Her Majesty, in exercise of the powers conferred upon Her by section 10(3) of the Evidence (Proceedings in Other Jurisdictions) Act 1975(1), is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:

1.  This Order may be cited as the Evidence (Proceedings in Other Jurisdictions) (Turks and Caicos Islands) Order 1987 and shall come into force on 19th August 1987.

2.  Sections 1 to 10 of, and Schedule 2 to, the Evidence (Proceedings in Other Jurisdictions) Act 1975, with the exceptions, adaptations and modifications specified in the Schedule hereto, shall extend to the Turks and Caicos Islands.

G. I. de Deney
Clerk of the Privy Council

Article 2

SCHEDULE TO THE ORDERPROVISIONS OF THE EVIDENCE (PROCEEDINGS IN OTHER JURISDICTIONS) ACT 1975 AS EXTENDED TO THE TURKS AND CAICOS ISLANDS

Evidence for civil proceedings

1.  [Application to Supreme Court for assistance in obtaining evidence for civil proceedings in other court.] Where an application is made to the Supreme Court for an order for evidence to be obtained in the Turks and Caicos Islands, and the court is satisfied—

(a)that the application is made in pursuance of a request issued by or on behalf of a court or tribunal (“the requesting court”) exercising jurisdiction in a country or territory outside the Turks and Caicos Islands; and

(b)that the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated,

the Supreme Court shall have the powers conferred on it by the following provisions of this Act.

2.  —[Power of Supreme Court to give effect to application for assistance.]

(1) Subject to the provisions of this section, the Supreme Court shall have power, on any such application as is mentioned in section 1 above, by order to make such provision for obtaining evidence in the Turks and Caicos Islands as may appear to the court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made; and any such order may require a person specified therein to take such steps as the court may consider appropriate for that purpose.

(2) Without prejudice to the generality of subsection (1) above but subject to the provisions of this section, an order under this section may, in particular, make provision—

(a)for the examination of witnesses, either orally or in writing;

(b)for the production of documents;

(c)for the inspection, photographing, preservation, custody or detention of any property;

(d)for the taking of samples of any property and the carrying out of any experiments on or with any property;

(e)for the medical examination of any person;

(f)without prejudice to paragraph (e) above, for the taking and testing of samples of blood from any person.

(3) An order under this section shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the court making the order (whether or not proceedings of the same description as those to which the application for the order relates); but this subsection shall not preclude the making of an order requiring a person to give testimony (either orally or in writing) otherwise than on oath where this is asked for by the requesting court.

(4) An order under this section shall not require a person—

(a)to state what documents relevant to the proceedings to which the application for the order relates are or have been in his possession, custody or power; or

(b)to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in his possession, custody or power.

(5) A person who, by virtue of an order under this section, is required to attend at any place shall be entitled to the like conduct money and payment for expenses and loss of time as on attendance as a witness in civil proceedings before the court making the order.

3.  —[Privilege of witnesses.]

(1) A person shall not be compelled by virtue of an order under section 2 above to give any evidence which he could not be compelled to give—

(a)in civil proceedings in the Turks and Caicos Islands; or

(b)subject to subsection (2) below, in civil proceedings in the country or territory in which the requesting court exercises jurisdiction.

(2) Subsection (1)(b) above shall not apply unless the claim of the person in question to be exempt from giving the evidence is either—

(a)supported by a statement contained in the request (whether it is so supported unconditionally or subject to conditions that are fulfilled); or

(b)conceded by the applicant for the order;

and where such a claim made by any person is not supported or conceded as aforesaid he may (subject to the other provisions of this section) be required to give the evidence to which the claim relates but that evidence shall not be transmitted to the requesting court if that court, on the matter being referred to it, upholds the claim.

(3) Without prejudice to subsection (1) above, a person shall not be compelled by virtue of an order under section 2 above to give any evidence if his doing so would be prejudicial to the security of the United Kingdom, the Turks and Caicos Islands or any other territory for which the United Kingdom is responsible under international law; and a certificate signed by or on behalf of the Governor to the effect that it would be so prejudicial for that person to do so shall be conclusive evidence of that fact.

(4) In this section references to giving evidence include references to answering any question and to producing any document and the reference in subsection (2) above to the transmission of evidence given by a person shall be construed accordingly.

4.  [Extensions of powers of Supreme Court in relation to obtaining evidence for proceedings in that Court.] Sections 93 to 96 of the Civil Procedure Ordinance(2) shall apply to any hearing under this Act before an examiner or commissioner appointed by the Supreme Court or a judge thereof, including a hearing conducted by an examiner or commissioner appointed to take evidence outside the jurisdiction of the Supreme Court, as if the hearing were a trial of any cause or matter before the Supreme Court.

Evidence for criminal proceedings

5.  —[Power of Supreme Court to assist in obtaining evidence for criminal proceedings in overseas court.]

(1) The provisions of sections 1 to 3 above shall have effect in relation to the obtaining of evidence for the purposes of criminal proceedings as they have effect in relation to the obtaining of evidence for the purposes of civil proceedings except that—

(a)paragraph (a) of section 1 above shall apply only to a court or tribunal exercising jurisdiction in a country or territory outside the Turks and Caicos Islands;

(b)paragraph (b) of that section shall apply only to proceedings which have been instituted; and (c) no order under section 2 above shall make provision otherwise than for the examination of witnesses, either orally or in writing, or for the production of documents.

(2) In its application by virtue of subsection (1) above, section 3(1) (a) and (b) above shall have effect as if for the words“civil proceedings” there were substituted the words“criminal proceedings”.

(3) Nothing in this section applies in the case of criminal proceedings of a political character.

Evidence for international proceedings

6.  —[Power of Supreme Court to assist in obtaining evidence for international proceedings.]

(1) The Governor may by order direct that, subject to such exceptions, adaptations or modifications as may be specified in the order, the provisions of sections 1 to 3 above shall have effect in relation to international proceedings of any description specified in the order.

(2) An order under this section may direct that the provisions of the Perjury Acts 1562 and 1728(3) shall have effect in relation to international proceedings to which the order applies as they have effect in relation to judicial proceedings in the Supreme Court.

(3) In this section“international proceedings” means proceedings before the International Court of Justice or any other court, tribunal, commission, body or authority (whether consisting of one or more persons) which, in pursuance of any international agreement or of any resolution of the General Assembly of the United Nations, exercises any jurisdiction or performs any functions of a judicial nature or by way of arbitration, conciliation or inquiry or is appointed (whether permanently or temporarily) for the purpose of exercising any jurisdiction or performing any such functions.

Supplementary

7.  [Rules of Court.] The power to make rules of court under section 16 of the Supreme Court Ordinance(4) shall include power to make rules of court—

(a)a to the manner in which any such application as is mentioned in section 1 above is to be made;

(b)subject to the provisions of this Act, as to the circumstances in which an order can be made under section 2 above; and

(c)as to the manner in which any such reference as is mentioned in section 3(2) above is to be made;

and any such rules may include such incidental, supplementary and consequential provisions as the authority making the rules may consider necessary or expedient.

8.  —[Consequential amendments and repeals.]

(1) The enactments mentioned in Schedule 2 to this Act are hereby repealed as respects the Turks and Caicos Islands to the extent specified in the third column of that Schedule.

(2) Nothing in this section shall affect—

(a)any application to any court or judge which is pending at the commencement of this Act;

(b)any certificate given for the purposes of any such application;

(c)any power to make an order on such an application; or

(d)the operation or enforcement of any order made on such an application.

(3) Subsection (2) above is without prejudice to sections 21 to 24 of the Interpretation Ordinance(5).

9.  —[Interpretation.]

(1) In this Act—

“civil proceedings”, in relation to the requesting court, means proceedings in any civil or commercial matter;

“Governor” means the Governor of the Turks and Caicos Islands;

“property” includes any land, chattel or other corporeal property of any description;

“request” includes any commission, order or other process issued by or on behalf of the requesting court;

“requesting court” has the meaning given in section 1 above;

“Supreme Court” means the Supreme Court of the Turks and Caicos Islands.

(2) Any power conferred by this Act to make an order includes power to revoke or vary any such order by a subsequent order.

(3) Nothing in this Act shall be construed as enabling any court to make an order that is binding on the Crown or on any person in his capacity as an officer or servant of the Crown.

(4) Except so far as the context otherwise requires, any reference in this Act to any enactment is a reference to that enactment as amended or extended by or under any other enactment.

(5) Nothing in this Act shall be construed as affecting the provisions of the Confidential Relationships Ordinance 1979(6), the Banking Ordinance 1979(7) or the Companies Ordinance 1981(8).

10.  [Commencement.] The provisions of the Act shall come into force on such date as the Governor may by order appoint.

Section 8(1)

SCHEDULE 2 TO THE ACTREPEALS

Chapter
Short title
Extent

19 & 20 Vict. c.113

The Foreign Tribunals Evidence Act 1856
The whole Act.

22 Vict. c.20
The Evidence by Commission Act 1859
The whole Act.

33 & 34 Vict. c.52
The Extradition Act 1870
Section 24.

48 & 49 Vict. c.74
The Evidence by Commission Act 1885
The whole Act.

1966 c. 41
The Arbitration (International Investment Disputes) Act 1966
In section 3(1), paragraph (b).

Explanatory Note

(This note is not part of the Order)
This Order extends the provisions of the Evidence (Proceedings in Other Jurisdictions) Act 1975, which sets out a comprehensive code for the taking of evidence by courts on behalf of other courts, to the Turks and Caicos Islands, with exceptions, adaptations and modifications.


(1)
1975 c. 34.

(2)
Laws of the Turks and Caicos Islands, Revised Ed., 1969, Cap.30.

(3)
5 Eliz. l c.9 and 2 Geo.2 c.25.

(4)
Laws of the Turks and Caicos Islands, Revised Ed., 1969, Cap.3.

(5)
Laws of the Turks and Caicos Islands, Revised Ed., 1969, Cap.1.

(6)
Laws of the Turks and Caicos Islands, No. 3 of 1979.

(7)
Laws of the Turks and Caicos Islands, No.1 of 1979.

(8)
Laws of the Turks and Caicos Islands, No.11 of 1981.