Crime
(Transnational Organized Crime) (Jersey) Law 2008
A LAW to provide for the
implementation in Jersey of the United Nations Convention Against Transnational
Organised Crime adopted by the General Assembly of the United Nations on 15
November 2000, the Protocol thereto to Prevent, Suppress and Punish Trafficking
in Persons and the Protocol thereto Against Smuggling of Migrants; to amend the
Police Procedures and Criminal Evidence (Jersey) Law 2003 and the Extradition
(Jersey) Law 2004; and for related purposes.
Adopted by the
States 22nd November 2007
Sanctioned by
Order of Her Majesty in Council 9th July 2008
Registered by the
Royal Court 25th
July 2008
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
1 Interpretation
In this Law –
“material benefit”
includes, but is not limited to including, financial, monetary or equivalent
benefits and sexual gratification;
“State” means any
country or territory, and includes Jersey.
2 Participating
in criminal organization
(1) A
person commits an offence if he or she –
(a) participates
in a criminal organization, knowing that it is a criminal organization; and
(b) knows,
or is reckless as to whether, his or her participation contributes, or may
contribute, to the occurrence of a serious offence against the law of a State.
(2) A
person who commits an offence against paragraph (1) shall be liable to
imprisonment for a term of 5 years and to a fine.
(3) A
person shall only be taken to participate in a criminal organization for the
purposes of paragraph (1) if he or she is a member, an associate member,
or a prospective member, of the organization.
(4) For
the purposes of this Article, a criminal organization is a group of 3 or more
persons who have as their objective, or one of their objectives, obtaining,
directly or indirectly, a material benefit from the committal of a serious
offence against a law of a State by the organization, or a member, an associate
member, or a prospective member, of the organization, but does not include a
group that is randomly formed for the immediate commission of a single offence.
(5) For
the purposes of this Article, a group of 3 or more persons may be a criminal
organization whether or not –
(a) some
of them are subordinates or employees of other members of the group or other
persons;
(b) only
some of the people involved in the group at a particular time are involved in
the planning, arrangement, or execution, at that time, of any particular action,
activity or transaction;
(c) its
membership changes from time to time;
(d) the
persons are present in Jersey;
(e) a
serious offence against a law of a State was committed by the organization or a
member, an associate member, or a prospective member, of the organization, and
whether a serious offence against a law of a State was, or was intended to be,
committed within or outside Jersey by the organization or a member, an
associate member, or a prospective member, of the organization;
(f) any
person received a material benefit from the commission of a serious offence
against a law of a State by the organization or a member, an associate member,
or a prospective member, of the organization.
(6) In
this Article, participation in a criminal organization includes, but is not
limited to including –
(a) agreeing
with another person to participate in an act that contributes, or may
contribute, to the occurrence of a serious offence against a law of a State;
and
(b) organizing,
directing, taking part in, or assisting in, the commission of a serious offence
against a law of a State by the organization or a member, an associate member,
or a prospective member, of the organization.
(7) In
this Article, “serious offence against a law of a State”
means –
(a) an
offence against the law of Jersey that is a serious offence within the meaning
of Article 3 of the Police Procedures and Criminal Evidence (Jersey) Law
2003[1]; or
(b) an
offence against the law of a State other than Jersey that, if it had been
committed in Jersey, would be a serious offence within the meaning of
Article 3 of the Police Procedures and Criminal Evidence (Jersey) Law
2003.
(8) In
criminal proceedings in relation to the alleged commission of an offence
against paragraph (1) by a person who participates in a criminal
organization, it is not necessary to prove that –
(a) a
serious offence was committed by the organization or a member, an associate
member, or a prospective member, of the organization;
(b) a
serious offence that was, or that was intended to be, committed by the
organization or a member, an associate member, or a prospective member, of the
organization, was committed, or intended to be committed, in Jersey;
(c) any
person received a material benefit from the commission of a serious offence by
the organization or a member, an associate member, or a prospective member, of
the organization; or
(d) the
person knew the identity of any member of the criminal organization.
3 People
smuggling
(1) A
person commits an offence if he or she –
(a) arranges
for an unauthorized migrant to enter a
State;
(b) does
so for the purpose of obtaining, directly or indirectly, a material benefit for
himself or herself or any other person; and
(c) knows
that, or is reckless as to whether, the unauthorized migrant is an unauthorized
migrant.
(2) A
person commits an offence if he or she –
(a) arranges
for an unauthorized migrant to be brought to a State;
(b) does
so for the purpose of obtaining, directly or indirectly, a material benefit for
himself or herself or any other person;
(c) knows
that, or is reckless as to whether, the unauthorized migrant is an unauthorized
migrant; and
(d) knows
that, or is reckless as to whether, the unauthorized migrant intends to try to
enter the State.
(3) A
person commits an offence if he or she –
(a) enables a person who is
not a national or a permanent resident of a State to remain in the State by the
means described in Article 6 or any other illegal means;
(b) does so for the purpose
of obtaining, directly or indirectly, a material benefit for himself or herself
or any other person; and
(c) knows that the person
referred to in sub-paragraph (a) is not a national or a permanent resident
of the State or is reckless as to the person’s status.
(4) A
person who commits an offence against paragraph (1), (2) or (3) shall be liable
to imprisonment for a term of 20 years and to a fine.
(5) An
offence against paragraph (1) may be committed even if the unauthorized
migrant in relation to whom the alleged offence occurred –
(a) consented
to the arrangement for him or her to enter the State; or
(b) did
not enter the State in respect of which the arrangement was made.
(6) An
offence against paragraph (2) may be committed even if the unauthorized
migrant in relation to whom the alleged offence occurred –
(a) consented
to the arrangement for him or her to be brought to the State; or
(b) was
not brought to the State in respect of which the arrangement was made.
(7) In
this Article –
“arrange for an unauthorized migrant to be brought to a
State” includes, but is not limited to including the following –
(a) organizing,
or procuring, the bringing of an unauthorized migrant to a State;
(b) recruiting
a person to be brought, as an unauthorized migrant, to a State;
(c) carrying
an unauthorized migrant to a State;
“arrange for an unauthorized migrant to enter a State”
includes, but is not limited to including, the following –
(a) organizing
or procuring the entry of an unauthorized migrant into a State;
(b) recruiting
a person to enter, as an unauthorized migrant, into a State;
(c) carrying
an unauthorized migrant into a State;
“unauthorized migrant”, in relation to a State, means a
person who –
(a) is
not a citizen of the State; and
(b) does
not have possession of all the documents required by or under the law of the
State to lawfully enter the State.
4 Trafficking
in persons
(1) A
person commits an offence if, for the purposes of the physical exploitation of
another person, he or she –
(a) recruits
or arranges for the other person to enter a State, or travel within a State; or
(b) arranges,
organizes or procures the reception, concealment or harbouring, in a State of
the other person.
(2) Where
the person physically exploited or intended to be physically exploited is aged
18 years or more, a person only commits an offence against
paragraph (1) if the recruitment, arrangement, organization or procurement
is by means of any of the following –
(a) the
threat or use of force or other forms of coercion;
(b) abduction;
(c) fraud
or deception;
(d) the
abuse of power or of a position of vulnerability;
(e) the
giving or receiving of payments or benefits to achieve the consent of a person
having control over another person.
(3) A
person who commits an offence against paragraph (1) shall be liable to
imprisonment for a term of 20 years and to a fine.
(4) An
offence against paragraph (1) may be committed even if the person
physically exploited or intended to be physically exploited –
(a) did
not in fact enter, or travel within, the State; or
(b) was
not in fact received, concealed, or harboured, in the State.
(5) An
offence against paragraph (1) may be committed in respect of a person aged
18 years or more even if steps in the process by which the person entered, or
was to enter, the State, or travelled, or was to travel, within the State, did
not involve means described in paragraph (2).
(6) In
this Article, any reference to the physical exploitation of a person means any
of the following –
(a) the
use of the person for sexual purposes;
(b) the
removal of a body part from the person, unless for the benefit (other than the
financial, monetary, or equivalent, benefit) of the person;
(c) the
use of the person in forced labour or services, slavery or practice similar to
slavery, or servitude.
(7) Paragraph (6)(a)
includes, but is not limited to including, any of the following –
(a) the
taking, or transmission, by any means, of an image of the person engaged in
real or simulated sexual activities;
(b) the
taking, or transmission, by any means, of images of the person’s
genitalia, anus, or breasts, for the purpose of obtaining, directly or
indirectly, a material benefit for the person or any other person;
(c) the
person’s participation, for the purpose of obtaining, directly or
indirectly, a material benefit for the person or any other person, in a
performance or display, or other employment, that involves the exposure of the
person’s genitalia, anus or breasts.
(8) Paragraph
(6)(a) does not include –
(a) the
taking, in good faith, for purposes primarily other than the exposure of body
parts of the person for the sexual gratification of a viewer, of an image of
the person as part of an artistic or cultural performance or display;
(b) the
taking or transmission of an image of the person for the purpose
of –
(i) depicting, for
the instruction or information of health professionals, a medical condition or
a surgical or medical technique,
(ii) providing medical
or health education,
(iii) providing information
relating to medical or health matters, or
(iv) advertising a product,
instrument, or service, intended to be used for medical or health purposes.
(9) The
other person in respect of whom an offence against this Article is committed,
or is suspected of being committed, shall not be charged as a party to the
offence.
5 Aggravating
factors in relation to migrant smuggling and trafficking in persons
(1) In
determining the sentence to be imposed on, or other way of dealing with, a
person convicted of an offence against Article 3 or 4, a court shall take into
account –
(a) whether
bodily harm or death (whether to or of a person in respect of whom the offence
was committed or some other person) occurred during the commission of the
offence;
(b) whether
the life or safety of any person in respect of whom the offence was committed
was endangered or likely to be endangered;
(c) whether
the offence was committed for the benefit of, at the direction of, or in
association with, a criminal organization within the meaning of Article 2;
(d) whether
a person in respect of whom the offence was committed was subject to inhuman or
degrading treatment as a result of the commission of the offence; and
(e) if
during the relevant criminal proceedings the person was convicted of the same
offence in respect of 2 or more people, the number of people in respect of whom
the offence was committed.
(2) In
determining the sentence to be imposed on, or other way of dealing with, a
person convicted of an offence against Article 4, a court shall also take
into account –
(a) whether
a person in respect of whom the offence was committed was also subject to other
exploitation (including but not limited to physical exploitation of the other
person, within the meaning of that Article) as a result of the commission of
the offence;
(b) the
age of the person in respect of whom the offence was committed and, in
particular, whether the person was under the age of 18 years; and
(c) whether
the person committed the offence, or took actions that were part of the
offence, for a material benefit.
(3) This
Article does not limit the matters to which a court may have regard when
determining the sentence to be imposed on, or other way of dealing with, a
person convicted of an offence against Article 3 or 4.
6 Travel
documentation offences
(1) A
person commits an offence if he or she forges, or falsifies, a travel document
that he or she knows, or has reason to suspect, is intended to be used in the
course of, or for purposes related to, the commission of an offence against
Article 3 by any person.
(2) A
person commits an offence if, without reasonable excuse –
(a) knowing
a travel document to be forged, or false, he or she –
(i) uses it, deals
with it, or acts upon it, as if it were genuine, or
(ii) causes another
person to use it, deal with it, or act upon it, as if it were genuine,
in the course of, or for purposes related to, the commission of an
offence against Article 3 by any person;
(b) he
or she has in his or her possession, or under his or her control, a travel
document that he or she knows or has reason to suspect –
(i) is a forged or
false travel document, and
(ii) is intended to be
used in the course of, or for purposes related to, the commission of an offence
against Article 3 by any person;
(c) he
or she sells, hires, lends, gives, or otherwise disposes of to another person,
a travel document that he or she knows or has reason to suspect –
(i) is a forged or
false travel document, and
(ii) is intended to be
used in the course of, or for purposes related to, the commission of an offence
against Article 3 by any person; or
(d) he
or she –
(i) makes, uses, has
in his or her possession, or disposes of to another person, any paper or other
material that he or she knows is specially provided by the proper authorities
of a State for any purpose related to travel documents of the State, and
(ii) knows or has
reason to suspect that the paper or other material is intended to be used in
the course of, or for purposes related to, the commission of an offence against
Article 3 by any person.
(3) A
person who commits an offence against paragraph (1) or (2) shall be liable
to imprisonment for a term of 10 years and to a fine.
(4) In
this Article –
“document” includes a thing that is, or is intended to
be –
(a) attached
to a document; or
(b) stamped
or otherwise signified on a document;
“forge” includes the following –
(a) to make a copy of an existing document or writing with the intention
of representing it to be the original document or writing;
(b) to alter an existing document or writing with the intention of
representing the altered document or writing to be the original document or
writing;
(c) to make a document or writing that purports to be made or issued by
or on behalf of a person who did not make or issue it or authorize its making
or issue, or who does not exist, with the intention of
representing it was made or issued by or on behalf of that person;
(d) to
make a document or writing that falsely purports to be made at a particular
place or time, or before or witnessed by a particular person, with the
intention of representing that such particulars are true;
“travel document” includes an
identification document.
7 Obstructing
justice
(1) A
person commits an offence if, for the purpose of –
(a) inducing
false testimony;
(b) interfering
with the giving of testimony; or
(c) interfering
with the production of evidence,
in relation to proceedings in respect of an offence against a provision
of this Law, he or she –
(i) uses
physical force, or threats, against;
(ii) intimidates
or attempts to intimidate; or
(iii) promises,
or offers, a benefit to,
a witness, a judicial officer, or a police officer, who takes part
in or engages in activities in respect of the proceedings.
(2) A
person who commits an offence against paragraph (1) shall be liable to
imprisonment for a term of 15 years and to a fine.
(3) In
paragraph (1), a reference to proceedings in respect of an offence against
a provision of this Law includes proceedings in respect of an offence, against
a provision of another enactment, of –
(a) attempting
to commit an offence against a provision of this Law;
(b) aiding,
abetting, counselling or procuring the commission of an offence against a
provision of this Law; or
(c) conspiring
or inciting another person to commit an offence against a provision of this
Law.
8 Territorial
application
(1) Proceedings
for an offence against a provision of this Law (including an offence against
any provision referred to in another paragraph of this Article) by a person may
be brought although some or all of the acts alleged to constitute the offence
occurred outside Jersey, if the person –
(a) is
ordinarily resident in Jersey;
(b) has
been found in Jersey and has not been extradited; or
(c) is
a body corporate incorporated under a law of Jersey or a limited liability
partnership registered under the Limited
Liability Partnerships (Jersey) Law 1997[2].
(2) Proceedings
for an offence against a provision of this Law (including an offence against
any provision referred to in another paragraph of this Article) by a person may
be brought although some or all of the acts alleged to constitute the offence
occurred outside Jersey, if a person in relation to whom the offence is alleged
to have been committed –
(a) is
ordinarily resident in Jersey; or
(b) has
been found in Jersey.
(3) Proceedings
for an offence against Article 2 by a person may be brought although some
or all of the acts alleged to constitute the offence occurred outside Jersey,
if paragraph (4) applies to the person.
(4) This
paragraph applies to a person if the criminal organization, within the meaning
of Article 2, in which the person is alleged to have participated is
alleged to have as its objective (or one of its objectives) the obtaining of
material benefits by the commission in Jersey of an offence against a law of
Jersey that is a serious offence within the meaning of Article 3 of the
Police Procedures and Criminal Evidence (Jersey) Law 2003.
(5) Proceedings
for an offence against Article 3(1) by a person may be brought although
some or all of the acts alleged to constitute the offence occurred outside
Jersey, if the act or omission is alleged to relate to arranging for a person
to enter Jersey.
(6) Proceedings
for an offence against Article 3(2) by a person may be brought although
some or all of the acts alleged to constitute the offence occurred outside
Jersey, if the act or omission is alleged to relate to arranging to bring a
person to Jersey.
(7) Proceedings
for an offence against Article 4 by a person may be brought although some
or all of the acts alleged to constitute the offence occurred outside Jersey,
if the act or omission is alleged to relate to arranging for a person to enter Jersey
or to travel in Jersey.
9 General
provisions as to offences
(1) A
person who –
(a) aids,
abets, counsels or procures the commission of an offence under any provision of
this Law (a “principal offence”); or
(b) conspires,
attempts or incites another to commit a principal offence,
shall also be guilty of the offence and liable in the same manner as
a principal offender to the penalty provided for the principal offence.
(2) A
person alleged to have committed an offence by virtue of paragraph (1)
shall be triable in the same manner as a person would be tried for the
principal offence.
(3) Where
an offence against any provision of this Law committed by a limited liability
partnership or body corporate is proved to have been committed with the consent
or connivance of, or to be attributable to any neglect on the part
of –
(a) a
person who is a partner of the partnership, or director, manager, secretary or
other similar officer of the body corporate; or
(b) any
person purporting to act in any such capacity,
the person shall also be guilty of the offence
and liable in the same manner as the partnership or body corporate to the
penalty provided for that offence.
(4) Where
the affairs of a body corporate are managed by its members, paragraph (3)
shall apply in relation to acts and defaults of a member in connection with his
or her functions of management as if he or she were a director of the body
corporate.
(5) Article 8
shall apply to proceedings for an offence that is an offence by virtue of
paragraph (1) or (3) as it would apply to proceedings for the principal
offence.
10 Consent
to prosecution
A prosecution in Jersey for an offence against this Law may only be
brought by, or with the consent of, the Attorney General.
11 Amendment
of Police Procedures and Criminal Evidence (Jersey) Law 2003
In the Police Procedures and Criminal Evidence (Jersey) Law 2003[3] –
(a) in
Article 3, in paragraph (9), for the word “counselling”
there shall be substituted the words “counselling, inciting”;
(b) in
Article 101, for paragraph (4) there shall be substituted the
following paragraph –
“(4) In this Article
‘serious crime’ means –
(a) conduct which constitutes one or more
offences –
(i) which
involves the use of violence, results in substantial financial gain or is
conducted by a large number of persons in pursuit of a common purpose, or
(ii) for
which a person who has attained the age of 21 and has no previous convictions
could reasonably be expected to be sentenced to imprisonment for 3 years
or more; or
(b) conduct which is, or corresponds to, any
conduct which, if it all took place in Jersey, would constitute an offence, or
offences, of the kind referred to in sub-paragraph (a).”;
(c) in
Schedule 1, in Part 2, at the end, there shall be added the following
item and entry –
“12. Any offence in the Crime
(Transnational Organized Crime) (Jersey) Law 2008.”.
12 Amendment
of Extradition (Jersey) Law 2004
In the Extradition (Jersey) Law 2004[4], in Article 18, in
paragraphs (a) and (b), after the word “nationality” there
shall be inserted the words “, ethnic origin”.
13 Citation
and commencement
(1) This
Law may be cited as the Crime (Transnational Organized Crime) (Jersey) Law 2008.
(2) This
Law shall come into force 7 days after it is registered.
a.h. harris
Deputy Greffier of the States