Proceeds of Crime (Supervisory
Bodies) (Jersey) Law 2008
A LAW to make provision for the
supervision of compliance by certain businesses with anti-money laundering and
anti-terrorist financing requirements
Adopted by the
States 2nd April 2008
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 –
part 1
interpretation
1 Interpretation
(1) In
this Law, unless the context otherwise requires –
“anti-money laundering and
counter-terrorism legislation” has the meaning in Article 3;
“applicant” has the
meaning in Article 11(1);
“associate”, in
relation to a person, means –
(a) the
person’s husband, wife, child or stepchild;
(b) the
person’s partner;
(c) any
company of which the person is a director;
(d) where
the person is a company, any director or employee of the company, any company
in the same group as the company, and any director or employee of such a company;
and
(e) any
person with whom the first mentioned person has an agreement, arrangement or
other obligation –
(i) to act together
in exercising voting power,
(ii) with respect to
the acquisition, holding or disposal of shares or other interests in a company,
partnership or other association;
“auditor” means a
person qualified under Article 113 of the Companies (Jersey) Law 1991[1] for appointment as an
auditor of a company under Article 109 of that Law;
“body” in the term
“supervisory body” includes any legal structure, whether
incorporated or not, other than an individual;
“Code of Practice”
means a Code of Practice issued under Article 22;
“Commission” means
the Jersey Financial Services Commission;
“compliance officer”
means a person designated as such by a registered person under any regulatory
law;
“Court” means the
Royal Court;
“deemed registration”
and “deemed registered person” shall be construed in accordance
with Article 11(9);
“formerly registered person”
means a person who has been a registered person but is no longer a registered
person;
“formerly regulated person”
means a person who has been a regulated person but is no longer a regulated
person;
“formerly supervised person”
means a formerly registered person or a formerly regulated person;
“key person” means a
person employed or otherwise engaged by a supervised person as an officer of
any one or more of the following classes in relation to the conduct of the
supervised business by that supervised person –
(a) compliance
officer;
(b) money
laundering compliance officer;
(c) money
laundering reporting officer;
“level of registration”
has the meaning in Article 4;
“Minister” means the
Minister for Economic Development;
“money laundering”
means –
(a) conduct
that is an offence –
(i) under
Article 32, 33 or 34 of the Proceeds of Crime (Jersey) Law 1999[2],
(ii) under
Article 30, 37 or 38 of the Drug Trafficking Offences (Jersey)
Law 1988[3], or
(iii) under any of
Articles 15 to 18 of the Terrorism (Jersey) Law 2002[4]; or
(b) conduct
outside Jersey that, if occurring in Jersey, would be an offence specified in
sub-paragraph (a).
“money laundering compliance
officer” means a person employed or otherwise engaged by a
supervised person to be in charge of monitoring whether the law of Jersey
relating to money laundering is being complied with in the conduct of the
supervised business of the supervised person;
“money laundering reporting
officer” means a person employed or otherwise engaged by a
supervised person to receive reports from employees of the supervised person in
relation to activities that may constitute money laundering and come to the
attention of the employees in the conduct of the supervised business of the
supervised person;
“overseas supervisory function”
means a function of a relevant overseas supervisory authority that is the same
as, or similar to, a function of a supervisory body in relation to a country or
territory outside Jersey;
“prescribed” means
prescribed by Order;
“prescribed person”
means the person or the class of person carrying on a specified Schedule 2
business prescribed in an Order under Article 6(1);
“principal person”
means –
(a) in
relation to a person being a sole trader, the proprietor;
(b) in
relation to a person being a company –
(i) a person who,
either alone or with any associate or associates –
(A) directly
or indirectly holds 10% or more of the share capital issued by the company,
(B) is
entitled to exercise or control the exercise of not less than 10% of the voting
power in general meeting of the company or of any other company of which it is
a subsidiary, or
(C) has
a holding in the company directly or indirectly which makes it possible to
exercise significant influence over the management of the company;
(ii) a director,
(iii) a person in accordance
with whose directions, whether given directly or indirectly, any director of
the company, or director of any other company of which the company is a
subsidiary, is accustomed to act (but disregarding advice given in a
professional capacity);
(c) in
relation to a person being a partnership –
(i) a partner,
(ii) where a partner
is a company, any person who, in relation to that company, falls within
sub-paragraph (b),
and includes –
(i) in
relation to a person whose registered office and principal place of business is
outside Jersey, a person who, either alone or jointly with one or more other
persons, is responsible for the conduct of the person’s supervised
business in Jersey, and
(ii) in
relation to a person who has become bankrupt, a person who has been appointed
as liquidator or administrator of the person’s affairs;
“publish” means
publish in a manner that is likely to bring it to the attention of those
affected;
“registered person”
means a deemed registered person or a person who is registered under
Article 14 or 15;
“regulated business”
means a Schedule 2 business for which a person must be –
(a) registered
under the Banking Business (Jersey) Law 1991[5];
(b) hold
a permit under the Collective Investment Funds (Jersey) Law 1988[6];
(c) registered
under the Financial Services (Jersey) Law 1998[7]; or
(d) authorized
by a permit under the Insurance Business (Jersey) Law 1996[8];
“regulated person” means a person –
(a) who
is not a registered person; and
(b) who
carries on –
(i) a regulated
business; or
(ii) a business which
is not a regulated business by virtue of –
(A) Article 4
or 5 of the Financial Services (Money Service Business (Exemptions)) (Jersey)
Order 2007[9], or
(B) paragraph 4
of the Schedule to the Financial Services (Trust Company Business (Exemptions
No. 2)) (Jersey) Order 2000[10];
“regulatory law”
means any of the following –
(a) the
Banking Business (Jersey) Law 1991;
(b) the
Collective Investment Funds (Jersey) Law 1988;
(c) the
Financial Services (Jersey) Law 1998;
(d) Insurance
Business (Jersey) Law 1996;
“relevant overseas supervisory
authority” means a body discharging any function that is the same
as, or similar to, a function of a supervisory body in relation to a country or
territory outside Jersey;
“relevant supervisory body”
means any of the following –
(a) the
Commission in accordance with Article 5;
(b) the
body described as such in Article 12(1), (2)(a), (5) or (7);
“Schedule 2 business”
means a business described in Schedule 2 to the Proceeds of Crime (Jersey)
Law 1999 except those things described in Part A of that Schedule as an
exclusion or exception from a business;
“shareholder controller”
has the meaning given by sub-paragraph (b)(i) of the definition of
“principal person”;
“specified Schedule 2
business” means a business specified in column 3 of the Table in
the Schedule;
“subsidiary” has the
same meaning as in Article 2 of the Companies (Jersey) Law 1991;
“suitable supervisory body”
in relation to a person or business means a supervisory body that has functions
or powers under this Law in relation to a category, class or description of
person or business within which that person or business falls;
“supervised business”
means –
(a) specified
Schedule 2 business; and
(b) Schedule 2
business not included in sub-paragraph (a);
“supervised person”
means a registered person or a regulated person;
“supervisory body”
means –
(a) the
Commission in accordance with Article 5; or
(b) a
body designated for the time being under Article 6;
“supervisory functions”
means the functions described in Article 2.
(2) The
States may by Regulations amend any definition in Article 1 or 2.
2 Meaning
of “supervisory functions”
“Supervisory functions” shall mean any of the
following –
(a) monitoring
compliance by a supervised person with –
(i) any
requirement to which that person is subject under this Law,
(ii) any
Order under Article 37 of the Proceeds of Crime (Jersey) Law 1999,
and
(iii) any
Code of Practice that applies to that person or the supervised business carried
on by that person;
(b) carrying
out the functions, powers and duties conferred under this Law for the purpose
of compliance by a supervised person with the things described in sub-paragraph (a).
3 Meaning
of “anti-money laundering and counter-terrorism legislation”
(1) In
this Law, “anti-money laundering and counter-terrorism legislation”
means any of the following enactments –
(a) the
Drug Trafficking Offences (Jersey) Law 1988;
(b) the
Proceeds of Crime (Jersey) Law 1999;
(c) the
Terrorism (Jersey) Law 2002;
(d) the
Terrorism (United Nations Measures) (Channel Islands) Order 2001[11];
(e) the
Al-Qa’ida and Taliban (United Nations Measures) (Channel Islands)
Order 2002[12];
(f) the
Community Provisions (Wire Transfers) (Jersey) Regulations 2007[13];
(g) any
Regulations or Order made under any of the enactments specified in
sub-paragraphs (a) to (c).
(2) The
Minister may by Order amend the list of enactments in paragraph (1).
4 Meaning
of “level of registration”
(1) In
this Law, “level of registration” shall mean a level 1 registration
or level 2 registration, as the case requires.
(2) “Level
1 registration” means the registration of a person under Article 14.
(3) “Level
2 registration” means the registration of a person under Article 15.
part 2
supervisory bodies
5 Commission
to be supervisory body for all supervised business carried on by any person
carrying on a regulated business
(1) The
Commission shall be the supervisory body to exercise supervisory functions in
respect of any regulated person.
(2) The
Commission shall exercise its supervisory functions in respect of any
supervised business carried on by such a person.
6 Designation
of supervisory bodies
(1) The
Minister may, by Order, on the recommendation of the Commission, designate one
or more supervisory bodies to exercise supervisory functions in respect of any
person, other than a person mentioned in Article 5, carrying on a
specified Schedule 2 business.
(2) For
the avoidance of doubt, the Minister may designate the Commission under
paragraph (1).
(3) The
Minister shall not designate a supervisory body under paragraph (1) unless
he or she is satisfied that the body –
(a) has
the appropriate governance, skills and resources to exercise its functions
under this Law; and
(b) is
not prevented under its constitution (in whatever form that takes) or under any
enactment (whether of Jersey or a country or territory outside Jersey) to
exercise such functions.
(4) An
Order under paragraph (1) –
(a) shall
prescribe –
(i) the person or
class of person, and
(ii) the specified
Schedule 2 business carried on by such a person,
in respect of whom or which the designated supervisory body shall
exercise supervisory functions;
(b) shall
prescribe one or more supervisory functions which the designated supervisory
body shall have in relation to that prescribed person or class of person;
(c) may
make such other provision as is reasonably necessary for or incidental to the
purposes of the Order.
(5) The
States may make Regulations modifying any enactment to the extent necessary to
enable any body to meet the criteria in paragraph (3) and to exercise any
supervisory functions.
7 Guidance,
directions and accountability
(1) The
Minister may, after consulting the appropriate supervisory body and where the
Minister considers that it is expedient in the public interest to do so, give
to any supervisory body written guidance and written general directions in
respect of policies in relation to the supervision of supervised business in Jersey
and the manner in which supervisory functions of that body are to be exercised.
(2) For
the purposes of paragraph (1) the appropriate supervisory body is the
supervisory body to which such guidance or general directions would apply, and,
where there is more than one such body, each of them.
(3) The
Minister shall make public any guidance or directions he gives under
paragraph (1) whether through the internet or otherwise.
(4) When
exercising its functions a supervisory body shall –
(a) take
into account any guidance; and
(b) follow
any directions,
given to it under this Article.
(5) Each
supervisory body shall make a report to the Minister on its activities
under this Law in each of its financial years.
(6) Such
report shall be provided to the Minister as soon as practicable after the end
of the financial year to which it relates, but in any event shall be provided
no later than 7 months after the end of that year.
(7) The
Minister shall lay before the States a copy of each report provided to him or
her under paragraph (5) as soon as practicable after having received it.
8 General
powers of supervisory bodies
(1) A
supervisory body shall have the power to do anything –
(a) that
is calculated to facilitate; or
(b) that
is incidental or conducive to,
the performance of any of its functions under this Law.
(2) That
power includes a general power to conduct reasonable routine examinations of a
supervised person in relation to whom the supervisory body exercises
supervisory functions.
(3) A
supervisory body may, as part of its general power under
paragraph (2) –
(a) require
a supervised person to supply information in a format and at times specified by
that body;
(b) require
the supervised person to provide answers to questions; and
(c) require
the supervised person to allow officers or agents of the supervised body to
enter the supervised person’s premises.
(4) Nothing
in this Article shall require the disclosure or production by a person to a supervisory
body of information or documents which he or she would in an action in the
Court be entitled to refuse to disclose or produce on grounds of legal
professional privilege in proceedings in the Court except, if he or she is a
lawyer, the name and address of his or her client.
9 Limitation
of liability
(1) No person
or body to whom this Article applies shall be liable in damages for anything
done or omitted in the discharge or purported discharge of any function under,
or authorized by or under, this Law unless –
(a) it
is shown that the act or omission was in bad faith; or
(b) liability
arises in respect of an act or omission that is unlawful as a result of
Article 7(1) of the Human Rights (Jersey) Law 2000[14] (acts of public authorities
incompatible with Convention rights).
(2) This
Article applies to –
(a) each
supervisory body, any member of that body or any person who is, or is acting
as, an officer, servant or agent of that body or who is performing any duty or
exercising any power on behalf of that body; and
(b) the
States or any Minister in respect of any delegation of functions to that body.
part 3
registration
10 Prohibition
of carrying on unauthorized specified Schedule 2 business
(1) Subject
to paragraph (2) –
(a) a
person shall not carry on a specified Schedule 2 business in or from
within Jersey; and
(b) a
person being a company incorporated in Jersey shall not carry on such business
in any part of the world,
unless the person is for the time being a registered person under
this Law in respect of that specified Schedule 2 business, and acting in
accordance with the terms of his or her registration.
(2) This
Law shall not apply to –
(a) the
doing of anything by or on behalf of –
(i) the States, the
Attorney General, the Solicitor General, the Viscount, the Judicial Greffier or
a Jurat of the Royal Court when acting in such capacity, or
(ii) any other
prescribed person or institution, subject to such conditions or restrictions as
may be prescribed;
(b) any
prescribed transaction subject to such conditions or restrictions as may be
prescribed.
(3) Any
person who holds himself or herself out as carrying on a specified
Schedule 2 business in or from within Jersey, and any company incorporated
in Jersey which holds itself out as carrying on specified Schedule 2
business shall, for the purposes of this Article, be treated as carrying on
such business.
(4) A
person who contravenes this Article shall be guilty of an offence and liable to
imprisonment for a term of 7 years and a fine.
11 Application
for appropriate level of registration and deemed registration
(1) Subject
to paragraph (6), a person who intends to carry on a specified
Schedule 2 business (an “applicant”) shall make an application
under Article 13 or 15 to the relevant supervisory body to be registered.
(2) An
application under paragraph (1) shall be for the appropriate level of
registration in respect of that specified Schedule 2 business.
(3) The
appropriate level of registration shall be the level specified in the Table in
the Schedule opposite the description of the specified Schedule 2 business
that the applicant, or the person giving the notification under
paragraph (6), as the case may be, intends to carry on.
(4) The
States may by Regulations amend –
(a) the
level of registration specified in column 2 of the Table in the Schedule; and
(b) the
descriptions of specified Schedule 2 business described in column 3 of the
Table in the Schedule.
(5) Where
the applicant intends to carry on more than one specified Schedule 2
business subject to different registration levels, the appropriate level of
registration shall be level 1.
(6) A
person carrying on a regulated business who intends to carry on a specified
Schedule 2 business is not required to make an application under
paragraph (1) provided that person has previously notified the Commission
that he or she intends to carry on that specified Schedule 2 business.
(7) A
notification under paragraph (6) shall be in such form as the Commission
may determine and shall include –
(a) the
person’s name;
(b) the
description of the specified Schedule 2 business that the person intends
to carry on;
(c) the
principal address (stating that it is the principal address) and any other
address from which the person intends to carry on that business;
(d) such
other particulars as the Commission may require.
(8) A
notification under paragraph (6) shall be accompanied by a fee determined
in accordance with Article 21.
(9) Upon
receiving a notification under paragraph (6) from a person, the Commission
shall give that person written notice that the person is deemed to have the
appropriate level of registration with or without conditions under
Article 17(3) in respect of the specified Schedule 2 business that is
the subject of the notification and in this Law such registration shall be
referred to as “deemed registration” and such a person shall be
referred to as a “deemed registered person”.
12 Determination
of relevant supervisory body
(1) Where
the applicant does not fall within paragraph (2) and there is only one
supervisory body exercising supervisory functions in respect of the specified
Schedule 2 business that an applicant intends to carry on the relevant
supervisory body shall be that body.
(2) Where
a registered person who is not a deemed registered person intends to carry on
specified Schedule 2 business falling within a different description in
the Schedule from the specified Schedule 2 business that the registered
person carries on –
(a) if
there is only one supervisory body exercising supervisory functions in respect
of all the specified Schedule 2 business that the person intends to carry
on and is carrying on, the relevant supervisory body shall be that body; or
(b) if
the supervisory body exercising supervisory functions in respect of the
specified Schedule 2 business that the registered person intends to carry
on is different from the supervisory body exercising supervisory functions
in respect of the specified Schedule 2 business that the registered person
carries on, the registered person shall notify each supervisory body in writing
of that fact before making an application under Article 13 or 15.
(3) Where
there is more than one supervisory body exercising supervisory functions in
respect of the specified Schedule 2 business that a person intends to
carry on (whether or not that person falls within paragraph (2)), that
person shall notify each supervisory body in writing of each specified Schedule 2
business that he or she intends to carry on before making an application under
Article 13 or 15.
(4) Upon
receipt of a notice under paragraph (2)(b) or (3) or both, the supervisory
bodies shall seek to agree with each other which body shall be the relevant supervisory
body in respect of all of the applicant’s specified Schedule 2
business for the purpose of this Law.
(5) If
the supervisory bodies reach agreement under paragraph (4), the relevant
supervisory body shall notify the applicant in writing that it is the relevant
supervisory body.
(6) If
no agreement can be reached under paragraph (4), one or more of the
supervisory bodies shall notify the Minister.
(7) Upon
receiving notification under paragraph (6), the Minister shall decide
which of the supervisory bodies shall be the relevant supervisory body and
shall notify those supervisory bodies of that fact.
(8) Upon
receiving notification under paragraph (7), the relevant supervisory body
shall notify the applicant in writing that it is the relevant supervisory body
in respect of all of the specified Schedule 2 business that the applicant
intends to carry on.
13 Application
for a level 1 registration
(1) An
application for a level 1 registration shall –
(a) be
in such form as the relevant supervisory body may from time to time determine;
(b) contain
or be accompanied by such information and documents as the relevant supervisory
body may require, relating to any of the following –
(i) the applicant,
(ii) the
applicant’s business,
(iii) any person employed by
the applicant,
(iv) any person who is an
associate of the applicant to the extent relevant to the applicant’s
business,
(v) any person who is a
principal person or key person in relation to the applicant,
verified in such manner as the relevant supervisory body may
require; and
(c) be
accompanied by the fee for the application, determined in accordance with
Article 21.
(2) Without
prejudice to the generality of paragraph (1)(b) such information and
documents may relate to whether or not any of the persons mentioned in
Article 14(3) has been convicted of any of the offences mentioned in
sub-paragraphs (a) and (b) of Article 14(4).
(3) At
any time after receiving an application and before determining it the relevant
supervisory body may, at its discretion, by written notice direct the applicant
or any person who is or is to be a principal person or key person in relation
to the applicant to provide such additional information or documents as the
relevant supervisory body reasonably requires for the determination of the
application, verified in such manner as the relevant supervisory body may
require, and such requirements may differ as between different applications.
(4) The
relevant supervisory body may by written notice require the applicant or any person
who is to be a principal person or key person in relation to the applicant to
provide a report by an auditor or accountant, or other qualified person
approved by the relevant supervisory body, on such aspects of any information
and documents required by or under paragraph (1) or (2) as the relevant
supervisory body may specify.
(5) An
applicant who, while his or her application is awaiting determination by the
relevant supervisory body under Article 14 –
(a) determines
to bring about any alteration in; or
(b) becomes
aware of any event which may affect in any material respect,
any information or documents supplied by the applicant to the
relevant supervisory body in connection with the application, shall forthwith
give written notice of that matter to that body.
(6) An
applicant may, by written notice to the relevant supervisory body, withdraw his
or her application under this Article at any time before it is granted or
refused.
14 Grant
or refusal of application for a level 1 registration
(1) On an
application under Article 13 for a level 1 registration the relevant
supervisory body may either register the applicant, with or without attaching
conditions under Article 17(3), or refuse to register the applicant.
(2) Whenever
a relevant supervisory body registers an applicant it shall issue to that
applicant a registration certificate.
(3) The
relevant supervisory body may refuse to register an applicant for a level 1
registration on the ground that –
(a) the
applicant;
(b) a
principal person in relation to that applicant; or
(c) a
key person in relation to that applicant,
is not a fit and proper person.
(4) For
the purposes of paragraph (3), a person is not a fit and proper person if
that person –
(a) has
been convicted of an offence under anti-money laundering and counter-terrorism
legislation or any offence under the law of a country or territory outside
Jersey similar to one that falls within that legislation;
(b) has
been convicted of –
(i) an offence
(whether under the law of Jersey or of a country or territory outside Jersey)
involving fraud or other dishonesty,
(ii) an offence under
any enactment (whether of Jersey or of a country or territory outside Jersey)
relating to building societies, companies, consumer credit, consumer
protection, credit unions, friendly societies, industrial and provident
societies, insider dealing, insolvency, insurance, money laundering or
terrorist financing, or
(iii) an offence (whether
under the law of Jersey or of a country or territory outside Jersey) of perjury
or conspiracy to pervert the course of justice;
(c) is
otherwise considered not to be fit and proper by the relevant supervisory body
for reasons related to the risk of money laundering or the financing of
terrorism.
(5) The
relevant supervisory body may refuse to register a person for a level 1
registration if the application is not made in accordance with Article 13.
15 Application
for a level 2 registration and grant or grounds for refusal
(1) An
application for a level 2 registration shall –
(a) be
in such form as the relevant supervisory body may from time to time determine;
(b) include –
(i) the
applicant’s name,
(ii) the description
of specified Schedule 2 business that the applicant intends to carry on,
(iii) the principal address
(stating that it is the principal address) and any other addresses in Jersey
from which the applicant intends to carry on that business,
(iv) such other particulars
as the relevant supervisory body may require;
(c) be
accompanied by the fee for the application, determined in accordance with
Article 21.
(2) An
applicant who, while his or her application is awaiting determination by the
relevant supervisory body under this Article –
(a) determines
to bring about any alteration in; or
(b) becomes
aware of any event which may affect in any material respect,
any information or documents supplied by the applicant to the
relevant supervisory body in connection with the application shall forthwith
give written notice of that matter to that body.
(3) If
an application is made in accordance with paragraph (1) the relevant
supervisory body shall register the applicant, with or without attaching
conditions under Article 17(3), and issue to that applicant a registration
certificate.
(4) The
relevant supervisory body may refuse to register an applicant for level 2
registration if an application is not made in accordance with
paragraph (1).
(5) An
applicant may, by written notice to the relevant supervisory body, withdraw his
or her application under this Article at any time before it is granted or
refused.
16 Notice
of refusal to register
(1) If
a supervisory body refuses to register an applicant under Article 14 or
15, it shall give notice to the applicant with reasons.
(2) The
requirement to give reasons under paragraph (1) shall not require the
supervisory body to specify any reason that would, in the supervisory
body’s opinion, involve the disclosure of confidential information the
disclosure of which would be prejudicial to a third party.
(3) Where
paragraph (2) applies, the supervisory body shall include in its reasons a
statement of the fact that it relied upon such information when coming to its
decision.
17 Conditions of registration
(1) The
Minister may, on the recommendation of the appropriate supervisory body, prescribe
conditions which shall apply to registered persons and to the carrying on of
specified Schedule 2 business by registered persons.
(2) For
the purposes of paragraph (1), the appropriate supervisory body is the
supervisory body carrying out supervisory functions in respect of persons or
businesses to whom or to which the prescribed conditions would apply, and, if
there is more than one such body, each of them.
(3) A
supervisory body may attach conditions to any particular grant of registration
under Article 14 or 15 or, in the case of the Commission, to a deemed
registration, and the supervisory body may from time to time amend, vary,
substitute or revoke any such condition or attach new conditions.
(4) Where,
under paragraph (3), a supervisory body attaches a condition to a
registration, amends, varies, substitutes or revokes a condition attached to a
registration, or attaches a new condition, it shall give notice in writing to
the registered person concerned with reasons.
(5) The
requirement to give reasons under paragraph (4) shall not require the
supervisory body to specify any reason that would, in the supervisory
body’s opinion, involve the disclosure of confidential information to a
third party.
(6) Where
paragraph (5) applies, the supervisory body shall include in its reasons a
statement of the fact that it relied upon such information when coming to its
decision.
(7) If
any registered person fails to comply with any condition prescribed under paragraph (1)
or attached under paragraph (3), the registered person shall be liable to
imprisonment for a term of 2 years and a fine.
(8) The
record of the conviction of any person for an offence under paragraph (7)
shall be admissible in any civil proceedings as evidence of the fact of the
breach of a condition prescribed or attached under this Article.
(9) Conditions
prescribed under paragraph (1) or attached under paragraph (3) may
indicate that a Code of Practice is to be wholly or partly disregarded for the
purposes of Article 22(6).
18 Revocation of registration
(1) A
supervisory body may revoke a registration that it has granted under Article 14
or 15 of this Law on any of the following grounds –
(a) at the request of the
registered person;
(b) if the registered person
has not commenced any specified Schedule 2
business in respect of which that person was registered in or from within Jersey within one year of the date of the person’s registration;
(c) if the registered person
ceases to conduct a specified Schedule 2 business in respect of which that
person was registered in or from within Jersey;
(d) in the case of a level
1 registration on one or more of the grounds set out in Article 14(3) with
the substitution for references to the applicant of references to a registered person;
(e) in the case of a level
1 or 2 registration if it comes to the attention of the supervisory body after
granting registration that an application was not made in accordance with
Article 13(1) or Article 15(1) or that the applicant failed to comply
with Article 13(5) or Article 15(2), as the case may be;
(f) if the registered
person has not complied with any Code of Practice that applies to that person;
(g) if the registered person
fails to pay any fee for which that person is liable under Article 20.
(2) If
a supervisory body revokes a registration under this Article it shall give
notice in writing with reasons to the registered person concerned.
(3) The
requirement to give reasons under paragraph (2) shall not require the
supervisory body to specify any reason that would, in the supervisory
body’s opinion, involve the disclosure of confidential information the
disclosure of which would be prejudicial to a third party.
(4) Where
paragraph (3) applies, the supervisory body shall include in its reasons a
statement of the fact that it relied upon such information when coming to its
decision.
19 Procedure on refusal or revocation, or
new or varied condition
(1) Where
a supervisory body acting under Article 17 attaches a new condition to the
registration of a particular person or amends, varies, substitutes or revokes
any condition so attached, or under Article 18, revokes a registration,
such revocation, new condition or amendment, variation, substitution or
revocation of a condition shall not take effect, subject to paragraph (3),
before the expiration of –
(a) a period of one month
from the date on which notice in writing was given to the registered person
under Article 17(4) or Article 18(2), as the case may be;
(b) the date on which any
appeal against the revocation, new condition or amendment, variation,
substitution or revocation of a condition is determined by the Court or
withdrawn,
whichever is later, unless the registered person requests that it
should take effect at an earlier date.
(2) Any
person aggrieved by a refusal to register an applicant under Article 14 or
15 or by revocation of a registration or by the conditions attached to the person’s
registration, or by any new condition so attached or by any amendment,
variation, substitution or revocation of such conditions, may appeal to the
Court within one month from the date on which notice in writing has been given
to the person under Article 16(1), Article 17(4) or
Article 18(2), as the case may be, on the ground that the decision of the supervisory
body was unreasonable having regard to all the circumstances of the case.
(3) If,
on the application of a supervisory body, the Court is satisfied that it is
desirable in the best interests of persons with whom a registered person has
transacted or may transact a specified Schedule 2 business that
paragraph (1) should not have effect, or should cease to have effect in a
particular case, or that the period suggested in paragraph (1)(a) should
be reduced, the Court may so order.
(4) An order
under paragraph (3) may be made without prior notice to and without
hearing the registered person concerned.
(5) An
order under paragraph (3) shall have immediate effect but any person
aggrieved by the order may apply to the Court to vary or set aside the order on
the ground only that the order was unreasonable having regard to all the
circumstances of the case.
(6) In
respect of an application under paragraph (3), the Court may make such
order as it thinks fit and in respect of an application under paragraph (5),
the Court may make such order in respect of the relevant order under
paragraph (3) as it thinks fit.
(7) Nothing
in paragraph (1) or (2) derogates from or otherwise affects a condition
prescribed under Article 17(1).
part 4
fees
20 Annual
fee
(1) A
supervisory body may charge an annual fee payable by each person registered by
it under this Law.
(2) The
Commission may charge an annual fee payable by each deemed registered person
and each regulated person.
(3) If
a registered person fails to pay any fee charged under paragraph (1) or
(2) there shall be payable by that person a late payment fee of such amount as
the supervisory body may determine.
21 Determination
of fees and late payment
(1) The
fee for each of the following shall be the fee for the time being published and
in effect in accordance with this Article –
(a) notification
under Article 11(6);
(b) an
application under Article 13 or Article 15;
(c) an
annual fee under Article 20.
(2) The
fees mentioned in paragraph (1) shall be retained by the supervisory body
to whom they are paid and shall be set at such a level as is necessary that, in
aggregate they –
(a) raise
sufficient income to enable the supervisory body to carry out its functions
under this Law; and
(b) provide
a reserve of such amount as the supervisory body considers necessary for
carrying out such functions.
(3) A
supervisory body may set different fees for –
(a) each
level of registration;
(b) each
of the things mentioned in paragraph (1); and
(c) specified
cases falling within sub-paragraph (a), (b) or (c) of paragraph (1)
as the case requires.
(4) Supervisory
bodies may set different fees from each other.
(5) A supervisory body may determine that no
fee shall be charged for any of the things mentioned in paragraph (3).
(6) Before
publishing a fee mentioned in paragraph (1), other than where the
supervisory body proposes to charge no fee, the supervisory body shall publish
a report that includes –
(a) details
of the proposed fee;
(b) a
request for comments on the level of the proposed fee; and
(c) a
date, that is at least 28 days after the publication of the report, before
which those comments may be made to the supervisory body.
(7) If,
by that date or any later date agreed by the supervisory body, a body that
appears to the supervisory body to be representative of the interests of those
who would be required to pay the fee, is unable to agree with the supervisory
body –
(a) a
fee for anything mentioned in paragraph (3) for which there is no
published fee under this Article; or
(b) an
increase in an existing fee where the percentage increase in the fee is greater
than the percentage increase in the RPI since the fee last took effect in
accordance with paragraph (8),
the supervisory body shall request the Bailiff to appoint
3 Jurats to consider if the fee proposed by the supervisory body is
unreasonable having regard to all the circumstances of the case and, in
particular, the requirement of paragraph (2).
(8) Where –
(a) paragraph (7)
does not apply to a proposed fee; or
(b) Jurats
appointed under that paragraph have agreed a fee proposed by the supervisory
body or have proposed some other fee,
the supervisory body shall publish a notice giving details of the
fee proposed by it or, in the case where some other fee has been proposed by the
Jurats, that fee, which shall have effect from the date specified in the
notice.
(9) In
this Article “RPI” means the Retail Prices Index published by the
Statistics Unit of the Chief Minister’s Department of the States.
(10) Except
as provided by this Article, nothing in this Article otherwise limits any right
or power the relevant supervisory body has to charge, recover and receive any
fees, charges, costs, proceeds and other amounts.
part 5
supervision of schedule 2 businesses
powers and controls
22 Codes of practice
(1) A
supervisory body may, after consultation with such persons or bodies as appear
to be representative of the interests concerned –
(a) prepare and issue Codes
of Practice for the purpose of establishing sound principles for compliance with
this Law and anti-money laundering and counter-terrorism legislation by persons
in relation to whom that body has supervisory functions;
(b) revise any such Code of
Practice by revoking, varying, amending or adding to its provisions; and
(c) indicate in any such
Code of Practice if and to what extent it is or is not to apply to any class or
description of supervised business carried on by persons in relation to whom
that body has supervisory functions.
(2) A
supervisory body shall cause any Code of Practice issued under this Article to
be published, and may make such arrangements as it thinks fit for such
distribution, including causing copies of the Code of Practice to be put on
sale to the public at such price as that body considers to be reasonable.
(3) A
supervisory body may issue different Codes of Practice for different categories
or descriptions of person in respect of whom that supervisory body has
supervisory functions.
(4) Subject
to paragraphs (5) and (6), a failure on the part of any person to follow
any provision in a Code of Practice shall not of itself render any person
liable to proceedings of any kind or invalidate any transaction but such a Code
shall be admissible as evidence in any proceedings.
(5) In
determining whether a person’s conduct amounts to a contravention of any
requirement in this Law –
(a) non-compliance
by the person with any relevant provision of a Code issued under this Article
may be relied on as tending to establish liability; and
(b) compliance
by the person with any relevant provision of such a Code may be relied on as
tending to negative liability.
(6) In
any proceedings under this Law or otherwise, any Code of Practice issued under
this Article shall be admissible in evidence if it appears to the court
conducting the proceedings to be relevant to any question arising in the
proceedings, and shall be taken into account in determining any such question.
(7) A
copy, certified in writing on behalf of a supervisory body to be an accurate
copy –
(a) of a Code; or
(b) of any part of such a
Code,
shall be admissible in evidence in all legal proceedings as of equal
validity with the original and as evidence of any fact stated in it of which
direct oral evidence would be admissible.
(8) Where
a document purports on its face to be a copy of a Code or part of a Code,
certified in accordance with paragraph (7), it shall be unnecessary for
the purposes of paragraph (7) to prove the official position or
handwriting of the person signing on behalf of the relevant supervisory body
that issued that Code.
23 Power
to issue directions
(1) If
it appears to a suitable supervisory body in relation to a supervised business
that –
(a) any
requirements in relation to the registration, including deemed registration, of
a registered person are no longer satisfied;
(b) a
person has failed to comply with –
(i) any requirement
of this Law,
(ii) any requirement
of any Order made under Article 37 of the Proceeds of Crime (Jersey)
Law 1999, or
(iii) any Code of Practice
that applies to that person;
(c) it
is in the best interests of –
(i) creditors of a person
carrying on a supervised business, or
(ii) persons with whom
a person has transacted or may transact a supervised business;
(d) it
is desirable in order to protect the reputation and integrity of Jersey in
financial and commercial matters; or
(e) it
is in the best economic interests of Jersey,
that body may, whenever it considers it necessary, give, by notice
in writing, such directions as it may consider appropriate in the
circumstances.
(2) Without
prejudice to the generality of paragraph (1), a direction under this
Article may –
(a) require
anything to be done or not done, or impose any prohibition, restriction or
limitation, or any other requirement, and confer powers, with respect to any transaction
or other act, or to any assets, or to any other thing whatsoever;
(b) require
that any principal person, key person, or person having functions, in relation
to a person carrying on a supervised business be removed or removed and
replaced by another person acceptable to the supervisory body;
(c) require
that any individual –
(i) not perform a
specified function (or any function at all) for,
(ii) not engage in
specified employment (or any employment at all) by, or
(iii) not hold a specified
position (or any position at all) in the business of,
a person carrying on a supervised business;
(d) require
a person carrying on a supervised business to cease operations and to wind up
its affairs, in accordance with such procedures and directions as may be specified
in the direction, which may provide for the appointment of a person to take
possession and control of all documents, records, assets and property belonging
to or in the possession or control of the person carrying on a supervised
business.
(3) A
direction under this Article may be of unlimited duration or of a duration
specified in the notice of the direction.
(4) The
power to give directions under this Article shall include the power by
direction to vary or withdraw any direction, as well as the power to issue
further directions.
(5) A
notice of a direction under this Article shall –
(a) specify
the reasons for the giving of the direction;
(b) specify
when the direction is to have effect;
(c) give
particulars of the provisions of paragraphs (6) and (7); and
(d) give
particulars of the rights of appeal conferred by paragraph (8).
(6) Any
person to whom a direction is given under paragraph (1) may apply to the
supervisory body that issued the direction to have it withdrawn or varied and
that body shall withdraw or vary the direction in whole or in part if it
considers that there are no longer any grounds under paragraph (1) which
justify the direction or part of the direction concerned.
(7) If
the supervisory body refuses an application under paragraph (6), or grants
such an application only in part, it shall give notice in writing of that fact to
the applicant.
(8) Any
person aggrieved by a direction given to the person under paragraph (1),
or a refusal to grant an application under paragraph (6), or the granting
of such an application only in part, may appeal to the Court.
(9) Such
an appeal may be made only on the ground that the decision to give the
direction, to make the refusal or to grant the application only in part (as the
case requires) was unreasonable having regard to all the circumstances of the
case.
(10) A
person’s appeal under paragraph (8) shall be lodged with the Court
no later than the day that is one month after the day on which notice was
served on the person of the direction, refusal or grant (as the case requires).
(11) On the
appeal, the Court may make such interim or final order as it thinks fit.
(12) If an
appeal is made under paragraph (8) with respect to a direction that makes
a requirement referred to in paragraph (2)(c) or (d), the direction shall
have no effect until the appeal is determined by the Court or withdrawn.
(13) In other
cases, an appeal made under paragraph (8) with respect to a direction
shall not suspend the operation of the direction.
(14) An
appeal made under paragraph (8) in relation to an application under paragraph (6)
shall not suspend the operation of the direction in connection with which the
application was made.
(15) A person
who fails to comply with any of the provisions of a direction given under this
Article shall be guilty of an offence and liable to imprisonment for a term of
2 years and to a fine.
(16) The
record of the conviction of any person for an offence under paragraph (15)
shall be admissible in any civil proceedings as evidence of the facts
constituting the offence.
24 Injunctions and remedial Orders
(1) Where,
on the application of a suitable supervisory body, the Court is satisfied that
it is likely that a person will contravene (or continue or repeat a
contravention of) –
(a) Article 10;
(b) any
condition prescribed or attached under Article 17;
(c) any
direction given under Article 23;
(d) any
provision of Article 34;
(e) any
Order under Article 37 of the Proceeds of Crime (Jersey) Law 1999,
the Court may if it thinks fit issue an injunction restraining that
person from committing (or, as the case may be, continuing or repeating) the
contravention.
(2) Where,
on the application of a suitable supervisory body, the Court is satisfied that
there are steps which could be taken to remedy the contravention, the Court may
make an order requiring that person, or any other person who appears to the
Court to have been knowingly concerned, to take such steps as the Court may
direct to remedy the contravention.
25 Powers of intervention
(1) Where,
on the application of a suitable supervisory body, the Court is satisfied in
relation to a supervised person that –
(a) the
supervised person –
(i) is not, in terms
of Article 14(4), a fit and proper person to carry on the supervised
business that the supervised person is purporting to carry on, or is not fit to
carry it on to the extent to which the supervised person is purporting to do,
or
(ii) is likely to
commit a contravention of a type referred to in Article 24(1); and
(b) it
is desirable for the protection of persons with whom a supervised person has
transacted or may transact supervised business,
the Court may, as it thinks just, make an order making the supervised
person subject to such supervision, restraint or conditions, from such time,
and for such periods, as the Court may specify, and may also make such
ancillary orders as the Court thinks desirable.
(2) For
the purposes of this Article, references to a supervised person include a
formerly supervised person.
(3) If,
on an application made under paragraph (1), the Court is satisfied that a person,
by entering into any transaction, has contravened Article 10 the Court may
order that person and any other person who appears to the Court to have been
knowingly concerned in the contravention to take such steps as the Court may
direct for restoring the parties to the position in which they were before the
transaction was entered into.
(4) Without
prejudice to the generality of paragraph (1) or (3), an order made under
either of those paragraphs may include a requirement that all assets, or all
assets of a specified description which, at any time while the requirement is
in force –
(a) belong
to the supervised person; or
(b) belong
to persons with whom the supervised person is transacting supervised business and
are held by or to the order of that person carrying on the supervised business,
shall be transferred to and held by a person whose appointment is
approved by the Court (in this Article referred to as an “appointed person”).
(5) Where
a requirement of a type referred to in paragraph (4) is imposed under this
Article, it shall be the duty of the supervised person to transfer the assets
to the appointed person and to give the appointed person all such other
assistance as may be required to enable the appointed person to discharge his
or her functions in accordance with the requirement.
(6) Assets
held by an appointed person in accordance with a requirement of a type referred
to in paragraph (4) shall not be released or dealt with except in
accordance with directions given by the Court or in such circumstances as may
be specified by it.
(7) An order
including a requirement of a type referred to in paragraph (4) may relate
to assets outside Jersey.
(8) The
provisions of this Article shall be without prejudice to any right of any
aggrieved person to bring proceedings directly in respect of any right such person
may otherwise have independently of a supervisory body.
26 Public
statements
A suitable supervisory body may issue –
(a) a
public statement with respect to, or setting out, any direction that that body has
given under Article 23;
(b) a
public statement concerning a person if that person appears to the body to have
committed a contravention of any of the following –
(i) Article 10,
(ii) any
condition prescribed or attached under Article 17,
(iii) any
direction given under Article 23,
(iv) any
provision of Article 34,
(v) any
Code of Practice that applies to that person,
(vi) any
Order under Article 37 of the Proceeds of Crime (Jersey) Law 1999;
(c) a
public statement concerning a person if it appears to that body that the person
is carrying on a supervised business, whether in Jersey or elsewhere, and it
appears to that body to be desirable to issue the statement –
(i) in
the best interests of persons who have transacted or may transact supervised
business with that person, or
(ii) in
the best interests of the public.
27 Notice
of public statement
(1) If
a public statement identifies any supervised person, the supervisory body
responsible for issuing that statement shall serve notice on the person.
(2) If
a public statement identifies any person who is not a supervised person and at
any time before the supervisory body issues the public statement it is
reasonably practicable for that body to serve notice on the person, that body
shall do so.
(3) A
notice under paragraph (1) or (2) shall –
(a) give
the reasons for issuing the statement;
(b) give
the proposed or actual date of issue of the statement;
(c) contain
a copy of the statement;
(d) give
particulars of the right of appeal under Article 29 in respect of the
statement; and
(e) if
the statement is issued, in accordance with a decision under Article 28(3),
before the day specified in Article 28(1) in relation to the statement, give
the reasons for issuing it before that day.
(4) Paragraph
(3) shall not require the relevant supervisory body –
(a) to
specify any reason that would in that body’s opinion involve the disclosure
of confidential information the disclosure of which would be prejudicial to a
third party; or
(b) to
specify the same reasons, or reasons in the same manner, in the case of notices
to different persons about the same matter.
(5) In
this Article and Articles 28 and 29 a reference to the identification of a
person in a public statement does not include the identification, in the
statement, of a supervisory body or of any other person in their capacity of
exercising functions or powers under this Law.
28 Notice
period for public statements
(1) If
service is required under Article 27(1) or (2) in relation to a public
statement, the relevant supervisory body shall not issue the public statement
earlier than the expiration of one month from the date of that service.
(2) Paragraph
(1) shall not apply if –
(a) each
of the persons identified (within the meaning of Article 27) in the
relevant public statement agrees with the supervisory body that the statement
may be issued on a date earlier than the date that would apply under that
paragraph; and
(b) the
statement is in fact issued on or after the earlier date.
(3) Paragraph
(1) shall not apply if –
(a) the
supervisory body decides on reasonable grounds that the interest of the public
in the issue of the relevant public statement on a date earlier than the date
that would apply under that paragraph outweighs the detriment to the persons
identified in the statement, being the detriment attributable to that
earliness; and
(b) the
statement is in fact issued on or after the earlier date.
(4) In
making a decision under paragraph (3), the supervisory body is not
prevented from choosing as the date of issue of a public statement the date of
service (if any) of notice of the statement.
(5) Despite
this Article, if an appeal is made to the Court under Article 29(1), and
the Court orders that the statement not be issued before any specified date or
event, the supervisory body shall not issue the statement before the date or
event so specified.
(6) In
a case to which paragraph (1) applies, if an appeal is made under
Article 29(2) to the Court against a decision to issue a public statement,
the supervisory body shall not issue the statement before the day on which that
appeal is determined by the Court or withdrawn.
29 Appeals
about public statements
(1) A
person aggrieved by a decision of the supervisory body under Article 28(3)
may appeal to the Court, in accordance with this Article, against the decision.
(2) A
person aggrieved by a decision of the supervisory body to issue a public
statement that identifies the person may appeal to the Court, in accordance
with this Article, against the decision.
(3) An
appeal under paragraph (2) may be made only on the ground that the
decision of the relevant supervisory body was unreasonable having regard to all
the circumstances of the case.
(4) A person’s
appeal under this Article shall be lodged with the Court no later
than –
(a) if
notice is served on the person under Article 27 in relation to the public
statement, the day that is one month after the date of such service; or
(b) if
no such notice is served on the person, the day that is one month after the
issue of the public statement.
(5) Nothing
in paragraph (4) prevents the lodging of an appeal before a notice is
served or a public statement is issued.
(6) On an
appeal under this Article, the Court may make such interim or final order as it
thinks fit, including an order that the supervisory body not issue the relevant
public statement or, if the public statement has been issued, that the supervisory
body issue a further public statement to the effect set out in the order or
stop making the statement available to the public.
INFORMATION AND investigations
30 Power
to require provision of information and documents
(1) This
paragraph applies to –
(a) a
person carrying on a supervised business;
(b) a
person who is or was a principal person or key person in relation to that
person;
(c) an
associate of such a principal person.
(2) This
Article is without prejudice to the general power in Article 8.
(3) In
this Article references to a person carrying on a supervised business include a
person who formerly carried on a supervised business.
(4) A
suitable supervisory body or any duly authorized officer or agent of that body
may by notice in writing served on a person to whom paragraph (1) applies,
require the person on whom the notice is served –
(a) to
provide to it or any duly authorized officer or agent of the supervisory body,
at such time and place as may be specified in the notice, information and
documents of a specified description;
(b) to
attend at such place and time as may be specified in the notice and answer
questions which the supervisory body or any duly authorized officer or agent of
that body reasonably requires the person to answer.
(5) For
the purposes of paragraph (4), such information, documents or questions
may relate to –
(a) the
supervised business concerned;
(b) any
matter relevant to whether a person who has or has had a level 1 registration
is or was a fit and proper person with respect to that registration; or
(c) the
compliance by any person to whom this Article applies with this Law and any
Code of Practice made, or a condition of any grant of registration, or a
direction given under this Law,
which the supervisory body, or a duly authorized officer or agent of
that body, reasonably requires, or requires the person to answer, for the
performance of that body’s functions under this Law.
(6) Where
by virtue of paragraph (4) the supervisory body or any duly authorized
officer or agent has power to require the provision of any information or
documents from any person to whom paragraph (1) applies, that supervisory
body, duly authorized officer or agent shall have the like power to require the
provision of such information or documents from any person who appears to be in
possession of them.
(7) Where
a suitable supervisory body has reasonable grounds for suspecting that a person
is contravening Article 10, the supervisory body or any duly authorized
officer or agent may, by notice in writing served on that person or on any
other person appearing to be in possession of the information or documents
described in this paragraph, require the person to do any of the
following –
(a) provide
to it forthwith or at such time and place as may be specified, information or
documents specified in the notice being information or documents which the
supervisory body reasonably requires for the purpose of investigating the
suspected contravention;
(b) attend
at such place and time as may be specified in the notice and answer questions
which the supervisory body or any duly authorized officer or agent of that body
reasonably requires the person to answer for the purpose of investigating the
suspected contravention.
(8) Where
notice has been served under paragraph (4) or (7) by or on behalf of a
supervisory body or its duly authorized officer or agent, that body, officer or
agent may, on producing if required evidence of his or her authority, enter, at
a reasonable time, any premises occupied by a person on whom such a notice has
been served or any other premises where information or documents are kept by
such person for the purpose of obtaining there the information or documents
required by that notice, putting the questions referred to in paragraph (4)(b)
or (7)(b) or of exercising the powers conferred by paragraph (11) as the
case may be.
(9) A
notice under paragraph (4) may –
(a) require
the person concerned to provide to the supervisory body a report by an
accountant or other person with relevant professional skill nominated or
approved by that body, on, or on any aspect of –
(i) any of the
matters mentioned in paragraph (5), or
(ii) any of the
matters mentioned in Article 31(1);
(b) require
such a report to be in such form as specified in the notice.
(10) Where
any person from whom provision of a document is required under
paragraph (6) or (7) claims a lien on any such document, the provision
shall be without prejudice to the lien.
(11) The
power under this Article to require documents to be provided includes
power –
(a) if
the documents are provided, to retain or take copies of them or extracts from
them and to require the person providing them, or any person who appears to be
in possession of relevant information, or is or has been an officer,
shareholder controller or auditor or employee of the supervised person in
question, as appropriate, to provide an explanation of them; and
(b) if
the documents are not provided, to require the person to whom the requirement
was directed to state, to the best of the person’s knowledge and belief,
where they are.
(12) Any
documents retained under paragraph (11)(a) may be retained –
(a) for
a period of one year; or
(b) if
within that period proceedings to which the documents are relevant are commenced
against any person, until the conclusion of those proceedings.
(13) A person
who requires any documents retained under paragraph (11)(a) for the
purpose of the person’s business and who requests such documents shall be
supplied with copies as soon as practicable.
(14) Any
person who without reasonable excuse fails to comply with a requirement imposed
on the person under this Article or obstructs a person exercising powers
conferred by paragraph (8) shall be guilty of an offence and liable to
imprisonment for a term of 6 months and a fine.
(15) Nothing
in this Article shall require the disclosure or production by a person to a
supervisory body or to a person authorized by it of information or documents
which he or she would in an action in the Court be entitled to refuse to
disclose or produce on the grounds of legal professional privilege in
proceedings in the Court except, if he or she is a lawyer, the name and address
of his or her client.
(16) A
statement made by a person in compliance with a requirement imposed by virtue
of this Article may not be used by the prosecution in evidence against the
person in any criminal proceedings except proceedings under paragraph (14)
or Article 33.
31 Investigations
on behalf of a supervisory body
(1) If
it appears to a suitable supervisory body desirable to do so for the purpose of
its supervisory functions that body may appoint one or more competent persons
to investigate and report to it on –
(a) the
compliance by a person with any of the following –
(i) Article 10,
(ii) any condition
prescribed or attached under Article 17,
(iii) any direction given
under Article 23,
(iv) any provision of
Article 34,
(v) any Code of Practice
that applies to that person,
(vi) any Order under
Article 37 of the Proceeds of Crime (Jersey) Law 1999;
(b) any
other matter that might impact on whether a person with or who has had a level
1 registration is or was a fit and proper person with respect to that
registration.
(2) A
person appointed under paragraph (1) may include, without prejudice to the
generality of that paragraph, a member of the supervisory body’s staff or
that body’s agent.
(3) The
supervisory body shall give written notice of any such appointment to the person
concerned.
(4) This
paragraph applies to –
(a) a
person who is under investigation under paragraph (1);
(b) any
of the following who is or was at any material time –
(i) a principal
person or key person in relation to that person,
(ii) an officer,
employee, banker or auditor of that person,
(iii) subject to paragraph (11),
a legal adviser of that person,
(iv) any person appointed to
make a report under Article 30(9),
(v) any other person who
appears to be in possession of relevant information.
(5) It
shall be the duty of every person to whom paragraph (4) applies –
(a) to provide to any
person appointed under paragraph (1) (“appointed person”),
within such time and at such place as the appointed person may require, all
documents relating to that person which are in his or
her custody or power;
(b) to attend before any
appointed person at such time and place as the appointed person may require and
to answer questions which the appointed person may reasonably require the person to answer for the
purposes of the investigation; and
(c) otherwise to give the
appointed person all assistance in connection with the investigation which the person is reasonably able to
give,
and any appointed person may retain or take copies of or extracts
from any documents provided to him or her under sub-paragraph (a).
(6) For
the purpose of exercising the person’s power under this Article an
appointed person may enter any premises occupied by a supervised person or
formerly supervised person or a person who is or was a principal person in
relation to him or her or any associate of such a principal person being
investigated by the person under this Article or any other premises where
information is kept by such a person.
(7) For
the purposes of paragraph (6), “supervised person” includes
any person who appears to a suitable supervisory body to have acted in
contravention of the provisions of Article 10.
(8) A
person may not enter premises under paragraph (6) without prior notice in
writing unless he or she has reasonable cause to believe that if such notice
were given any documents whose provision might be required under this Article
would be removed, tampered with or destroyed.
(9) A person
exercising powers by virtue of an appointment under this Article shall, if so
required, produce evidence of his or her authority.
(10) Any person
who –
(a) without reasonable
excuse fails to provide any document which it is his or
her duty to provide under
paragraph (5);
(b) without reasonable
excuse fails to assist or attend before an appointed person when required to do
so;
(c) without reasonable
excuse fails to answer any question which is put to him
or her by a person so appointed with
respect to a person under investigation; or
(d) obstructs a person in
the exercise of the powers conferred by paragraph (6),
shall be guilty of an offence and liable to imprisonment for a term
of 6 months and a fine.
(11) Nothing
in this Article shall require the disclosure or production by a person of
information or documents which the person would in any action in the Court be
entitled to refuse to disclose or produce on the grounds of legal professional
privilege in proceedings in the Court except, if he or she is a lawyer, the
name and address of his or her client.
(12) Where
any person by whom documents are required to be provided under paragraph (5)
claims a lien on any such document, the provision shall be without prejudice to
the lien.
(13) A person
who is convicted on a prosecution instituted following an investigation under
this Article may in the same proceedings be ordered to pay the expenses of the
investigation to such extent as may be specified by the Court.
(14) For the
purposes of paragraph (13) the expenses of the investigation shall include
such sums as the supervisory body on whose behalf the investigation is carried
out may determine in respect of the cost of staff and overheads.
(15) A
statement made by a person in compliance with a requirement imposed by virtue
of this Article may not be used by the prosecution in evidence against the person
in any criminal proceedings except proceedings under paragraph (10) or Article 33.
32 Entry and search of premises
(1) If
the Bailiff is satisfied by information on oath that there is reasonable cause
to suspect that –
(a) there has been a
contravention of a type referred to in Article 30(7) and that –
(i) a specified person
has failed in any respect to comply with a notice served on him or her under
that paragraph,
(ii) there are
reasonable grounds for suspecting the completeness of any information or
documents provided by him or her in response to such a notice,
(iii) if a notice were served
under that paragraph, it would not be complied with, or
(iv) documents to which such
a notice might relate would be likely to be removed, tampered with or
destroyed;
(b) if
notice were served under Article 30(4) it would not be complied with;
(c) documents
to which a notice under Article 30(4) might relate would be likely to be
removed, tampered with or destroyed;
(d) a
person to whom a notice has been served under Article 30(4) has failed in any
respect to comply with that notice;
(e) a
person on whom a notice has been served under Article 30(4) has failed to
provide complete information or documents in response to that notice;
(f) a
notice served under Article 23(1) has not been complied with in any
respect; or
(g) any
officer or agent of the supervisory body or person appointed under
Article 31(1) has been or may be obstructed in exercising a power of entry
under Article 30(8) or 31(6), as the case may be,
the Bailiff may grant a warrant under this paragraph.
(2) A
warrant under paragraph (1) may authorize any police officer, together
with any other person named in the warrant –
(a) to enter any premises
specified in the warrant, using such force as is reasonably necessary for the
purpose;
(b) to search the premises
and obtain information or take possession of any documents appearing to be
information or documents of a type referred to in any of the Articles referred
to in paragraph (1) or information in relation to matters referred to
therein or which otherwise appear to be relevant to the investigation of an
offence under this Law, or to take, in relation to any such information or
documents, any other steps which may appear to be necessary to preserve them or
prevent interference with them;
(c) to take copies of, or
extracts from such documents and to require the person who had possession of
them, or any person who appears to be in possession of relevant information, or
is or has been an officer, shareholder controller or auditor or employee of the
supervised person, or other person concerned, as the case may be, to provide an
explanation of them;
(d) to require any person
named in the warrant to answer questions relevant for determining any matter
arising in connection with this Law; and
(e) if the information or
documents are not provided, to require any person appearing to be in possession
of relevant information, to state, to the best of the person’s knowledge and belief, where they are and how they may be
retrieved.
(3) A
warrant under paragraph (1) shall continue in force until the end of the
period of one month beginning with the date on which it was issued.
(4) Any
documents of which possession is taken under paragraph (2) may be retained –
(a) for a period of one
year; or
(b) if, within that period,
proceedings to which the documents are relevant are commenced against any person,
until the conclusion of those proceedings.
(5) A person
who requires any documents of which possession is taken under paragraph (2)
for the purpose of his or her business and who requests such documents shall be
supplied with copies as soon as practicable.
(6) Any
person who obstructs the exercise of any power conferred by a warrant issued
under this Article or fails to comply with a requirement imposed on him or her
by virtue of paragraph (2)(c) to (e) shall be guilty of an offence and
liable to imprisonment for a term of 2 years and a fine.
(7) Where
any person from whose premises documents are taken under paragraph (2)
claims a lien on any such documents, the possession of such documents by the
officer or person concerned and by anyone to whom he or she passes them shall
be without prejudice to the lien.
(8) Nothing
in this Article shall require the disclosure or production by a person of
information or documents which the person would in an action in the Court be
entitled to refuse to disclose or produce on the grounds of legal professional
privilege in proceedings in the Court except, if he or she is a lawyer, the
name and address of his or her client.
(9) A
statement made by a person in compliance with a requirement imposed by virtue
of this Article may not be used by the prosecution in evidence against the person
in any criminal proceedings except proceedings under paragraph (6) or
Article 34.
33 Obstruction
of investigations
(1) A
person who knows or suspects that an investigation is being or is likely to be
carried out under Article 31 or that information or documents are being or
are likely to be required under Article 30 shall be guilty of an offence
if he or she falsifies, conceals, destroys or otherwise disposes of, or causes
or permits the falsification, concealment, destruction of or disposal of, information
or documents which he or she knows or suspects are or would be relevant to such
an investigation or are or would be required, unless the person proves that he
or she had no intention of concealing facts disclosed by the information or
documents from persons carrying out such an investigation or requiring such
information or documents.
(2) A
person guilty of an offence under this Article shall be liable to imprisonment
for a term of 2 years and a fine.
34 Supply
of information
(1) A
registered person shall notify the supervisory body exercising functions in
respect of that person as soon as possible –
(a) of
any change in the information given to that body under Article 13 or 15;
(b) if
that person has stopped carrying on a specified Schedule 2 business in
respect of which that supervisory body registered that person;
(c) of
any change in any information given to that body under sub-paragraph (a).
(2) Subject
to paragraph (12), where a person has a level 1 registration, that person
shall notify the supervisory body exercising functions in respect of that
person as soon as possible –
(a) of
any changes in the identity of any key person or principal person (including
where a person ceases to be a key person or principal person);
(b) whether
that key person or principal person has been convicted of any offence described
in Article 14(4) (a) and (b).
(3) A
person who has notified the Commission under Article 11(6) shall notify
the Commission as soon as possible if that person ceases to carry on the
business in respect of which that notification was made.
(4) A
person who fails to give a notice required under paragraph (1)(a) or (c)
or paragraph (2) without reasonable excuse shall be guilty of an offence
and liable to imprisonment for a term of two years and a fine.
(5) A
person who fails to give a notice required under paragraph (1)(b) or (3)
without reasonable excuse shall be guilty of an offence and liable to a fine of
level 3 on the standard scale.
(6) Upon
receiving a notification from a person under paragraph (3), the Commission
shall give that person written notice that the person is no longer a deemed
registered person under this Law and the person shall cease to be such a person
from the date such notice is given.
(7) A
person who knowingly or recklessly provides a supervisory body or its duly
authorized officer or agent entitled to information under this Law with
information that is false or misleading in a material particular shall be
guilty of an offence if the information is provided –
(a) in
purported compliance with a requirement imposed under this Law;
(b) otherwise
than as mentioned in sub-paragraph (a) but in circumstances in which the
person providing the information intends, or could reasonably be expected to
know, that the information would be used by the supervisory body for the
purpose of exercising its functions under this Law.
(8) A
person who knowingly or recklessly provides the supervisory body or any other
person with information which is false or misleading in a material particular
shall be guilty of an offence if the information is provided in connection with
an application for registration under this Law.
(9) A
person shall be guilty of an offence if he or she fails to provide a
supervisory body or its duly authorized officer or agent with any information
in his or her possession, knowing or having reasonable cause to believe that or
being reckless as to whether –
(a) the
information is relevant to the exercise by the supervisory body or its duly
authorized officer or agent of that body or person’s functions under this
Law; and
(b) the
withholding of the information is likely to result in the supervisory body or
its duly authorized officer or agent being misled as to any matter which is
relevant to and of material significance for the exercise of those functions.
(10) A person
guilty of an offence under paragraph (7) or (8) shall be liable to
imprisonment for a term of 5 years and a fine.
(11) A person
guilty of an offence under paragraph (9) shall be liable to imprisonment
for a term of 2 years and a fine.
(12) A
registered person who falls within the description of specified Schedule 2
business in item 3 of the Schedule is not required to notify a supervisory body
under paragraph (2) in respect of any person who –
(a) is
a principal person falling within sub-paragraph (b)(i) in the definition
of “principal person”; or
(b) is
a principal person by virtue of being a limited partner in a limited
partnership within the meaning of the Limited Partnerships (Jersey)
Law 1994[15].
35 Restricted information
(1) Subject
to paragraph (2) and to Article 36, a person who receives information
relating to the business or other affairs of any person –
(a) under or for the
purposes of this Law; or
(b) directly or indirectly
from a person who has so received it,
shall be guilty of an offence and liable to imprisonment for a term of
2 years and a fine if he or she discloses the information without the
consent of the person to whom it relates and (where sub-paragraph (b)
applies) the person from whom it was received.
(2) This
Article does not apply to information which at the time of the disclosure is or
has already been made available to the public from other sources, or to
information in the form of a summary or collection of information so framed as
not to enable information relating to any particular person to be ascertained
from it.
36 Permitted disclosures
(1) Article 35
does not preclude the disclosure of information –
(a) by a supervisory body
or any person acting on its behalf, to the Viscount or to any person exercising
a statutory function in Jersey;
(b) for the purpose of
enabling or assisting a supervisory body or any person acting on its behalf to
discharge its function under this Law or similar functions under any other
enactment;
(c) by a supervisory body
or any person acting on its behalf to a relevant overseas supervisory authority
pursuant to Article 39;
(d) to a person by a
supervisory body showing whether or not any person is registered under this Law
including any conditions which are attached to the registration under Article 17;
(e) with a view to the
investigation of a suspected offence, or institution of, or for the purposes
of, any criminal proceedings, whether under this Law or not;
(f) in connection
with any other proceedings arising out of this Law;
(g) with a view to the
institution of, or otherwise for the purposes of, any disciplinary proceedings
relating to the exercise of professional duties by –
(i) an
auditor of a supervised person or formerly supervised person,
(ii) a
person who was the auditor of a supervised person or formerly supervised person
at any time during the period that person was a supervised person,
(iii) an
auditor, accountant or other qualified person approved under
Article 13(4),
(iv) an
accountant or other person nominated or approved under Article 30 or
Article 31;
(h) by a supervisory body
or any person acting on its behalf to the Attorney General or to a police
officer being information obtained under any of Articles 30, 31 and 32 or
being information in the possession of a supervisory body as to any matter in
relation to which the powers conferred by those Articles are exercisable, but
any information so disclosed may only be disclosed by the Attorney General or a
police officer for the purposes of an investigation into a suspected offence or
a prosecution in Jersey or, at the discretion of the Attorney General, elsewhere;
(i) without prejudice
to the generality of sub-paragraph (b), by a supervisory body to the auditor
of –
(i) a
supervised person or formerly supervised person, or
(ii) a
person who appears to the supervisory body to have acted in contravention of
Article 10,
if it appears to the supervisory body that disclosing the
information would enable or assist that body to discharge the functions
mentioned in sub-paragraph (b) or would otherwise be in the interests of
persons who have transacted or may transact supervised business with such a person;
(j) without
prejudice to the generality of sub-paragraph (b) if, in order to enable or
assist a supervisory body to discharge any of its functions under this Law,
that body considers it necessary to seek advice from any qualified person on
any matter requiring the exercise of professional skill and the disclosure
appears to that body to be necessary to ensure that the qualified person
concerned is properly informed with respect to the matters on which the person’s
advice is sought;
(k) by a supervisory body
or any person acting on its behalf to a person appointed under Article 31
of this Law, or to an inspector appointed under Article 15 of the Company Securities (Insider Dealing) (Jersey) Law 1988[16] or under Article 128 of the Companies (Jersey) Law 1991.
(2) No
information shall be disclosed under paragraph (1)(c) unless the supervisory
body or any person acting on its behalf is satisfied that the relevant overseas
supervisory body complies with or will comply with any conditions to which that
supervisory body or person acting on its behalf may, in their discretion,
subject such disclosure.
37 Requirement
to report certain matters to a supervisory body
(1) If
an auditor knows or becomes aware of prescribed matters in, or in connection
with, discharging any of his or her functions whether under this Law or
otherwise in relation to a supervised person the auditor shall report those
matters to the appropriate supervisory body.
(2) The
Minister may make an Order for the purpose of prescribing matters mentioned in
paragraph (1) on the recommendation of the appropriate supervisory body
and after consultation with such other body or bodies as appear to the Minister
to represent the interests of auditors in Jersey.
(3) The
appropriate supervisory body for the purposes of paragraph (1) is the body
carrying out supervisory functions in relation to the supervised person in
respect of whom the auditor is appointed.
(4) The
appropriate supervisory body for the purposes of paragraph (2) is the
supervisory body carrying out supervisory functions in relation to those
supervised persons in respect of whom auditors are appointed who would be
affected by the Order, and, if there is more than one such body, each of them.
38 Publication
of information about supervised businesses
(1) A
supervisory body may publish the following information about each supervised
person in relation to whom it exercises supervisory functions –
(a) that
person’s name;
(b) the
description of the supervised business that person carries on;
(c) the
principal address in Jersey from which the person carries on that business.
(2) A
supervisory body may offer for sale copies of information published under this
Article at a reasonable charge.
39 Co-operation
with relevant overseas supervisory authority
(1) The
following powers may be exercised (by the officer or person specified in the
relevant provision) in order to assist a relevant overseas supervisory authority –
(a) the
power to refuse or revoke a registration under Article 14, 15 or 18;
(b) the
power to attach, amend, vary, substitute or revoke any condition pursuant to Article 17;
(c) on
the application of a suitable supervisory body, the powers under Article 25;
(d) the
powers relating to information and documents under Article 30;
(e) the
powers under Article 31;
(f) the
powers under Article 32;
(g) communication
by a supervisory body to the relevant overseas supervisory authority of
information that is in the possession of that body, whether or not as a result
of the exercise of any of the above powers.
(2) The
supervisory body shall not exercise the power referred to in paragraph (1)(g)
unless it is satisfied that the relevant overseas supervisory authority will
treat the information communicated with appropriate confidentiality and that –
(a) the
power is exercised in order to assist the relevant overseas supervisory
authority in the exercise of its overseas supervisory functions; or
(b) the
exercise of the power has been requested by the relevant overseas supervisory
authority and requested only for the purposes of obtaining assistance for that
authority in the exercise of one or more of its overseas supervisory functions.
(3) The
other powers referred to in paragraph (1) shall not be exercised by virtue
of this Article unless the supervisory body is satisfied that the exercise has
been requested by the relevant overseas supervisory authority and requested
only for the purposes of obtaining assistance for the authority in the exercise
of one or more of its overseas supervisory functions.
(4) In
deciding whether to exercise a power by virtue of this Article, the following
factors (among others) may be taken into account –
(a) whether
corresponding assistance would be given in that country or territory to a
supervisory body;
(b) whether
the case concerns the possible breach of a law, or other requirement, which has
no close parallel in Jersey or involves the assertion of a jurisdiction not
recognized by Jersey;
(c) the
seriousness of the case and its importance in Jersey and whether the assistance
could be obtained by other means;
(d) whether
it is otherwise appropriate in the public interest to give the assistance.
(5) The
exercise of powers by virtue of this Article may be refused unless the relevant
overseas supervisory authority undertakes to make such contribution towards the
costs of its exercise as the supervisory body considers appropriate.
(6) For
the purposes of this Article –
(a) a
reference –
(i) in
Article 30(7) or Article 31(7) to a contravention of Article 10,
or
(ii) in
Article 32(1) to a contravention of a type referred to in Article 30(7),
shall include a reference to a contravention (committed at any time,
including a time before the enactment of this Law) of a law of a country or
territory outside Jersey constituted by an act, or omission, that, if it arose
in Jersey, would constitute (at the time when the relevant request referred to
in paragraph (3) was received) a contravention of Article 10 as in
force at the latter time; and
(b) a
reference in Article 30(12) or 32(4) to proceedings shall include a
reference to proceedings outside Jersey.
(7) For
the purposes of this Article, a reference (however expressed or implied) in Article 10
(or in any provision necessary for the interpretation of that Article) to Jersey,
or to any class of person, any qualification or any provision, shall be
construed, in the application of that Article to a contravention of a law of a
country or territory outside Jersey, as a reference to that country or
territory, or to an equivalent class of person, qualification or provision, in
terms of the law of that country or territory.
(8) The
exercise of a power under any provision shall be no less an exercise of that
power under that provision because it is exercised by virtue of this Article,
and this Law (and any other law that applies when a power is exercised
directly under that provision) applies also when that power is exercised by
virtue of this Article.
part
6
supplementary
40 Service
of notices
(1) No
notice or other document required by this Law to be given to a supervisory body
shall be regarded as so given until it is received.
(2) Subject
to paragraph (1), any notice or other document required or authorized by
or under this Law to be given to a supervisory body may be given by facsimile,
electronic transmission or by any similar means that produces a document
containing the text of the communication in legible form or is capable of doing
so.
(3) Any
notice, direction or other document required or authorized by or under this Law
to be given to or served on any person other than a supervisory body may be
given to or served on the person in question –
(a) by
delivering it to the person;
(b) by
leaving it at the person’s proper address;
(c) by
sending it by post to the person at that address; or
(d) by
sending it to the person at that address by facsimile, electronic transmission
or other similar means that produces a document containing the text of the
communication in legible form or is capable of doing so.
(4) Any
such notice, direction or other document may –
(a) in
the case of a company incorporated in Jersey, be served by being delivered to
its registered or principal office;
(b) in
the case of a partnership, company incorporated outside Jersey or unincorporated
association, be given to or served on a person who is a principal person in
relation to it, or on the secretary or other similar officer of the
partnership, company or association or any person who purports to act in any
such capacity, by whatever name called, or on the person having the control or
management of the partnership business, as the case may be, or by being served
on the person or delivered to the person’s registered or administrative
office.
(5) For
the purposes of this Article and of Article 7 of the Interpretation
(Jersey) Law 1954[17] in its application to this
Article, the proper address of any person to or on whom a notice, direction or
other document is to be given or served by post shall be the person’s
last known address, except that –
(a) in
the case of a company incorporated in Jersey, or its secretary, clerk or other
similar officer or person, it shall be the address of the registered or
principal office of the company in Jersey; and
(b) in
the case of a partnership, or a person who is a principal person in relation to
a partnership, it shall be that of its principal office in Jersey.
(6) If
the person to or on whom any notice, direction or other document referred to in
paragraph (3) is to be given or served has notified a supervisory body of
an address within Jersey other than the person’s proper address within
the meaning of paragraph (5), as the one at which the person or someone on
the person’s behalf will accept documents of the same description as that
notice, direction or other document, that address shall also be treated for the
purposes of this Article and Article 7 of the Interpretation (Jersey) Law 1954
as the person’s proper address.
41 Legal proceedings
(1) In
any proceedings, a certificate purporting to be signed on behalf a supervisory
body and certifying any of the following –
(a) that a particular person
is or is not an applicant or a supervised person or was or was not an applicant
or a supervised person at a particular time;
(b) the date on which a
particular applicant or supervised person or formerly supervised person made an
application or became a supervised person or ceased to be a supervised person,
as the case may be;
(c) the scope of a
particular person’s application or nature of that person’s
supervised business;
(d) that conditions set out
in the certificate were, at the relevant time, prescribed under Article 17
in relation to any registered persons, or attached under that Article to a
particular person’s registration,
shall be admissible in evidence in all legal proceedings as evidence
of any fact stated in it of which direct oral evidence would be admissible.
(2) In
any proceedings, a certificate purporting to be signed on behalf of the Commission
and certifying any of the following –
(a) that
a particular person is or is not a deemed registered person or was or was not a
deemed registered person at a particular time;
(b) the
date on which a particular person notified the Commission under Article 11(6)
or Article 34(3),
shall be admissible in evidence in all legal proceedings as evidence
of any fact stated in it of which direct oral evidence would be admissible.
(3) A
certificate purporting to be signed in accordance with paragraph (1) or
(2) shall be deemed to have been duly signed unless the contrary is shown.
42 Offences
generally
(1) Where
an offence under this Law committed by a person is proved to have been
committed with the consent or connivance of, or to be attributable to any
neglect on the part of a person who is or was, a principal person in relation
to that person, that principal person shall be guilty of the offence and liable
in the same manner to the penalty provided for that offence.
(2) Where
an offence under this Law committed by a limited liability partnership or
company 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 company; 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 company to the penalty provided for that
offence.
(3) Where
the affairs of a company are managed by its members, paragraph (2) shall
apply in relation to acts and defaults of a member in connection with the
member’s functions of management as if the member were a director of the
company.
(4) Any
person who aids, abets, counsels or procures the commission of an offence under
this Law shall also be guilty of the offence and liable in the same manner as a
principal offender to the penalty provided for that offence.
(5) No
proceedings for an offence under this Law shall be instituted except by or with
the consent of the Attorney General.
43 Transitional provisions
(1) Notwithstanding
anything in this Law, a person who carried on a specified Schedule 2
business immediately before Article 10 comes into force (“the
commencement day”) shall not be taken to have committed any offence
against this Law by virtue of any action that is taken, or not taken, by the
person in the course of carrying on that business during the
period –
(a) on
and from the commencement day until the day 3 months after that day;
(b) on
and from the commencement day until an application for registration under this
Law is finally determined (including as a result of an appeal to the Court
under Article 19) or is withdrawn if –
(i) the
person applies, before 3 months after the commencement day for registration
under this Law, or
(ii) the
person notifies each supervisory body in accordance with Article 12 before
3 months after the commencement day and makes an application for registration
under this Law within the period ending 1 month after that person is notified
by a supervisory body that it is the relevant supervisory body; or
(c) if
the person notifies the Commission before 3 months after the commencement day
that he or she is carrying on a specified Schedule 2 business, on and from
the commencement day until the date of that notification.
(2) In
relation to the period for which, in accordance with paragraph (1), a
person is to be taken not to have committed any offence against this Law, the
provisions of this Law shall apply (with the necessary modifications) to and in
relation to the person as they apply to a supervised person.
(3) A
person who has notified the Commission in accordance with Article 43(1)(c)
shall be a deemed registered person under this Law.
(4) The
Minister may by Order make such transitional provision as he thinks fit
consequential upon or incidental to the coming into force of any provision of
this Law.
44 Regulations
and Orders
(1) The
Minister may by Order prescribe any matter which is to be, or may be,
prescribed under any provision of this Law.
(2) An
Order or Regulations under this Law may contain such transitional,
consequential, incidental or supplementary provisions as appear to the Minister
or the States, as the case may be, to be necessary or expedient for the
purposes of the Order or Regulations.
45 Consequential amendments of other
enactments
(1) In
Article 155(2) of the Companies (Jersey) Law 1991 after the word
“Commission” there shall be added the words “or by a
supervisory body within the meaning of the Proceeds of Crime Supervisory Bodies
(Jersey) Law 2008”.
(2) In
Article 5 of the Financial Services Commission (Jersey) Law 1998[18] there shall be added at
the end the following paragraph –
“(3) The Commission shall have
such other functions as are conferred on it by any other Law or
enactment.”.
(3) For
paragraphs (8) and (9) of Article 37 of the Proceeds of Crime
(Jersey) Law 1999 there shall be substituted the following
paragraphs –
“(8) In determining whether a
person has complied with a requirement that is contained in any Order made
under this Article, the court –
(a) shall take account of any relevant Code of
Practice or guidance that applies to that person or the business carried on by
that person and is issued by the supervisory body exercising supervisory
functions in respect of that person; or
(b) if no such Code of Practice or guidance
applies, shall take into account any relevant Code of Practice or guidance that
is issued by another supervisory body; or
(c) if there is no such relevant Code of
Practice or guidance, may take account of any other relevant guidance issued by
a body that is representative of that person or any supervised business carried
on by that person.
(9) For the purposes of paragraph (8),
‘Code of Practice’; ‘supervisory body’ and
‘supervised business’ have the same meaning as in the Proceeds of
Crime (Supervisory Bodies) (Jersey) Law 2008.”.
(4) For
paragraph (6) of Article 23 of the Terrorism (Jersey) Law 2002
there shall be substituted the following paragraphs –
“(6) In deciding whether a person
has committed an offence under this Article, the court –
(a) shall take account of any relevant Code of
Practice or guidance that applies to that person or the business carried on by
that person and is issued by the supervisory body exercising supervisory
functions in respect of that person; or
(b) if no such Code of Practice or guidance
applies, shall take into account any relevant Code of Practice or guidance that
is issued by another supervisory body; or
(c) if there is no such relevant Code of
Practice or guidance, may take account of any other relevant guidance issued by
a body that is representative of that person or any supervised business carried
on by that person.
(6A) For the purposes of paragraph (6), ‘Code of
Practice’; ‘supervisory body’ and ‘supervised
business’ have the same meaning as in the Proceeds of Crime (Supervisory
Bodies) (Jersey) Law 2008.”.
46 Citation
and commencement
(1) This
Law may be cited as the Proceeds of Crime (Supervisory Bodies) (Jersey)
Law 2008.
(2) This
Law shall come into force on such day or days as the States may by Act appoint
and different days may be appointed for different provisions.
a.h. harris
Deputy Greffier of the States