Mutual Assistance in Criminal Matters (Amendment) Act 2018

This Act may be cited as the Mutual Assistance in

Criminal Matters (Amendment) Act, No. 24 of 2018.

Section 2 of the Mutual Assistance in Criminal Matters

Act, No. 25 of 2002 (hereinafter referred to as the “principal enactment”) is hereby repealed and the following section substituted therefor:-

2. (1) The Minister may by Order published in the Gazette declare that the provisions of this Act shall apply to–

every country that is a party to an international or a regional Convention or other agreement which is in the interest of mutual assistance in criminal matters, to which Sri Lanka has become a party, whether before or after the date of commencement of this Act;

a country which has entered into an agreement with Sri Lanka for mutual assistance in criminal matters;

a country which has not entered into any agreement with Sri Lanka, where the

an intergovernmental organization combatting corruption, money laundering or financing of terrorism, on such terms and conditions as may be necessary and on the assurance of reciprocity.

Every Order made under this section shall recite the terms of the agreement, if any, in consequence of which it was made. Such

Every Order made by the Minister shall as soon as convenient after its publication in the Gazette, be brought before Parliament for its approval. Any Order, which is not approved, shall be deemed to be rescinded as from the date of such disapproval, but without prejudice to anything previously done thereunder.

A notification of the date on which an

Every country or intergovernmental organization in respect of which an Order is made and is for the time being in force shall hereinafter be referred to as the “specified country or specified organization.”. ”

Section 3 of the principal enactment is hereby repealed and the following section substituted therefor:–

3. (1) The object of this Act is to facilitate the provision and obtaining by Sri Lanka of

“Object of the

Act.

Mutual Assistance in Criminal Matters assistance in criminal and related matters, including-

the locations and identification of witnesses or suspects;

the service of documents;

the examination and interviewing of witnesses or suspected persons;

the provision and obtaining of evidence, documents, other articles or information;

the execution of requests for search and seizure;

the effecting of temporary transfer of a person in custody to appear as a witness;

the facilitation of the personal appearance of witnesses;

the criminal infringement of intellectual property including copyright infringement;

the information relating to the location of a computer system or any other property connected with any criminal activity;

the enforcement of any orders for the payment of fines;

the forfeiture or freezing of property pursuant to the relevant laws on such matters;

the tracing of crimes committed via internet, information communications technology, cloud computing, blockchain technology and other computer networks including the trading in of any digital currencies;

the bribery of any foreign public official or official of a public international organization and their respective proxies and beneficiaries;

the expedited preservation of stored computer data and expedited disclosure of preserved traffic data and data retention;

the location of proceeds of a criminal activity;

the use of documentary evidence obtained in a specified country through specific authorization to be made admissible in a judicial proceeding; and

the admissibility and applicability of evidence led from a specified country through video conferencing technology.

Nothing in this Act shall preclude the granting or obtaining of any other form or nature of assistance for investigation in connection with judicial proceedings, connected with criminal matters to or from a specified country or specified organization. Such assistance may include controlled operations, joint investigations, the use of other special investigative techniques including the use of diverse search engines and the transfer of criminal proceedings to another court.”.

Section 4 of the principal enactment is hereby repealed and the following new sections are substituted therefor:–

4. (1) The Secretary to the Ministry of the

Minister, shall be the Central Authority for the purposes of this Act (hereinafter referred to as the “Central Authority”).

The Central Authority may authorize an

The Central Authority shall designate competent authorities who shall process information to requests as directed by the

Where the Central Authority is unable to carry out his duties on account of ill health or other infirmity or being convicted of an offence, the Minister shall appoint an Additional

shall take all reasonable steps to ensure prompt action in respect of all requests, together with the assistance of such other entities or persons, as may be necessary;

may direct a request received under section 5, to a competent authority to provide necessary information or assistance;

shall prioritize the execution of urgent requests;

shall maintain contact details of relevant local and foreign authorities;

shall have a dedicated unit to maintain a proper system to manage incoming and outgoing requests; and

may issue guidelines and circulars to administer the provisions of the

Section 5 of the principal enactment is hereby repealed and the following new sections are substituted therefor:–

5. (1) An application shall be made to the

Central Authority by the appropriate authority of a specified country or specified organization requesting for information or assistance in respect of such criminal and related matters referred to in this Act. Such information shall be obtained to prevent, detect, investigate or institute proceedings in respect of a criminal activity within or outside that country.

The Application shall be made substantially in the Form set out in the Schedule hereto and shall be accompanied by such documents as may be specified for that purpose by the Central Authority to enable prompt action under section 5A.

Notwithstanding the provisions of subsection (1), a request which conforms to the provisions of subsection (2) may be forwarded

Where a request is made directly to a competent authority under subsection (3), the said competent authority shall immediately inform the Central Authority by forwarding a copy of the relevant request.

Assistance or information on a request made under this section referred to the competent authority by the Central Authority shall, subject to the provisions of section 6, be transmitted to the appropriate authority of a specified country or specified organization directly–

by the Central Authority; or

by the relevant competent authority, and the said competent authority shall report to the Central Authority on the progress made or on the completion of the request.

No court in Sri Lanka may reject a request on the grounds that the Central

The Central Authority, on receiving a request may as soon as possible either approve, approve partially, approve subject to such conditions as may be necessary, postpone or refuse such request.

Upon receipt of a request the Central

direct a competent authority to process the information in respect of the request;

inform the appropriate authority of a specified country or specified organization–

of the outcome of the execution of the request, with reasons;

of any reasons that render impossible the execution of the request or are likely to delay it significantly.

For the purpose of this section an “exigent situation” shall be determined by the Central

Section 6 of the principal enactment is hereby amended in subsection (1) thereof as follows:–

by the substitution for the words “in the opinion of the Central Authority-” of the words “in the opinion of the Central Authority or the competent authority having consulted the Central Authority-”; and

by the repeal of paragraph (d) of that subsection and the substitution therefor, of the following paragraph:–

The following new section is hereby inserted immediately after section 6 of the principal enactment and shall have effect as section 6A of that enactment:–

6A. (1) Every officer referred to under section 4 shall consider all matters strictly confidential.

Unless otherwise authorized by law, a person who, because of his official capacity or office, and being aware of the confidential nature of the request, has knowledge of-–

the contents of such request made under this Act;

the fact that such request has been, or is about to be made; or

the fact that such request has been granted or refused, shall not disclose such content or facts except to the extent that the disclosure is necessary to execute the foreign request.

In order to comply with a request, if confidentiality cannot be upheld as specified in subsection (2), the Central Authority shall be promptly informed and the Central Authority shall in turn inform the appropriate authority of a specified country or specified organization, which shall then determine whether the request should nevertheless be executed.

Any person who fails to comply with this section, commits an offence and shall be liable on conviction by the High Court of the Province to a fine exceeding one hundred thousand rupees taking into consideration the nature and gravity of the non-compliance. Provided, however, such fine shall not exceed a sum of five million rupees in any given case.

For the purposes of this Act, a request for information relating to a criminal matter may be granted after ensuring the authenticity of the requesting person.”.

Section 7 of the principal enactment is hereby amended as follows:-

by the repeal of subsection (2) of that section and the substitution of the following subsection therefor:–

by the insertion immediately after subsection (3) of that section, of the following new subsection:–

by the repeal of the marginal note to that section and the substitution of the following marginal note therefor:-

Section 8 of the principal enactment is hereby amended by the repeal of subsection (1) thereof and the substitution therefor of the following subsection:–

Mutual Assistance in Criminal Matters

“(1) Where the Central Authority approves a request from the appropriate authority of a specified country or a specified organization for the service of–

summons or other process requiring a person to appear as a defendant or attend as a witness in criminal proceedings in that country;

a document issued by a court exercising criminal jurisdiction in that country and recording a decision of the court made in the exercise of that jurisdiction, the Central Authority shall promptly forward such request together with the decision of that court to the Magistrate in

Section 10 of the principal enactment is hereby amended in subsection (1) thereof by the repeal of all the words from “for the purpose of proceeding” to the end of that paragraph and the substitution therefor of the following:-

“for the purposes of a proceeding in relation to a criminal matter in the specified country or specified organization, the

Central Authority shall promptly refer such request to a competent authority or as required, to the Chief Magistrate of the Colombo Magistrate’s Court to take such evidence or to receive such documents or articles, and shall, upon receipt of such evidence, documents or articles from such Magistrate or competent authority, as the case may be, transmit the same to the appropriate authority of the specified country or specified organization.”.

Section 11 of the principal enactment is hereby repealed and the following section substituted therefor:–

Mutual Assistance in Criminal Matters

11.

“Request by Central Authority for

The Central Authority may, on the request of a court or a competent authority, request the appropriate authority of a specified country or specified organization to arrange for–

evidence including computer evidence to be taken;

investigative material to be produced;

bank statement to be produced; or

any other documents or other articles to be produced, for the purposes of investigating a criminal matter and a proceeding of a criminal matter.

Where the Central Authority receives from the appropriate authority of a specified country or specified organization,–

any evidence taken, and where such evidence is in relation to computer evidence, being certified as a true copy by any judicial authority or the appropriate authority, such evidence;

investigative material, bank statement produced, any other document or other article produced in such specified country or specified organization, duly authenticated under section 21, shall be admissible in any proceeding to which such request relates.

Any information received under this section shall not be used for any purpose other than the criminal matter specified in such request, without the written consent of such appropriate authority.”.

Section 12 of the principal enactment is hereby amended in subsection (2) thereof, by the substitution for the words “shall be deemed to authorize-”, of the words “shall be sufficient authorization for–”.

Section 13 of the principal enactment is hereby amended in subsection (2) thereof, by the substitution for the words “shall be deemed to authorize the”, of the words “shall be sufficient authorization for”.

The following new sections are hereby inserted immediately after section 13 of the principal enactment and shall have effect as sections 13A and 13B of that enactment:-

13A. Where a court or competent authority considers that oral evidence is necessary for identification of a person or thing or any other form of assistance under this Act, such court or competent authority may use video or audio transmission technology to lead evidence in such manner as may be prescribed, from a witness who is physically present in a foreign

State and unable to attend court in Sri Lanka.

The hearing shall be conducted directly by a judicial officer or law enforcement officer.

13B. When a request is made where an offence is committed involving persons or property in multiple countries, the Central

Authority shall facilitate provisions to establish a joint investigation, comprising of investigators from Sri Lanka and any specified countries or specified organizations.”.

The following new Part (sections 14A and 14B) is hereby inserted immediately after section 14 of the principal enactment and shall have effect as PART VA of that enactment:–

“Facilitation of video conferencing technology.

Joint investigations.

Mutual Assistance in Criminal Matters

“PART VA

ASSISTANCE IN RELATION TO FINDINGS OF BRIBERY OF FOREIGN

PUBLIC OFFICIAL OR OFFICIAL OF A PUBLIC INTERNATIONAL

ORGANIZATION

14A. Where an appropriate authority of a specified country or specified organization makes a request, having reasonable grounds to believe that a foreign public official or an official of a public international organization has been involved in bribery, the provisions of this Act shall apply in order to identify or locate the said official or to assess the value and locate the proceeds of bribery relating to the said foreign official, his proxies and beneficiaries.

14B. Where there are reasonable grounds to believe that an offence under the Bribery Act

(Chapter 26) has been committed in which a foreign public official or an official of a public international organization is involved, the

Central Authority may request the appropriate authority of a specified country or specified organization in which such foreign official is resident to identify and locate such official and assess the value and locate the proceeds of bribery, relating to the said foreign official, his proxies and beneficiaries.”.

Section 17 of the principal enactment is hereby repealed and the following section substituted therefor:–

17. Where–

a person has been charged with, or convicted of, or is suspected on reasonable grounds of having committed a serious offence in a specified country;

there are reasonable grounds to believe that any property derived or obtained, directly or indirectly, from the commission of that offence, is in Sri Lanka, and the appropriate authority requests assistance from the Central Authority, the Central

Section 19 of the principal enactment is hereby amended in paragraph (a) of subsection (1) thereof, by the substitution for the words “criminal matter,”, of the words

“criminal or related matter,”.

The following new Part (sections 20A to 20F) is hereby inserted immediately after section 20 of the principal enactment and shall have effect as PART VIIA of that enactment:-

“PART VIIA

EXPEDITED PRESERVATION OF STORED DATA IN RELATION TO

COMPUTER CRIMES

20A. Where the Central Authority is of the opinion that expedited preservation is required of stored computer data or traffic data, the

Central Authority shall inform the Secretary to the Ministry of the Minister assigned the relevant subject to make an order for the expedited preservation of stored computer data or traffic data, as the case may be, or to both such data, for the period specified under section 20B.

Relevant

Secretary to a

Ministry to make order to preserve data.

Mutual Assistance in Criminal Matters

20B.

Period of preservation of data

All data for which an order is made under section 20A shall be preserved for a minimum period of six years.

20C.

Mode of preservation

Records of data preserved under this

A copy of the record may–

be kept in a machine readable form to conveniently obtain a print thereof;

be kept in an electronic form, to enable a readable copy to be readily obtained and an electronic signature of the person who keeps the records is inserted for purposes of verification;

where necessary, entail freezing of the stored computer data; or

be updated, if necessary.

Preserved data shall be released for the purpose of criminal investigation or judicial proceedings on a request duly made by the appropriate authority for such period as specified in the request.

Every order made under section 20A shall lapse on the expiry of the time period specified under section 20B or on the expiry of the period specified in the request.

Where in the course of granting a request to preserve traffic data concerning a specific communication, the Central Authority is informed that a service provider in another country was involved in the transmission of the communication, the Central Authority shall instruct the relevant competent authority to disclose, such amount of traffic data as is sufficient to identify that service provider and the path through which the communication was transmitted, prior to receipt of the request for production.

specified computer data in the possession or control of a person stored in a computer system or a computer data storage medium; and computer data.

the necessary subscriber information in the possession or control of a service provider.

Upon the request by an appropriate authority of a specified country or specified organization, a warrant may be issued under section 15, mutatis mutandis, to search or otherwise access any computer system or part thereof as well as any computer storage medium in which computer data may be stored.

The search warrant issued by the

seize or otherwise secure a computer system or part thereof, or a computer data storage medium;

make and retain a copy of that computer data;

maintain the integrity of the relevant stored computer data; and

render inaccessible or remove that computer data in the accessed computer system.”.

The following new sections are hereby inserted immediately after section 21 of the principal enactment and shall have effect as sections 21A and 21B respectively, of that enactment–

21A. For the purposes of this Act, the principles of mutuality and reciprocity shall at all times be upheld.

21B. The request and the accompanying documents for assistance under this Act shall be in the English language.”.