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Martin Kenney: After EU data protection moves, prepare for a season of frustration

As the owner of an English law firm based in the British Virgin Islands, I read with interest Jo Sherman’s post on the FCPA Blog about the recent changes to the European Union’s decision to toughen up even further its data protection rules.

It is no secret that some EU members consider the U.S. to have “draconian” investigatory powers: powers that impinge on the personal and corporate privacy of its members during corruption and other U.S. investigations which involve a European component.

I employ two ex-UK law enforcement detectives within my Investigation Unit, both of whom have worked with and alongside U.S. law enforcement colleagues in their former careers. They admit to being envious of the powers available to these colleagues across the Atlantic — powers of which they could only dream.

Accessing personal, financial and corporate information in the UK and elsewhere across the EU is a complicated process. In the case of financial information held by a UK bank, not only do the investigators need to show to the courts that they have good cause to suspect that a serious crime has been committed, but also that the account holder is suspected of using their account to facilitate part of the criminal process.

Similarly they must also explain to the judge why the application is in the public interest. In addition, they must also explain why the application does not impinge on the account holder’s human rights.

My investigators consider the Human Rights Act 1998 (HRA) to be the single-biggest hurdle to UK law enforcement investigative processes. Rightly or wrongly, it is seen by police officers as another means for defense lawyers to undermine criminal prosecutions, to provide the technicality that may allow the guilty to escape justice.

There is an increasing ground-swell of public opinion in the UK that the HRA is rendering law enforcement teams impotent; there are regular calls for the Act to be amended, especially in light of the current terrorist threat levels.

Our clients are drawn from across the globe, and there is the potential that some of our investigations will be adversely affected by the EU decision in regard to the protection of data. The workaround suggested by Jo Sherman will hopefully assist some, but I feel that over the forthcoming months the sense of frustration among U.S. investigators will grow.

I suspect we will be hearing a lot more about this subject in the future, as the new legislation and protocols are tested, especially in the context of national security matters that affect both sides of the Atlantic.

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Martin Kenney is Managing Partner of Martin Kenney & Co., Solicitors, a specialist investigative and asset retrieval practice based in the British Virgin Islands and focused on multi-jurisdictional fraud cases. Kenney is the exclusive representative in the BVI of FraudNet, a specialist global network of 69 leading fraud recovery and business crime lawyers in 62 countries. www.martinkenney.com | @MKSolicitors.

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1 Comment

  1. I appreciate your references to my post Martin. You've made some salient points that highlight the differences between the EU and US and it certainly does look like the hurdles investigators will need to overcome on both sides of the Atlantic will present even more challenges. We all wish there were simple answers!


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