the foreign state in accordance
with a request by The Bahamas, are not inadmissible in
evidence in any proceedings by reason only that the
affidavit, certificate or other statement contains hearsay or
a statement of opinion.

(4) An affidavit, certificate or other statement
mentioned in the preceding subsections is, in the absence
of evidence to the contrary, proof of the statements
contained therein without proof of the signature or official
character of the person appearing to have signed the
affidavit, certificate or other statement.

(5) Unless the court decides otherwise, no record or
copy thereof, no thing and no affidavit, certificate or other
statement mentioned in subsection (1), (2), or (3) shall be
received in evidence in any proceedings unless the party
intending to produce it has given to the party against
whom it is intended to be produced four days’ notice,
excluding holidays, of that intention, accompanied by a
copy of the record, copy, affidavit, certificate or other
statement.

(6) The service of a document in a foreign state may
be proved by affidavit of the person who served it.

Admissibility of
evidence
obtained abroad.

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STATUTE LAW OF THE BAHAMAS [Original Service 2001]

12. (1) Subject to section 11(5) a record sent to the
Competent Authority by a foreign state in accordance with
a request made by the Competent Authority is privileged
and no person shall disclose to anyone the record or its
purport or the contents of the record or any part thereof
before the record, in compliance with the conditions on
which it was so sent, is made public or disclosed in the
course or for the purpose of giving evidence.

(2) No person in possession of a record mentioned
in subsection (1) shall be required in connection with any
legal proceedings to give evidence relating to any
information that is contained in the record or to produce
the record.

13. (1) Where the execution of a request requires the
issue under the laws of The Bahamas of a subpoena or
other necessary order by a judge, or justice of the peace a
certificate given by the Competent Authority that the issue
of any such document or order is required for the purpose
of a request shall subject to section 6(3) be sufficient
authority for the issue or making of same without further
enquiry.

(2) Notwithstanding the provisions of any other law
if the execution of any request approved by the Competent
Authority requires the service of any document or the
seizure of any article any law enforcement officer shall
assist in such service or seizure to the same extent as he
would be required so to do in the case of the service or
seizure authorised by a court and for that purpose he shall
be deemed to be acting in the execution of his duty and to
have the same powers and privileges as if acting in
pursuance of the authority of the court.

14. (1) The Minister may make Regulations for the
carrying into effect of the other provisions of this Act.

(2) The Minister may make Orders for the modifica-
tion and adaptation of any law as he considers necessary
for the purpose of giving effect to any treaty or any request
made thereunder or for Orders amending the Schedule.

(3) Any Order made by the Minister under subsection
(2), other than an Order amending the Schedule, shall be
subject to affirmative resolutions of both the House of
Assembly and the Senate so that no Order shall come into
operation unless and until approved by those resolutions.

Confidentiality.

Powers ancillary
to execution of a
request.

Subsidiary
legislation by the
Minister.

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15. Subject to section 9(9) any person who enters
The Bahamas in response to a request made to a foreign
state by the Competent Authority for the appearance of that
person in accordance with a treaty, while in The Bahamas
shall not be subject to service of any process or subjected
to any restriction of his personal liberty by reason of
anything done or omitted by him in The Bahamas, or
elsewhere prior to his departure from that foreign state in
conformity with such request:

Provided that the immunity conferred by the fore-
going provisions of this section shall cease ten days after
that person has been notified by the Competent Authority
that his presence is no longer required in The Bahamas or,
if he has earlier left The Bahamas, that he is not required
by the Competent Authority to return for the purpose of a
request.

16. (1) Any person who having been ordered by a
court of the Competent Authority in accordance with this
Act or by any person acting in that behalf to produce any
documents which are in his possession or under his
control, fails so to do, shall be guilty of an offence and
liable on summary conviction to a fine not exceeding ten
thousand dollars or to imprisonment for a term not
exceeding two years, or to both such fine and imprison-
ment.

(2) Any person who, contrary to the provisions of
section 12(1), informs any person, other than his attorney,
of the fact of the issue of a request or of any
communication relevant to the matter to which the request
relates, shall be guilty of an offence and liable on summary
conviction to a fine not exceeding one thousand dollars or
to imprisonment for a term not exceeding six months, or to
both such fine and imprisonment.

(3) Any person who, when required so to do in
accordance with any subpoena served upon him, refuses to
attend as required or to provide testimony in response to a
request, shall be guilty of an offence and liable on
summary conviction to a fine not exceeding one thousand
dollars or to imprisonment for a term not exceeding one
year or to both such fine and imprisonment.

Protection of
persons
appearing in
response to a
request.

Offences.

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STATUTE LAW OF THE BAHAMAS [Original Service 2001]

(4) The provisions of subsections (1), (2) and (3) shall
be without prejudice to the provisions of any law with
regard to the liability of any person to be dealt with for
failure to comply with any subpoena or other order issued
by any court:

Provided that no person shall be punished both under
this section and any other law for an offence relating to the
same failure to comply with the same order.

17. Notwithstanding anything to the contrary in this
Act or any other law the jurisdiction of a court under any
existing law which enables the taking of evidence in The
Bahamas for the purpose of criminal proceedings pending
abroad shall extend to any application made for the
purpose of a request approved by the Competent Authority
whether or not such proceedings are pending or are
proceedings not cognisable by that law or in which an
order for the taking, of evidence is not made in keeping
with the previous practice of the court.

18. An agency or department of government or a
court shall, in giving effect to a request approved by the
Competent Authority, have such powers as are necessary
to execute the request in the manner sought under the
request.

19. All sums expended by the Competent Authority
in the carrying out of a request shall be charged upon the
Consolidated Fund.

SCHEDULE (Section 2)

MUTUAL LEGAL ASSISTANCE TREATIES IN CRIMINAL
MATTERS

1. Treaty between the Commonwealth of The Bahamas and
the United States of America on Mutual Assistance in Criminal
Matters executed by the government of The Bahamas on the 12th
day of June 1987;

2. Agreement between the Government of The Bahamas and
the Government of the United Kingdom of Great Britain and
Northern Ireland concerning the investigation of Drug Trafficking
and Confiscation of the Proceeds of Drug Trafficking signed at
Nassau on the 28th day of June, 1988; and

3. Treaty between the Commonwealth of The Bahamas and
Canada on Mutual Assistance in Criminal Matters executed by the
Government of The Bahamas on 13th March, 1990.

Extension or
Courts’
jurisdiction in the
taking of
evidence.

Manner of
executing
requests.

Charge upon the
Consolidated
Fund.

S.I. 54/1990.

S.I. 54/1990.