In light of today’s news about a US request to the UK government seeking evidence from Prince Andrew, I am re-upping this post from January 2020.
Back in 2015 I wrote about some unserious attempts by lawyers for an alleged victim of Jeffrey Epstein to get testimony or a statement from Prince Andrew. I commented on the haplessness of the strategy of sending requests to Buckingham Palace and the awesomeness of the letterhead of the alleged victims’ lawyers. Later, I commented on a silly follow-up attempt to send official letters to the British Embassy.
The issue has reared its head again, and the BBC has weighed in. It didn’t quite get everything right. So here is the Letters Blogatory version—think of this as a public service announcement.
In a criminal case, the US government can request the aid of the UK government in obtaining evidence in the UK. We don’t really know whether the government is currently conducting a criminal investigation. It is not, of course, conducting an investigation of Mr. Epstein, who died in jail, apparently by suicide. News reports suggest that the government is investigating Ghislaine Maxwell, Mr. Epstein’s long-time friend. But criminal investigations are not conducted in public, so we don’t really know. If the government does seek aid from the UK in taking evidence, it likely will do so under the Mutual Legal Assistance Treaty between the two countries. I have written pretty extensively about the US/UK MLAT in the context of the Belfast Project case, where the UK authorities sought and obtained aid in the United States for obtaining evidence for use in the investigation of the murder of Jean McConville. So check out those posts if you are interested.
In a civil case, for example the case that the victims might bring against Epstein’s estate or against others, the MLAT is not available as a means for obtaining evidence. The path the plaintiffs will take will depend on whether Prince Andrew chooses to be cooperative. (This is true in the MLAT context, too). If he does, then likely his lawyers and the victims’ lawyers will agree on a time and place for him to answer questions in private under oath. If not, then the plaintiffs’ lawyers will likely ask the US judge presiding over their lawsuit to issue a letter of request to the UK government, which then will approach a UK court. The court will authorize the deposition of the witness, typically in a private law office.
The X-factor here is the identity of the witness. Will the UK courts treat the request as something out of the ordinary because the witness in question is a member of the royal family? That is a good question, and I don’t know the answer.
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