Jersey Law 1/1989
DRUG TRAFFICKING OFFENCES (JERSEY) LAW, 1988.
____________
A LAW to
make provision for the recovery of the proceeds of drug trafficking and other
provision in connexion with drug trafficking,
sanctioned by Order of Her Majesty in Council of the
21st day of
DECEMBER, 1988.
____________
(Registered on the 27th day of January, 1989.)
____________
STATES OF JERSEY.
____________
The 23rd day of
August, 1988.
____________
THE STATES, subject to the sanction of
Her Most Excellent Majesty in Council, have adopted the following Law –
ARTICLE
1
Interpretation
(1) In
this Law unless the context otherwise requires –
“company” means a company registered under the
Companies (Jersey) Laws, 1861 to 1968;
“confiscation order” means an order made by the Court
under Article 3;
“corresponding law” has the same meaning as in the
Misuse of Drugs (Jersey) Law, 1978;
“the Court” means the Royal Court;
“the defendant” means a person against whom proceedings
have been instituted for a drug trafficking offence (whether or not he has been
convicted);
“drug trafficking” means doing or being concerned in
any of the following, whether in the Island or elsewhere –
(a) producing
or supplying a controlled drug where the production or supply contravenes
Article 5 of the Misuse of Drugs (Jersey) Law, 1978 or a
corresponding law;
(b) transporting
or storing a controlled drug where possession of the drug contravenes Article
6(1) of that Law3
or a corresponding law;
(c) importing
or exporting a controlled drug where the importation or exportation is
prohibited by Article 4(1) of that Law or a corresponding
law;
and includes a person doing the following, whether in the Island or
elsewhere, that is entering into or being otherwise concerned in an arrangement
whereby –
(i) the
retention or control by or on behalf of another person of the other
person’s proceeds of drug trafficking is facilitated; or
(ii) the
proceeds of drug trafficking by another person are used to secure that funds
are placed at the other person’s disposal or are used for the other
person’s benefit to acquire property by way of investment;
“drug trafficking offence” means any of the following
–
(a) an
offence under Article 5 or 6(2) of the Misuse of Drugs (Jersey) Law, 1978 (production, supply and possession for supply of
controlled drugs);
(b) an
offence under Article 19(5) of that Law
(assisting in or inducing commission outside the Island of offence punishable
under a corresponding law);
(c) an
offence under –
(i) Article
23(1) or (2) of the Customs and Excise (General Provisions) (Jersey) Law, 1972 (improper importation);
(ii) Article
30(2) of that Law (exportation); or
(iii) Article
77 of that Law (fraudulent evasion);
in connexion with a prohibition or
restriction on importation or exportation having effect by virtue of Article 4
of the Misuse of Drugs (Jersey) Law, 1978 or of
Article 16 of this Law;
(d) an
offence under Article 17;
(e) an
offence of conspiracy to commit any of the offences in sub-paragraphs (a) to
(d);
(f) an
offence of attempting to commit any of those offences;
(g) an
offence of inciting another to commit any of those offences; and
(h) aiding,
abetting or participating in the commission of any of those offences;
“items subject to legal professional privilege” means
–
(a) communications
between a professional legal adviser and his client;
(b) communications
made in connexion with, or in contemplation of, legal
proceedings and for the purpose of those proceedings;
being communications which would in legal proceedings be protected
from disclosure by virtue of any rule of law relating to the confidentiality of
communications but, for the avoidance of doubt, does not include communications
held with the intention of furthering a criminal offence;
“police officer” includes an officer within the meaning
of the Customs and Excise (General Provisions) (Jersey) Law, 1972;
“premises” includes any place, and, in particular
includes –
(a) any
vehicle, vessel, aircraft or hovercraft;
(b) any
offshore installation; and
(c) any
tent or movable structure;
“property” means all property whether movable or
immovable, vested or contingent and whether situated in the Island or
elsewhere.
(2) The
expressions listed in the left hand column below are respectively defined or
(as the case may be) fall to be construed in accordance with the provisions of
this Law listed in the right hand column in relation to those expressions
–
|
Expression
|
Relevant provision
|
|
Benefited from drug trafficking
|
Article 3(3)
|
|
Dealing with property
|
Article 9(8)
|
|
Gift caught by this Law
|
Article 2(7)
|
|
Making a gift
|
Article 2(8)
|
|
Proceeds of drug trafficking
|
Article 4(1)(a)
|
|
Realisable property
|
Article 2(1)
|
|
Saisie
judiciaire
|
Article 9(1)
|
|
Value of gift, payment or reward
|
Article 2
|
|
Value of proceeds of drug trafficking
|
Article 4(1)(b)
|
|
Value of property
|
Article 2(4)
|
(3) References
in this Law to offences include a reference to offences committed before the
commencement of Article 3; but nothing in this Law imposes any duty or confers
any power on the Court in or in connexion with
proceedings against a person for a drug trafficking offence instituted before
the commencement of that Article.
(4) References
in this Law to anything received in connexion with
drug trafficking include a reference to anything received both in that connexion and in some other connexion.
(5) Proceedings
for an offence are instituted in the Island –
(a) when
the Bailiff issues a warrant in respect of the offence for the arrest of a
person who is out of the island;
(b) when
a person is arrested and charged with the offence;
(c) when
a summons in respect of the offence is served on person at the instance of the
Attorney General;
(d) when
a summons in respect of the offence is served on a person in accordance with
the provisions of Article 8 of the Police Court (Miscellaneous Provisions)
(Jersey) Law, 1949;
and where the application of this paragraph would result in there
being more than one time for the institution of proceedings, they shall be
taken to have been instituted of the earliest of those times.
(6) Proceedings
in the Island for an offence are concluded on the occurrence of one of the
following events –
(a) the
discontinuance of the proceedings;
(b) the
acquittal or discharge of the defendant;
(c) the
quashing of his conviction for the offence;
(d) the
grant of Her Majesty’s pardon in respect of his conviction for the
offence;
(e) the
Court sentencing or otherwise dealing with him in respect of his conviction for
the offence without having made a confiscation order; and
(f) the
satisfaction of a confiscation order made in the proceedings (whether by
payment of the amount due under the order or by the defendant serving
imprisonment in default).
(7) An
order is subject to appeal until (disregarding any power of the Court to grant
leave to appeal out of time) there is no further possibility of an appeal on
which the order could be varied or set aside.
(8) Where
in this Law there is a reference to an Article by number only and without
further identification, such reference shall be construed as a reference to the
Article of that number contained in this Law.
(9) Where
in any Article of this Law there is a reference to a paragraph, sub-paragraph
or clause by number or letter only and without further identification, such
reference shall be construed as a reference to the paragraph, sub-paragraph or
clause of that number or letter contained in the Article of this Law in which
such reference occurs.
(10) Unless
the context otherwise requires, where this Law refers to any enactment, the
reference is a reference to that enactment as amended, and includes a reference
to that enactment as extended or applied by or under any other enactment,
including any other provision of that enactment.
ARTICLE
2
Definition of principal terms used
(1) In
this Law, “realisable property” means,
subject to paragraph (2) –
(a) any
property held by the defendant;
(b) any
property held by a person to whom the defendant has directly or indirectly made
a gift caught by this Law; and
(c) any
property to which the defendant is beneficially entitled.
(2) Property
is not realisable if an order under Article 29 of the
Misuse of Drugs (Jersey) Law, 1978 is in
force in respect of the property.
(3) For
the purposes of Articles 5 and 6 the amount that might be realised
at the time a confiscation order is made against the defendent
is the total of the values at that time of all the realisable
property including the total value of any property to which the defendant is
beneficially entitled, less –
(i) any
amount due in respect of a fine or other order of the Royal Court, the Police
Court of the Juvenile Court, imposed or made on conviction of an offence, where
the fine was imposed or made before the making of the confiscation order;
(ii) any
sum in respect of which the person to whom it is due would, if the defendant
had become bankrupt before the making of the confiscation order; be entitled to
claim either preference “(préference)”
or privilege “(privilège)” as the
case may be;
(iii) any
sum the payment of which is secured on all or any of the realisable
property by a simple conventional hypothec or a judicial hypothec created in
accordance with the provisions of the “Loi
(1880) sur la Propriété
Foncière” before
the making of the confiscation order;
(iv) any sum
the payment of which is secured on all or any of the realisable
property by a security interest created in accordance with the provisions of
the Security Interests (Jersey) Law, 1983, before
the making of the confiscation order;
together with the total of the values at that time of all gifts
caught by this Law.
(4) Subject
to the following provisions of this Article, for the purposes of this Law the
value of property (other than cash) in relation to any person holding the
property shall be the market value of the property.
(5) Subject
to paragraph (8), references in this Law to the value at any time (referred to
in paragraph (6) as “the material time”) of a gift caught by this
Law or of any payment or reward are references to –
(a) the
value of the gift, payment or reward to the recipient when he received it
adjusted to take account of subsequent changes in the value of money; or
(b) where
paragraph (6) applies, the value there mentioned;
whichever is the greater.
(6) Subject
to paragraph (8), if at the material time the recipient holds –
(a) the
property which he received (not being cash) or;
(b) property
which, in whole or in part, directly or indirectly represents in his hands the
property which he received;
the value referred to in sub-paragraph (b) of paragraph (5) is the
value to him at the material time of the property mentioned in sub-paragraph
(b) so far as it so represents the property which he received.
(7) A
gift (including a gift made before the commencement of Article 3) is caught by
this Law if –
(a) it
was made by the defendant at any time since the beginning of the period of six
years ending when the proceedings were instituted against him; or
(b) it
was made by the defendant at any time and was a gift of property –
(i) received
by the defendant in connexion with drug trafficking
carried on by him or another; or
(ii) which
in whole or in part directly or indirectly represented in the defendant’s
hands property received by him in that connexion.
(8) For
the purposes of this Law –
(a) the
circumstances in which the defendant is to be treated as making a gift include
those where he transfers property to another person directly or indirectly for
a consideration the value of which is significantly less than the value of the
consideration provided by the defendant; and
(b) in
those circumstances, the preceding provisions of this Article shall apply as if
the defendant had made a gift of such share in the property as bears to the
whole property the same proportion as the difference between the values
referred to in sub-paragraph (a) bears to the value of consideration provided
by the defendant.
ARTICLE
3
Confiscation orders
(1) Where
a person appears before the Court to be sentenced in respect of one or more
drug trafficking offences (and has not previously been sentenced or otherwise
dealt with in respect of his conviction for the offence or, as the case may be,
any of the offences concerned) the Court may act in accordance with the
following provisions of this Article.
(2) The
Court may first determine whether he has benefited from drug trafficking.
(3) For
the purposes of this Law, a person who has at any time (whether before or after
the commencement of this Article) received any payment or other reward in connexion with drug trafficking carried on by him or
another has benefited from drug trafficking.
(4) If
the Court determines that he has so benefited, the Court may, before sentencing
or otherwise dealing with him in respect of the offence or, as the case may be,
any of the offences concerned, determine in accordance with Article 6 the
amount to be recovered in his case by virtue of this Article.
(5) The
Court may then, in respect of the offence or offences concerned –
(a) order
him to pay that amount;
(b) take
account of the order before –
(i) imposing
any fine on him; or
(ii) making
any order involving any payment by him; or
(iii) making
any order under Article 29 of the Misuse of Drugs (Jersey) Law, 1978; and
(c) subject
to sub-paragraph (b), leave the order out of account in determining the
appropriate sentence or other manner of dealing with the defendant.
(6) No
enactment restricting the power of a court dealing with an offender in a
particular way from dealing with him also in any other way shall by reason only
of the making of an order under this Article restrict the Court from dealing
with an offender in any way the Court considers appropriate in respect of a
drug trafficking offence.
ARTICLE
4
Assessing the proceeds of drug trafficking
(1) For
the purposes of this Law –
(a) any
payments or other rewards received by a person at any time (whether before or
after the commencement of Article 3) in connexion
with drug trafficking carried on by him or another are his proceeds of drug
trafficking; and
(b) the
value of his proceeds of drug trafficking is the aggregate of the values of the
payments or other rewards.
(2) The
Court may, for the purpose of determining whether the defendant has benefited
from drug trafficking and, if he has, of assessing the value of his proceeds of
drug trafficking, make the following assumptions, except to the extent that any
of the assumptions are shown to be incorrect in the defendant’s case.
(3) Those
assumptions are –
(a) that
any property appearing to the Court –
(i) to
have been held by him at any time since his conviction; or
(ii) to
have been transferred to him at any time since the beginning of the period of
six years ending when the proceedings were instituted against him;
was received by him, at the earliest time at which he appears to
the Court to have held it, as a payment or reward in connexion
with drug trafficking carried on by him;
(b) that
any expenditure of his since the beginning of that period was met out of
payments received by him in connexion with drug
trafficking carried on by him; and
(c) that,
for the purpose of valuing any property received or assumed to have been
received by him at any time as such a reward, he received the property free of
any other interests in it.
(4) Paragraph
(2) does not apply if the only drug trafficking offence in respect of which the
defendant appears before the Court to be sentenced is an offence under Article
17.
(5) For
the purpose of assessing the value of the defendant’s proceeds of drug
trafficking in a case where a confiscation order has previously been made
against him the Court shall leave out of account any of his proceeds of drug
trafficking that are shown to the Court to have been taken into account in
determining the amount to be recovered under that order.
ARTICLE
5
Statements relating to drug trafficking
(1) Where
–
(a) there
is tendered to the Court by the Attorney General a statement as to any matters
relevant to the determination whether the defendant has benefited from drug
trafficking or to the assessment of the value of his proceeds of drug
trafficking; and
(b) the
defendant accepts to any extent any allegation in the statement;
the Court may, for the purposes of that determination and
assessment, treat his acceptance as conclusive of the matters to which it
relates.
(2) Where
a statement is tendered under sub-paragraph (a) of paragraph (1) and the Court
is satisfied that a copy of that statement has been served on the defendant,
the Court may require the defendant to indicate to what extent he accepts each
allegation in the statement and, so far as he does not accept any such
allegation, to indicate any matters on which he proposes to rely.
(3) If
the defendant fails in any respect to comply with a requirement under paragraph
(2) he may be treated for the purposes of this Article as accepting every
allegation in the statement apart from –
(a) any
allegation in respect of which he has complied with the requirement; and
(b) any
allegation that he has benefited from drug trafficking or that any payment or
other reward was received by him in connexion with
drug trafficking carried on by him or another.
(4) Where
–
(a) there
is tendered to the Court by the defendant a statement as to any matters
relevant to determining the amount that might be realised
at the time the confiscation order is made; and
(b) the
Attorney General accepts to any extent any allegation in the statement;
the Court may, for the purposes of that determination, treat the
acceptance by the Attorney General as conclusive of the matters to which it
relates.
(5) No
acceptance by the defendant under this Article that any payment or other reward
was received by him in connexion with drug
trafficking carried on by him or another shall be admissible in evidence in any
proceedings for an offence.
ARTICLE
6
Amount to be recovered under confiscation order
(1) Subject
to paragraph (3), the amount to be recovered in the defendant’s case
under the confiscation order shall be the amount the Court assesses to be the
value of the defendant’s proceeds of drug trafficking.
(2) If
the Court is satisfied as to any matter relevant for determining the amount
that might be realised at the time the confiscation
order is made (whether by an acceptance under Article 5 or otherwise) the Court
may issue a certificate giving the Court’s opinion as to the matters
concerned and shall do so if satisfied as mentioned in paragraph (3).
(3) If
the Court is satisfied that the amount that might be realised
at the time the confiscation order is made is less than the amount the Court
assesses to be the value of his proceeds of drug trafficking, the amount to be
recovered in the defendant’s case under the confiscation order shall be
the amount appearing to the Court to be the amount that might be so realised.
ARTICLE 7
Enforcement, etc. of
confiscation orders
(1) Subject
to paragraphs (2) and (3), where the Court orders the defendant to pay any
amount under Article 3 the Court may, if it thinks fit, order the defendant to
be imprisoned until such amount is paid.
(2) The
Court may, in its discretion, limit the period of such imprisonment.
(3) The
defendant shall not be imprisoned for more than ten years for the non-payment
of any amount under paragraph (1).
(4) The
term of imprisonment in default of payment imposed under paragraph (1) shall
not, in the case of a defendant who is liable to serve a term of imprisonment
in respect of the offence or offences, begin to run until after he has served
the said term of imprisonment.
(5) The
reference in paragraph (4) to the term of imprisonment which the defendant is
liable to serve in respect of the offence or offences is a reference to the
term of imprisonment, detention in a Young Offenders’ Centre
or borstal training (as the case may be) which he is
liable to serve in respect of the offence or offences; and for the purposes of
this paragraph consecutive terms and terms which are wholly or partly
concurrent shall be treated as a single term.
(6) This
Article applies to confiscation orders made by the Court of Appeal as it
applies to confiscation orders made by the Royal Court and references in this
Article to the Court shall be construed accordingly.
ARTICLE
8
Cases in which “saisies
judiciaries” may be made
(1) The
powers conferred on the Court by Article 9 are exercisable where –
(a) the
Court has made a confiscation order; or
(b) (i) proceedings
have been instituted in the Island against the defendant for a drug trafficking
offence;
(ii) the
proceedings have not been concluded; and
(iii) the
Court is satisfied that there is reasonable cause to believe that the defendant
has benefited from drug trafficking; or
(c) the
Court is satisfied –
(i) that
proceedings are to be instituted in the Island against a person for a drug
trafficking offence; and
(ii) that
there is reasonable cause to believe that that person has benefited from drug trafficking.
(2) For
the purposes of Article 9, at any time when those powers are exercisable before
proceedings have been instituted –
(a) references
in this Law to the defendant shall be construed as references to the person
referred to in paragraph 1(c);
(b) references
in this Law to realisable property shall be construed
as if, immediately before that time, proceedings had been instituted against
the person referred to in paragraph 1(c) for a drug trafficking offence.
(3) Where
the Court has made an order under Article 9 by virtue of sub-paragraph (c) of
paragraph (1), the Court shall discharge the order if the proceedings have not
been instituted within such time as the Court considers reasonable.
ARTICLE
9
Saisies judiciaires
(1) The
Court may, subject to such conditions and exceptions as may be specified
therein, make an order (in this Law referred to as a “saisie
judiciaire”) on an application made by or on
behalf of the Attorney General.
(2) An
application for a “saisie judiciaire”
may be made on an ex parte application to the Bailiff
in Chambers.
(3) A
“saisie judiciaire”
shall provide for notice to be given to any person affected by the order.
(4) Subject
to paragraph (5), on the making of a “saisie judiciaire” –
(a) all
the realisable property held by the defendant in the
Island shall vest in the Viscount;
(b) any
specified person may be prohibited from dealing with any realisable
property held by that person whether the property is described in the order or
not;
(c) any
specified person may be prohibited from dealing with any realisable
property transferred to him after the making of the order;
and the Viscount shall have the duty to take possession of, and, in
accordance with the Court’s directions, to manage or otherwise deal with,
any such realisable property; and any specified
person having possession of any realisable property
may be required to give possession of it to the Viscount.
(5) Any
property vesting in the Viscount pursuant to sub-paragraph (a) of paragraph (4)
shall so vest subject to all hypothecs and security interests with which such
property was burdened prior to the vesting.
(6) A
“saisie judiciaire” –
(a) may
be discharged or varied in relation to any property; and
(b) shall
be discharged on satisfaction of the confiscation order.
(7) An
application for the discharge or variation of a “saisie
judiciaire” may be made by any person affected
by it.
(8) Where
it appears to the Court that any order made by it under this Article may affect
immovable property situate in the Island it shall order the registration of the
order in the Public Registry.
(9) For
the purposes of this Article, dealing with property held by any person includes
(without prejudice to the generality of the expression) –
(a) where
a debt is owed to that person, making a payment to any person in reduction of
the amount of the debt; and
(b) removing
the property from the Island.
(10) Where
the Court has made a “saisie judiciaire”, a police officer may, for the purpose of
preventing any realisable property being removed from
the Island, seize the property.
(11) Property
seized under paragraph (10) shall be dealt with in accordance with the
Court’s directions.
ARTICLE
10
Realisation of property
Where –
(a) in
proceedings instituted for a drug trafficking offence, a confiscation order is
made;
(b) the
order is not subject to appeal;
(c) the
proceedings have not been concluded; and
(d) the
Court has made a “saisie judiciaire”;
the Court may empower the Viscount to realise
any realisable property which has vested in him or
come into his possession pursuant to Article 9 in such manner as the Court may
direct.
ARTICLE
11
Application of proceeds of realisation
and other sums
(1) Subject
to paragraph (2) the following sums in the hands of the Viscount, that is
–
(a) money
which has vested in him or come into his possession pursuant to Article 9;
(b) the
proceeds of the realisation of any property under
Article 10;
shall, after such payments (if any) as the Court may direct have
been made out of those sums, be applied after payment of the Viscount’s
fees and expenses, on the defendant’s behalf towards the satisfaction of
the confiscation order.
(2) If,
after payment of his fees and expenses and of the amount payable under the
confiscation order, any such sums remain in the hands of the Viscount, the
Viscount shall distribute those sums –
(a) among
such of those who held the property which has been realised
under this Law; and
(b) in
such proportions;
as the Court may direct after giving a reasonable opportunity for
such persons to make representations to the Court.
ARTICLE
12
Variation of confiscation orders
(1) If,
on an application by the defendant in respect of a confiscation order, the
Court is satisfied that the realisable property is
inadequate for the payment of any amount remaining to be recovered under the
order, the Court shall issue a certificate to that effect, giving the
Court’s reasons.
(2) For
the purposes of paragraph (1) –
(a) in
the case of realisable property held by a person who
has become bankrupt the Court shall take into account the extent to which he
has been deprived of his property for the benefit of his creditors; and
(b) the
Court may disregard any inadequacy in the realisable
property which appears to the Court to be attributable wholly or partly to
anything done by the defendant for the purpose of preserving any property held
by a person to whom the defendant had directly or indirectly made a gift caught
by this Law from any risk of realisation under this
Law.
(3) Where
a certificate has been issued under paragraph (1) the defendant may apply to
the Court for the amount to be recovered under the order to be reduced.
(4) The
Court may, on an application under paragraph (3) –
(a) substitute
for the amount to be recovered under the order such lesser amount as the Court
thinks just in all the circumstances of the case; and
(b) substitute
for the term of imprisonment fixed under Article 7 in respect of the amount to
be recovered under the order a shorter term in respect of the lesser amount.
ARTICLE
13
Bankruptcy of defendant, etc
(1) Where
a person who holds realisable property becomes
bankrupt –
(a) property
for the time being subject to a “saisie judiciaire” made before the order adjudging him
bankrupt; and
(b) any
proceeds of property realised by virtue of Article
9(4) or 10 for the time being in the hands of the Viscount;
shall not form part of his estate for the relevant bankruptcy
proceedings.
(2) Where
a person has become bankrupt, the powers conferred on the Court by Articles 9
to 11 or on the Viscount shall not be exercised in relation to –
(a) property
which the bankrupt has placed under the control of the Court (“a remis entre les mains de la
Justice”);
(b) property
which has been declared “en désastre”;
(c) property
of which the bankrupt has made a general cession (“a fait cession générale”);
(d) property
which has been adjudged renounced (“adjugé
renoncé).
(3) Paragraph
(2) does not affect the enforcement of a “saisie
judiciaire” –
(a) made
before the person becomes bankrupt; or
(b) on
property which was subject to a “saisie judiciaire” when he became bankrupt.
ARTICLE
14
Viscount: exclusion of liability
Where the Viscount takes any action –
(a) in
relation to property which is not realisable
property, being action which he would be entitled to take if it were such
property;
(b) believing,
and having reasonable grounds for believing, that he is entitled to take that
action in relation to that property;
he shall not be liable to any person in respect of any loss or
damage resulting from his action except insofar as the loss or damage is caused
by his negligence.
ARTICLE
15
Compensation
(1) If
proceedings are instituted against a person for a drug trafficking offence or
offences and either –
(a) the
proceedings do not result in his conviction for any drug trafficking offence;
or
(b) where
he is convicted of one or more drug trafficking offences –
(i) the
conviction or convictions concerned are quashed; or
(ii) he
is pardoned by Her Majesty in respect of the conviction or convictions
concerned;
the Court may, on an application by a person who held property
which was realisable property, order compensation to
be paid to the applicant if, having regard to all the circumstances, it
considers it appropriate to make such an order.
(2) The
Court shall not order compensation to be paid in any case unless the Court is
satisfied –
(a) that
there has been some serious default on the part of a person concerned in the
investigation or prosecution of the offence or offences concerned; and
(b) that
the applicant has suffered loss in consequence of anything done in relation to
the property by or in pursuance of a “saisie judiciaire”.
(3) The
Court shall not order compensation to be paid in any case where it appears to
the Court that the proceedings would have been instituted or continued even if
the serious default had not occurred.
(4) The
amount of compensation to be paid under this Article shall be such as the Court
thinks just in all the circumstances of the case.
(5) Compensation
payable under this Article shall be payable out of the annual income of the
States.
ARTICLE
16
Prohibition on importation or exportation of drug trafficking
proceeds
The importation or exportation of the proceeds of drug trafficking
is hereby prohibited.
ARTICLE
17
Assisting another to retain the benefit of drug trafficking
(1) Subject
to paragraph (3), if a person enters into or is otherwise concerned in an
arrangement whereby –
(a) the
retention or control by or on behalf of another (in this Article referred to as
“A”) of A’s proceeds of drug trafficking is facilitated
(whether by concealment, removal from the jurisdiction, transfer to nominees or
otherwise); or
(b) A’s
proceeds of drug trafficking –
(i) are
used to secure that funds are placed at A’s disposal; or
(ii) are
used for A’s benefit to acquire property by way of investment;
knowing or suspecting that A is a person who carried on or has
carried on drug trafficking or has benefited from drug trafficking, he is
guilty of an offence.
(2) In
this Article, references to any person’s proceeds of drug trafficking
include a reference to any property which in whole or in part directly or
indirectly represented in his hands his proceeds of drug trafficking.
(3) Where
a person discloses to a police officer a suspicion or belief that any funds or
investments are derived from or used in connexion
with drug trafficking or any matter on which such a suspicion or belief is
based –
(a) the
disclosure shall not be treated as a breach of any restriction upon the disclosure
of information imposed by contract; and
(b) if
he does any action in contravention of paragraph (1) and the disclosure related
to the arrangement concerned, he does not commit an offence under this Article
if the disclosure is made in accordance with this paragraph, that is –
(i) it
is made before he does the act concerned, being an act done with the consent of
the police officer; or
(ii) it
is made after he does the act, but is made on his initiative and as soon as it
is reasonable for him to make it.
(4) In
proceedings against a person for an offence under this Article, it is a defence to prove –
(a) that
he did not know or suspect that the arrangement related to any person’s
proceeds of drug trafficking; or
(b) that
he did not know or suspect that by the arrangement the retention or control by
or on behalf of A of any property was facilitated or, as the case may be, that
by the arrangement any property was used as mentioned in paragraph (1); or
(c) that
–
(i) he
intended to disclose to a police officer such a suspicion, belief or matter as
is mentioned in paragraph (3) in relation to the arrangement; but
(ii) there
is a reasonable excuse for his failure to make disclosure in accordance with
paragraph (3)(b).
(5) A
person guilty of an offence under this Article shall be liable on conviction to
imprisonment for a term not exceeding fourteen years or to a fine or to both.
ARTICLE
18
Enforcement of external confiscation orders
(1) The
States may by Regulations –
(a) direct
in relation to a country or territory outside the Island designated by the
Regulations (“a designated country”) that, subject to such
modifications as may be specified, this Law shall apply to external
confiscation orders and to proceedings which have been or are to be instituted
in the designated country and may result in an external confiscation order
being made there;
(b) make
–
(i) such
provision in connexion with the taking of action in
the designated country with a view to satisfying a confiscation order; and
(ii) such
provision as to evidence or proof of any matter for the purposes of this
Article; and
(iii) such
incidental, consequential and transitional provision;
as appears to the States to be expedient; and
(c) without
prejudice to the generality of this paragraph direct that, in such
circumstances as may be specified, proceeds which arise out of action taken in
the designated country with a view to satisfying a confiscation order and which
are retained there shall nevertheless be treated as reducing the amount payable
under the order to such extent as may be specified.
(2) In
this Law –
“external confiscation order” means an order made by a
court in a designated country for the purpose of recovering payments or other
rewards received in connexion with drug trafficking
or their value; and
“modifications” includes additions, alterations and
omissions.
(3) Regulations
under this Article may make different provision for different cases or classes
of case.
(4) On
an application made by or on behalf of the Government of a designated country,
the Court may register an external confiscation order made there if –
(a) it
is satisfied that at the time of registration the order is in force and not
subject to appeal;
(b) it
is satisfied, where the person against whom the order is made did not appear in
the proceedings, that he received notice of the proceedings in sufficient time
to enable him to defend them; and
(c) it
is of the opinion that enforcing the order in the Island would not be contrary
to the interests of justice.
(5) In
paragraph (4), “appeal” includes –
(a) any
proceedings by way of discharging or setting aside a judgment; and
(b) an
application for a new trial or a stay of execution.
(6) The
Court shall cancel the registration of an external confiscation order if it
appears to the Court that the order has been satisfied by payment of the amount
due under it or by the person against whom it was made serving imprisonment in
default or payment or by any other means.
ARTICLE
19
Investigations into drug trafficking
(1) A
police officer may, for the purpose of an investigation into drug trafficking,
apply to the Bailiff for an order under paragraph (2) in relation to particular
material or material of a particular description.
(2) If
on such an application the Bailiff is satisfied that the conditions in
paragraph (3) are fulfilled, he may make an order that the person who appears
to him to be in possession of the material to which the application related
shall –
(a) produce
it to a police officer for him to take away; or
(b) give
a police officer access to it;
within seven days or such longer or shorter period as appears to
the Bailiff to be appropriate.
(3) The
conditions referred to in paragraph (2) are –
(a) that
there are reasonable grounds for suspecting that a specified person has carried
on or has benefited from drug trafficking;
(b) that
there are reasonable grounds for suspecting that the material to which the
application relates –
(i) is
likely to be of substantial value (whether by itself or together with other
material) to the investigation for the purpose of which the application is
made; and
(ii) does
not consist of or include items subject to legal professional privilege; and
(c) that
there are reasonable grounds for believing that it is in the public interest,
having regard to –
(i) the
benefit likely to accrue to the investigation if the material is obtained; and
(ii) the
circumstances under which the person in possession of the material holds it;
that the material should be produced or that access to it should be
given.
(4) Where
the Bailiff makes an order under subparagraph (b) of paragraph (2) in relation
to material on any premises, he may on the application of a police officer
order any person who appears to him to be entitled to grant entry to the
premises to allow a police officer to enter the premises to obtain access to
the material.
(5) Provision
may be made by Rules of Court as to –
(a) the
discharge and variation of orders under this Article; and
(b) proceedings
relating to such order.
(6) Where
the material to which an application under this Article relates consists of
information contained in a computer –
(a) an
order under sub-paragraph (a) of paragraph (2) shall have effect as an order to
produce the material in a form in which it can be taken away and in which it is
visible and legible; and
(b) an
order under sub-paragraph (b) of paragraph (2) shall have effect as an order to
give access to the material in a form in which it is visible and legible.
(7) An
order under paragraph (2) –
(a) shall
not confer any right to production of, or access to, items subject to legal
professional privilege;
(b) shall
have effect notwithstanding any obligation as to secrecy or other restriction
upon the disclosure of information imposed by statute or otherwise; and
(c) may
be made in relation to material in the possession of a States’
Department.
ARTICLE
20
Authority for search
(1) A
police officer may, for the purpose of an investigation into drug trafficking,
apply to the Bailiff for a warrant under this Article in relation to specified
premises.
(2) On
such application the Bailiff may issue a warrant authorising
a police officer to enter and search the premises if he is satisfied –
(a) that
an order made under Article 19 in relation to material on the premises has not
been complied with; or
(b) that
the conditions in paragraph (3) are fulfilled; or
(c) that
the conditions in paragraph (4) are fulfilled.
(3) The
conditions referred to in sub-paragraph (2)(b) are –
(a) that
there are reasonable grounds for suspecting that a specified person has carried
on or has benefited from drug trafficking; and
(b) that
the conditions in Article 19(3)(b) and (c) are fulfilled in relation to any
material on the premises; and
(c) that
it would not be appropriate to make an order under that Article in relation to
the material because –
(i) it
is not practicable to communicate with any person entitled to produce the
material; or
(ii) it
is not practicable to communicate with any person entitled to grant access to
the material or entitled to grant entry to the premises on which the material
is situated; or
(iii) the
investigation for the purpose of which the application is made might be
seriously prejudiced unless a police officer could secure immediate access to
the material.
(4) The
conditions referred to in sub-paragraph (2)(c) are –
(a) that
there are reasonable grounds for suspecting that a specified person has carried
on or has benefited from drug trafficking; and
(b) that
there are reasonable grounds for suspecting that there is on the premises material
relating to the specified person or to drug trafficking which is likely to be
of substantial value (whether by itself or together with other material) to the
investigation for the purpose of which the application is made, but that the
material cannot at the time of the application be particularised;
and
(c) that
–
(i) it
is not practicable to communicate with any person entitled to grant entry to
the premises; or
(ii) entry
to the premises will not be granted unless a warrant is produced; or
(iii) the investigation
for the purpose of which the application is made might be seriously prejudiced
unless a police officer arriving at the premises could secure immediate entry
to them.
(5) Where
a police officer has entered premises in the execution of a warrant issued
under this Article, he may seize and retain any material, other than items
subject to legal professional privilege, which is likely to be of substantial
value (whether by itself or together with other material) to the investigation
for the purpose of which the warrant was issued.
ARTICLE
21
Offence of prejudicing investigation
(1) Where,
in relation to an investigation into drug trafficking, an order under Article
19 has been made or has been applied for and has not been refused or a warrant
under Article 20 has been issued, a person who, knowing or suspecting that the
investigation is taking place, makes any disclosure which is likely to
prejudice the investigation, is guilty of an offence.
(2) In
proceedings against a person for an offence under this Article, it is a defence to prove –
(a) that
he did not know or suspect that the disclosure was likely to prejudice the
investigation; or
(b) that
he had lawful authority or reasonable excuse for making the disclosure.
(3) A
person guilty of an offence under this Article shall be liable on conviction to
imprisonment for a term not exceeding five years or to a fine or to both.
ARTICLE
22
Amendments of Misuse of Drugs Law
In the entries in the Third Column of the Fourth Schedule to the
Misuse of Drugs (Jersey) Law, 1978, opposite
to the entries in the first column relating to Article 5 and Article 6(2), for
the words “14 years” there shall be substituted the word
“Life”.
ARTICLE
23
Rules of Court
The power to make Rules of Court under the Royal Court (Jersey)
law, 1948, shall include a power to make Rules for the purposes of this Law and
proceedings thereunder.
ARTICLE
24
Short title
This Law may be cited as the Drug Trafficking Offences (Jersey)
Law, 1988.
R.S. GRAY
Deputy Greffier of the States.