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Bassington & ors v HM Procureur

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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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