Criminal Justice
(International Co-operation) (Jersey) Law 2001
A LAW to enable Jersey to co-operate with other countries in criminal
investigations and proceedings and for related purposes
Commencement [see endnotes]
1 Interpretation
In this Law –
“assigned matter”
has the same meaning as in the Customs
and Excise (Jersey) Law 1999;
“customs officer”
has the same meaning as “officer” in the Customs
and Excise (Jersey) Law 1999;
“document”
includes information recorded in any form and, in relation to information recorded
otherwise than in legible form, references to its production include references
to producing a copy of the information in legible form;
“evidence”
includes documents and other articles;
“items subject to
legal professional privilege” shall have the same meaning as is given to
the expression “items subject to legal privilege” by Article 1(1)
of the Proceeds
of Crime (Jersey) Law 1999;
“letter of request”
means a letter of request issued under Article 4(1) or (2);
“premises”
includes any place and, in particular, includes –
(a) any
vehicle, vessel, aircraft or hovercraft;
(b) any
offshore installations; and
(c) any
tent or movable structure;
“serious offence”
means an offence for which the maximum sentence in Jersey is not less than one
year’s imprisonment.[1]
2 Service of overseas process
in Jersey
(1) This
Article has effect where the Attorney General receives from the government of,
or other authority in, a country or territory outside Jersey –
(a) a
summons or other process requiring a person to appear as a defendant or to
attend as a witness in criminal proceedings in that country or territory; or
(b) a
document issued by a court exercising criminal jurisdiction in that country or
territory and recording a decision of the court made in the exercise of that
jurisdiction,
together with a request
for it to be served on a person in Jersey.
(2) The
Attorney General may cause the process or document to be served by post or, if
the request is for personal service, instruct the Viscount to cause it to be
personally served.
(3) Service
by virtue of this Article of any such process as is mentioned in paragraph (1)(a)
shall not impose an obligation under the law of Jersey to comply with it.
(4) Such
a process served by virtue of this Article shall be accompanied by a
notice –
(a) stating
the effect of paragraph (3);
(b) indicating
that the person on whom it is served may wish to seek advice as to the possible
consequences of the person’s failing to comply with the process under the
law of the country or territory where it was issued; and
(c) indicating
that under that law the person may not, as a witness, be accorded the same
rights and privileges as would be accorded to the person as a witness in
criminal proceedings in Jersey.
(5) If
the Viscount is instructed under this Article to cause a process or document to
be served, the Viscount shall, after it has been served, forthwith inform the
Attorney General when and how it was served and (if possible) furnish the
Attorney General with a receipt signed by the person on whom it was served; and
if the Viscount has been unable to cause the process or document to be served the
Viscount shall forthwith inform the Attorney General of that fact and of the
reason.
3 Service of Jersey process
overseas
(1) Process
of any of the following descriptions, that is to say –
(a) a
summons requiring a person charged with an offence to appear before a court in Jersey;
(b) a
summons or order requiring a person to attend before a court in Jersey for the
purpose of giving evidence in criminal proceedings,
may be issued or made
notwithstanding that the person in question is outside Jersey and may be served
outside Jersey in accordance with arrangements made by the Attorney General.[2]
(2) Service
of process outside Jersey by virtue of this Article shall not impose an
obligation under the law of Jersey to comply with it and accordingly failure to
do so shall not constitute contempt of court or be a ground for issuing a
warrant to secure the attendance of the person in question.
(3) Paragraph (2)
is without prejudice to the service of any process (with the usual consequences
for non-compliance) on the person in question if subsequently effected in Jersey.
4 Overseas evidence for use in
Jersey
(1) If
it appears to the Attorney General –
(a) that
an offence has been committed or that there are reasonable grounds for
suspecting that an offence has been committed; and
(b) that
proceedings in respect of that offence have been instituted or that the offence
is being investigated,
the Attorney General may
issue a letter of request, requesting assistance in obtaining outside Jersey
such evidence as is specified in the letter for use in the proceedings or
investigation.
(2) If
an application is made by the person charged in proceedings for an offence, the
Bailiff may issue a letter of request, requesting assistance in obtaining outside
Jersey such evidence as is specified in the letter for use in the proceedings.
(3) A
letter of request shall be sent to either –
(a) a
court or tribunal specified in the letter and exercising jurisdiction in the
place where the evidence is to be obtained; or
(b) any
authority recognized by the government of the country or territory in question
as the appropriate authority for receiving requests for assistance of the kind
to which this Article applies.
(4) Except
with the consent of the court, tribunal or authority that supplied the
evidence, evidence obtained by virtue of a letter of request shall not be used
for any purpose other than that specified in that letter.
(5) If
the court, tribunal or authority that supplied a document or other article
pursuant to a letter of request so requests, the document or other article
shall be returned to that court, tribunal or authority when it is no longer
required for the purpose stated in the letter of request or for any other
purpose for which consent has been obtained in accordance with paragraph (4).
(6) Evidence
obtained by virtue of a letter of request shall, without being sworn to by a
witness, be admissible in evidence and in exercising any discretion to exclude
evidence otherwise admissible in relation to a statement contained in evidence
taken pursuant to a letter of request the court before which it is sought to
introduce that evidence shall have regard –
(a) to
whether it was possible to challenge the statement by questioning the person
who made it; and
(b) if
proceedings have been instituted, to whether local law allowed the parties to
the proceedings to be legally represented when the evidence was taken.
5 Evidence for, and assistance
in, criminal proceedings in overseas court etc.[3]
(1) This
Article applies where –
(a) the
Attorney General receives a request for assistance in obtaining evidence in Jersey
in connection with criminal proceedings which have been instituted, or a
criminal investigation that is being carried on, in a country or territory
outside Jersey;
(b) the
request is received from –
(i) a court or
tribunal exercising criminal jurisdiction in that country or territory or a
prosecuting authority in that country or territory, or
(ii) any
other authority in that country or territory which appears to the Attorney
General to have the function of making requests of the kind; and
(c) the
Attorney General is satisfied –
(i) that an offence
under the law of the country or territory in question has been committed or
that there are reasonable grounds for suspecting that such an offence has been
committed, and
(ii) that
proceedings in respect of that offence have been instituted in that country or
territory or that an investigation into that offence is being carried on there.
(2) In
a case where this Article applies, the Attorney General may issue a notice in
writing to a person specifying any of, or any combination of, the following
requirements –
(a) that
the person is required to give to the Attorney General, by the date specified
in the notice, documents, or other articles, which are specified in the notice
and that may constitute evidence for the purposes of the request;
(b) that
the person –
(i) is required to
give, to a court or the Viscount (as specified in the notice) documents, or
other articles, which are specified in the notice and that may constitute
evidence for the purposes of the request, and
(ii) may
be required by the court or the Viscount (as specified in the notice) to attend
and to give evidence in proceedings before the court or the Viscount in
relation to that evidence;
(c) that
the person may be required by the court or the Viscount (as specified in the
notice) to attend and to give evidence in proceedings before the court or the
Viscount in relation to the request.
(3) A
person shall not, without reasonable excuse, fail to comply with a requirement
of a notice given to the person under paragraph (2) that is a requirement
of the kind specified in sub-paragraph (a) of that paragraph, in relation
to evidence that the person may, under Article 5A, be compelled to give in
proceedings under this Article.
(4) A
person who contravenes paragraph (3) commits an offence and shall be
liable to a fine.[4]
(5) The
court shall have the same powers for securing the attendance of –
(a) a
person to whom a notice has been given under paragraph (2) specifying a
requirement of the kind that is specified in sub-paragraph (b) or (c) of
that paragraph; or
(b) any
other witness,
for the purpose of
proceedings under this Article as it has for the purpose of other proceedings
before the court.
(6) The
Viscount shall have the same powers for securing the attendance of –
(a) a
person to whom a notice has been given under paragraph (2) specifying a
requirement of the kind that is specified in sub-paragraph (b) or (c) of
that paragraph; or
(b) any
other witness,
for the purposes of
proceedings before the Viscount under this Article as the Royal Court has for
the purposes of any proceedings before it.
(7) The
court or the Viscount, as the case may be, may in proceedings before it or him
or her, take evidence on oath.
(8) An
order for costs shall not be made in proceedings before the Court or the
Viscount.
(9) For
the avoidance of doubt it is declared that the Bankers’
Books Evidence (Jersey) Law 1986 applies to any proceedings
before the court and the Viscount under this Article as it applies to other
proceedings before the court.
(10) The
Bankers’
Books Evidence (Jersey) Law 1986 applies to the giving to the
Attorney General, in pursuance of a requirement of a kind that is referred to
in sub-paragraph (a) of paragraph (2) and that is specified in a notice
given under that paragraph, of any evidence to which that Law applies, as if
the giving of the evidence to the Attorney General took place in proceedings
before a court.
5A Giving of evidence in
proceedings under Article 5[5]
(1) A
person shall not be compelled to give in proceedings under Article 5 any
evidence which the person could not be compelled to give –
(a) in criminal
proceedings in Jersey; or
(b) subject
to paragraph (2), in criminal proceedings in the country or territory from
which the request under Article 5(1) has come.
(2) Paragraph (1)(b)
shall not apply unless the claim of the person questioned to be exempt from
giving the evidence is conceded by the court, tribunal or other authority which
made the request under Article 5(1).
(3) If
the claim made by a person is not conceded in accordance with paragraph (2) –
(a) the
person may (subject to the other provisions of this Article) be required to
give the evidence to which the claim relates; and
(b) the
evidence shall not be transmitted to the court, tribunal or other authority
which requested it if a court in the country or territory in question, on the
matter being referred to it, upholds the claim.
(4) In
this Article, references to giving evidence include references to answering any
question and to producing any document or other article and the references in
paragraph (3) to the transmission of evidence given by a person shall be
construed accordingly.
(5) In
this Article, references to giving evidence in proceedings under Article 5
shall include the giving of evidence to the Attorney General pursuant to a
requirement that is specified in a notice given under Article 5(2) and
that is of a kind that is specified in sub-paragraph (a) of Article 5(2).
5B Transmission of
evidence received in proceedings under Article 5[6]
(1) The
evidence received by the court or the Viscount, as the case may be, shall be
provided to the Attorney General for transmission to the court, tribunal or other
authority which made the request under Article 5(1).
(2) If,
in order to comply with the request, it is necessary for the evidence to be
accompanied by any certificate, affidavit or other verifying document, the
court or the Viscount, as the case may be, shall also provide for transmission
by the Attorney General of any document of that nature as may be specified in
the notice nominating the court or Viscount.
(3) The
Attorney General may transmit to the court, tribunal or other authority which
made the request under Article 5(1) any evidence that is provided to him
or her pursuant to a notice given to a person under that Article in relation to
the request.
(4) If
the evidence consists of a document the original or a copy may be transmitted,
and if it consists of any other article the article itself or a description,
photograph or other representation of it may be transmitted, as may be
necessary in order to comply with the request.
5C Order
to preserve data pending request for assistance[7]
(1) Where an authority in a country or territory outside Jersey
intends to submit a request for assistance under Article 5(1), that
authority may request the Attorney General to apply to the court for an order
(a ‘preservation order’) for the expeditious preservation of data
stored by means of a computer system.
(2) The request to the Attorney General must specify –
(a) the
authority seeking preservation;
(b) the
offence that is the subject of a criminal investigation or proceedings together
with a brief summary of the relevant facts;
(c) the
data that is to be preserved and its relationship to the offence;
(d) any
available information identifying the person in possession of the data or the
computer system on which it is stored;
(e) the
reason why the preservation is necessary; and
(f) that
the authority intends to submit a request for assistance under Article 5(1)
for assistance in obtaining the data.
(3) On receiving the
application by or on behalf of the Attorney General
under this Article the court may, where it considers it in the interests of
justice to do so, make an order for the data to be preserved
pending a request being made under Article 5(1) or for such time as the
court thinks fit.
(4) An application for a
preservation order may be made ex parte to the Bailiff in
chambers.
(5) A preservation order
must provide for notice to be given to any person named within it.
(6) A person named within a
preservation order who by any act or omission causes the damage, deletion,
alteration, suppression or removal of any data preserved by the order is guilty
of an offence and liable to imprisonment for a term of 5 years and to a
fine.
(7) A person named within a
preservation order may apply to the Bailiff
in chambers for the order to be revoked or varied and the Bailiff must either
rule upon the application or refer it to the Royal Court.
5D Offence
of unauthorized disclosure of preservation order[8]
(1) Where
an order is made under Article 5C(3) a person must not
disclose –
(a) the
existence and contents of the order;
(b) the
details of the making of the order and of any variation of it;
(c) the
existence and contents of any requirement to provide assistance with giving
effect to the order;
(d) the
steps taken in pursuance of the order or of any such requirement; and
(e) any
part of the data preserved by the order.
(2) A
person who contravenes paragraph (1) is guilty of an offence and liable to
imprisonment for a term of 5 years and to a fine.
(3) In
proceedings against any person for an offence under this Article in respect of
any disclosure, it is a defence for the accused to show that the accused could
not reasonably have been expected, after first becoming aware of any of the
matters mentioned in paragraph (1), to take steps to prevent the
disclosure.
(4) In
proceedings against any person for an offence under this Article in respect of
any disclosure, it is a defence for the accused to show that –
(a) the
disclosure was made by or to a professional legal adviser in connection with
the giving, by the adviser to any client of the adviser, of advice about the
effect of any provision of this Law; and
(b) the
person to whom or, as the case may be, by whom it was made was the client or a
representative of the client.
(5) In
proceedings against any person for an offence under this Article in respect of
any disclosure, it is a defence for the accused to show that the disclosure was
made by a professional legal adviser –
(a) in
contemplation of, or in connection with, any legal proceedings; and
(b) for
the purposes of those proceedings.
(6) Neither
paragraph (4) nor paragraph (5) applies in the case of a disclosure
made with a view to furthering any criminal purpose.
6 Additional co-operation
powers
(1) Subject
to paragraph (2), if on an application by the Attorney General the Bailiff
is satisfied that –
(a) criminal
proceedings have been instituted against a person in a country or territory
outside Jersey, or that a person has been arrested in the course of a criminal
investigation carried on there, or that there are reasonable grounds for
suspecting that criminal proceedings will be instituted against a person in a
country or territory outside Jersey, or that a person will be arrested in the
course of a criminal investigation being carried on there;
(b) the
conduct constituting the offence which is the subject of the proceedings or
investigation would constitute a serious offence if it had occurred in Jersey;
and
(c) there
are reasonable grounds for suspecting that there is on premises in Jersey
evidence relating to the offence, other than items subject to legal
professional privilege,
the Bailiff may issue a
warrant authorizing a police officer to enter, if need be by force, and search
those premises and to seize any such evidence found there.
(2) The
power of search conferred by paragraph (1) is only a power to search to
the extent that is reasonably required for the purpose of discovering such
evidence as is there mentioned.
(3) An
application for a warrant under paragraph (1) shall not be made except in
response to a request received –
(a) from
a court or tribunal exercising criminal jurisdiction in the overseas country or
territory in question or a prosecuting authority in that country or territory;
or
(b) from
any other authority in that country or territory which appears to the Attorney
General to have the function of making requests for the purposes of this Article,
and any evidence seized by
a police officer by virtue of this Article shall be furnished by the police
officer to the Attorney General for transmission to that court, tribunal or
authority.
(4) If,
in order to comply with the request, it is necessary for any such evidence to
be accompanied by a certificate, affidavit or other verifying document, the
police officer shall also furnish for transmission such document of that nature
as is specified by the Attorney General.
(5) If
the evidence consists of a document the original or a copy shall be
transmitted, and if it consists of any other article, the article itself or a
description, photograph or other representation of it shall be transmitted, as
may be necessary in order to comply with the request.
(6) In
relation to conduct referred to in paragraph (1)(b) that would have
concerned or related to an assigned matter if the conduct had occurred in
Jersey –
(a) a
customs officer may be authorized by a warrant under paragraph (1) and shall
have the same powers as a police officer under this Article; and
(b) the
references in paragraphs (1), (3) and (4) to a police officer shall include
references to a customs officer.[9]
(7) In
the case of conduct described in paragraph (6) –
(a) a
customs officer may execute a warrant issued under paragraph (1), whether
the warrant authorizes a customs officer or a police officer, and a police
officer may execute a warrant issued under paragraph (1), whether the warrant
authorizes a police officer or a customs officer; and
(b) where
a customs officer exercises the power of search pursuant to a warrant issued
under paragraph (1), the customs officer shall have the same powers under
this Article to seize evidence as a police officer notwithstanding that the
evidence found is not in fact evidence of conduct described in paragraph (6).[10]
(8) Nothing
in this Article shall be construed as preventing anything lawfully seized by a
person under any enactment from being accepted and retained by a customs
officer if the thing relates to conduct described in paragraph (6).[11]
7 Enforcement
of overseas forfeiture orders
(1) The
States may by Regulations provide for the enforcement in Jersey of an order
that –
(a) is
made by a court in a country or territory outside Jersey; and
(b) is
for the forfeiture and destruction, or the forfeiture and other disposal, of
anything in respect of which an offence that would constitute a serious offence
if the conduct constituting the offence had occurred in Jersey has been
committed or that was used or intended for use in connection with the
commission of such an offence.[12]
(2) Without
prejudice to the generality of paragraph (1), Regulations under this Article
may include a provision which, for the purpose of facilitating the enforcement
of any order that may be made, has effect at times before there is an order to
be enforced.
(3) Without
prejudice to the generality of paragraph (1), Regulations under this Article
may provide for the registration by a court in Jersey of an order as a
condition of its enforcement and prescribe requirements to be satisfied before
an order can be registered.
(4) Regulations
under this Article may include such supplementary or incidental provisions as
appear to the States to be necessary or expedient and may apply for the
purposes of the Regulations (with such modifications as appear to the States to
be appropriate) any provision relating to confiscation or forfeiture orders
under any other enactment.
(5) Regulations
under this Article may make different provision for different cases.
8 Rules of Court
(1) Provision
may be made by Rules of Court for any purpose for which it appears to be
necessary or expedient that provision should be made in connection with the
provisions of this Law.
(2) Rules
made for the purposes of Article 5 may, in particular, make provision with
respect to the persons entitled to appear or take part in proceedings before a court
or the Viscount under that Article and for excluding the public from any such
proceedings.[13]
(3) The
power to make Rules of Court under Article 13 of the Royal
Court (Jersey) Law 1948 shall include a power to make Rules for
the purposes of this Article.
9 Citation
This Law may be cited as
the Criminal Justice (International Co-operation) (Jersey) Law 2001.