Proceeds of Crime (Cash
Seizure) (Jersey) Law 2008
A LAW to provide for the search for,
and the seizure, detention and forfeiture of, cash that is used in, or intended to
be used in, or obtained in the course of, from the proceeds of, or in
connection with, the commission of an offence against a
law of a country or territory, including Jersey, and to amend the provisions of
the Proceeds of Crime (Jersey) Law 1999 regarding the making of confiscation
orders and saisies judiciaires.
Adopted by the
States 22nd November 2007
Sanctioned by
Order of Her Majesty in Council 12th February 2008
Registered by the
Royal Court 22nd
February 2008
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
1 Interpretation
(1) In
this Law, unless the context otherwise requires –
“authorized officer” means any police
officer, customs officer or immigration officer;
“cash” means –
(a) bearer-negotiable
instruments including monetary instruments in bearer form (such as travellers
cheques);
(b) negotiable
instruments (including cheques, promissory notes and money orders) that are –
(i) in
bearer form,
(ii) endorsed
without restriction,
(iii) made
out to a fictitious payee, or
(iv) otherwise
in such form that title to them passes upon delivery;
(c) incomplete
instruments (including cheques, promissory notes and money orders) signed, but
with the payee's name omitted;
(d) currency
(banknotes and coins that are in circulation, whether in Jersey or elsewhere,
as a medium of exchange);
(e) a
monetary instrument of a type prescribed under paragraph (2);
(f) a
forged or counterfeit version of any instrument or currency mentioned in
sub-paragraph (a) to (e) of this definition;
“cash detention order” means an order made
under Article 6(2);
“customs officer” means the Agent of the
Impôts and any other officer appointed pursuant to Article 4 of the Customs and Excise (Jersey) Law 1999[1];
“forfeiture order” means an order made under
Article 9(2);
“immigration officer” means a person
appointed as an immigration officer under paragraph 1 of Schedule 2
to the Immigration Act 1971 of the United Kingdom, as extended to Jersey
by the Immigration (Jersey) Order 1993[2];
“Minister” means the Minister for Home
Affairs;
“property” means all property whether
movable or immovable, vested or contingent and whether situated in Jersey or
elsewhere;
“tainted cash” has the meaning assigned to
it by Article 2;
“unlawful conduct” means the commission of –
(a) an offence against a law of Jersey; or
(b) an offence against a law of a country or
territory outside Jersey, that, if it had been committed in Jersey, would have
been an offence against a law of Jersey;
“vehicle” includes vessels, aircraft and
hovercraft.
(2) The
Minister may, by Order, prescribe types of monetary instruments for the
purposes of the definition of “cash” in paragraph (1).
(3) For
the purposes of Articles 5 and 7, if any part of a period of 48 hours to
which one of those Articles relates includes part or all of a day that is –
(a) a Saturday or a Sunday;
(b) Christmas Day or Good Friday; or
(c) a bank holiday under the Public Holidays and
Bank Holidays (Jersey) Law 1951[3],
the period shall be calculated
without taking into account so much of the period as occurs during such a day.
2 Meaning of “tainted cash”
(1) Subject
to this Article, in this Law –
“tainted cash” is
cash that is tainted property;
“tainted property” is
property that is –
(a) used
in, or intended to be used in, unlawful conduct; or
(b) obtained
in the course of, from the proceeds of, or in connection with, unlawful
conduct.
(2) Property
that is held by a person to whom it was disposed after it became tainted
property remains tainted property if it was disposed of to the person by –
(a) a
person who –
(i) used
the property in, or intended the property to be used in, unlawful conduct, or
(ii) obtained
the property in the course of, from the proceeds of, or in connection with,
unlawful conduct; or
(b) a
person to whom the property was, after it became tainted property, disposed by
a person to whom sub-paragraph (a) or this sub-paragraph applies.
(3) If
a person enters into a transaction by which –
(a) the
person disposes of tainted property (including property which is tainted
property by virtue of this paragraph or paragraph (4) or (5)); and
(b) the
person obtains other property in place of it,
the other property shall be
tainted property.
(4) If
a person’s tainted property is mixed with other property (whether his or
her property or another’s), the portion of the mixed property which is
attributable to the tainted property shall be tainted property.
(5) Without
limiting the generality of the expression “mixed with other
property”, for the purposes of paragraph (4), tainted property shall
be mixed with other property if it is used –
(a) to increase funds held in a bank account;
(b) in part payment for the acquisition of an
asset;
(c) for the restoration or improvement of land;
or
(d) for the purpose of merging or extinguishing
interests in land.
(6) If
a person who has tainted property obtains further property consisting of
profits accruing in respect of the tainted property, the further property shall
be tainted property.
(7) If
a person grants an interest in property of his or hers which is tainted
property, the question whether the interest is also tainted property is to be
determined in the same manner as it is on any other disposal of tainted
property and accordingly, on the person’s granting an interest in the
property (the “property in question”) –
(a) where
the property in question is tainted property, the interest is also to be
treated as tainted property;
(b) where
the property in question is, if held by him or her, tainted property,
the interest is also to be treated as tainted property
when held by him or her.
(8) If –
(a) a
person disposes of tainted property; and
(b) the
person who obtains it on the disposal does so in good faith, for value and
without notice that it was tainted property,
the property shall cease to be
tainted property.
(9) If –
(a) in
pursuance of a judgment in civil proceedings (whether in Jersey or elsewhere),
the respondent or defendant makes a payment to the claimant or plaintiff or the
claimant or plaintiff otherwise obtains tainted property from the respondent or
defendant;
(b) the
claimant or plaintiff’s claim is based on the respondent or
defendant’s unlawful conduct; and
(c) apart
from this paragraph, the sum received by the claimant or plaintiff would be
tainted property,
the property shall cease to be
tainted property.
(10) If –
(a) a
payment is made to a person in pursuance of a
compensation order made under Article 2 of the Criminal Justice (Compensation
Orders) (Jersey) Law 1994[4] or any like order made under any other enactment; and
(b) apart
from this paragraph, the sum received would be tainted property,
the property shall cease to be
tainted property.
(11) Where –
(a) a
person enters into a transaction to which paragraph (3) applies; and
(b) the
disposal is one to which paragraph (8) applies,
paragraphs (8), (9) and (10) do
not affect the question whether (by virtue of paragraph (3)) any property
obtained on the transaction in place of the property disposed of shall be
tainted property.
(12) If
tainted property is forfeited under this or any other Law, the property shall
cease to be tainted property.
(13) Property
that is disposed of in pursuance of an enactment shall cease to be tainted
property if –
(a) the enactment is prescribed in an Order made
by the Minister for the purposes of this paragraph; and
(b) the property is of a class prescribed in an
Order made by the Minister for the purposes of this paragraph.
3 Searches
for cash
(1) An
authorized officer –
(a) who
is lawfully on any premises; and
(b) who
has reasonable grounds for suspecting that there is on the premises cash that
is tainted cash,
may search the premises for cash and may, for the purposes of such a
search, break open and search any container found on the premises.
(2) An
authorized officer who has reasonable grounds for suspecting that a person is
carrying tainted cash (including carrying it in any vehicle) may require the
person, or a person who is in the company of the person, to do any or all of
the following –
(a) bring
to a stop a vehicle that the person is driving and permit the authorized
officer to search the vehicle and any article in the vehicle;
(b) permit
the authorized officer to search a vehicle in which the person is or has been
situated and any article in the vehicle;
(c) permit
a search by the authorized officer of any article of which the person has
possession;
(d) permit
the authorized officer to break open any container;
(e) remove
his or her outer coat, jacket, gloves or headgear so as to enable a search of
the person to be conducted;
(f) permit
an authorized officer of the same sex as the person to search the person,
and to remain in the officer’s detention for as long as is
necessary to complete such a search.
(3) The
powers conferred by this Article –
(a) are
exercisable only so far as is reasonably required for the purposes of finding
tainted cash; and
(b) are
in addition to any power otherwise conferred.
4 Seizure
of cash
(1) An
authorized officer may seize any cash if he or she has reasonable grounds for
suspecting that it is tainted cash.
(2) An
authorized officer may also seize cash, part of which he or she has reasonable
grounds for suspecting to be tainted cash, if it is not reasonably practicable
to seize only that part.
(3) If
an authorized officer seizes cash under this Article, he or she shall provide
to the person who appears to have had possession of the cash immediately before
the seizure, or on whose premises the seized cash was found, a receipt
specifying the amount, denominations and currency of the cash.
5 Seized
cash may be detained initially for 48 hours
Cash seized under this Law may be
detained, initially, for a period of up to 48 hours, if the authorized
officer continues during that period to have reasonable grounds for his or her
suspicion under Article 4 that part or all of the cash is tainted cash.
6 Orders
authorizing detention of cash for longer than 48 hours
(1) The
Attorney General, or, with the consent of the Attorney General, an authorized
officer, may apply to the Bailiff for an order to be made under paragraph (2)
in relation to cash seized under this Law.
(2) The
Bailiff may, after receiving an application under paragraph (1), make an
order (a “cash detention order”) authorizing the detention, for a
period specified in the order, of the cash to which the application relates.
(3) The
Bailiff may only make a cash detention order in relation to cash if he or she
is satisfied –
(a) that
there are reasonable grounds for suspecting that the cash is tainted cash; and
(b) that
the continued detention of the cash is justified while its origin or derivation
is further investigated or consideration is given to bringing (in Jersey or
elsewhere) proceedings against any person for an offence –
(i) in
which the cash was used or intended to be used, or
(ii) in
which, or from the proceeds of which, or in connection with which, the tainted
cash was obtained.
(4) More
than one application may be made under paragraph (1) in relation to cash
seized under this Law.
(5) An
application may only be made under paragraph (1) before the expiry of the
authority for detention of the cash, whether detention is authorized under
Article 5 or by a cash detention order.
(6) A
cash detention order –
(a) may only authorize the detention of the cash
for a period not exceeding 3 months, beginning with the date of the order;
(b) shall not authorize the detention of the
cash for an aggregate period of more than 2 years, beginning with the date
of the first cash detention order made in relation to it.
(7) A
cash detention order shall provide for notice to be given to persons affected
by it.
7 Payment
of detained cash into an account
(1) If
cash is detained under this Law for more than 48 hours, it shall be held in an
interest-bearing account and the interest accruing on it shall be added to it
on its forfeiture or release.
(2) If
cash is seized under Article 4(2), the authorized officer shall, on paying
it into the account, release so much of the cash then held in the account as is
not tainted cash.
(3) Paragraph (1)
does not apply if the cash –
(a) is required as evidence of an offence or
evidence in proceedings under this Law; or
(b) is being dealt with for the purposes of
being forensically examined.
8 Release
of detained cash
(1) This
Article applies while any cash is detained under Article 5 or 6.
(2) A
person from whom, or from whose premises, cash was seized and detained under
this Law may apply to the Bailiff for a direction under paragraph (3) to
be made in relation to all or any part of the cash.
(3) The
Bailiff may, after an application is made by a person under paragraph (2),
direct the release to the person of the whole or any part of the cash to which
the application relates, if the Bailiff is satisfied that the conditions in
Article 6(3) for the detention of cash are not, or are no longer, met in
relation to the cash to be released.
(4) An
authorized officer may, with the consent of the Attorney General, release the
whole or any part of the cash if satisfied that the detention of the cash to be
released is no longer justified.
(5) Cash
shall not be released pursuant to paragraph (3) or (4) –
(a) where an application for a forfeiture order
has been made in relation to the cash, until any proceedings in pursuance of
the application, including any proceedings on appeal, are concluded;
(b) where proceedings are started, in Jersey or
elsewhere, against any person for an offence in which the cash was used or
intended to be used or in which, from the proceeds of which or in connection
with which, the cash was obtained, until those proceedings are concluded.
(6) For
the purposes of paragraph (5)(b), proceedings are concluded against any
person for an offence when –
(a) the prosecution is discontinued;
(b) the jury, if any, is discharged without a
finding;
(c) the person is acquitted;
(d) following the person’s conviction, the
time within which an application for leave to appeal, or an appeal, against the
conviction expires (disregarding any power to grant an application after that
time has expired);
(e) following the person’s conviction, his
or her application for leave to appeal, or appeal, against the conviction is
withdrawn or is determined by a court without any further right of appeal.
9 Forfeiture
of seized cash
(1) The
Attorney General may apply to the Royal Court for an order to be made under
paragraph (2) in relation to any cash that has been seized and detained
under this Law.
(2) The
Royal Court shall, if it receives an application under paragraph (1) in
relation to any cash seized and detained under this Law, make an order (a
“forfeiture order”) forfeiting the cash, unless the person against
whom the order would be made satisfies the court that the cash is not tainted
cash.
(3) Proceedings
under this Article are civil proceedings.
(4) An
order may be made under this Article whether or not proceedings are brought
against any person for an offence with which the cash in question is connected.
(5) Any
cash that is forfeited under a forfeiture order shall be paid into a special
fund, within the meaning of the Public Finances (Jersey) Law 2005[5], that is designated by an Order made by the Minister for Treasury
and Resources.
10 Appeal
against forfeiture
(1) Any
party to proceedings in which a forfeiture order is made (other than the
Attorney General) may appeal to the Court of Appeal against the making of the
order.
(2) The
Court of Appeal, on an application by an appellant, may order the release of so
much of the money to which the forfeiture order relates as it considers
appropriate to enable the appellant to meet legal expenses in connect with the
appeal.
(3) The
Court of Appeal, on hearing an appeal under this Article, may make such order
as it considers appropriate.
11 Victims
(1) A
person who claims that any cash detained under this Law, or any part of it,
belongs to him or her may apply for the cash or part to be released to him or
her under this Article.
(2) The
application may be made in the course of proceedings under Article 6 or 9
or at any other time before the cash is forfeited pursuant to a forfeiture
order.
(3) An
application made in the course of proceedings under Article 6 shall be
made to the Bailiff.
(4) An
application made other than in the course of proceedings under Article 6
shall be made to the Royal Court.
(5) If
it appears to the Bailiff or Royal Court that –
(a) the applicant was deprived of the cash
claimed, or of property which it represents, by unlawful conduct;
(b) the cash or property the applicant was
deprived of was not, immediately before he or she was deprived of it, obtained
by or in return for unlawful conduct and nor did it then represent cash or
property obtained by or in return for unlawful conduct; and
(c) the cash claimed belongs, or the property
which the case represents belonged, to him or her,
the Bailiff or Court may order
the cash to be released to the applicant (and, where the application is made in
the course of proceedings under Article 9, shall do so instead of making a
forfeiture order).
12 Compensation
(1) If
no forfeiture order is made in respect of any cash detained under this Law, the
person to whom the cash belongs may make an application to the Royal Court for
compensation.
(2) The
Royal Court may, after receiving an application under paragraph (1) from a
person, order compensation to be paid to the person, if –
(a) the Court is satisfied that the person has
suffered loss as a result of the detention of cash under this Law;
(b) having regard to all the circumstances, the
Court considers it appropriate to make such an order; and
(c) there has been, in relation to the seizure
or detention of the cash under this Law, some serious default on the part of
another person who –
(i) seized
or detained the cash,
(ii) applied
for an order under Article 6 or 9 in relation to the cash,
(iii) investigated
the origin or derivation of the cash, or
(iv) prosecuted
the person for an offence in which the tainted cash was used or intended to be
used, or in which, from the proceeds of which, or in connection with which, the
tainted cash was obtained.
(3) The
Court shall not order compensation to be paid in any case where it appears to
the Court that the application under Article 6 or 9, or the prosecution for an
offence, would have been instituted or continued even if the serious default had
not occurred.
(4) The
amount of compensation to be paid under paragraph (2) shall be the amount
the Court thinks reasonable, having regard to the loss suffered, the amount of
any interest paid under this Law and any other relevant circumstances.
(5) Compensation
ordered to be paid under this Article shall be paid out of the consolidated
fund.
(6) If
a forfeiture order is made in respect only of a part of any cash detained under
this Law, this Article has effect in relation to the other part.
(7) A
person to whom cash detained under Article 5 or 6 belongs may not make an
application under this Article if an order for the release to the person of all
or part of the cash has been made under Article 11.
13 Offence
of obstructing authorized officer
A person who,
without reasonable excuse, obstructs an authorized officer in the lawful
exercise of the powers conferred on the officer by this Law shall be guilty of
an offence and liable to imprisonment for a term of 6 months and to a
fine.
14 Law
does not derogate from other powers
The powers specified in this Law
are in addition to, and not in derogation of, any powers given under any other
enactment.
15 Proceedings
and rules of court
(1) Proceedings
under this Law (apart from Article 13) are civil proceedings.
(2) The
power to make Rules of Court under the Royal
Court (Jersey) Law 1948[6] shall include a power to make Rules for the purposes of this Law
and proceedings under this Law.
16 Misuse
of Drugs (Jersey) Law 1978 amended
In the Misuse of Drugs (Jersey) Law
1978[7], for Article 7(5) there shall be substituted the following
paragraph –
“(5) No information obtained
pursuant to an Order shall be disclosed except for the purposes of criminal
proceedings or of proceedings under –
(a) the provisions of the Drug Trafficking Offences (Jersey) Law 1988[8] relating to the confiscation of the proceeds of drug trafficking;
or
(b) the Proceeds of Crime
(Cash Seizure) (Jersey) Law 2008.”.
17 Drug
Trafficking Offences (Jersey) Law 1988 amended
In the Drug Trafficking Offences
(Jersey) Law 1988[9], Articles 31 to 36 (inclusive) shall be repealed.
18 Proceeds
of Crime (Jersey) Law 1999 amended
(1) In
this Article, a reference to an Article or Schedule by number only is a
reference to the Article or Schedule of that number in the Proceeds of Crime
(Jersey) Law 1999[10].
(2) For
Article 2(2) there shall be substituted the following paragraph –
“(2) However, property is not
realisable property if an order under Article 29 of the Misuse of Drugs
(Jersey) Law 1978[11], Article 26 of the Terrorism (Jersey) Law 2002[12] or Article 9 of the Proceeds of Crime (Cash Seizure) (Jersey)
Law 2008 is in force in respect of the property.”.
(3) For
Article 3(5)(a)(iii) there shall be substituted the following
clause –
“(iii) making any forfeiture order under Article 29
of the Misuse of Drugs (Jersey) Law 1978, Article 26 of the Terrorism
(Jersey) Law 2002 or Article 9 of the Proceeds of Crime (Cash Seizure)
(Jersey) Law 2008; and”.
(4) In Article 3(9),
the words following “drug trafficking offence” to the end of the
paragraph shall be deleted.
(5) For
Article 10(1)(a)(iii) there shall be substituted the following
clause –
“(iii) making
any forfeiture order under Article 29 of the Misuse of Drugs (Jersey) Law
1979, Article 26 of the Terrorism (Jersey) Law 2002 or Article 9 of
the Proceeds of Crime (Cash Seizure) (Jersey) Law 2008; and”.
(6) In
Schedule 1, for the words “but not being -” to the end of the
Schedule there shall be substituted the words “but not being a drug
trafficking offence”.
19 Terrorism
(Jersey) Law 2002 amended
In the Terrorism (Jersey) Law 2002[13], Article 27 and Schedule 4 shall be repealed.
20 Public
Finances (Jersey) Law 2005 amended
In the Public Finances (Jersey) Law
2005[14] –
(a) in
Article 1(1), for the definition “special fund” there shall be
substituted the following definition –
“ ‘special
fund’ means –
(a) a fund established
under Article 3(3); and
(b) a fund declared by any
enactment to be a special fund for the purposes of this Law;”;
(b) in
Article 3(4), after the words “a special fund” there shall be
inserted the words “(apart from a special fund established in, or
declared to be a special fund by, any enactment)”.
21 Citation
and commencement
This Law may be cited as the
Proceeds of Crime (Cash Seizure) (Jersey) Law 2008 and shall come into
force 7 days after it is registered.
a.h. harris
Deputy Greffier of the States