Jersey Law 8/1999
PROCEEDS OF CRIME (JERSEY) LAW 1999
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ARRANGEMENT OF ARTICLES
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PART I
|
INTRODUCTORY
|
1.
|
Interpretation
|
2.
|
Meanings of expressions relating to realisable property
|
PART II
|
CONFISCATION ORDERS
|
3.
|
Confiscation orders
|
4.
|
Amount to be recovered under confiscation order
|
5.
|
Confiscation order relating to a course of relevant
criminal conduct
|
6.
|
Postponed determinations
|
7.
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Statements relating to criminal offences
|
8.
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Provision of information by defendant
|
9.
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Powers of the Court where defendant has died or absconded
|
10.
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Effect of confiscation order on sentencing of absconder
|
11.
|
Enforcement of confiscation orders
|
12.
|
Reconsideration of case where Court has not considered a
confiscation order
|
13.
|
Reconsideration of determination that defendant has not
benefited
|
14.
|
Revised assessment of benefit already determined
|
15.
|
Cases in which “saisies judiciaires” may be
made
|
16.
|
“Saisies judiciaires”
|
17.
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Realisation of property
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18.
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Interest on sums unpaid under confiscation orders
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19.
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Increase in realisable property
|
20.
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Application of proceeds of realisation and other sums
|
21.
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Variation of confiscation order where realisable property
is inadequate
|
22.
|
Bankruptcy of defendant
|
23.
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Limitation of liability of Viscount
|
24.
|
Criminal Offences Confiscations Fund
|
25.
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Compensation where defendant not convicted
|
26.
|
Cancellation of confiscation order, and compensation,
where absconder acquitted
|
27.
|
Cancellation of confiscation order, and compensation,
where absconder returns
|
28.
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Variation of confiscation order, and compensation, where
absconder returns
|
PART III
|
MONEY LAUNDERING
|
29.
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Restrictions on disclosure under this Part
|
30.
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Disclosure for purposes within the Island
|
31.
|
Disclosure for purposes outside the Island
|
32.
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Assisting another to retain the benefit of criminal
conduct
|
33.
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Acquisition, possession or use of proceeds of criminal
conduct
|
34.
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Concealing or transferring proceeds of criminal conduct
|
35.
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Tipping-off
|
36.
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Financial services business
|
37.
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Procedures to forestall and prevent money laundering
|
PART IV
|
EXTERNAL CONFISCATION
ORDERS
|
38.
|
Recognition of external confiscation orders
|
39.
|
Registration of external confiscation orders
|
PART V
|
MISCELLANEOUS
|
40.
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Investigations relating to proceeds of criminal conduct
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41.
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Authority for search
|
42.
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Criminal liability of accessories
|
43.
|
Orders
|
44.
|
Rules of Court
|
45.
|
Short title and commencement
|
SCHEDULES
|
FIRST SCHEDULE –
|
Offences for which confiscation orders may be made
|
SECOND SCHEDULE –
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Financial services business
|
|
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PROCEEDS OF CRIME (JERSEY) LAW 1999
____________
A LAW to
provide for the confiscation and forfeiture of the proceeds of crime, to
establish new offences of money laundering and new procedures to forestall and
prevent money laundering, and to enable the enforcement in the Island of
overseas confiscation orders, and for connected purposes; sanctioned by Order
of Her Majesty in Council of the
10th day of MARCH 1999
____________
(Registered on the 9th day of April 1999)
____________
STATES OF JERSEY
____________
The 15th day of
December 1998
____________
THE STATES, subject to the sanction of
Her Most Excellent Majesty in Council, have adopted the following Law –
PART I
INTRODUCTORY
ARTICLE
1
Interpretation
(1) In
this Law, unless the context otherwise requires –
“to benefit from relevant criminal conduct”, “to
benefit from an offence” and “to benefit from criminal
conduct” mean to obtain property as a result of or in connection with
that conduct or the commission of that offence, and the benefit is the amount
of the property so obtained;
“Commission” and “Financial Services
Commission” mean the Jersey Financial Services Commission established by
Article 2 of the Financial Services Commission (Jersey) Law 1998;
“Committee” means the Finance and Economics Committee;
“competent authority” means a competent authority for
the purposes of paragraph (3) of Article 3 of the Investigation of Fraud
(Jersey) Law 1991;
“confiscation order” means an order made under Article
3, and also means any order under that Article that is made by virtue of
Article 9, Article 12 or Article 13;
“the Court” means the Royal Court;
“criminal conduct” means conduct, whether occurring
before or after Article 3 comes into force, that –
(a) constitutes
an offence specified in the First Schedule; or
(b) if
it occurs or has occurred outside the Island, would have constituted such an
offence if occurring in the Island;
“Criminal Offences Confiscations Fund” and
“Fund” mean the Criminal Offences Confiscations Fund established
under Article 24;
“defendant” means a person against whom proceedings
have been instituted for an offence specified in the First Schedule (whether or
not he has been convicted);
“drug trafficking offence” has the meaning given in
paragraph (1) of Article 1 of the Drug Trafficking Offences (Jersey) Law 1988;
“exported”, in relation to any money, includes its
being brought to any place in the Island for the purpose of being exported;
“external confiscation order” means an order made by a
court in a designated country or territory –
(a) for
the purpose of recovering property obtained as a result of or in connection
with conduct corresponding to an offence specified in the First Schedule;
(b) for
the purpose of recovering the value of the property so obtained; or
(c) for
the purpose of depriving a person of a pecuniary advantage so obtained;
“financial services business” has the meaning given in
paragraph (1) of Article 36;
“gift caught by Part II” and “gift caught by this
Part” have the meaning given in paragraph (9) of Article 2;
“interest”, in relation to property, includes right;
“investigation”, in relation to crime, includes the
prevention of crime and also includes the detection of crime;
“items subject to legal privilege” means, in Articles
40 and 41 –
(a) communications
between a professional legal adviser and his client or any person representing
his client, and made in connection with the giving of legal advice to the
client; and
(b) communications
between a professional legal adviser and his client or any person representing
his client, or between such an adviser or his client or any such representative
and any other person, and made in connection with or in contemplation of legal
proceedings and for the purposes of such proceedings; and
(c) items
enclosed with or referred to in such communications and made –
(i) in
connection with the giving of legal advice; or
(ii) in
connection with or in contemplation of legal proceedings and for the purposes
of such proceedings,
when they are in the possession of a person who is entitled to
their possession,
but items held with the intention of furthering a criminal purpose
are not items subject to legal privilege;
“making a gift” has the meaning given in paragraph (10)
of Article 2;
“modifications” includes additions, alterations and
omissions;
“money” means cash (that is to say, coins or notes in
any currency) or any negotiable instrument;
“money laundering” means –
(a) conduct
that is an offence –
(i) under
Article 32, Article 33 or Article 34 of this Law;
(ii) under
Article 16A, Article 17 or Article 17A of the Drug Trafficking Offences
(Jersey) Law 1988; or
(iii) under
Article 8, Article 9 or Article 10 of the Prevention of Terrorism (Jersey) Law
1996; or
(b) conduct
outside the Island that, if occurring in the Island, would be an offence
specified in sub-paragraph (a);
“police officer” means a member of the Honorary Police,
a member of the States of Jersey Police Force, the Agent of the Impôts or
any other officer of the Impôts;
“proceeds of criminal conduct”, in relation to any
person who has benefited from criminal conduct, means that benefit;
“property” means all property, whether movable or
immovable, or vested or contingent, and whether situated in the Island or
elsewhere;
“realisable property” has the meaning given in
paragraphs (1) and (2) of Article 2;
“relevant criminal conduct”, in relation to a
defendant, means the offence of which he is convicted, taken together with
–
(a) other
offences of which he is also convicted in the proceedings; and
(b) offences
(whether committed before or after Article 3 comes into force) that the Court
will be taking into consideration in determining his sentence for the offence
in question,
being in each case an offence specified in the First Schedule;
“ ‘saisie judiciaire’ ” means an order to
which paragraph (1) of Article 16 refers;
“value of a gift” has the meaning given in paragraphs
(7) and (8) of Article 2;
“value of property” has the meaning given in paragraphs
(4), (5) and (6) of Article 2.
(2) For
the purposes of this Law –
(a) references
to property obtained, or to a pecuniary advantage derived, in connection with
the commission of an offence or with criminal conduct include a reference to
property obtained or to a pecuniary advantage derived both in that connection
and in some other connection; and
(b) where
a person derives a pecuniary advantage as a result of or in connection with the
commission of an offence or with criminal conduct, he is to be treated as if he
had obtained as a result of or in connection with the commission of that
offence, or that conduct, a sum of money equal to the value of the pecuniary
advantage.
(3) For
the purposes of Part II, 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 a person at the instance of
the Attorney General; or
(d) when
a summons in respect of the offence is served on a person in accordance with
Article 8 of the Magistrate’s 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 at the earliest of those times.
(4) For
the purposes of Part II, proceedings in the Island for an offence are concluded
–
(a) when
the defendant is acquitted of that offence and of all other counts (if any) on
which he is also tried at the same time;
(b) if
he is convicted on one or more counts but the Court decides not to make a
confiscation order against him, when it makes that decision; or
(c) if
a confiscation order is made against him in those proceedings, when the order
is satisfied.
(5) An
application under Article 9, Article 12 or Article 13 is concluded –
(a) if
the Court decides not to make a confiscation order against the defendant, when
it makes that decision; or
(b) if
a confiscation order is made against him as a result of that application, when
the order is satisfied.
(6) An
application under Article 14 or Article 19 is concluded –
(a) if
the Court decides not to vary the confiscation order in question, when it makes
that decision; or
(b) if
it varies the confiscation order as a result of the application, when the order
is satisfied.
(7) For
the purposes of Part II, a confiscation order is satisfied when no amount is
due under it.
(8) For
the purposes of Part II, an order is subject to appeal until (disregarding any
power of a 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.
(9) Where
in this Law there is a reference to an Article or Schedule by number only and
without further identification, the reference is a reference to the Article or
Schedule of that number contained in this Law.
(10) Where
in any Article or Schedule of this Law there is a reference to a paragraph,
sub-paragraph or clause by number or letter only and without further
identification, the reference is a reference to the paragraph, sub-paragraph or
clause of that number or letter contained in the Article or Schedule of this
Law in which such reference occurs.
(11) 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
Meanings of expressions relating to realisable property
(1) In
Part II, “realisable property” means –
(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 Part II; and
(c) any
property to which the defendant is beneficially entitled.
(2) However,
property is not realisable property if an order under Article 16C of the Drug
Trafficking Offences (Jersey) Law 1988 or
Article 29 of the Misuse of Drugs (Jersey) Law 1978 is in
force in respect of the property.
(3) For
the purposes of Part II, the amount that might be realised at the time a
confiscation order is made is the total of the values at that time of all the realisable
property, including –
(a) 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 Court or the Court of
Appeal or the Magistrate’s Court or the Youth Court, imposed or made on
conviction for an offence, where the fine was imposed or the order was 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 preference (“préférence”) 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 “Loi (1880) sur la Propriété
Foncière” before
the making of the confiscation order; and
(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 Security Interests (Jersey)
Law 1983, before the making of the
confiscation order; and
(b) the
total of the values at that time of all gifts caught by Part II.
(4) Subject
to the following provisions of this Article, for the purposes of Part II the
value of property (other than cash) in relation to any person holding the
property means the market value of the property.
(5) References
in Part II to the value at any time (referred to in paragraph (6) as “the
material time”) of any property obtained by a person as a result of or in
connection with an offence are references to –
(a) the
value of the property to him when he obtained 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 greater.
(6) If
at the material time he holds –
(a) the
property that he obtained (not being cash); or
(b) property
that, in whole or in part, directly or indirectly represents in his hands the
property that he obtained,
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
(a) of this paragraph or (as the case may be) the property mentioned in
sub-paragraph (b) of this paragraph so far as it so represents the property
that he obtained.
(7) Subject
to paragraph (10), references in Part II to the value at any time (referred to
in paragraph (8) as “the material time”) of a gift caught by Part
II are references to –
(a) the
value of the gift to the recipient when he received it, adjusted to take
account of subsequent changes in the value of money; or
(b) where
paragraph (8) applies, the value there mentioned,
whichever is greater.
(8) Subject
to paragraph (10), if at the material time he holds –
(a) the
property that he received (not being cash); or
(b) property
that, in whole or in part, directly or indirectly represents in his hands the
property that he received,
the value referred to in sub-paragraph (b) of paragraph (7) is the
value to him at the material time of the property mentioned in sub-paragraph
(a) of this paragraph or (as the case may be) sub-paragraph (b) of this
paragraph so far as it so represents the property that he received.
(9) A
gift (including a gift made before the commencement of this Article) is caught
by Part II if –
(a) it
was made by the defendant at any time after the commission of the offence or,
if more than one, the earliest of the offences to which the proceedings for the
time being relate; and
(b) the
Court considers it appropriate in all the circumstances to take the gift into
account,
and for the purposes of this paragraph an offence to which the
proceedings for the time being relate includes, where the proceedings have
resulted in the conviction of the defendant, a reference to any offence that
the court takes into consideration when determining his sentence.
(10) For
the purposes of Part II –
(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 value that is significantly less than the value 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 provided by the defendant.
PART II
CONFISCATION ORDERS
ARTICLE
3
Confiscation orders
(1) Where
a defendant appears before the Court to be sentenced in respect of one or more
offences specified in the First Schedule, and he 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 –
(a) if
the Attorney General asks the Court to proceed under this Article; or
(b) if
the Court considers that, even though the Attorney General has not asked it to
do so, it is appropriate for it to proceed under this Article,
the Court may act in accordance with this Article.
(2) However,
this Article shall not apply in the case of any proceedings against any
defendant where he is convicted in those proceedings of an offence that was
committed before this Article comes into force.
(3) Where
the Court is proceeding under this Article, it may first determine whether he
has benefited from any relevant criminal conduct.
(4) If
the Court determines that he has so benefited it may, before sentencing or
otherwise dealing with him in respect of the offence or (as the case may be)
any of the offences concerned –
(a) determine
in accordance with Article 4 the amount to be recovered in his case by virtue
of this Article; and
(b) make
a confiscation order, to the effect that he pay that amount.
(5) Where
the Court makes a confiscation order –
(a) it
shall 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 forfeiture order under Article 16C of the Drug Trafficking Offences
(Jersey) Law 1988 or
Article 29 of the Misuse of Drugs (Jersey) Law 1978; and
(b) subject
to sub-paragraph (a), it shall leave the order out of account in determining
the appropriate sentence or other manner of dealing with the defendant in the
proceedings.
(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 that the Court considers appropriate in respect of
an offence specified in the First Schedule.
(7) Where
–
(a) the
Court makes both a confiscation order and an order for the payment of
compensation under Article 2 of the Criminal Justice (Compensation Orders)
(Jersey) Law 1994 against
the same person in the same proceedings; and
(b) it
appears to the Court that he will not have sufficient means to satisfy both the
orders in full,
it shall direct that so much of the compensation as will not in its
opinion be recoverable because of the insufficiency of his means shall be paid
out of any sums recovered under the confiscation order.
(8) The
standard of proof required to determine any question arising under this Law as
to –
(a) whether
a person has benefited from any offence; or
(b) the
amount to be recovered in his case by virtue of this Article,
shall be that applicable in civil proceedings.
(9) The
States may amend the First Schedule by Regulations, by adding, deleting or
substituting any offence (not being a drug trafficking offence or an offence
under Article 8, Article 9 or Article 10 of the Prevention of Terrorism
(Jersey) Law 1996).
ARTICLE
4
Amount to be recovered under confiscation order
(1) The
sum that a confiscation order requires a defendant to pay shall be equal to
–
(a) the
benefit in respect of which it is made; or
(b) the
amount appearing to the Court to be the amount that might be realised at the
time when the order is made,
whichever is less.
(2) However,
if the Court is satisfied that a victim of any relevant criminal conduct has
instituted or intends to institute civil proceedings against the defendant in
respect of loss, injury or damage sustained in connection with that conduct,
the sum that the confiscation order requires the defendant to pay may be of
such lesser amount as the Court thinks fit.
ARTICLE
5
Confiscation order relating to a course of relevant criminal
conduct
(1) This
Article applies for the purposes of Article 3 where a defendant appears before
the Court to be sentenced in respect of one or more qualifying offences –
(a) if
the Attorney General asks the Court to apply it for the purposes of that
Article; or
(b) if
the Court considers that, even though the Attorney General has not asked it to
do so, it is appropriate for it to do so,
and either the defendant is convicted in the proceedings of at
least two qualifying offences (including the offence in question) or the
defendant has been convicted of a qualifying offence on at least one previous
occasion during the relevant period.
(2) An
offence is a qualifying offence for the purposes of this Part if it is an
offence in respect of which all of the following conditions are satisfied,
namely –
(a) it
is an offence specified in the First Schedule;
(b) it
is an offence committed after this Article comes into force; and
(c) the
Court is satisfied that it is an offence from which the defendant has
benefited.
(3) The
relevant period for the purposes of this Article, in relation to a defendant,
is the period of six years ending when the proceedings in which this Article
applies were instituted against the defendant.
(4) When
this Article applies for the purposes of Article 3, the Court may if it thinks
fit (but subject to paragraph (6) of this Article) make the assumptions in
paragraph (5) of this Article for the purpose –
(a) of
determining whether the defendant has benefited from relevant criminal conduct;
and
(b) if
he has, of assessing the value of his benefit from such conduct.
(5) Those
assumptions are –
(a) that
any property appearing to the Court to be held by the defendant at any time
since the date of his conviction, or appearing to the Court to have been
transferred to him at any time since the beginning of the relevant period
–
(i) was
received by him at the earliest time when he appears to the Court to have held
it; and
(ii) was
received by him as a result of or in connection with the commission of offences
specified in the First Schedule;
(b) that
any of his expenditure since the beginning of the relevant period was met out
of payments received by him as a result of or in connection with the commission
of offences specified in the First Schedule; and
(c) for
the purposes of valuing any property that he had or is assumed to have had at
any time, that he received the property free of any other interests in it.
(6) The
Court shall not make an assumption in paragraph (5) in respect of any
particular property or expenditure –
(a) if
the assumption, so far as it relates to that property or expenditure, is shown
to be incorrect;
(b) if
the assumption, so far as it relates to that property or expenditure, is shown
to be correct in respect of an offence from which the defendant’s benefit
has been the subject of a previous confiscation order; or
(c) if
the Court is satisfied that, for any other reason, there would be a serious
risk of injustice if the assumption were made in respect of that property or
expenditure.
(7) Where
the assumptions in paragraph (5) are made the offences from which, in
accordance with those assumptions, the defendant is found to have benefited
shall be treated as if they were comprised, for the purposes of this Part, in
the conduct that is to be treated as relevant criminal conduct by the
defendant.
(8) In
this Article, “the date of his conviction” means –
(a) in
a case not falling within sub-paragraph (b), the date on which the defendant is
convicted of the offence in question; and
(b) where
he is convicted of that offence and one or more other offences in the proceedings
in question, and those convictions are not all on the same date, the date of
the latest of those convictions.
ARTICLE
6
Postponed determinations
(1) Where
the Court is acting under Article 3 but considers that it requires further
information before –
(a) determining
whether the defendant has benefited from any relevant criminal conduct; or
(b) determining
the amount to be recovered in his case by virtue of Article 3,
it may, for the purposes of enabling that information to be
obtained, postpone the making of the determination for such period as it may
specify.
(2) More
than one postponement may be made under paragraph (1) in relation to the same
case.
(3) Unless
it is satisfied that there are exceptional circumstances, the Court shall not
specify a period that –
(a) by
itself; or
(b) where
there have been one or more previous postponements under paragraph (1) or
paragraph (4), when taken together with the earlier specified period or
periods,
exceeds six months beginning with the date of conviction.
(4) Where
the defendant appeals against his conviction, the Court may on that account
–
(a) postpone
the making of either or both of the determinations mentioned in paragraph (1)
for such period as it may specify; or
(b) where
it has already exercised its powers under this Article to postpone, extend the
specified period.
(5) A
postponement or extension under paragraph (1) or paragraph (4) may be made
–
(a) on
application by the defendant or the Attorney General; or
(b) by
the Court of its own motion.
(6) Unless
the Court is satisfied that there are exceptional circumstances, any
postponement or extension under paragraph (4) shall not exceed the period
ending three months after the date on which the appeal is determined or
otherwise disposed of.
(7) Where
the Court exercises its power under paragraph (1) or paragraph (4), it may
nevertheless proceed to sentence or otherwise deal with the defendant in
respect of the offence or any of the offences concerned.
(8) Where
the Court has so proceeded, it may determine in accordance with Article 4 the
amount to be recovered in the case of the defendant by virtue of Article 3 and
make a confiscation order under Article 3, notwithstanding that he has been
sentenced or otherwise dealt with already.
(9) In
sentencing or otherwise dealing with the defendant in respect of the offence
concerned, or any of the offences concerned, at any time during the specified
period, the Court shall not –
(a) impose
any fine on him; or
(b) make
any order mentioned in sub-paragraph (a) of paragraph (5) of Article 3.
(10) Where
the Court has sentenced the defendant under paragraph (7) of this Article
during the specified period it may, after the end of that period, vary the
sentence by imposing a fine or making any order mentioned in sub-paragraph (a)
of paragraph (5) of Article 3, so long as it does so within 28 days after the
specified period.
(11) In
this Article “the date of conviction” means –
(a) in
a case not falling within sub-paragraph (b), the date on which the defendant
was convicted; or
(b) where
he was convicted, in the same proceedings but on different dates, of two or
more offences that are comprised in relevant criminal conduct, the date of the
latest of those convictions.
ARTICLE
7
Statements relating to criminal offences
(1) Subject
to paragraphs (3) and (4), the Attorney General –
(a) may
at any time give to the Court a statement of matters that he considers relevant
for the purpose –
(i) of
determining whether the defendant has benefited from any relevant criminal
conduct; or
(ii) of
assessing the value of the defendant’s benefit from that conduct; and
(b) shall
give to the Court such a statement, setting out all information available to
him that is relevant for the purposes of paragraphs (5) and (6) of Article 5,
if the case is one in which he has asked the Court to apply that Article for
the purposes of Article 3.
(2) In
this Article, such a statement is referred to as “an Attorney
General’s statement”.
(3) Where
the Court proceeds under Article 3 without being asked by the Attorney General
to do so, it may require him to give an Attorney General’s statement
within such period as it may determine.
(4) Where
the Attorney General applies to the Court under any of Articles 9, 12, 13 and
14 he shall give to the Court, within such time as it may direct, an Attorney
General’s statement.
(5) Where
the Attorney General has given an Attorney General’s statement –
(a) he
may at any time give the Court a further Attorney General’s statement;
and
(b) the
Court may at any time require him to give it a further Attorney General’s
statement, within such further period as it may direct.
(6) Where
any Attorney General’s statement has been given and the Court is
satisfied that a copy of the statement has been served on the defendant, it may
require the defendant –
(a) to
indicate to it, within such period as it may direct, the extent to which he
accepts each allegation in the statement; and
(b) so
far as he does not accept any such allegation, to give particulars of any
matters on which he proposes to rely.
(7) Where
the Court has given a direction under this Article, it may at any time vary it
by a further direction.
(8) Where
the defendant accepts to any extent any allegation in any Attorney
General’s statement, the Court may, for the purposes of –
(a) determining
whether the defendant has benefited from relevant criminal conduct; or
(b) assessing
the value of the defendant’s benefit from relevant criminal conduct,
treat his acceptance as conclusive of the matters to which it
relates.
(9) If
the defendant fails in any respect to comply with a requirement under paragraph
(6), he may be treated for the purposes of this Article as accepting every
allegation in the Attorney General’s statement in question, apart from
–
(a) any
allegation in respect of which he has complied with the requirement; and
(b) any
allegation that he has benefited from an offence or that any property was
obtained by him as a result of or in connection with the commission of an
offence.
(10) Where
–
(a) there
is tendered to the Court by the defendant a statement as to any matters
relevant for the purpose of 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.
(11) An
allegation may be accepted and particulars of any matter may be given, for the
purposes of this Article, in such manner as may be provided for by Rules of
Court or as the Court may direct.
(12) No
acceptance by the defendant under this Article that he has benefited from an
offence or that any property was obtained by him as a result of or in
connection with an offence shall be admissible in evidence in any proceedings
for an offence.
ARTICLE
8
Provision of information by defendant
(1) This
Article applies where –
(a) the
Attorney General has asked the Court to proceed under Article 3 or has applied
to the Court under Article 12, Article 13 or Article 14; or
(b) no
such request or application has been made but the Court is nevertheless
proceeding, or considering whether to proceed, under Article 3.
(2) For
the purpose of obtaining information to assist it in carrying out its
functions, the Court may at any time order the defendant to give it such
information as may be specified in the order.
(3) An
order under paragraph (2) may require all or any specified part of the required
information to be given to the Court in such manner, and before such date, as
may be specified in the order.
(4) Rules
of Court may make provision as to the maximum or minimum period that may be
allowed under paragraph (3).
(5) If
the defendant fails, without reasonable excuse, to comply with any order under
this Article, the Court may draw such inference from that failure as it
considers appropriate.
(6) Where
the Attorney General accepts to any extent any allegation made by the defendant
in giving to the Court information required by an order under this Article, the
Court may treat that acceptance as conclusive of the matters to which it
relates.
(7) For
the purposes of this Article, an allegation may be accepted in such manner as
may be provided for by Rules of Court or as the Court may direct.
ARTICLE
9
Powers of the Court where defendant has died or absconded
(1) Paragraph
(2) applies where a person has been convicted of one or more offences specified
in the First Schedule.
(2) If
the Attorney General asks it to proceed under this paragraph, the Court may
exercise its powers under this Part to make a confiscation order against the
defendant, if satisfied that the defendant has died or absconded.
(3) Paragraph
(4) applies where proceedings for one or more offences specified in the First Schedule
have been instituted against a person but have not been concluded.
(4) If
the Attorney General asks it to proceed under this paragraph, the Court may
exercise its powers under this Part to make a confiscation order against the
defendant, if satisfied that the defendant has absconded.
(5) The
power conferred by paragraph (4) may not be exercised at any time before the
end of the period of two years beginning with the date that is, in the opinion
of the Court, the date on which the defendant absconded.
(6) In
any proceedings on an application under this Article –
(a) Article
5 and paragraphs (6), (8) and (9) of Article 7 shall not apply;
(b) the
Court shall not make a confiscation order against a person who has absconded
unless it is satisfied that the Attorney General has taken reasonable steps to
contact him; and
(c) any
person appearing to the Court to be likely to be affected by the making of a
confiscation order by the Court shall be entitled to appear before the Court
and make representations.
ARTICLE
10
Effect of confiscation order on sentencing of absconder
(1) Where
in the case of any defendant the Court has made a confiscation order by virtue
of Article 9 it shall, in respect of the offence or (as the case may be) any of
the offences concerned –
(a) take
account of the order before –
(i) imposing
any fine on the defendant;
(ii) making
any order involving any payment by him; or
(iii) making
any forfeiture order under Article 16C of the Drug Trafficking Offences
(Jersey) Law 1988 or
Article 29 of the Misuse of Drugs (Jersey) Law 1978; and
(b) subject
to sub-paragraph (a), leave the order out of account in determining the
appropriate sentence or other manner of dealing with the defendant.
(2) Where
the Court has made a confiscation order by virtue of Article 9, and the
defendant subsequently appears before the Court to be sentenced in respect of
one or more of the offences concerned, paragraph (1) of Article 3 shall not
apply so far as his appearance is in respect of that offence or those offences.
ARTICLE
11
Enforcement of confiscation orders
(1) Where
the Court orders the defendant to pay any amount under Article 3 the Court may
order the defendant to be imprisoned, for a fixed term to be specified in the
order, in default of payment of the amount.
(2) The
term of imprisonment to be so specified shall not exceed ten years.
(3) The
effect of an order of imprisonment under paragraph (1) shall be as follows
–
(a) in
default of payment of the amount to which the order relates, the defendant
shall serve the term of imprisonment specified in the order;
(b) if
payment is made of any part of the amount due, the term of imprisonment shall
be reduced by such number of days as bears, to the total number of days of the
term of imprisonment, the same proportion as the amount so paid bears to as
much of the amount as was due at the time when the confiscation order was made;
and
(c) if
the whole of the amount due is paid before the defendant has served the term of
imprisonment specified in the order, he shall not be liable to serve any
remaining portion of that term.
(4) The
term of imprisonment imposed under paragraph (1) in default of payment 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 term of imprisonment for the offence or offences.
(5) The
reference in paragraph (4) to the term of imprisonment that the defendant is
liable to serve in respect of the offence or offences is a reference to the
term of imprisonment, or detention in a young offender institution, that he is
liable to serve in respect of the offence or offences, and for the purposes of
this paragraph consecutive terms and terms that 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.
(7) Where
the defendant serves a term of imprisonment or detention in default of payment
of any amount due under a confiscation order, his serving of that term does not
prevent the confiscation order from continuing to have effect, so far as any
other method of enforcement is concerned.
ARTICLE
12
Reconsideration of case where Court has not considered a
confiscation order
(1) This
Article applies where the defendant has appeared before the Court to be
sentenced in respect of one or more offences specified in the First Schedule,
but the Court has not proceeded under Article 3.
(2) If
the Attorney General has evidence –
(a) that
was not available to him when the defendant appeared to be sentenced (and
accordingly was not considered by the Court); and
(b) that
the Attorney General believes would have led the Court to determine that the
defendant had benefited from relevant criminal conduct if –
(i) the
Attorney General had asked the Court to proceed under Article 3; and
(ii) the
evidence had been considered by the Court,
he may apply to the Court for it to consider the evidence.
(3) The
Court may then proceed under Article 3 if, having considered the evidence, it
is satisfied that it is appropriate to do so.
(4) In
considering whether it is appropriate to proceed under Article 3 by virtue of
this Article, the Court shall have regard to all the circumstances of the case.
(5) Where,
having decided to proceed under Article 3 by virtue of this Article, the Court
proposes to make a confiscation order against the defendant, it shall order the
payment of such amount as it thinks just in all the circumstances of the case.
(6) In
considering the circumstances of any case the Court shall have regard, in
particular, to the amount of –
(a) any
fine imposed on the defendant in respect of any relevant criminal conduct; and
(b) any
order made in connection with such conduct under Article 2 of the Criminal
Justice (Compensation Orders) (Jersey) Law 1994.
(7) Where
the Court is proceeding under Article 3 by virtue of this Article, the
requirement in paragraph (4) of Article 3 that the Court shall not have
sentenced or otherwise dealt with the defendant already, in the case in
question, shall not apply.
(8) The
Court may take into account any payment or other reward received by the
defendant on or after the date of conviction, but only if the Attorney General
shows that it represents the defendant’s benefit from any relevant
criminal conduct.
(9) On
an application made under Article 3 by virtue of this Article –
(a) if
the Attorney General asks the Court to apply Article 5; or
(b) if
the Court considers that, even though the Attorney General has not asked it to
do so, it is appropriate for it to do so,
and the other requirements of paragraph (1) of Article 5 are
fulfilled, that Article shall apply notwithstanding that the defendant has been
sentenced or otherwise dealt with already, in the case in question, but in that
event no assumption may be made under paragraph (4) of that Article in respect
of any property unless it was held by or transferred to the defendant before he
was sentenced or otherwise dealt with.
(10) No
application shall be entertained by the Court under this Article if it is made
after the end of the period of six years beginning with the date of conviction.
(11) In
this Article “the date of conviction” means –
(a) in
a case not falling within sub-paragraph (b), the date on which the defendant
was convicted; or
(b) where
he appeared to be sentenced in respect of more than one conviction, and those
convictions were not all on the same date, the date of the latest of those
convictions.
ARTICLE
13
Reconsideration of determination that defendant has not benefited
(1) This
Article applies where the Court has made a determination (“the original
determination”) under paragraph (3) of Article 3 that the defendant has
not benefited from any relevant criminal conduct.
(2) If
the Attorney General has evidence –
(a) that
was not considered by the Court in making the original determination; and
(b) that
the Attorney General believes would have led the Court to determine that the
defendant had benefited from that relevant criminal conduct if it had been
considered by the Court,
he may apply to the Court for it to consider that evidence.
(3) If,
having considered the evidence, the Court is satisfied that it would have
determined that the defendant had benefited from relevant criminal conduct if
that evidence had been available to it, the Court –
(a) shall
make a fresh determination under paragraph (3) of Article 3; and
(b) shall
make a determination under paragraph (4) of that Article of the amount to be
recovered by virtue of that Article; and
(c) may
make a confiscation order.
(4) Where
the Court is proceeding under Article 3 by virtue of this Article, the
requirement in paragraph (4) of Article 3 that the Court shall not have
sentenced or otherwise dealt with the defendant already, in the case in
question, shall not apply.
(5) The
Court may take into account any payment or other reward received by the
defendant on or after the date of the original determination, but only if the
Attorney General shows that it represents the defendant’s benefit from
any relevant criminal conduct.
(6) On
an application made under Article 3 by virtue of this Article in a case to
which Article 5 does not otherwise apply –
(a) if
the Attorney General asks the Court to apply Article 5; or
(b) if
the Court considers that, even though the Attorney General has not asked it to
do so, it is appropriate for it to do so,
and the other requirements of paragraph (1) of Article 5 are fulfilled,
that Article shall apply notwithstanding that the defendant has been sentenced
or otherwise dealt with already, in the case in question, but in that event no
assumption may be made under paragraph (4) of that Article in respect of any
property unless it was held by or transferred to the defendant before he was
sentenced or otherwise dealt with.
(7) Where
the Court –
(a) has
been asked to proceed under Article 9 in relation to a defendant who has
absconded; and
(b) has
decided not to make a confiscation order against him,
this Article shall not apply at any time while he remains an
absconder.
(8) No
application shall be entertained by the Court under this Article if it is made
after the end of the period of six years beginning –
(a) in
a case not falling within sub-paragraph (b), with the date on which the
defendant was convicted; or
(b) where
he appeared to be sentenced in respect of more than one conviction, and those
convictions were not all on the same date, with the date of the latest of those
convictions.
ARTICLE
14
Revised assessment of benefit already determined
(1) This
Article applies where the Court has made a determination under paragraph (4) of
Article 3 of the amount to be recovered in a particular case by virtue of that
paragraph (“the current determination”).
(2) Where
the Attorney General is of the opinion that the value of the defendant’s
benefit from any relevant criminal conduct was greater than the value at which
that benefit was assessed by the court on the current determination, the
Attorney General may apply to the Court for the evidence on which he has formed
his opinion to be considered by the Court.
(3) If,
having considered the evidence, the Court is satisfied that the real value of
the defendant’s benefit from relevant criminal conduct is greater than
its assessed value (whether because the real value was higher at the time of
the current determination than was thought or because the value of the benefit
in question has subsequently increased), the Court shall make a fresh
determination under paragraph (4) of Article 3 of the amount to be recovered by
virtue of that Article.
(4) Where
the Court is proceeding under Article 3 by virtue of this Article, the
requirement in paragraph (4) of Article 3 that the Court shall not have
sentenced or otherwise dealt with the defendant already, in the case in
question, shall not apply.
(5) Any
determination under paragraph (4) of Article 3 by virtue of this Article shall
be by reference to the amount that might be realised at the time when that
determination is made.
(6) For
the purposes of any determination under paragraph (4) of Article 3 by virtue of
this Article, the restriction in paragraph (6) of Article 5 (by reason of
sub-paragraph (b) of that paragraph of Article 5) on the Court’s power to
make assumptions shall not apply in relation to any of the defendant’s
benefit from relevant criminal conduct taken into account in respect of the
current determination.
(7) In
relation to any determination under paragraph (4) of Article 3 by virtue of
this Article, paragraph (3) of Article 2, Article 4 and paragraph (10) of
Article 7 shall have effect as if it were a confiscation order.
(8) The
Court may take into account any payment or other reward received by the
defendant on or after the current determination, but only if the Attorney
General shows that it represents the defendant’s benefit from relevant
criminal conduct.
(9) Where
–
(a) the
Court is, by virtue of paragraph (3) of this Article, to make a fresh
determination; and
(b) the
case is one to which Article 5 applies,
no assumption may be made under paragraph (4) of that Article in
respect of any property unless it was held by or transferred to the defendant
before the time when he was sentenced or otherwise dealt with in the case in
question.
(10) If,
as a result of the making of the fresh determination required by paragraph (3),
the amount to be recovered exceeds the amount of the current determination, the
Court may substitute for the amount to be recovered under the confiscation order
that was made by reference to the current determination such greater amount as
it thinks just in all the circumstances of the case.
(11) Subject
to Article 11, where the Court varies a confiscation order under paragraph
(10), it may substitute for any term of imprisonment imposed under paragraph
(1) of Article 11 a longer term in respect of the greater amount substituted
under paragraph (10) of this Article.
(12) Where
a confiscation order has been made in relation to any defendant by virtue of
Article 9, this Article shall not apply at any time while he is an absconder.
(13) No
application shall be entertained by the Court under this Article if it is made
after the end of the period of six years beginning –
(a) in
a case not falling within sub-paragraph (b), with the date on which the
defendant was convicted; or
(b) where
he appeared to be sentenced in respect of more than one conviction, and those
convictions were not all on the same date, with the date of the latest of those
convictions.
ARTICLE
15
Cases in which “saisies judiciaires” may be made
(1) The
powers conferred on the Court by Article 16 are exercisable where –
(a) the
Court has made a confiscation order;
(b) proceedings
have been instituted in the Island against the defendant for an offence specified
in the First Schedule or an application has been made by the Attorney General
in respect of the defendant under any of Articles 9, 12, 13, 14 and 19 and
–
(i) the
proceedings have not, or the application has not, been concluded; and
(ii) the
Court is satisfied that there is reasonable cause to believe –
(A) in
the case of an application under Article 14 or Article 19, that the Court will
be satisfied as mentioned in paragraph (3) of Article 14 or (as the case may
be) paragraph (2) of Article 19; or
(B) in
any other case, that the defendant has benefited from the offence; or
(c) the
Court is satisfied –
(i) that
proceedings are to be instituted in the Island against a person for an offence
specified in the First Schedule, or that an application of a kind mentioned in
sub-paragraph (b) of this paragraph is to be made against the defendant; and
(ii) as
to the matters mentioned in clause (ii) of that sub-paragraph.
(2) For
the purposes of Article 16, at any time when those powers are exercisable
before proceedings have been instituted –
(a) references
in this Part to the defendant shall be construed as references to the person to
whom sub-paragraph (c) of paragraph (1) of this Article refers;
(b) references
in this Part to realisable property shall be construed as if, immediately
before that time, proceedings had been instituted against the person to whom
sub-paragraph (c) of paragraph (1) of this Article refers for an offence
specified in the First Schedule.
(3) Where
the Court has made an order under Article 16 by virtue of sub-paragraph (c) of
paragraph (1) of this Article, in relation to proposed proceedings for an
offence specified in the First Schedule, the Court shall discharge the order if
the proceedings have not been instituted within such time as the Court
considers reasonable.
(4) Where
the Court has made an order under Article 16 in relation to a proposed
application by virtue of sub-paragraph (c) of paragraph (1) of this Article,
the Court shall discharge the order if the application is not made within such
time as the Court considers reasonable.
(5) The
Court shall not exercise its powers under Article 16, by virtue of
sub-paragraph (a) or sub-paragraph (b) of paragraph (1) of this Article, if it
is satisfied that –
(a) there
has been undue delay in continuing the proceedings or application in question;
or
(b) the
Attorney General does not intend to proceed.
ARTICLE 16
“Saisies
judiciaires”
(1) The
Court may, subject to such conditions and exceptions as may be specified in it,
make an order (in this Part 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 ex parte 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 to the Bailiff in chambers by any person affected by it and the
Bailiff may rule upon the application or may, at his discretion, refer it to
the Court for adjudication.
(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 the removal of any realisable property from the
Island, seize the property.
(11) Property
seized under paragraph (10) shall be dealt with in accordance with the
Court’s directions.
ARTICLE
17
Realisation of property
(1) Where
–
(a) in
proceedings that have been instituted for an offence, a confiscation order is
made or an order is varied under Article 14 or Article 19;
(b) the
order is not subject to appeal;
(c) the
proceedings relating to the order have not been concluded; and
(d) the
Court has made a “saisie judiciaire”,
the Court may empower the Viscount to realise, in such manner as it
may direct, any realisable property that has vested in him or come into his
possession pursuant to Article 16.
(2) The
Court shall not in respect of any property exercise its power under paragraph
(1) unless a reasonable opportunity has been given for persons holding any
interest in the property to make representations to the Court.
ARTICLE
18
Interest on sums unpaid under confiscation orders
(1) If
any sum required to be paid by a person under a confiscation order is not paid
when it is required to be paid, that person shall be liable to pay interest on
that sum for the period for which it remains unpaid, and the amount of the
interest shall for the purposes of enforcement be treated as part of the amount
to be recovered under the confiscation order.
(2) When
paragraph (1) of this Article applies and interest has accrued, the Court may
on the application of the Attorney General increase (subject to Article 11) any
term of imprisonment imposed under paragraph (1) of that Article.
(3) The
rate of interest under paragraph (1) shall be such rate as the Royal Court
shall from time to time by Rules of Court prescribe.
ARTICLE
19
Increase in realisable property
(1) This
Article applies where, by virtue of Article 4, the amount which a person is
ordered to pay by a confiscation order is less than the amount assessed to be
the value of his benefit from relevant criminal conduct.
(2) If,
on an application made in accordance with paragraph (3), the Court is satisfied
that the amount that might be realised in the case of the person in question is
greater than the amount taken into account in making the confiscation order
(whether it was greater than was thought when the order was made, or it has
subsequently increased) the Court shall issue a certificate to that effect,
giving the Court’s reasons.
(3) An
application under paragraph (2) may be made by the Attorney General or by the
Viscount in relation to the realisable property of the person in question.
(4) Where
a certificate has been issued under paragraph (2) the Attorney General may
apply to the Court for an increase in the amount to be recovered under the
confiscation order, and on that application the Court may –
(a) substitute
for that amount such amount (not exceeding the assessed value to which
paragraph (1) refers) as appears to the Court to be appropriate having regard
to the amount now shown to be realisable; and
(b) subject
to Article 11, increase any term of imprisonment imposed under paragraph (1) of
that Article.
ARTICLE
20
Application of proceeds of realisation and other sums
(1) The
following sums in the hands of the Viscount, that is to say –
(a) money
that has vested in him or come into his possession pursuant to Article 16; and
(b) the
proceeds of the realisation of any property under Article 17,
shall, after such payments (if any) as the Court may direct have
been made out of those sums and then after payment of the Viscount’s fees
and expenses, be applied on the defendant’s behalf towards the
satisfaction of the confiscation order.
(2) The
amount applied by the Viscount towards the satisfaction of the confiscation
order shall be paid into the Criminal Offences Confiscations Fund.
(3) If,
after payment of his fees and expenses and of the amount payable under the
confiscation order, any sums remain in the hands of the Viscount, the Viscount
shall distribute those sums –
(a) among
such of those persons who held the property that has been realised under this
Part; and
(b) in
such proportions,
as the Court may direct after giving them a reasonable opportunity
to make representations to the Court.
ARTICLE
21
Variation of confiscation order where realisable property is
inadequate
(1) If,
on an application by the defendant or the Viscount 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 that 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 Part from any
risk of realisation under this Part.
(3) Where
a certificate has been issued under paragraph (1), the person who applied for
it 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) subject
to Article 11, substitute for any term of imprisonment imposed under paragraph
(1) of that Article a shorter term in respect of the lesser amount substituted
under sub-paragraph (a) of this paragraph.
(5) Rules
of Court may make provision –
(a) for
the giving of notice of any application under this Article; and
(b) for
any person appearing to the Court to be affected by the exercise of its powers
under this Article to be given a reasonable opportunity to make representations
to the Court.
ARTICLE
22
Bankruptcy of defendant
(1) Where
a person who holds realisable property becomes bankrupt –
(a) no
property for the time being subject to a “saisie judiciaire” made
before the order adjudging him bankrupt; and
(b) no
proceeds of property realised by virtue of paragraph (4) of Article 16 or
Article 17 for the time being in the hands of the Viscount,
shall 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 16,
17, 18, 19 and 20 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”); or
(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 that was subject to a “saisie judiciaire” when he became
bankrupt.
ARTICLE
23
Limitation of liability of Viscount
Where the Viscount –
(a) takes
any action in relation to property that is not realisable property, being
action that he would be entitled to take if it were such property; and
(b) believes
and has 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 in so far as the loss or damage is
caused by his negligence.
ARTICLE
24
Criminal Offences Confiscations Fund
(1) There
shall be established a Fund to be called the Criminal Offences Confiscations
Fund which, subject to this Article, shall be managed and controlled by the
Committee.
(2) All
amounts –
(a) recovered
under or in satisfaction of a confiscation order; or
(b) received
under an assets-sharing arrangement,
shall be included in the monies which are paid into the Fund.
(3) Monies
paid into the Fund shall not form part of the annual income of the States.
(4) Subject
to paragraph (5), monies in the Fund shall be applied by the Committee for the
following purposes, that is to say –
(a) in
promoting or supporting measures that, in the opinion of the Committee, may
assist –
(i) in
preventing, suppressing or otherwise dealing with criminal conduct;
(ii) in
dealing with the consequences of criminal conduct; or
(iii) without
prejudice to the generality of clauses (i) and (ii), in facilitating the
enforcement of any enactment dealing with criminal conduct;
(b) discharging
the Island’s obligations under assets-sharing arrangements; and
(c) meeting
the expenses incurred by the Committee in administering the Fund.
(5) Before
promoting or supporting any measure under sub-paragraph (a) of paragraph (4),
the Committee shall consult the Attorney General and such other persons or
bodies (including other Committees of the States) as it considers appropriate.
(6) Monies
paid into the Fund, while not applied for any of the purposes mentioned in
paragraph (4), may be –
(a) held
in the custody of the Treasurer of the States at the States Treasury; or
(b) placed,
in the name of the Committee, in a current or deposit account with one or more
banks selected by the Committee,
and any interest earned on such monies while held in such an
account shall be paid by the Committee into the Fund.
(7) Monies
held in any account by virtue of sub-paragraph (b) of paragraph (6) may be
withdrawn on the signature of the Treasurer of the States.
(8) In
this Article, “assets-sharing arrangement” means –
(a) an
agreement entered into between the United Kingdom, on behalf of the Island, and
any other State; or
(b) any
arrangement made between the Attorney General and the appropriate authority of
a country or territory outside the Island,
for the sharing of the proceeds of criminal conduct that, as a
result of mutual assistance, have been confiscated either in the Island or
elsewhere.
ARTICLE
25
Compensation where defendant not convicted
(1) If
proceedings are instituted against a person for an offence or offences
specified in the First Schedule, and either –
(a) the
proceedings do not result in his conviction for any such offence; or
(b) where
he is convicted of one or more of those 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 that
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 it 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
26
Cancellation of order, and compensation, where absconder acquitted
(1) Where
–
(a) the
Court has made a confiscation order by virtue of paragraph (4) of Article 9 in
relation to a defendant who is an absconder; and
(b) the
defendant is subsequently tried for the offence or offences concerned and
acquitted on all counts,
the Court shall cancel the confiscation order.
(2) The
Court may, on the application of a person who held property that was realisable
property, order compensation to be paid to the applicant if it is satisfied that
the applicant has suffered loss as a result of the making of the confiscation
order.
(3) The
amount of compensation to be paid under this Article shall be such as the Court
considers just in all the circumstances of the case.
(4) Provision
may be made by Rules of Court for –
(a) giving
notice of any application under this Article; and
(b) any
person appearing to the Court to be likely to be affected by any exercise of
its powers under this Article to be given a reasonable opportunity to make representations
to the Court.
(5) Compensation
payable under this Article shall be paid out of the annual income of the
States.
(6) Where
the Court cancels a confiscation order under this Article, it may make such
consequential or incidental order as it considers appropriate in connection
with the cancellation.
ARTICLE
27
Cancellation of confiscation order, and compensation, where
absconder returns
(1) This
Article applies where –
(a) the
Court has made a confiscation order by virtue of paragraph (4) of Article 9 in
relation to a defendant who is an absconder;
(b) the
defendant has ceased to be an absconder; and
(c) Article
26 does not apply.
(2) The
Court may, on the application of the defendant, cancel the confiscation order
if it is satisfied that –
(a) there
has been undue delay in continuing the proceedings in respect of which the
power under paragraph (4) of Article 9 was exercised; or
(b) the
Attorney General does not intend to proceed with the prosecution.
(3) Where
the Court cancels a confiscation order under this Article it may, on the
application of a person who held property which was realisable property, order
compensation to be paid to the applicant if it is satisfied that the applicant
has suffered loss as a result of the making of the confiscation order.
(4) The
amount of compensation to be paid under this Article shall be such as the Court
considers just in all the circumstances of the case.
(5) Provision
may be made by Rules of Court for –
(a) the
giving of notice of any application under this Article; and
(b) any
person appearing to the Court to be likely to be affected by any exercise of
its powers under this Article to be given a reasonable opportunity to make
representations to the Court.
(6) Compensation
payable under this Article shall be paid out of the annual income of the
States.
(7) Where
the Court cancels a confiscation order under this Article, it may make such
consequential or incidental order as it considers appropriate in connection
with the cancellation.
ARTICLE
28
Variation of confiscation order, and compensation, where absconder
returns
(1) This
Article applies where –
(a) the
Court has made a confiscation order by virtue of paragraph (4) of Article 9 in
relation to a defendant who is an absconder; and
(b) the
defendant has ceased to be an absconder.
(2) If
the defendant alleges that –
(a) the
value of his benefit from any relevant criminal conduct in the period by
reference to which the determination in question was made (the “original
value”), or
(b) the
amount that might have been realised at the time the confiscation order was
made,
was less than the amount ordered to be paid under the confiscation
order, he may apply to the Court for it to consider his evidence.
(3) If,
having considered that evidence, the Court is satisfied that the
defendant’s allegation is correct, it –
(a) shall
make a fresh determination under paragraph (4) of Article 3; and
(b) may,
if it considers it just in all the circumstances, vary the amount to be
recovered under the confiscation order.
(4) For
the purposes of any determination under paragraph (4) of Article 3 by virtue of
this Article, the restriction in paragraph (6) of Article 5 (by reason of
sub-paragraph (b) of that paragraph of Article 5) on the Court’s power to
make assumptions shall not apply in relation to any of the defendant’s
benefit from relevant criminal conduct taken into account in determining the
original value.
(5) Where
the Court varies a confiscation order under this Article –
(a) it
may (subject to Article 11) substitute for any term of imprisonment imposed
under paragraph (1) of that Article a shorter term in respect of the lesser
amount substituted under sub-paragraph (b) of paragraph (3) of this Article by
way of variation of the confiscation order; and
(b) on
the application of a person who held property that was realisable property, it
may order compensation to be paid to the applicant if –
(i) it
is satisfied that the applicant has suffered loss as a result of the making of
the confiscation order; and
(ii) having
regard to all the circumstances of the case, the Court considers it to be
appropriate.
(6) The
amount of compensation to be paid under this Article shall be such as the Court
considers just in all the circumstances of the case.
(7) Provision
may be made by Rules of Court for –
(a) the
giving of notice of any application under this Article; and
(b) any
person appearing to the Court to be likely to be affected by any exercise of
its powers under this Article to be given a reasonable opportunity to make
representations to the Court.
(8) Compensation
payable under this Article shall be paid out of the annual income of the
States.
(9) No
application shall be entertained by the Court under this Article if it is made
after the end of the period of six years beginning with the date on which the
confiscation order was made.
PART III
MONEY LAUNDERING
ARTICLE
29
Restrictions on disclosure under this Part
(1) Information
that is disclosed to a police officer –
(a) under
Article 32;
(b) under
Article 33; or
(c) under
any Order made under Article 37,
shall not be disclosed by that police officer, or by any person who
obtains the information directly or indirectly from him, unless its disclosure
is permitted under Article 30 or Article 31.
(2) A
person who contravenes paragraph (1) shall be guilty of an offence and liable
to imprisonment for a term not exceeding six months or to a fine not exceeding
level 4 on the standard scale or to both.
(3) In
proceedings against a person for an offence under this Article, it shall be a
defence to prove that he took all reasonable steps and exercised due diligence
to avoid committing the offence.
(4) No
prosecution shall be instituted for an offence under this Article without the
consent of the Attorney General.
ARTICLE
30
Disclosure for purposes within the Island
(1) Article
29 does not prohibit the disclosure of information to a person in the Island
for the purposes of the investigation of crime in the Island or of criminal
proceedings in the Island.
(2) Article
29 does not prohibit the disclosure of information, for other purposes in the
Island, to –
(a) the
Attorney General;
(b) the
Financial Services Commission;
(c) a
police officer; or
(d) any
other person who is for the time being authorised in writing by the Attorney
General to obtain that information.
ARTICLE
31
Disclosure for purposes outside the Island
(1) Article
29 does not prohibit the disclosure of information if –
(a) the
Attorney General has consented to the disclosure and has not withdrawn that
consent; and
(b) the
information is disclosed –
(i) for
the purposes of the investigation of crime outside the Island or of criminal
proceedings outside the Island; or
(ii) to
a competent authority outside the Island.
(2) The
Attorney General may give his consent –
(a) generally
or specifically; and
(b) unconditionally
or subject to such conditions as he may stipulate.
(3) Without
prejudice to the generality of paragraph (2), the Attorney General’s
consent may be given in terms that permit the disclosure from time to time (as
the occasion requires) of such a class of information as is specified in the
consent to such a person or authority or class of persons or authorities as is
so specified.
(4) Without
prejudice to the generality of paragraph (2), a condition –
(a) may
be expressed generally or in respect of any specified information;
(b) may
provide that information may only be disclosed in specified circumstances or
for a specified purpose; or
(c) may
provide that any person or authority to whom information is disclosed shall not
himself or itself disclose it to any other person or body without the prior
consent of the Attorney General.
ARTICLE
32
Assisting another to retain the benefit of criminal conduct
(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 criminal conduct is facilitated
(whether by concealment, removal from the jurisdiction, transfer to nominees or
otherwise); or
(b) A’s
proceeds of criminal conduct –
(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 is or has been engaged
in criminal conduct or has benefited from criminal conduct, he is guilty of an
offence.
(2) In
this Article, references to any person’s proceeds of criminal conduct
include a reference to any property that in whole or in part directly or
indirectly represented in his hands his proceeds of criminal conduct.
(3) Where
a person discloses to a police officer a suspicion or belief that any property
is derived from or used in connection with criminal conduct, or discloses to a
police officer 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 disclosure
imposed by any statute or contract or otherwise, and shall not involve the
person making it in liability of any kind; and
(b) if
he does any act in contravention of paragraph (1) and the disclosure relates to
the arrangement concerned, he does not commit an offence under this Article if
–
(i) the
disclosure is made before he does the act concerned and the act is done with
the consent of a police officer; or
(ii) the
disclosure 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 criminal conduct; 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; and
(ii) there
is reasonable excuse for his failure to make the disclosure in accordance with
sub-paragraph (b) of paragraph (3).
(5) In
the case of a person who was in employment at the relevant time, paragraphs (3)
and (4) shall have effect in relation to disclosures, and intended disclosures,
to the appropriate person in accordance with the procedure established by his
employer for the making of such disclosures as they have effect in relation to
disclosures, and intended disclosures, to a police officer.
(6) A
person who is guilty of an offence under this Article shall be liable to
imprisonment for a term not exceeding fourteen years or to a fine or to both.
(7) No
prosecution shall be instituted for an offence under this Article without the
consent of the Attorney General.
ARTICLE
33
Acquisition, possession or use of proceeds of criminal conduct
(1) A
person is guilty of an offence if, knowing that any property is or in whole or
in part directly or indirectly represents another person’s proceeds of
criminal conduct, he acquires or uses that property or has possession of it.
(2) In
proceedings against a person for an offence under this Article, it is a defence
to prove that he acquired or used the property or had possession of it for
adequate consideration.
(3) For
the purposes of paragraph (2) –
(a) a
person acquires property for inadequate consideration if the value of the
payment is significantly less than the value of the property; and
(b) a
person uses or has possession of property for inadequate consideration if the
value of the payment is significantly less than the value of his possession or
use of it.
(4) The
provision for any person of services or goods that are of assistance to him in
criminal conduct shall not be treated as consideration for the purposes of
paragraph (2).
(5) Where
a person discloses to a police officer a suspicion or belief that any property
is or in whole or in part directly or indirectly represents another
person’s proceeds of criminal conduct, or discloses to a police officer
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 disclosure
imposed by any statute or contract or otherwise, and shall
not involve the person making it in liability of any kind; and
(b) if
he does any act in relation to that property in contravention of paragraph (1),
he does not commit an offence under this Article if –
(i) the
disclosure is made before he does the act concerned and the act is done with
the consent of a police officer; or
(ii) the
disclosure 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.
(6) For
the purposes of this Article, having possession of any property shall be taken
to be doing an act in relation to it.
(7) In
proceedings against a person for an offence under this Article, it is a defence
to prove –
(a) that
he intended to disclose to a police officer such a suspicion, belief or matter
as is mentioned in paragraph (5); and
(b) there
is reasonable excuse for his failure to make the disclosure in accordance with
sub-paragraph (b) of that paragraph.
(8) In
the case of a person who was in employment at the relevant time, paragraphs (5)
and (7) shall have effect in relation to the disclosures, and intended
disclosures, to the appropriate person in accordance with the procedure
established by his employer for the making of such disclosures as they have
effect in relation to disclosures, and intended disclosures, to a police
officer.
(9) A
person who is guilty of an offence under this Article is liable to imprisonment
for a term not exceeding fourteen years or to a fine or to both.
(10) No
person shall be guilty of an offence under this Article in respect of anything
done by him in the course of acting in connection with the enforcement, or
intended enforcement, of any provision of this Law or of any enactment relating
to criminal conduct or the proceeds of such conduct.
(11) No
prosecution shall be instituted for an offence under this Article without the
consent of the Attorney General.
ARTICLE
34
Concealing or transferring proceeds of criminal conduct
(1) A
person is guilty of an offence if he –
(a) conceals
or disguises any property that is or in whole or in part represents his
proceeds of criminal conduct; or
(b) converts
or transfers that property or removes it from the jurisdiction, for the purpose
of avoiding prosecution for an offence specified in the First Schedule or the
making or enforcement in his case of a confiscation order.
(2) A
person is guilty of an offence if, knowing or having reasonable grounds to
suspect that any property is or in whole or in part directly or indirectly
represents another’s proceeds of criminal conduct, he –
(a) conceals
or disguises that property; or
(b) converts
or transfers that property or removes it from the jurisdiction,
for the purpose of assisting any person to avoid prosecution for an
offence specified in the First Schedule or the making or enforcement in his
case of a confiscation order.
(3) In
paragraphs (1) and (2), the references to concealing or disguising any property
include references to concealing or disguising its nature, source, location,
disposition, movement or ownership or any rights with respect to it.
(4) A
person guilty of an offence under this Article is liable to imprisonment for a
term not exceeding fourteen years or to a fine or to both.
(5) No
prosecution shall be instituted for an offence under this Article without the
consent of the Attorney General.
ARTICLE
35
Tipping-off
(1) A
person is guilty of an offence if –
(a) he
knows or suspects that the Attorney General or any police officer is acting or
is proposing to act in connection with an investigation that is being or is
about to be conducted into money laundering (other than drug money laundering,
as defined in paragraph (7) of Article 18A of the Drug Trafficking Offences
(Jersey) Law 1988); and
(b) he
discloses to any other person information or any other matter that is likely to
prejudice that investigation or proposed investigation.
(2) A
person is guilty of an offence if –
(a) he
knows or suspects that a disclosure (“the disclosure”) has been
made to a police officer under Article 32 or 33; and
(b) he
discloses to any other person information or any other matter that is likely to
prejudice any investigation that might be conducted following the disclosure.
(3) A
person is guilty of an offence if –
(a) he
knows or suspects that a disclosure of a kind mentioned in paragraph (5) of
Article 32 or paragraph (8) of Article 33 (“the disclosure”) has
been made; and
(b) he
discloses to any person information or any other matter that is likely to
prejudice any investigation that might be conducted following the disclosure.
(4) Nothing
in paragraph (1), paragraph (2) or paragraph (3) makes it an offence for a
professional legal adviser to disclose any information or other matter –
(a) to
or to a representative of a client of his in connection with the giving by the
adviser of legal advice to the client; or
(b) to
any person –
(i) in
contemplation of or in connection with legal proceedings; and
(ii) for
the purpose of those proceedings.
(5) Paragraph
(4) does not apply in relation to any information or other matter that is
disclosed with a view to furthering a criminal purpose.
(6) In
proceedings against a person for an offence under paragraph (1), paragraph (2)
or paragraph (3) of this Article, it is a defence to prove that he did not know
or suspect that the disclosure was likely to be prejudicial in the way
mentioned in that paragraph.
(7) A
person who is guilty of an offence under this Article is liable to imprisonment
for a term not exceeding five years or to a fine or to both.
(8) No
person shall be guilty of an offence under this Article in respect of anything
done by him in the course of acting in connection with the enforcement, or
intended enforcement, of any provision of this Law or of any other enactment
relating to an offence specified in the First Schedule.
(9) No
prosecution shall be instituted for an offence under this Article without the
consent of the Attorney General.
ARTICLE
36
Financial services business
(1) For
the purposes of this Law, “financial services business” means a
business described in the Second Schedule.
(2) The
States may amend the Second Schedule by Regulations, by adding, deleting,
substituting or varying the description of any business.
ARTICLE
37
Procedures to forestall and prevent money laundering
(1) The
Committee shall, by Order, prescribe –
(a) identification
procedures;
(b) record-keeping
procedures;
(c) internal
reporting procedures; and
(d) training
procedures,
to be maintained, by persons who carry on financial services
business, for the purposes of forestalling and preventing money laundering.
(2) An
Order made under this Article –
(a) may
make different provision for different classes of business;
(b) may
specify supervisory authorities for the purposes of the Order;
(c) may
authorize or require any person who acquires information in the course of the
application of any procedure under any such Order, or in the course of carrying
out any function under any such Order, or under any other enactment to which
the Order refers, to disclose that information to a police officer or to the
Commission; and
(d) may
make such other provision as is reasonably necessary for or incidental to the
purposes of the Order.
(3) No
disclosure made to a police officer or to the Commission, under any Order made
under this Article, shall be treated as a breach of any restriction on
disclosure imposed by any statute or contract or otherwise, or involve the
person making it in liability of any kind.
(4) If
a person carrying on a financial services business contravenes or fails to
comply with a requirement that is contained in any Order made under this
Article and applies to that business, he shall be guilty of an offence.
(5) Where
an offence under paragraph (4) by a body corporate is proved –
(a) to
have been committed with the consent or connivance of; or
(b) to
be attributable to any neglect on the part of,
a director, manager, secretary or other similar officer of the body
corporate or any person who was purporting to act in any such capacity he, as
well as the body corporate, shall be guilty of that offence and shall be liable
to be proceeded against and punished accordingly.
(6) Where
an offence under paragraph (4) by an unincorporated association is proved
–
(a) to
have been committed with the consent or connivance of; or
(b) to
be attributable to any neglect on the part of,
a person concerned in the management or control of the association,
he, as well as the association, shall be guilty of that offence and shall be
liable to be proceeded against and punished accordingly.
(7) Any
person who is guilty of an offence under this Article is liable –
(a) if
the person is a body corporate, to a fine; or
(b) if
the person is not a body corporate, to imprisonment for a term not exceeding
two years or to a fine or to both.
(8) In
determining whether a person has complied with a requirement that is contained
in any Order made under this Article, a court –
(a) shall
take account of any relevant guidance that applies to him and is issued,
adopted or approved by the Commission; or
(b) if
no such guidance applies to him, may take account of any other relevant
guidance issued by a body that regulates or is representative of any financial
services business carried on by that person.
(9) Guidance
is not relevant for the purposes of paragraph (8) if it is inconsistent with
any other provision of this Law.
(10) In
proceedings against a person for an offence under this Article, it is a defence
to prove that he took all reasonable steps and exercised due diligence to avoid
committing the offence.
PART IV
EXTERNAL
CONFISCATION ORDERS
ARTICLE 38
Recognition 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 that, subject to such modifications as may be specified, this Law
shall apply to external confiscation orders and to proceedings that have been
or are to be instituted in the designated country or territory and may result
in an external confiscation order being made there;
(b) make
provision in respect of the following matters –
(i) the
taking of action in the designated country or territory with a view to
satisfying a confiscation order;
(ii) evidence
or proof of any matter for the purposes of this Article and Article 39; and
(iii) such
incidental, consequential and transitional provisions as it thinks fit for
those purposes; and
(c) without
prejudice to the generality of this paragraph, direct that in such
circumstances as may be specified, proceeds that arise out of action taken in
the designated country or territory with a view to satisfying a confiscation
order shall be treated as reducing the amount payable under the order to such
extent as may be specified.
(2) Regulations
under this Article may make different provision for different cases or classes
of case.
(3) The
power to make Regulations under this Article includes a power to modify this
Law in such a way as to confer power on a person to exercise a discretion.
ARTICLE
39
Registration of external confiscation orders
(1) On
the application of the Attorney General, the Court may register an external
confiscation order made in a designated country or territory if –
(a) the
Court is satisfied that at the time of registration the order is in force and
is 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.
(2) In
paragraph (1), “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.
(3) The
Court shall cancel the registration of an external confiscation order if it
appears to the Court that the order has been satisfied by the payment of the
amount due under it or by the person against whom it was made serving
imprisonment in default of payment or by any other means.
PART V
MISCELLANEOUS
ARTICLE
40
Investigations relating to proceeds of criminal conduct
(1) A
police officer may, for the purposes of an investigation into whether any
person has benefited from any criminal conduct or into the extent or
whereabouts of the proceeds of any criminal conduct, 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 (4) 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 relates
shall –
(a) produce
it to a police officer for him to take away; or
(b) give
a police officer access to it and, if so required by the police officer, permit
him to make copies of it,
within such period as the order may specify.
(3) The
period to be specified in an order under paragraph (2) shall be seven days
unless it appears to the Bailiff that a longer or shorter period would be
appropriate in the particular circumstances of the application.
(4) The
conditions to which paragraph (2) refers are –
(a) that
there are reasonable grounds for suspecting that a specified person has
benefited from any criminal conduct;
(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 purposes of which the application is
made; and
(ii) does
not consist of or include items subject to legal privilege; and
(c) that
there are reasonable grounds for believing that it is in the public interest
that the material should be produced or that access to it should be given,
having regard –
(i) to
the benefit likely to accrue to the investigation if the material is obtained;
and
(ii) to
the circumstances under which the person in possession of the material holds
it.
(5) Where
the Bailiff makes an order under paragraph (2) giving a police officer access
to material on any premises the Bailiff may, on the application of a police
officer, order any person who appears to the Bailiff to be entitled to grant
entry to the premises to allow a police officer to enter the premises to obtain
access to the material.
(6) An
application under paragraph (1) or paragraph (5) may be made ex parte to the Bailiff in chambers.
(7) An
application for the discharge or variation of an order under this Article may
be made to the Bailiff in chambers, and the Bailiff may rule upon the
application or may, at his discretion, refer it to the Court for adjudication.
(8) Where
the material to which an application under paragraph (1) relates consists of
information contained in a computer –
(a) an
order under paragraph (2) to produce material to a police officer for him to
take away 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 paragraph (2) giving a police officer access to material shall have
effect as an order to give access to the material in a form in which it is
visible and legible.
(9) An
order under paragraph (2) –
(a) shall
not confer any right to production of, or access to, items subject to legal
privilege;
(b) shall
have effect notwithstanding any obligation as to secrecy or other restriction
upon the disclosure of information imposed by any statute or contract or
otherwise; and
(c) may
be made in relation to material in the possession of a States department.
(10) No
application may be made under this Article without the consent of the Attorney
General or a Crown Advocate.
(11) Provision
may be made by Rules of Court for the manner in which applications may be made
under this Article.
(12) A
person who, without reasonable excuse –
(a) fails
to comply with an order under this Article; or
(b) obstructs
a police officer who is acting or attempting to act in pursuance of such an
order,
is guilty of an offence and liable to imprisonment for a term not
exceeding two years or to a fine or to both.
(13) If
a person –
(a) knows
or suspects that an investigation to which paragraph (1) refers is being or is
likely to be carried out; and
(b) falsifies,
conceals, destroys or otherwise disposes of, or causes or permits the
falsification, concealment, destruction or disposal of material that he knows
or suspects is or would be relevant to such an investigation,
he shall be guilty of an offence and liable to imprisonment for
seven years or to a fine or to both, unless he proves that his act or omission
was inadvertent.
ARTICLE
41
Authority for search
(1) A
police officer may, for the purposes of an investigation into whether any
person has benefited from any criminal conduct or into the extent or
whereabouts of the proceeds of any criminal conduct, apply to the Bailiff for a
warrant under this Article in relation to specified premises.
(2) On
such an application, the Bailiff may issue a warrant authorising a police
officer to enter and search the premises if the Bailiff is satisfied –
(a) that
an order made under Article 40 in relation to material on the premises has not
been complied with;
(b) that
the conditions in paragraph (3) are fulfilled; or
(c) that
the conditions in paragraph (4) are fulfilled.
(3) The
conditions to which sub-paragraph (b) of paragraph (2) refers are –
(a) that
there are reasonable grounds for suspecting that a specified person has
benefited from criminal conduct;
(b) that
the conditions in sub-paragraphs (b) and (c) of paragraph (4) of Article 40 are
fulfilled in relation to any material on the premises; and
(c) that
it would not be appropriate to make an order under Article 40 in relation to
the material because –
(i) it
is not practicable to communicate with any person entitled to produce the
material;
(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 purposes of which the application is made might be
seriously prejudiced unless a police officer could secure immediate access to
the material.
(4) The
conditions to which sub-paragraph (c) of paragraph (2) refers are –
(a) that
there are reasonable grounds for suspecting that a specified person has
benefited from any criminal conduct;
(b) that
there are reasonable grounds for suspecting that there is on the premises any
such material relating –
(i) to
the specified person; or
(ii) to
the question whether that person has benefited from any criminal conduct or to
any question as to the extent or whereabouts of the proceeds of any criminal
conduct,
as is likely to be of substantial value (whether by itself or
together with other material) to the investigation for the purposes 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;
(ii) entry
to the premises will not be granted unless a warrant is produced; or
(iii) the
investigation for the purposes 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 privilege, that is likely to be of substantial value (whether
by itself or together with other material) to the investigation for the
purposes of which the warrant was issued.
(6) No
application may be made under this Article without the consent of the Attorney
General or a Crown Advocate.
(7) A
person who, without reasonable excuse, obstructs a police officer who is
executing or attempting to execute a warrant issued under this Article is
guilty of an offence and liable to imprisonment for a term not exceeding two
years or to a fine or to both.
ARTICLE
42
Criminal liability of accessories
A person who aids, abets, counsels or procures the commission of an
offence under this Law shall be liable to be dealt with, tried and punished as
a principal offender.
ARTICLE
43
Orders
(1) The
Committee shall consult the Commission before making any Order under this Law.
(2) The
Subordinate Legislation (Jersey) Law 1960 shall
apply to Orders made under this Law.
ARTICLE
44
Rules of Court
The power of the Superior Number of the Royal Court to make Rules
of Court under the Royal Court (Jersey) Law 1948 includes
a power to make Rules for the purposes of this Law and, in particular, for the
purposes of paragraph (11) of Article 7, paragraphs (4) and (7) of Article 8,
paragraph (3) of Article 18, paragraph (5) of Article 21, paragraph (4) of
Article 26, paragraph (5) of Article 27, paragraph (7) of Article 28 and
paragraph (11) of Article 40.
ARTICLE
45
Short title and commencement
This Law may be cited as the Proceeds of Crime (Jersey) Law 1999
and shall come into force on such day as the States may by Act appoint and
different days may be appointed for different provisions or different purposes
of this Law.
G.H.C. COPPOCK
Greffier of the States.
FIRST SCHEDULE
(Articles 1(1), 3(1), (6), (9), 5(2)(a), (5)(a)(ii), (5)(b), 9(1),
(3), 12(1), 15(1)(b), (c)(i), (2)(b), (3), 25(1), 34(1), (2) and 35(8))
Offences for which confiscation orders may be made
1. Any
offence in the Island for which a person is liable on conviction to
imprisonment for a term of one or more years (whether or not he is also liable
to any other penalty), but not being –
(a) a
drug trafficking offence; or
(b) an
offence under Article 8, Article 9 or Article 10 of the Prevention of Terrorism
(Jersey) Law 1996.
SECOND SCHEDULE
(Article 36(1) and (2))
Financial services business
1. Any
deposit-taking business, as defined in Article 1(1) of the Banking Business
(Jersey) Law 1991.
2. Any
insurance business to which Article 4 of the Insurance Business (Jersey) Law
1996 applies.
3. The
business of being a functionary of a collective investment fund, as defined in
Article 1(1) of the Collective Investment Funds (Jersey) Law 1988.
4. Any
investment business, as defined in Article 1(1) of the Investment Business
(Jersey) Law 1998.
5. The
business of providing trusteeship services (not being services as a trustee of
an occupational pension scheme).
6. The
business of company formation.
7. The
business of company administration.
8. The
business of a bureau de change.
9. The
business of providing cheque cashing services.
10. The
business of transmitting or receiving funds by wire or other electronic means.
11. The
business of engaging in any of the following activities within the meaning of
the Annex to the Second Banking Coordination Directive (No. 89/646/EEC) (not
being a business specified in any of paragraphs 1 to 10 (inclusive)) –
(a) the
acceptance of deposits and other repayable funds from the public;
(b) lending;
(c) financial
leasing;
(d) money
transmission services;
(e) the
issuing and administering means of payment (such as credit cards,
travellers’ cheques and bankers’ drafts);
(f) guarantees
and commitments;
(g) trading
for one’s own account or for the account of customers in –
(i) money
market instruments (such as cheques, bills and CDs);
(ii) foreign
exchange;
(iii) financial
futures and options;
(iv) exchange
and interest rate instruments; or
(v) transferable
securities;
(h) participation
in securities issues and the provision of services related to such issues;
(i) advice
to undertakings on capital structure, industrial strategy and related questions
and advice and services relating to mergers and the purchase of undertakings;
(j) money
broking;
(k) portfolio
management and advice;
(l) the
safekeeping and administration of securities;
(m) credit
reference services; and
(n) safe
custody services.