Proceeds
of Crime (Amendment No. 5) (Jersey)
Law 2022
Adopted
by the States 10th February 2022
Sanctioned
by Order of Her Majesty in Council 13th April 2022
Registered by the Royal Court 14th April 2022
Coming into force 21st April 2022
THE STATES, subject to the sanction of Her Most
Excellent Majesty in Council, have adopted the following Law –
1 Amendment of the Proceeds of Crime (Jersey) Law 1999
This Law amends the Proceeds of
Crime (Jersey) Law 1999.
2 Article 1 (interpretation) amended
In Article 1 –
(a) in paragraph (1) –
(i) in the definition
“external confiscation order” –
(C) after sub-paragraph (c)
there is inserted –
“(d) for the purpose of
recovering property used or intended to be used in such conduct or in predicate
conduct outside Jersey, or property of equivalent value to such property;”,
(ii) the following
definitions are inserted in alphabetical sequence –
“ “instrumentalities”
means property used in or intended to be used in criminal conduct;
“instrumentalities
forfeiture order” means an order made under Article 28B (including any
order under that Article that is made by virtue of Article 9);
“predicate
conduct” means the conduct alleged by the Attorney General to be the criminal
conduct which makes property criminal property, where the Attorney General is
alleging an offence under Article 30 or 31 or an attempt or conspiracy to
commit such an offence;”;
(b) in paragraph (4) –
(i) in sub-paragraph (b),
after “confiscation order” there is inserted “or an instrumentalities
forfeiture order”,
(ii) for sub-paragraph (c)
there is substituted –
“(c) if a confiscation order or an
instrumentalities forfeiture order is made against the defendant, when all the
orders are satisfied.”;
(c) in paragraph (5)(a)
and (b), after “confiscation order” there is inserted “or, in the case of
Article 9, an instrumentalities forfeiture order”;
(d) after paragraph (6)
there is inserted –
“(6A) An application under Article 28B(6)
is concluded –
(a) if the Court decides not
to make or vary the instrumentalities forfeiture order, when it makes that
decision; or
(b) if the Court makes or
varies the instrumentalities forfeiture order as a result of the application,
when the order is satisfied.”;
(e) in paragraph (7),
after “confiscation order” there is inserted “or an instrumentalities
forfeiture order”.
3 Article 2 (meanings of expressions
relating to realisable property) amended
In Article 2 –
(a) after paragraph (1)
there is inserted –
“(1A) Where
the Attorney General makes or intends to make an application for an
instrumentalities forfeiture order under Article 28B, but only for the
purposes of the proceedings as they relate to the instrumentalities forfeiture
order, “realisable property” also includes –
(a) before any
instrumentalities forfeiture order is made, any property suspected to be –
(i) property used in or
intended to be used in the relevant offence or in predicate conduct that
occurred in Jersey, or
(ii) property into which such
property has been converted (whether in a single, in multiple or in a series of
consecutive transactions); or
(b) after any
instrumentalities forfeiture order has been made, any property that has been
found by the Court to be –
(i) property used in or
intended to be used in the relevant offence or in predicate conduct that
occurred in Jersey, or
(ii) property into which such
property has been converted (whether in a single, in multiple or in a series of
consecutive transactions).”;
(b) in paragraph (3),
after “For the purposes of Part 2” there is inserted “and subject to
Article 28B(5)(b) where it applies”.
4 Part 2 (confiscation orders) amended
In Part 2 in the
Part heading, after “Confiscation” there is inserted “and Instrumentalities Forfeiture
Orders”.
5 Article 3 (confiscation orders) amended
In Article 3(5)(a)(ii),
after “order” there is inserted “(except an instrumentalities forfeiture order under Article 28B)”.
6 Article 4 (amount to be recovered under
confiscation order) amended
In Article 4(1), after “shall” there is inserted “, except
where Article 28B(5)(b)(i) applies,”.
7 Article 5 (confiscation order relating
to a course of relevant criminal conduct) amended
In Article 5(6)(b), after
“confiscation order” there is inserted “or instrumentalities forfeiture order”.
8 Article 6 (postponed determinations)
amended
In Article 6 –
(a) in paragraph (1) –
(i) after “Where the Court
is acting under Article 3” there is inserted “or 28B”,
(ii) after sub-paragraph (b)
there is inserted –
“(c) making any determinations under
Article 28B(1), (3), (4), (5) or (9),”;
(b) in paragraph (3), for
“there are exceptional circumstances” there is substituted “it is in the interests
of justice to do so”;
(c) in paragraph (4)(a)
“either or both of” is deleted;
(d) in paragraph (8), after “make a confiscation order
under Article 3” there is inserted “or exercise any of the powers in
Article 28B”.
9 Article 7 (statements relating to criminal
offences) amended
In Article 7 –
(a) in paragraph (1)(a),
after clause (ii) there is inserted –
“(iii) of making any of the
determinations under Article 28B(1), (3), (4), (5) or (9); and”;
(b) in paragraph (8), after
sub-paragraph (b) there is inserted –
“(c) making any of the
determinations under Article 28B(1), (3), (4), (5) or (9),”;
(c) in paragraph (9), after
sub-paragraph (b) there is inserted –
“(c) any allegation that
property was used in or intended to be used in an offence or in predicate
conduct that occurred in Jersey, or is property into
which such property has been converted.”;
(d) in paragraph (10)(a),
after “the confiscation order” there is inserted “or instrumentalities
forfeiture order”;
(e) for paragraph (12)
there is substituted –
“(12) No
acceptance by the defendant under this Article that –
(a) the defendant has
benefited from an offence;
(b) any property was obtained
by the defendant as a result of or in connection with
an offence; or
(c) any property was used in
or intended to be used in an offence or in predicate conduct that occurred in Jersey,
or is property into which such property has been converted,
is admissible in evidence in any proceedings for an offence.”.
10 Article 8 (provision of information by
defendant) amended
In Article 8(1)(a),
after “under Article 3” there is inserted “or 28B”.
11 Article 9 (powers of the Court where
defendant has died or absconded) amended
In Article 9 –
(a) in paragraph (2),
after “to make a confiscation order” there is inserted “or an instrumentalities
forfeiture order”;
(b) in paragraph (4),
after “to make a confiscation order” there is inserted “or an instrumentalities
forfeiture order”;
(c) in paragraph (6)(b) and (c), after “a confiscation order” there is inserted
“or an instrumentalities forfeiture order”.
12 Article 10 (effect of confiscation order
on sentencing of absconder) amended
In Article 10 –
(a) in the Article heading
after “confiscation order” there is inserted “or instrumentalities forfeiture
order”;
(b) in paragraph (1) –
(i) after “made a
confiscation order” there is inserted “or an instrumentalities forfeiture
order”,
(ii) in sub-paragraph (a),
for “take account of the order” there is substituted “take account of the
orders”;
(c) for paragraph (2)
there is substituted –
“(2) Where
the Court has made a confiscation order or an instrumentalities forfeiture
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, neither Article 3(1) nor 28B(1) apply so far as the
defendant’s appearance is in respect of that offence or those offences.”.
13 Article 11 (enforcement of confiscation
orders) amended
In Article 11 –
(a) in the Article heading
after “confiscation orders” there is inserted “and instrumentalities forfeiture
orders”;
(b) in paragraph (1), after
“under Article 3” there is inserted “or 28B”;
(c) after paragraph (1)
there is inserted –
“(1A) If
orders are made under both Articles 3 and 28B in the same proceedings, a
separate term of imprisonment must be specified in respect of each order.”;
(d) in paragraph (3)(b)
after “the confiscation order” there is inserted “or instrumentalities
forfeiture order”;
(e) after paragraph (5)
there is inserted –
“(5A) If
the defendant is required to serve terms of imprisonment imposed under
paragraph (1) in relation to both a confiscation order and an
instrumentalities forfeiture order at the same time, the default terms of
imprisonment must be served concurrently with each other.”;
(f) in paragraph (6),
after “confiscation orders” in both places where it appears there is inserted “and
instrumentalities forfeiture orders”;
(g) in paragraph (7),
after “confiscation order” in both places where it occurs there is inserted “or
instrumentalities forfeiture order”.
14 Article 12 (reconsideration of case where
Court has not considered a confiscation order) amended
In Article 12(6) –
(a) “the
amount of” is deleted;
(b) after
paragraph (a) there is inserted –
“(aa) any order made under Article 28B(5)(b);
and”.
15 Article 15 (cases in which saisies
judiciaires may be
made) amended
In Article 15 –
(a) in paragraph (1)(a),
after “confiscation order” there is inserted “or an instrumentalities
forfeiture order”;
(b) in paragraph (1)(b) –
(i) for “14 and 19” there is
substituted “14, 19 and 28B”,
(ii) in clause (ii)
after sub-clause (A) there is inserted –
“(AA) in the case of an application
under Article 28B, that the Court may make or vary an instrumentalities
forfeiture order, or”;
(c) in paragraph (1A),
after sub-paragraph (b), there is inserted –
“(c) the Court is satisfied that there is
reasonable cause to believe that property was used in or intended to be used in
the alleged criminal conduct or in any predicate conduct that occurred in Jersey.”.
16 Article 17 (realisation of property)
amended
For Article 17(1)(a)
there is substituted –
“(a) in proceedings that have
been instituted for an offence, a confiscation order or an instrumentalities
forfeiture order is made or an order is varied under Article 14, 19 or 28B(6);”.
17 Article 18 (interest on sums unpaid under
confiscation orders) amended
In Article 18 –
(a) in the Article heading,
after “confiscation orders” there is inserted “or instrumentalities forfeiture
orders”;
(b) in paragraph (1),
after “confiscation order” in both places where it occurs there is inserted “or
instrumentalities forfeiture order”.
18 Article 19 (increase in realisable
property) amended
In Article 19(4),
after “on that application” there is inserted “and subject to Article 28B(7)”.
19 Article 20 (application of proceeds of realisation
and other sums) amended
In Article 20(1),
(2) and (3), after “confiscation order” there is inserted “or instrumentalities
forfeiture order”.
20 Article 21 (variation of confiscation
order where realisable property is inadequate) amended
In Article 21 –
(a) in the Article heading,
after “confiscation order” there is inserted “or instrumentalities forfeiture
order”;
(b) in paragraph (1),
after “confiscation order” there is inserted “or an instrumentalities
forfeiture order”.
21 Article 22 (bankruptcy of defendant)
amended
In Article 22(2),
for “19 and 20” there is substituted “19, 20 and 28B”.
22 Article 24 (Criminal Offences Confiscations
Fund) amended
In Article 24 –
(a) in paragraph (2)(a),
after “confiscation order” there is inserted “or instrumentalities forfeiture
order”;
(b) in paragraph (8),
after “proceeds of criminal conduct” there is inserted “or instrumentalities or
their value”.
23 Article 26 (cancellation of confiscation
order, and compensation, where absconder acquitted) amended
In Article 26 –
(a) in the Article heading
after “confiscation order” there is inserted “or instrumentalities forfeiture
order”;
(b) in paragraphs (1),
(2) and (6) after “confiscation order” wherever it occurs, there is inserted
“or instrumentalities forfeiture order”.
24 Article 27 (cancellation of confiscation
order, and compensation, where absconder returns) amended
In Article 27 –
(a) in the Article heading, after
“confiscation order” there is inserted “or instrumentalities forfeiture order”;
(b) in paragraphs (1),
(2), (3) and (7), after “confiscation order” wherever it occurs there is
inserted “or instrumentalities forfeiture order”.
25 Article 28 (variation of confiscation
order, and compensation, where absconder returns) amended
In Article 28 –
(a) in the Article heading,
after “confiscation order” there is inserted “or instrumentalities forfeiture
order”;
(b) in paragraph (1)(a),
after “confiscation order” there is inserted “or instrumentalities forfeiture
order”;
(c) in paragraph (2) –
(i) after “confiscation
order” in both places where it occurs there is inserted “or instrumentalities
forfeiture order”,
(ii) after sub-paragraph (b)
there is inserted –
“(c) the value of property
described under Article 28B(3),”;
(d) in paragraph (3) –
(i) in sub-paragraph (a),
after “Article 3(4)” there is inserted “or 28B(3)”,
(ii) in sub-paragraph (b),
after “confiscation order” there is inserted “or instrumentalities forfeiture
order”;
(e) in paragraph (4),
after “Article 3(4)” there is inserted “or 28B(3)”,
(f) in paragraph (5), after
“confiscation order” wherever it occurs there is inserted “or instrumentalities
forfeiture order”;
(g) in paragraph (9),
after “confiscation order” there is inserted “or instrumentalities forfeiture
order”.
26 Article 28A (enforcement of confiscation
orders in a country or territory outside Jersey) amended
In Article 28A –
(a) in the Article heading
after “confiscation orders” there is inserted “or instrumentalities forfeiture
orders”;
(b) in paragraph (1)(a)
after “confiscation order” there is inserted “or instrumentalities forfeiture
order”;
(c) in
paragraph (1)(b) –
(i) after “confiscation order” there is
inserted “or instrumentalities forfeiture order,
(ii) after the “amount payable” there is
inserted “or the value of property forfeited”.
27 Article 28B (instrumentalities forfeiture
orders) inserted
After Article 28A
there is inserted –
“28B Instrumentalities
forfeiture orders
(1) Where
a defendant appears before the Court to be sentenced in respect of an offence specified
in Schedule 1, the Attorney General may apply for
and the Court may make an instrumentalities forfeiture order.
(2) This
Article applies only to offences committed after it comes into force.
(3) An
instrumentalities forfeiture order is an order for the forfeiture of –
(a) property used in or
intended to be used in the offence for which the defendant has been convicted;
(b) where the offence is
one under Article 30 or 31 or an attempt or conspiracy to commit such an
offence, property used in or intended to be used in any predicate conduct that
occurred in Jersey;
(c) property into which
property described in sub-paragraph (a) or (b) has been converted (whether
in a single, in multiple or in a series of consecutive transactions); or
(d) a sum of money of
equivalent value to the value of the property described in sub-paragraph (a)
or (b) at the time the offence or conduct, as the case may be,
occurred, adjusted to take account of subsequent changes in the value of
money,
if, or to the extent that, any order of a kind described in sub-paragraphs (a)
to (d) would not be disproportionate.
(4) When
considering whether the proposed order under paragraph (3) would be
disproportionate, without limiting the factors that the Court may consider, the
Court must take into account –
(a) the defendant’s means;
(b) any gift caught by this
Part; and
(c) any civil proceedings
instituted or intended to be instituted against the defendant by a victim of
the offence or the defendant’s predicate conduct in respect of loss or damage
sustained in connection with the offence or conduct.
(5) The
Court may proceed under both Article 3 (including by applying Article 5)
and this Article in respect of the same offence but, where it is considering
doing so, the following rules apply –
(a) the Court must proceed
under this Article before proceeding under Article 3;
(b) if the Court makes an
instrumentalities forfeiture order, it must only proceed under Article 3
(whether by reason of Article 3(1) or Articles 9, 12, 13 or 14) if,
or to the extent that –
(i) an order under Article 3
would not lead to the same property (or its value) being taken
into account in calculating the amount in respect of which the
confiscation order made as was taken into account in calculating the value of
the property in respect of which the
instrumentalities forfeiture order is made, and
(ii) the making of a
confiscation order in addition to an instrumentalities forfeiture order would
not be disproportionate.
(a) by reason of paragraph (4)(a), the
Court has decided that it will not make an instrumentalities forfeiture order
or has decided to reduce the amount of the instrumentalities
forfeiture order it would otherwise have made; and
(b) the Attorney General subsequently becomes
aware that the defendant’s ability to pay an instrumentalities forfeiture order
has increased (whether by means of the discovery of or subsequent acquisition
of property),
the Attorney General may apply to the Court for the decision under
paragraphs (1) and (3) to be reconsidered.
(7) If
the Attorney General makes an application under paragraph (6) at the same
time as proceeding under Article 19, the Court
(a) must first consider the application under
paragraph (6); and
(b) may only make an order under Article 19
if to do so would not be disproportionate.
(8) Where
the Court makes an instrumentalities forfeiture order –
(a) it must take account of
the order before –
(b) subject to sub-paragraph (a),
it must leave the order out of account in determining the appropriate sentence
or other manner of dealing with the defendant in the proceedings.
(9) Where
the Court makes an instrumentalities forfeiture order (whether with or without
a confiscation order) the Court, instead of making an order under the Criminal Justice
(Compensation Orders) (Jersey) Law 1994, may make such
orders as it considers appropriate for payment of the value of property due
under the instrumentalities forfeiture order and any confiscation order to
compensate victims of the offence or the predicate conduct for any loss or
damage caused by that offence or conduct.
(10) No
enactment restricting the power of a court dealing with an offender in a
particular way from dealing with the offender also in any other way restricts, by
reason only of the making of an order under this Article, the Court from
dealing with an offender in any way that the Court considers appropriate in
respect of an offence described in paragraph (1).
(11) The
standard of proof on any contested issue of fact that arises in the course of
considering an application for an instrumentalities forfeiture order is that which
is applicable in civil proceedings.”.
28 Article 29 (criminal property) amended
In Article 29(1)(a),
after “obtained,” there is inserted “in whole or in part,”.
29 Article 30 (offences of dealing with
criminal property) amended
In Article 30(5),
after “proceeds of criminal conduct” there is inserted “or instrumentalities”.
30 Article 31 (concealment etc. of criminal
property) amended
In Article 31 –
(a) in paragraph (4),
after “proceeds of criminal conduct” there is inserted “or instrumentalities”;
(b) in paragraph (5),
after “the proceeds of drug trafficking” there is inserted “or
instrumentalities of drug trafficking”.
31 Article 32 (protection for disclosures,
and defence of intended disclosure) amended
In Article 32 –
(a) in paragraph (1)(a)
after “proceeds of criminal conduct” there is inserted “or property used in or
intended to be used in criminal conduct”;
(b) in paragraph (7)(a)
after “proceeds of criminal conduct” there is inserted “or property used in or
intended to be used in criminal conduct”.
32 Article 34D (failure in a financial
institution to report to designated police officer, designated customs officer or nominated officer)
amended
In Article 34D(2), after
sub-paragraph (b) there is inserted –
“(c) any property has been, is
being or is intended to be used in criminal conduct.”.
33 Article 35 (tipping off and interference
with material) amended
In Article 35(8)
after “proceeds of criminal conduct” there is inserted “or instrumentalities”.
34 Article 40 (investigations relating to
proceeds of criminal conduct) amended
In Article 40 –
(a) in the Article heading,
after “criminal conduct” there is inserted “or instrumentalities”;
(b) for paragraph (1)
there is substituted –
“(1) A
police officer may apply to the Bailiff for an order under paragraph (2)
in relation to particular material or material of a particular description for
the purposes of an investigation into –
(a) whether any person has
benefited from any criminal conduct, or whether any property has been, is being
or is intended to be used in criminal conduct; or
(b) the extent or whereabouts
of the proceeds of any criminal conduct or instrumentalities.”;
(c) in paragraph (4)(a), after “criminal conduct” there is inserted
“or has used, is using or intends to use property in criminal conduct”.
35 Article 41 (authority for search) amended
In Article 41 –
(a) for paragraph (1)
there is substituted –
“(1) A
police officer may apply to the Bailiff for a warrant under this Article in
relation to specified premises for the purposes of an investigation into –
(a) whether any person has
benefited from any criminal conduct, or whether any property has been, is being
or is intended to be used in criminal conduct; or
(b) the extent or whereabouts
of the proceeds of any criminal conduct or instrumentalities.”;
(b) in paragraph (3)(a) after “criminal conduct” there is inserted
“or has used, is using or intends to use property in criminal conduct”;
(c) for paragraph (4)(b)(ii) there is substituted –
“(ii) to the question whether a
person has benefited from any criminal conduct or has used, is using or intends
to use property in criminal conduct or to any question as to the extent or
whereabouts of the proceeds of any criminal conduct or instrumentalities,”.
36 Schedule 1 (offences for which
confiscation orders may be made) amended
In Schedule 1 –
(a) in the Schedule
subheading, after “Confiscation Orders” there is inserted “or Instrumentalities
Forfeiture Orders”;
(b) after “25(1),” there is
inserted “28B(1)”.
37 Schedule 3 (financial information and monitoring
orders) amended
In paragraph 5(2)(b)
of Part 2 of Schedule 3, after “confiscation order” there is inserted
“or an instrumentalities
forfeiture order”.
38 Citation and commencement
This Law may be cited as
the Proceeds of Crime (Amendment No. 5) (Jersey) Law 2022 and comes into
force 7 days after it is registered.