A Critical Analysis of the Effect of the Double Criminality Test on the Investigation Team and the Prosecution’s Case

Abstract

This paper critically discusses the effect that the new double criminality test has on the Investigation team and the Prosecution’s Case. It starts by looking at the difficulties the new double criminality test is likely to create for the Investigators addressing issues like ‘risk posed by materials/documents which are subject to legal professional privilege and excluded materials provision’ and ‘risk posed by the bank secrecy laws of some countries.’ It then looks at the difficulties the double criminality test is likely to create for Crown Prosecutors as regards the execution of their duties. It does this by addressing issues like risk posed by complexity of a foreign criminal code.

Keywords: Double Criminality, SARs, Legal Professional Privilege, Bank Secrecy Laws, Foreign Criminal Code, Single Criminality