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In exercising his powers HM Procureur holds a position
similar in many respects to that of the Director of the Serious
Fraud Office. Foreign relations, insofar as they concern Guernsey,
are a matter for the United Kingdom Government acting on behalf
of Guernsey, and not for HM Procureur. This means that, like the
Director, HM Procureur is dependent on guidance from the Secretary
of State for Home Affairs, as the United Kingdom minister responsible,
as to the states and governments which may be assisted under the
Investigation Law of 1991, and as to the requests from such states
and governments to which a response by way of assistance under that
Law may be made. For example, for the purposes of Article 2 of the
1959 convention, it is the Secretary of State, not HM Procureur,
who has to decide whether there is a political element in the alleged
offence or whether the national interest of the United Kingdom requires
that no assistance be given in answer to the request from the foreign
state to HM Procureur.
The point can be illustrated by an extreme example.
Suppose that HM Procureur had received a request for assistance
under the Investigation Law of 1991 from the Pol Pot regime in Cambodia
concerning an offence alleged to have been committed by an opponent
of that regime. It is almost unthinkable that the United Kingdom
would have given any assistance to such a regime. HM Procureur could
not simply give the assistance requested without considering whether
there were higher interests which might dictate a refusal to assist,
and HM Procureur would not himself be in a position to decide, having
regard to the kinds of questions which arise from Article 2 of the
1959 Convention, whether the national interest of the United Kingdom
lay in giving or refusing assistance. Accordingly HM Procureur would
need to seek the guidance of the Secretary of State as to whether
the assistance requested should be given, insofar as such guidance
was not already available.
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