Jersey Law
36/1996
DRUG TRAFFICKING
(MISCELLANEOUS PROVISIONS) (JERSEY) LAW 1996
____________
A LAW to amend the law relating to
dangerous or otherwise harmful drugs to facilitate the implementation by the
Island of the Vienna Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances; to amend the law on drug trafficking offences; and for
connected and ancillary purposes; sanctioned by Order of Her Majesty in Council
of the
15th day of OCTOBER
1996
____________
(Registered on the 13th
day of December 1996)
____________
STATES OF JERSEY
____________
The 21st day of May 1996
____________
THE
STATES, subject to
the sanction of Her Most Excellent Majesty in Council, have adopted the
following Law –
PART I
AMENDMENT
OF MISUSE OF DRUGS (JERSEY) LAW 1978
ARTICLE 1
In paragraph (1)
of Article 1 of the Misuse of Drugs (Jersey) Law 1978, as amended (hereinafter referred
to as “the 1978 Law”), the following definitions shall be inserted
in the appropriate alphabetical order –
“
‘corresponding law’ has the meaning assigned thereto by paragraph
(6) of Article 19 of this Law;”;
“
‘police officer’ means a member of the Honorary Police or the
States of Jersey Police Force;” and
“
‘scheduled substance’ has the meaning assigned thereto by paragraph
(3) of Article 5A of this Law.”.
ARTICLE 2
After Article 5
of the 1978 Law there shall be inserted the following Articles –
“ARTICLE 5A
Manufacture and supply of scheduled substances
(1) It
is an offence for a person –
(a) to manufacture a
scheduled substance; or
(b) to supply such a
substance to another person,
knowing or
suspecting that the substance is to be used in or for the unlawful production
of a controlled drug.
(2) In
this Article “unlawful production of a controlled drug” means the
production of such a drug which is unlawful by virtue of sub-paragraph (a) of
Article 5 of this Law.
(3) In
this Law “a scheduled substance” means a substance for the time
being specified in the Fifth Schedule to this Law.
(4) The
States may by Regulations amend the Fifth Schedule to this Law (whether by
addition, deletion or transfer from one Table to the other) but no such
Regulations shall add any substance to the Schedule unless –
(a) it appears to the
States to be frequently used in or for the unlawful production of a controlled
drug; or
(b) it has been added to
the annex to the Vienna Convention under Article 12 of that Convention.
(5) In
this Article “the Vienna Convention” means the United Nations
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances which was signed in
Vienna on 20th December 1988.
ARTICLE 5B
Orders about scheduled substances
(1) The
Committee may by Order make provision –
(a) imposing requirements
as to the documentation of transactions involving scheduled substances;
(b) requiring the keeping
of records and the furnishing of information with respect to such substances;
(c) for the inspection of
records kept pursuant to the Order;
(d) for the labelling of
consignments of scheduled substances.
(2) Orders
made under sub-paragraph (b) of paragraph (1) of this Article may, in
particular, require –
(a) the notification of the
proposed exportation of substances specified in Table 1 of the Fifth Schedule
to this Law to such countries as may be specified in the Order; and
(b) the production, in such
circumstances as may be so specified, of evidence that the required
notification has been given,
and for the
purposes of Article 30 of the Customs and Excise Law (offences in relation to
exportation of prohibited or restricted goods) any such substance shall be
deemed to be exported contrary to a restriction for the time being in force
with respect to it under this Law if it is exported without the requisite
notification having been given.
(3) Orders
under this Article may make different provision in relation to the substances
specified in Table I and Table II in the Fifth Schedule to this Law
respectively and in relation to different cases or circumstances.
(4) Any
person who fails to comply with any requirement imposed by an Order under this
Article, or in purported compliance with any such requirement, furnishes
information which he knows to be false in a material particular or recklessly
furnishes information which is false in a material particular is guilty of an
offence.
(5) No
information obtained pursuant to an Order shall be disclosed except for the
purposes of criminal proceedings or of proceedings under the provisions of the
Drug Trafficking Offences (Jersey) Law 1988 relating to the confiscation of
the proceeds of drug trafficking.”.
ARTICLE 3
Article 17 of the
1978 Law shall be amended –
(a) in paragraph (2), by
substituting for the words from “any police officer” to “by
force” the following words –
“any police
officer or officer of the Impôts, together with any other person named in
the warrant, at any time or times within one month from the date of the
warrant, to enter if necessary by force”; and
(b) by substituting for
paragraph (3) the following paragraphs –
“(3) Subject to the
following provisions of this Article, if a police officer has reasonable
grounds to suspect that any person is in possession of a controlled drug in
contravention of this Law, or of any Order made thereunder the officer may
–
(a) search that person and
detain him for the purpose of searching him;
(b) search any vehicle or
vessel in which he suspects that the drug may be found, and for that purpose
may require the person in control of the vehicle or vessel to stop it; and
(c) seize and detain, for
the purposes of proceedings under this Law, anything found in the course of the
search which appears to him to be evidence of an offence under this Law.
(3A) An officer of the
Impôts or (within the area of his jurisdiction) a port control officer
may assist a police officer in the exercise of his powers under paragraph (3)
of this Article, but only under that police officer’s direction.
(3B) The police officer
carrying out a search under sub-paragraph (a) of paragraph (3) of this Article
and any officer of the Impôts or port control officer who assists him
shall be of the same sex as the person searched.”.
ARTICLE 4
(1) In
Article 20 of the 1978 Law after the words “under this
Law” there shall be inserted the words “or Article 21B of, or the
Schedule to, the Drug Trafficking Offences (Jersey) Law 1988”.
(2) For
paragraph (1) of Article 22 of the 1978 Law there shall be substituted the
following paragraph –
“(1) This
Article applies to offences under Article 5, paragraphs (1) and (2) of Article
6 and Article 7 of this Law.”
ARTICLE 5
For Article 27 of
the 1978 Law there shall be substituted the
following Article –
“ARTICLE 27
Increase of penalties for certain offences under the Customs and
Excise Law
Sub-paragraph (b)
of paragraph (1) of Article 23 of the Customs and Excise Law and Article 30 and
Article 77 of that Law shall, in relation to an offence in connexion with a
prohibition or restriction on importation or exportation by virtue of Article 4
of this Law, have effect as if, in each case, for the words from “shall
be liable” onwards there were substituted the following words –
“shall be
liable –
(a) where the goods were a
Class A drug, to a fine or to imprisonment for life, or to both;
(b) where the goods were a
Class B drug, to a fine or to imprisonment for a term not exceeding fourteen years,
or to both;
(c) where the goods were a
Class C drug, to a fine or to imprisonment for a term not exceeding five years,
or to both.”.
ARTICLE 6
In the Fourth
Schedule to the 1978 Law after the item in the First column
in respect of Article 5 and the entries opposite thereto in the remaining
columns, there shall be inserted the following items and entries –
|
Article
5A(1)
|
Manufacture
or supply of scheduled substances
|
–
|
–
|
–
|
14
years or a fine, or both
|
|
Article 5B(4)
|
Failure to comply with Orders as to scheduled substances
|
–
|
–
|
–
|
2 years or a fine, or both
|
ARTICLE 7
(1) In
Article 32 of the 1978 Law for the words “Fifth
Schedule” there shall be substituted the words “Sixth
Schedule”.
(2) The
Fifth Schedule to the 1978 Law shall be renumbered as the Sixth Schedule and
after the Fourth Schedule to the 1978 Law there shall be inserted the Schedule
set out in the First Schedule to this Law.
PART II
AMENDMENTS
OF DRUG TRAFFICKING OFFENCES (JERSEY) LAW 1988
ARTICLE 8
(1) In
paragraph (1) of Article 1 of the Drug Trafficking Offences (Jersey) Law 1988 (hereinafter referred to as
“the 1988 Law”) there shall be inserted in the appropriate
alphabetical order the following definitions –
“British
ship” means a ship registered in the United Kingdom, Guernsey or the Isle
of Man or a colony;
“Committee”
means the Finance and Economics Committee;
“Drug
Trafficking Confiscations Fund” means the Drug Trafficking Confiscations
Fund established under Article 14A;
“exported”,
in relation to any money, includes its being brought to any place in the Island
for the purpose of being exported;
“money”
means cash (coins or notes in any currency) or any negotiable instrument;
“ship”
includes any vessel used in navigation;
“the Vienna
Convention” means the United Nations Convention against the Illicit
Traffic in Narcotic Drugs and Psychotropic Substances which was signed at
Vienna on 20th December 1988.
(2) Paragraph
(1) of Article 1 of the 1988 Law shall be further amended –
(a) by substituting for the
definition of “confiscation order” the following definition –
“
‘confiscation order” means an order under Article 3 and includes,
in particular, an order under that Article which is made by virtue of Article
6A, 7A or 7B;”;
(b) by inserting after
sub-paragraph (c) of the definition of “drug trafficking” the
following sub-paragraphs –
“(d) manufacturing or supplying a
scheduled substance within the meaning of Article 5A of that Law where the
manufacture or supply is an offence under that Article or would be such an
offence if it took place in the Island;
(e) acquiring, having in
possession or using property in circumstances which amount to the commission of
an offence under Article 17A or which would be such an offence if it took place
in the Island;
(f) conduct which is
an offence under Article 16A or which would be such an offence if it took place
in the Island;
(g) using a ship for
illicit traffic in controlled drugs in circumstances which amount to the
commission of an offence under Article 21B;”;
(c) in the definition of
“drug trafficking offence” –
(i) by inserting
after sub-paragraph (a) the following sub-paragraph –
“(aa) an offence under Article 5A of that Law
(manufacture and supply of scheduled substances);”, and
(ii) in sub-paragraph (d),
by substituting for the words “Article 17” the words “Article
16A, 17, 17A or 21B”; and
(d) by substituting for the
definition of “police officer” the following definition –
“
‘police officer’ means a member of the Honorary Police, the States
of Jersey Police Force or an officer within the meaning of the Customs and
Excise (General Provisions) (Jersey) Law 1972;”.
(3) In
the list of expressions and provisions in paragraph (2) of Article 1 of the
1988 Law there shall be inserted, in the appropriate alphabetical order, the
following expressions and provisions –
|
Expression
|
Relevant provision
|
|
“Convention
State
|
Article
21B(1)
|
|
Jersey
ship
|
Article
21A”.
|
(4) For
paragraph (6) of Article 1 of the 1988 Law there shall be substituted the
following paragraphs –
“(6) Proceedings
in the Island for a drug trafficking offence are concluded –
(a) when the defendant is
acquitted on all counts;
(b) if he is convicted on
one or more counts but the Court decides not to make a confiscation order
against him, when it makes that decision; or
(c) if a confiscation order
is made against him in those proceedings, when the order is satisfied.
(6A) An application
under Article 6A, 7A or 7B is concluded –
(a) if the Court decides
not to make a confiscation order against the defendant, when it makes that decision;
or
(b) if a confiscation order
is made against him as a result of that application, when the order is
satisfied.
(6B) An
application under Article 7C or 10B is concluded –
(a) if the Court decides
not to vary the confiscation order in question, when it makes that decision; or
(b) if it varies the
confiscation order as a result of the application, when the order is satisfied.
(6C) For the
purposes of this Law a confiscation order is satisfied when no amount is due
under it.”.
(5) After
paragraph (7) of Article 1 of the 1988 Law there shall be inserted the
following paragraph –
“(7A) If in any proceedings under
this Law any question arises whether any country or territory is a state or is
a party to the Vienna Convention, a certificate issued by the Secretary of
State shall be conclusive evidence on that question.”.
ARTICLE 9
In paragraph (3)
of Article 2 of the 1988 Law for the words “Articles 5 and 6” there
shall be substituted the words “this Law”.
ARTICLE 10
(1) For
paragraph (1) of Article 3 of the 1988 Law there shall be substituted the
following paragraph –
“(1) Where
a person appears before the Court to be sentenced in respect of one or more
drug trafficking offences (and has not previously been sentenced or otherwise
dealt with in respect of his conviction for the offence or, as the case may be,
any of the offences concerned), then –
(a) if the Attorney General
asks the Court to proceed under this Article; or
(b) if the Court considers
that, even though the Attorney General has not asked it to do so, it is
appropriate for it to proceed under this Article,
it may act as
follows”.
(2) After
paragraph (6) of Article 3 of the 1988 Law there shall be inserted the
following paragraph –
“(7) The
standard of proof required to determine any question arising under this Law as
to –
(a) whether a person has
benefited from drug trafficking; or
(b) the amount to be
recovered in his case by virtue of this Article,
shall be that
applicable in civil proceedings.”.
ARTICLE 11
After Article 3
of the 1988 Law there shall be inserted the following Article –
“ARTICLE 3A
Postponed determinations
(1) Where
the Court is acting under Article 3 but considers that it requires further
information before –
(a) determining whether the
defendant has benefited from drug trafficking; or
(b) determining the amount
to be recovered in his case by virtue of Article 3,
it may, for the
purposes of enabling that information to be obtained, postpone making the
determination for such period as it may specify.
(2) More
than one postponement may be made under paragraph (1) in relation to the same
case.
(3) Unless
it is satisfied that there are exceptional circumstances, the Court shall not
specify a period which –
(a) by itself; or
(b) where there have been
one or more previous postponements under paragraph (1) or (4), when taken
together with the earlier specified period or periods,
exceeds six
months beginning with the date of conviction.
(4) Where
the defendant appeals against his conviction, the Court may, on that account
–
(a) postpone making either
or both of the determinations mentioned in paragraph (1) for such period as it
may specify; or
(b) where it has already
exercised its powers under this Article to postpone, extend the specified
period.
(5) A
postponement or extension under paragraph (1) or (4) may be made –
(a) on application by the
defendant or the Attorney General; or
(b) by the Court of its own
motion.
(6) Unless
the Court is satisfied that there are exceptional circumstances, any
postponement or extension under paragraph (1) or (4) shall not exceed the
period ending three months after the date on which the appeal is determined or
disposed of.
(7) Where
the Court exercises its power under paragraph (1) or (4), it may nevertheless
proceed to sentence, or otherwise deal with the defendant in respect of the
relevant offences.
(8) Where
the Court has so proceeded, Article 3 of this Law shall have effect as if
–
(a) in paragraph (4), the
words from and including “before sentencing” to “offences
concerned” were omitted; and
(b) in sub-paragraph (c) of
paragraph (5), after the word “determining” there were inserted the
words “in relation to any offence in respect of which he has not been
sentenced or otherwise dealt with”.
(9) In
sentencing, or otherwise dealing with, the defendant in respect of the relevant
offence or any of the relevant offences at any time during the specified
period, the Court shall not –
(a) impose any fine on him;
or
(b) make any such order as
is mentioned in clause (ii) of sub-paragraph (b) of paragraph (5) of Article 3.
(10) Where
the Court has sentenced the defendant under paragraph (7) during the specified
period it may, after the end of that period, vary the sentence by imposing a
fine or making any such order as is mentioned in clause (ii) of sub-paragraph
(b) of paragraph (5) of Article 3, so long as it does so within 28 days
beginning with the end of the specified period.
(11) In
this Article –
(a) ‘the relevant
offence’ means the drug trafficking offence in respect of which the
defendant appears (as mentioned in paragraph (1) of Article 3) before the
Court; and
(b) ‘the date of
conviction’ means –
(i) the date on which
the defendant was convicted; or
(ii) where he appeared to be
sentenced in respect of more than one conviction, and those convictions were
not all on the same date, the date of the latest of those convictions.”.
ARTICLE 12
In paragraph (4)
of Article 4 of the 1988 Law for the words “Article 17” there shall
be substituted the words “Article 16A, 17 or 17A”.
ARTICLE 13
(1) For
paragraphs (1) and (2) of Article 5 of the 1988 Law there shall be substituted
the following paragraphs –
“(1) Subject
to the provisions of paragraphs (1B) and (1C), the Attorney General may at any
time give to the Court a statement of matters which he considers relevant in
connexion with –
(a) determining whether the
defendant has benefited from drug trafficking; or
(b) assessing the value of
his proceeds of drug trafficking.
(1A) In this Article,
such a statement is referred to as ‘an Attorney General’s
statement’.
(1B) Where the
Court proceeds under Article 3 without the Attorney General having asked it to
do so, it may require him to give an Attorney General’s statement within
such period as it may determine.
(1C) Where the
Attorney General applies to the Court under Article 6A, 7A, 7B or 7C, he shall
give to the Court within such time as it may direct, an Attorney
General’s statement.
(1D) Where the
Attorney General has given such a statement –
(a) he may at any time give
the Court a further such statement; and
(b) the Court may, at any
time, require him to give it a further such statement, within such further
period as it may direct.
(1E) Where any
Attorney General’s statement has been given and the Court is satisfied
that a copy of the statement has been served on the defendant, it may require
the defendant –
(a) to indicate to it,
within such period as it may direct, the extent to which he accepts each
allegation in the statement; and
(b) so far as he does not
accept any such allegation, to give particulars of any matters on which he
proposes to rely.
(1F) Where the
Court has given a direction under this Article it may at any time vary it by a
further direction.
(2) Where
the defendant accepts to any extent any allegation in any Attorney
General’s statement, the Court may, for the purposes of –
(a) determining whether the
defendant has benefited from drug trafficking; or
(b) assessing the value of
his proceeds of drug trafficking,
treat his
acceptance as conclusive of the matters to which it relates.”.
(2) In
paragraph (3) of Article 5 of the 1988 Law –
(a) for the words
“paragraph (2)” there shall be substituted the words
“paragraph (1E)”; and
(b) for the word
“statement” there shall be substituted the words “Attorney
General’s statement in question”.
(3) After
paragraph (4) of Article 5 of the 1988 Law there shall be inserted the
following paragraph –
“(4A) An allegation may be
accepted, or particulars of any matter may be given, for the purposes of this
Article in such manner as may be prescribed by Rules of Court or as the Court
may direct.”.
ARTICLE 14
After Article 5
of the 1988 Law there shall be inserted the following Article –
“ARTICLE 5A
Provision of information by defendant
(1) This
Article applies where –
(a) the Attorney General
has asked the Court to proceed under Article 3 or has applied to the Court
under Article 7A, 7B or 7C; or
(b) no such request or
application has been made but the Court is nevertheless proceeding, or
considering whether to proceed under Article 3.
(2) For
the purpose of obtaining information to assist it in carrying out its
functions, the Court may at any time order the defendant to give it such
information as may be specified in the order.
(3) An
order under paragraph (2) may require all, or any specified part, of the
required information to be given to the Court in such manner, and before such
date, as may be specified in the order.
(4) Rules
of Court may make provision as to the maximum or minimum period that may be
allowed under paragraph (3).
(5) If
the defendant fails, without reasonable excuse, to comply with any order under
this Article, the Court may draw such inference from that failure as it
considers appropriate.
(6) Where
the Attorney General accepts to any extent any allegation made by the defendant
in giving to the Court information required by an order under this Article, the
Court may treat that acceptance as conclusive of the matters to which it
relates.
(7) For
the purposes of this Article, an allegation may be accepted in such manner as
may be prescribed by Rules of Court or as the Court may direct.”.
ARTICLE 15
(1) In
paragraph (3) of Article 6 of the 1988 Law, for the words from and including
“the amount appearing” to the end of the paragraph, there shall be
substituted the following words –
“ –
(a) the amount appearing to
the Court to be the amount that might be so realised; or
(b) a nominal amount, where
it appears to the Court (on the information available at the time) that the
amount that might be so realised is nil.”.
ARTICLE 16
After Article 6
of the 1988 Law there shall be inserted the following Articles –
“ARTICLE 6A
Powers of the Court where defendant has died or absconded
(1) Paragraph
(2) applies where a person has been convicted of one or more drug trafficking
offences.
(2) If
the Attorney General asks it to proceed under this Article, the Court may
exercise its powers under this Law to make a confiscation order against the
defendant if satisfied that the defendant has died or absconded.
(3) Paragraph
(4) applies where proceedings for one or more drug trafficking offences have
been instituted against a person but have not been concluded.
(4) If
the Attorney General asks it to proceed under this Article the Court may
exercise its powers under this Law to make a confiscation order against the
defendant if satisfied that the defendant has absconded.
(5) The
power conferred by paragraph (4) may not be exercised at any time before the
end of the period of two years beginning with the date which is, in the opinion
of the Court, the date on which the defendant absconded.
(6) In
any proceedings on an application under this Article –
(a) paragraph (2) of
Article 4 and paragraphs (1E), (2) and (3) of Article 5 shall not apply;
(b) the Court shall not
make a confiscation order against a person who has absconded unless it is satisfied
that the Attorney General has taken reasonable steps to contact him; and
(c) any person appearing to
the Court to be likely to be affected by the making of a confiscation order by
the Court shall be entitled to appear before the Court and make representations.
ARTICLE 6B
Effect of conviction where Court has acted under Article 6A
(1) Where
in the case of any defendant the Court has made a confiscation order by virtue
of Article 6A, it shall, in respect of the offence or, as the case may be, any
of the offences concerned –
(a) take account of the
order before –
(i) imposing any fine
on the defendant,
(ii) making any order
involving any payment by him; or
(iii) making any forfeiture order
under Article 29 of the Misuse of Drugs (Jersey) Law 1978; and
(b) subject to
sub-paragraph (a), leave the order out of account in determining the
appropriate sentence or other manner of dealing with the defendant.
(2) Where
the Court has made an order under Article 6A and the defendant subsequently
appears before the Court to be sentenced in respect of one or more of the
offences concerned, paragraph (1) of Article 3 shall not apply so far as his
appearance is in respect of that offence or those offences.”.
ARTICLE 17
(1) After
paragraph (6) of Article 7 of the 1988 Law there shall be inserted the
following paragraph –
“(7) Where
the defendant serves a term of imprisonment or detention in default of paying
any amount due under a confiscation order, his serving that term does not
prevent the confiscation order from continuing to have effect, so far as any
other method of enforcement is concerned.”.
ARTICLE 18
After Article 7
of the 1988 Law there shall be inserted the following Articles –
“ARTICLE 7A
Reconsideration of case where Court has not proceeded under
Article 3
(1) This
Article applies where the defendant has appeared before the Court to be
sentenced in respect of one or more drug trafficking offences but the Court has
not proceeded under Article 3.
(2) If
the Attorney General has evidence –
(a) which was not available
to him when the defendant appeared to be sentenced (and accordingly was not
considered by the Court), but
(b) which the Attorney
General believes would have led the Court to determine that the defendant had
benefited from drug trafficking if –
(i) the Attorney
General had asked the Court to proceed under Article 3, and
(ii) the evidence had been
considered by the Court,
he may apply to
the Court for it to consider the evidence.
(3) The
Court shall proceed under Article 3 if, having considered the evidence, it is
satisfied that it is appropriate to do so.
(4) In
considering whether it is appropriate to proceed under Article 3, the Court
shall have regard to all the circumstances of the case.
(5) Where,
having decided to proceed under Article 3, the Court proposes to make a
confiscation order against the defendant, it shall order the payment of such
amount as it thinks just in all the circumstances of the case.
(6) In
considering the circumstances of any case the Court shall have regard, in
particular, to the amount of any fine imposed on the defendant in respect of
the offence or offences in question.
(7) Where
the Court is proceeding under Article 3, by virtue of this Article, paragraph
(4) of that Article shall have effect as if the words ‘before sentencing
or otherwise dealing with him in respect of the offence or, as the case may be,
any of the offences concerned’ were omitted.
(8) The
Court may take into account any payment or other reward received by the
defendant on or after the date of conviction, but only if the Attorney General
shows that it was received by the defendant in connexion with drug trafficking
carried on by the defendant or another on or before that date.
(9) In
considering any evidence under this Article which relates to any payment or
reward to which paragraph (8) applies, the Court shall not make any of the
assumptions which it would otherwise be entitled to make under Article 4.
(10) No
application shall be entertained by the Court under this Article if it is made
after the end of the period of six years beginning with the date of conviction.
(11) In
this Article ‘the date of conviction’ means –
(a) the date on which the
defendant was convicted, or
(b) where he appeared to be
sentenced in respect of more than one conviction, and those convictions were
not all on the same date, the date of the latest of those convictions.
ARTICLE 7B
Re-assessment of whether defendant has
benefited from drug trafficking
(1) This
Article applies where the Court has made a determination (‘the Article
3(2) determination’) under paragraph (2) of Article 3 that the defendant
has not benefited from drug trafficking.
(2) If
the Attorney General has evidence –
(a) which was not
considered by the Court in making the Article 3(2) determination, but
(b) which the Attorney
General believes would have led the Court to determine that the defendant had
benefited from drug trafficking if it had been considered by the Court,
he may apply to
the Court for it to consider that evidence.
(3) If,
having considered the evidence, the Court is satisfied that it would have
determined that the defendant had benefited from drug trafficking if that
evidence had been available to it, the Court –
(a) shall –
(i) make a fresh
determination under paragraph (2) of Article 3; and
(ii) make a determination
under paragraph (4) of that Article of the amount to be recovered by virtue of
that Article; and
(b) may make an order under
that Article.
(4) Where
the Court is proceeding under Article 3, by virtue of this Article, paragraph
(4) of that Article shall have effect as if the words ‘before sentencing
or otherwise dealing with him in respect of the offence or, as the case may be,
any of the offences concerned’ were omitted.
(5) The
Court may take into account any payment or other reward received by the
defendant on or after the date of the Article 3(2) determination, but only if
the Attorney General shows that it was received by the defendant in connexion
with drug trafficking carried on by the defendant or another on or before that
date.
(6) In
considering any evidence under this Article which relates to any payment or
reward to which paragraph (5) applies, the Court shall not make any of the
assumptions which it would otherwise be entitled to make under Article 4.
(7) Where
the Court –
(a) has been asked to
proceed under Article 6A in relation to a defendant who has absconded, but
(b) has decided not to make
a confiscation order against him,
this Article
shall not apply at any time while he remains an absconder.
(8) No
application shall be entertained by the Court under this Article if it is made
after the end of the period of six years beginning with –
(a) the date on which the
defendant was convicted; or
(b) where he appeared to be
sentenced in respect of more than one conviction, and those convictions were
not all on the same date, the date of the latest of those convictions.
ARTICLE 7C
Revised assessment of proceeds of drug trafficking
(1) This
Article applies where the Court has made a determination under paragraph (4) of
Article 3 of the amount to be recovered in a particular case by virtue of that
paragraph (‘the current Article 3(4) determination’).
(2) Where
the Attorney General is of the opinion that the real value of the
defendant’s proceeds of drug trafficking was greater than their assessed
value, the Attorney General may apply to the Court for the evidence on which he
has formed his opinion to be considered by the Court.
(3) In
paragraph (2) above –
‘assessed
value’ means the value of the defendant’s proceeds of drug
trafficking as assessed by the Court under paragraph (1) of Article 6; and
‘real
value’ means the value of the defendant’s proceeds of drug
trafficking which took place –
(a) in the period by
reference to which the current Article 3(4) determination was made; or
(b) in any earlier period.
(4) If,
having considered the evidence, the Court is satisfied that the real value of
the defendant’s proceeds of drug trafficking is greater than their
assessed value (whether because the real value was higher at the time of the current
Article 3(4) determination than was thought or because the value of the
proceeds in question has subsequently increased), the Court shall make a fresh
determination under paragraph (4) of Article 3 of the amount to be recovered by
virtue of that Article.
(5) Where
the Court is proceeding under Article 3, by virtue of this Article, paragraph
(4) of that Article shall have effect as if the words ‘before sentencing
or otherwise dealing with him in respect of the offence or, as the case may be,
any of the offences concerned’ were omitted.
(6) Any
determination under paragraph (4) of Article 3 by virtue of this Article shall
be by reference to the amount that might be realised at the time when the
determination is made.
(7) For
any determination under paragraph (4) of Article 3 by virtue of this Article,
paragraph (5) of Article 4 shall not apply in relation to any of the
defendant’s proceeds of drug trafficking taken into account in respect of
the current Article 3(4) determination.
(8) In
relation to any such determination –
(a) paragraph (3) of
Article 2 shall have effect as if –
(i) for the words
‘a confiscation order is made against the defendant’ there were
substituted the words ‘of the determination’, and
(ii) in clauses (i), (ii)
and (iii) of that paragraph, for the words ‘confiscation order’ in
each case where they occur, there were substituted the words
‘determination’;
(b) sub-paragraph (a) of
paragraph (4) of Article 5 and paragraph (2) of Article 6 shall have effect as
if for the words ‘confiscation order’ there were substituted the
word ‘determination’; and
(c) paragraph (3) of
Article 6 shall have effect as if for the words ‘confiscation order is
made’ there were substituted the words ‘determination is
made’.
(9) The
Court may take into account any payment or other reward received by the
defendant on or after the current Article 3(4) determination, but only if the
Attorney General shows that it was received by the defendant in connexion with
drug trafficking carried on by the defendant or another on or before that date.
(10) In
considering any evidence under this Article which relates to any payment or
reward to which paragraph (9) applies, the Court shall not make any of the
assumptions which it would otherwise be entitled to make under Article 4.
(11) If,
as a result of making the fresh determination required by paragraph (4), the
amount to be recovered exceeds the amount set by the current Article 3(4)
determination, the Court may substitute for the amount to be recovered under
the confiscation order which was made by reference to the current Article 3(4)
determination such greater amount as it thinks just in all the circumstances of
the case.
(12) Where
the Court varies a confiscation order under paragraph (11), it shall substitute
for the term of imprisonment or of detention fixed in respect of the amount to
be recovered under the order a longer term in respect of the greater amount
substituted under paragraph (11).
(13) Where
a confiscation order has been made in relation to any defendant by virtue of
Article 6A, this Article shall not apply at any time while he is an absconder.
(14) No
application shall be entertained by the Court under this Article if it is made
after the end of the period of six years beginning with –
(a) the date on which the
defendant was convicted; or
(b) where he appeared to be
sentenced in respect of more than one conviction, and those convictions were
not all on the same date, the date of the latest of those convictions.”.
ARTICLE 19
(1) For
paragraph (1) of Article 8 of the 1988 Law there shall be substituted the
following paragraph –
“(1) The
powers conferred on the Court by Article 9 are exercisable where –
(a) the Court has made a
confiscation order; or
(b) proceedings have been
instituted in the Island against the defendant for a drug trafficking offence
or an application has been made by the Attorney General in respect of the
defendant under Article 6A, 7A, 7B, 7C or 10B and –
(i) the proceedings
have not, or the application has not, been concluded, and
(ii) the Court is satisfied
that there is reasonable cause to believe –
(A) in the case of an application
under Article 7C or 10B, that the Court will be satisfied as mentioned in
paragraph (4) of Article 7C or, as the case may be, paragraph (2) of Article
10B, or
(B) in any other case, that the
defendant has benefited from drug trafficking; or
(c) the Court is satisfied
–
(i) that proceedings
are to be instituted in the Island against a person for a drug trafficking
offence, or that an application of a kind mentioned in sub-paragraph (b) is to
be made against the defendant, and
(ii) is also satisfied as
mentioned in clause (ii) of that sub-paragraph.”.
(2) After
paragraph (3) of Article 8 of the 1988 Law there shall be inserted the
following paragraphs –
“(4) Where
the Court has made an order under Article 9 in relation to a proposed
application by virtue of sub-paragraph (c) of paragraph (1), the Court shall
discharge the order if the application is not made within such time as the
Court considers reasonable.
(5) The
Court shall not exercise powers under Article 9, by virtue of sub-paragraph (a)
or (b) of paragraph (1), if it is satisfied that –
(a) there has been undue
delay in continuing the proceedings or application in question; or
(b) the Attorney General
does not intend to proceed.”.
ARTICLE 20
For paragraph (7)
of Article 9 of the 1988 Law there shall be substituted the following paragraph
–
“(7) An
application for the discharge or variation of a “saisie judiciaire”
may be made to the Bailiff in Chambers by any person affected by it and the
Bailiff may rule upon the application or may, at his discretion, refer it to
the Court for adjudication.”.
ARTICLE 21
After Article 10
of the 1988 Law there shall be inserted the following Articles –
“ARTICLE 10A
Interest on sums unpaid under confiscation orders
(1) If
any sum required to be paid by a person under a confiscation order is not paid
when it is required to be paid, that person shall be liable to pay interest on
that sum for the period for which it remains unpaid and the amount of the
interest shall for the purposes of enforcement be treated as part of the amount
to be recovered from him under the confiscation order.
(2) The
Court may, on the application of the Attorney General, increase the term of
imprisonment fixed in respect of the confiscation order under paragraph (1) of
Article 7 when paragraph (1) applies and interest has accrued.
(3) The
rate of interest under paragraph (1) shall be such rate as the Royal Court
shall from time to time by Rules of Court prescribe.
ARTICLE 10B
Increase in realisable property
(1) This
Article has effect where by virtue of paragraph (3) of Article 6, the amount
which a person is ordered to pay by a confiscation order is less than the
amount assessed to be the value of his proceeds of drug trafficking.
(2) If,
on an application made in accordance with paragraph (3), the Court is satisfied
that the amount that might be realised in the case of the person in question is
greater than the amount taken into account in making the confiscation order
(whether it was greater than was thought when the order was made or has
subsequently increased) the Court shall issue a certificate to that effect,
giving the Court’s reasons.
(3) An
application under paragraph (2) may be made by the Attorney General or by the
Viscount in relation to the realisable property of the person in question.
(4) Where
a certificate has been issued under paragraph (2) the Attorney General may
apply to the Court for an increase in the amount to be recovered under the
confiscation order; and on that application the Court may –
(a) substitute for that
amount such amount (not exceeding the amount assessed as the value referred to
in paragraph (1)) as appears to the Court to be appropriate having regard to
the amount now shown to be realisable; and
(b) increase the term of
imprisonment fixed in respect of the confiscation order under paragraph (1) of
Article 7.”.
ARTICLE 22
After paragraph
(1) of Article 11 of the 1988 Law there shall be inserted the following
paragraph –
“(1A) The amount applied by the
Viscount towards the satisfaction of the confiscation order shall be paid into
the Drug Trafficking Confiscations Fund.”.
ARTICLE 23
In Article 12 of
the 1988 Law –
(a) in paragraph (1), after
the word “defendant” there shall be inserted the words “or
the Viscount”;
(b) in paragraph (3) for
the word “defendant” there shall be inserted the words
“person who applied for it”; and
(c) after paragraph (4)
there shall be inserted the following paragraph –
“(5) Rules
of Court may make provision –
(a) for the giving of
notice of any application under this Article; and
(b) for any person
appearing to the Court to be affected by the exercise of its powers under this
Article to be given the opportunity to make representation to the
Court.”.
ARTICLE 24
After Article 14
of the 1988 Law there shall be inserted the following Article –
“ARTICLE 14A
Drug Trafficking Confiscations Fund
(1) There
shall be established a Fund to be called the Drug Trafficking Confiscations
Fund (“the Fund”) which, subject to this Article, shall be managed
and controlled by the Committee.
(2) All
amounts –
(a) recovered under, or in
satisfaction of, a confiscation order; or
(b) received under an
assets-sharing agreement,
shall be included
amongst the monies which are paid into the Fund.
(3) Monies
paid into the Fund shall not form part of the annual income of the States.
(4) Subject
to paragraph (5), monies in the Fund shall be applied by the Committee for the
purposes of –
(a) promoting or supporting
measures which, in the opinion of the Committee, may assist in –
(i) preventing,
suppressing or otherwise dealing with drug trafficking or the misuse of
controlled drugs,
(ii) dealing with the
consequences of the misuse of controlled drugs, or
(iii) without prejudice to the
generality of clauses (i) and (ii), facilitating the enforcement of any
enactment dealing with drug trafficking or the misuse of controlled drugs;
(b) discharging the
Island’s obligations under assets-sharing agreements;
(c) meeting the expenses incurred
by the Committee in administering the Fund.
(5) Before
promoting or supporting any measure under sub-paragraph (a) of paragraph (4),
the Committee shall consult with the Attorney General and with such other
persons or bodies (including other Committees of the States) as it considers
appropriate.
(6) Monies
paid into the Fund, while not applied for any of the purposes mentioned in
paragraph (4), may be –
(a) held in the custody of
the Treasurer of the States at the States Treasury; or
(b) placed, in the name of
the Committee, in a current or deposit account with one or more banks selected
by the Committee, and any interest earned on such monies while held in such an
account shall be paid by the Committee into the Fund.
(7) Monies
held in any account by virtue of sub-paragraph (b) of paragraph (6) may be
withdrawn on the signature of the Treasurer of the States.
(8) In
this Article –
‘assets-sharing
agreement’ means an agreement entered into between the Attorney General
and the appropriate authority of a country or territory outside the Island
whereby arrangements are made for the sharing of the proceeds of
drug-trafficking which, as a result of mutual assistance, have been confiscated
either in the Island or elsewhere;
‘controlled
drug’ has the same meaning as in the Misuse of Drugs (Jersey) Law
1978.”.
ARTICLE 25
After Article 15
of the 1988 Law there shall be inserted the following Articles –
“ARTICLE
15A
Compensation etc. where absconder acquitted
(1) Where
–
(a) the Court has made a
confiscation order in the exercise of its powers under paragraph (4) of Article
6A; and
(b) the defendant is
subsequently tried for the offence or offences concerned and acquitted on all
counts, the Court shall cancel the confiscation order.
(2) The
Court may, on the application of a person who held property which was
realisable property order compensation to be paid to the applicant if it is
satisfied that the applicant has suffered loss as a result of the making of the
confiscation order.
(3) The
amount of compensation to be paid under this Article shall be such as the Court
considers just in all the circumstances of the case.
(4) Provision
may be made by Rules of Court for –
(a) giving notice of any
application under this Article; and
(b) any person appearing to
the Court to be affected by any exercise of its powers under this Article to be
given an opportunity to make representations to the Court.
(5) Any
compensation payable under this Article shall be paid out of the annual income
of the States.
(6) Where
the Court cancels a compensation order it may make such consequential or
incidental order as is considers appropriate in connexion with the
cancellation.
ARTICLE 15B
Power to discharge confiscation order and order compensation where
absconder returns
(1) This
Article applies where –
(a) the Court has made a
confiscation order by virtue of paragraph (4) of Article 6A in relation to an
absconder,
(b) the defendant has
ceased to be an absconder, and
(c) Article 15A does not
apply.
(2) The
Court may, on the application of the defendant, cancel the confiscation order
if it is satisfied that –
(a) there has been undue
delay in continuing the proceedings in respect of which the power under
paragraph (4) of Article 6A was exercised; or
(b) the Attorney General
does not intend to proceed with the prosecution.
(3) Where
the Court cancels a confiscation order under this Article it may, on the
application of a person who held property which was realisable property, order
compensation to be paid to the applicant if it is satisfied that the applicant
has suffered loss as a result of the making of the confiscation order.
(4) The
amount of compensation to be paid under this Article shall be such as the Court
considers just in all the circumstances of the case.
(5) Provision
may be made by Rules of Court for –
(a) the giving of notice of
any application under this Article; and
(b) any person appearing to
the Court to be likely to be affected by any exercise of its powers under this
Article to be given an opportunity to make representations to the Court.
(6) Any
compensation payable under this Article shall be paid out of the annual income
of the States.
(7) Where
the Court cancels a confiscation order under this Article it may make such
consequential or incidental order as it considers appropriate in connexion with
the cancellation.
ARTICLE 15C
Variation of confiscation orders made by virtue of Article 6A
(1) This
Article applies where –
(a) the Court has made a
confiscation order by virtue of paragraph (4) of Article 6A, and
(b) the defendant has
ceased to be an absconder.
(2) If
the defendant alleges that –
(a) the value of his
proceeds of drug trafficking in the period by reference to which the
determination in question was made (the “original value”), or
(b) the amount that might
have been realised at the time the confiscation order was made,
was less than the
amount ordered to be paid under the confiscation order, he may apply to the
Court for it to consider his evidence.
(3) If,
having considered that evidence, the Court is satisfied that the
defendant’s allegation is correct it –
(a) shall make a fresh
determination under paragraph (4) of Article 3, and
(b) may, if it considers it
just in all the circumstances, vary the amount to be recovered under the
confiscation order.
(4) For
any determination under Article 3 by virtue of this Article, paragraph (5) of
Article 4 shall not apply in relation to any of the defendant’s proceeds
of drug trafficking taken into account in determining the original value.
(5) Where
the Court varies a confiscation order under this Article –
(a) it shall substitute for
the term of imprisonment or of detention fixed under Article 7 in respect of
the amount to be recovered under the order a shorter term in respect of the
lesser amount; and
(b) on the application of a
person who held property which was realisable property, it may order
compensation to be paid to the applicant if –
(i) It is satisfied
that the applicant has suffered loss as a result of the making of the
confiscation order, and
(ii) having regard to all
the circumstances of the case, the Court considers it to be appropriate.
(6) The
amount of compensation to be paid under this Article shall be such as the Court
considers just in all the circumstances of the case.
(7) Provision
may be made by Rules of Court for –
(a) the giving of notice of
any application under this Article; and
(b) any person appearing to
the Court to be likely to be affected by any exercise of its powers under this
section to be given an opportunity to make representations to the Court.
(8) Any
compensation payable under this Article shall be paid out of the annual income
of the States.
(9) No
application shall be entertained by the Court under this Article if it is made
after the end of the period of six years beginning with the date on which the
confiscation order was made.”
ARTICLE 26
(1) Article
16 of the 1988 Law shall be amended by inserting after the word
“exportation” the words “of goods intended by any person for
use in drug trafficking or”.
(2) After
Article 16 of the 1988 Law there shall be inserted the following Articles
–
“ARTICLE 16A
Concealing or transferring proceeds of drug trafficking
(1) A
person is guilty of an offence if he –
(a) conceals or disguises
any property which is, or in whole or in part directly or indirectly
represents, his proceeds of drug trafficking; or
(b) converts or transfers
that property or removes it from the jurisdiction,
for the purpose
of avoiding prosecution for a drug trafficking offence or the making or
enforcement in his case of a confiscation order.
(2) A
person is guilty of an offence if, knowing or having reasonable grounds to
suspect that any property is, or in whole or in part directly or indirectly
represents, another person’s proceeds of drug trafficking, he –
(a) conceals or disguises that
property; or
(b) converts or transfers
that property or removes it from the jurisdiction,
for the purpose
of assisting any person to avoid prosecution for a drug trafficking offence or
the making or enforcement of a confiscation order.
(3) In
sub-paragraph (a) of paragraphs (1) and (2) the references to concealing or
disguising any property include references to concealing or disguising its
nature, source, location, disposition, movement or ownership or any rights with
respect to it.
(4) A
person guilty of an offence under this Article is liable to a fine or to
imprisonment for a term not exceeding fourteen years, or to both.
ARTICLE 16B
Seizure and detention of drug trafficking money
(1) A
police officer may seize and, in accordance with this Article, detain any money
which is imported into or exported from the Island if he has reasonable grounds
for suspecting that it directly or indirectly represents any person’s
proceeds of, or is intended by any person for use in, drug trafficking.
(2) Money
seized by virtue of this Article shall not be detained for more than 48 hours
unless its continued detention is authorized by an order made by the Bailiff
and no such order shall be made unless the Bailiff is satisfied that –
(a) there are reasonable
grounds for the suspicion mentioned in paragraph (1); and
(b) the continued detention
of the money is justified while its origin or derivation is further
investigated or consideration is given to the institution (whether in the
Island or elsewhere) of criminal proceedings against any person for an offence
with which the money is connected.
(3) Any
order under paragraph (2) shall authorize the continued detention of the money
to which it relates for such period, not exceeding three months beginning with
the date of the order, as may be specified in the order; and the Bailiff, if
satisfied as to the matters mentioned in that paragraph, may thereafter from
time to time authorize the further detention of the money but so that –
(a) no period of detention
specified in such an order shall exceed three months beginning with the date of
the order; and
(b) the total period of
detention shall not exceed two years from the date of the first order made in
respect of the money under paragraph (2).
(4) An
application for an order under paragraph (2) or (3) may only be made by or with
the consent of the Attorney General.
(5) At
any time while money is detained by virtue of the foregoing provisions of this
Article –
(a) the Bailiff may direct
its release if satisfied –
(i) on an application
made by the person from whom it was seized or a person by or on whose behalf it
was being imported or exported, that there are no, or are no longer, any such
grounds for its detention as are mentioned in paragraph (2); or
(ii) on an application made
by any other person, that detention of the money is not for that or any other
reason justified; and
(b) a police officer may
release the money if satisfied that its detention is no longer justified but
shall first obtain the consent of the Attorney General.
(6) If
at any time when money is being detained by virtue of the foregoing provisions
of this Article –
(a) an application for its
forfeiture under Article 16C is made; or
(b) proceedings are
instituted (whether in the Island or elsewhere) against any person for an
offence with which the money is connected,
the money shall
not be released until any proceedings pursuant to the application or, as the
case may be, the proceedings for that offence, have been concluded.
ARTICLE 16C
Forfeiture
(1) The
Royal Court may order the forfeiture of any money which has been seized under
Article 16B if satisfied, on an application made while the money is detained
under that Article, that the money directly or indirectly represents any
person’s proceeds of, or is intended by any person for use in, drug
trafficking.
(2) Any
application under this Article shall be made by or on behalf of the Attorney
General.
(3) The
standard of proof in proceedings on any application under this Article shall be
that applicable to civil proceedings; and an order may be made under this
Article whether or not proceedings are brought against any person for an
offence with which the money in question is connected.
ARTICLE 16D
Appeal against forfeiture under Article 16C
(1) Where
an order for forfeiture of money (“the forfeiture order”) has been
made under Article 16C, any party to the proceedings in which the order was
made (other than the Attorney General) may, before the end of the period of
thirty days beginning on which it is made, appeal to the Court of Appeal.
(2) The
Court may, on an application made by the appellant, order the release of so
much of the money to which the forfeiture order relates as it considers
appropriate to enable him to meet his legal expenses in connexion with the
appeal.
(3) The
Court of Appeal on hearing an appeal under this Article may make such order as
it considers appropriate.
(4) If
it upholds the appeal, the Court of Appeal may release the money, or (as the
case may be) the remaining money, together with any accrued interest.
(5) Paragraph
(3) of Article 16C applies in relation to a rehearing on an appeal under this
Article as it applies to proceedings under that Article.
ARTICLE 16E
Interest
Money seized
under this Law and detained for more than forty-eight hours shall, unless
required as evidence of an offence, be held in an interest-bearing account and
the interest accruing on any such money shall be added to that money on its
forfeiture or release.
ARTICLE 16F
Procedure
(1) An
order under paragraph (2) of Article 16B shall provide for notice to be given
to persons affected by the order.
(2) Provision
may be made by Rules of Court with respect to applications to the Court under
Article 16C or appeals under Article 16D, for the giving of notice of such
applications or appeals to persons affected, for the joinder of such persons as
parties and generally with respect to the procedure under Articles 16B, 16C and
16D.
ARTICLE 16G
Receipts
(1) Money
forfeited under Article 16C, together with any interest thereon, shall be
disposed of in such manner as the Committee may direct.
(2) Where
an appeal against forfeiture is made under Article 16D, paragraph (1) shall not
apply until the appeal is determined or otherwise disposed of.”.
ARTICLE 27
(1) In
sub-paragraph (a) of paragraph (3) of Article 17 of the 1988 Law for the word
“contract” there shall be substituted the words “statute,
contract or otherwise”.
(2) After
paragraph (4) of Article 17 of the 1988 Law there shall be inserted the
following paragraph –
“(4A) In the case of a person who
was in employment at the relevant time, paragraphs (3) and (4) shall have
effect in relation to disclosures, and intended disclosures, to the appropriate
person in accordance with the procedure established by his employer for the
making of such disclosures as they have effect in relation to disclosures, and
intended disclosures, to a police officer.”.
ARTICLE 28
After Article 17
of the 1988 Law there shall be inserted the following Article –
“ARTICLE 17A
Acquisition, possession or use of property representing proceeds
of drug trafficking
(1) A
person who, knowing that any property is, or in whole or in part directly or
indirectly represents, another’s proceeds of drug trafficking, acquires
that property or has possession or use of it, is guilty of an offence.
(2) It
is a defence to a charge of committing an offence under this Article that the
person charged acquired or used the property or had possession of it for
adequate consideration.
(3) For
the purposes of paragraph (2) –
(a) a person acquires
property for inadequate consideration if the value of the consideration is
significantly less than the value of the property; and
(b) a person uses or has
possession of property for inadequate consideration if the value of the
consideration is significantly less than the value of his use or possession of
the property.
(4) The
provision for any person of services or goods which are of assistance to him in
drug trafficking shall not be treated as consideration for the purposes of
paragraph (2).
(5) Where
a person discloses to a police officer a suspicion or belief that any property
is, or in whole or in part directly or indirectly represents, another
person’s proceeds of drug trafficking, or discloses to a police officer
any matter on which such a suspicion or belief is based –
(a) the disclosure shall
not be treated as a breach of any restriction upon the disclosure of
information imposed by statute, contract or otherwise; and
(b) if he does any act in
relation to the property in contravention of paragraph (1), he does not commit
an offence under this Article if –
(i) the disclosure is
made before he does the act concerned and the act is done with the consent of
the police officer; or
(ii) the disclosure is made
after he does the act, but on his initiative and as soon as it is reasonable
for him to make it.
(6) For
the purposes of this Article, having possession of any property shall be taken
to be doing an act in relation to it.
(7) In
proceedings against a person for an offence under this Article, it is a defence
to prove that –
(a) he intended to disclose
to a police officer such a suspicion, belief or matter as is mentioned in
paragraph (5); but
(b) there is reasonable
excuse for his failure to make the disclosure in accordance with sub-paragraph
(b) of that paragraph.
(8) In
the case of a person who was in employment at the relevant time, paragraphs (5)
and (7) shall have effect in relation to disclosures, and intended disclosures,
to the appropriate person in accordance with the procedure established by his
employer for the making of such disclosures as they have effect in relation to
disclosures, and intended disclosures, to a police officer.
(9) A
person guilty of an offence under this Article shall be liable on conviction to
imprisonment for a term not exceeding fourteen years or to a fine or to both.
(10) No
police officer shall be guilty of an offence under this Article in respect of
anything done by him in the course of acting in connexion with the enforcement,
or intended enforcement, of any provision of this Law or of any other enactment
relating to drug trafficking or the proceeds of drug trafficking.”.
ARTICLE 29
After Article 18
of the 1988 Law there shall be inserted the following Articles –
“ARTICLE 18A
Failure to disclose knowledge or suspicion of drug money
laundering
(1) A
person shall be guilty of an offence if –
(a) he knows, or suspects,
that another person is engaged in drug money laundering;
(b) the information, or
other matter, on which that knowledge or suspicion is based came to his
attention in the course of his trade, profession, business or employment; and
(c) he does not disclose
the information or other matter to a police officer as soon as is reasonably
practicable after it comes to his attention.
(2) Paragraph
(1) does not make it an offence for a professional legal adviser to fail to
disclose any information or other matter which has come to him in privileged
circumstances.
(3) It
is a defence to a charge of committing an offence under this Article that the
person charged had a reasonable excuse for not disclosing the information or
other matter in question.
(4) Where
a person discloses to a police officer –
(a) his suspicion or belief
that another person is engaged in drug money laundering; or
(b) any information or other
matter on which that suspicion or belief is based,
the disclosure
shall not be treated as a breach of any restriction imposed by statute,
contract or otherwise.
(5) Without
prejudice to paragraph (3) or (4), in the case of a person who was in employment
at the relevant time, it is a defence to a charge of committing an offence
under this Article that he disclosed the information or other matter in
question to the appropriate person in accordance with the procedure established
by his employer for the making of such disclosures.
(6) A
disclosure to which paragraph (5) applies shall not be treated as a breach of
any restriction imposed by statute, contract or otherwise.
(7) In
this Article “drug money laundering” means doing any act which
constitutes an offence under Article 16A, 17 or 17A or in the case of an act
done outside the Island would constitute such an offence if done in the Island.
(8) For
the purposes of paragraph (7), having possession of any property shall be taken
to be doing an act in relation to it.
(9) For
the purposes of this Article, any information or other matter comes to a
professional legal adviser in privileged circumstances if it is communicated,
or given, to him –
(a) by, or by a
representative of, a client of his in connexion with the giving by the adviser
of legal advice to the client;
(b) by, or by a
representative of, a person seeking legal advice from the adviser; or
(c) by any person –
(i) in contemplation
of, or in connexion with, legal proceedings; and
(ii) for the purpose of
those proceedings.
(10) No
information or other matter shall be treated as coming to a professional legal
adviser in privileged circumstances if it is communicated or given with a view
to furthering any criminal purpose.
(11) This
Article shall not apply –
(a) to any person
designated by Regulations made by the States for the purposes of this
sub-paragraph; or
(b) in such circumstances
as may be specified, to any person who falls within such category of person as
may be specified in Regulations made by the States for the purposes of this
sub-paragraph.
(12) Regulations
made for the purposes of sub-paragraph (a) of paragraph (11) may designate any
person appearing to the States to be performing regulatory, supervisory,
investigative or registration functions.
(13) The
categories of person specified in Regulations made for the purposes of
sub-paragraph (b) of paragraph (11) shall be such categories of person
connected with the performance by any designated person of regulatory,
supervisory, investigative or registration functions.
(14) A
person guilty of an offence under this Article shall be liable on conviction to
imprisonment for a term not exceeding five years or to a fine or to both.
ARTICLE 18B
Tipping-off
(1) A
person is guilty of an offence if –
(a) he knows, or suspects
that a police officer is acting, or is proposing to act, in connexion with an
investigation which is being, or is about to be, conducted into drug money
laundering; and
(b) he discloses to any
other person information or any other matter which is likely to prejudice that
investigation or proposed investigation.
(2) A
person is guilty of an offence if –
(a) he knows or suspects
that a disclosure (“the disclosure”) has been made to a police
officer under Article 17, 17A or 18A; and
(b) he discloses to any
other person information or any other matter which is likely to prejudice any
investigation which might be conducted following the disclosure.
(3) A
person is guilty of an offence if –
(a) he knows or suspects
that a disclosure of a kind mentioned in paragraph (4A) of Article 17,
paragraph (8) of Article 17A or paragraph (5) of Article 18A (“the
disclosure”) has been made; and
(b) he discloses to any
person information or any other matter which is likely to prejudice any
investigation which might be conducted following the disclosure.
(4) Nothing
in paragraphs (1) to (3) makes it an offence for a professional legal adviser
to disclose any information or other matter –
(a) to, or to a
representative of, a client of his in connexion with the giving by the adviser
of legal advice to the client; or
(b) to any person –
(i) in contemplation
of, or in connexion with, legal proceedings; and
(ii) for the purpose of
those proceedings.
(5) Paragraph
(4) does not apply in relation to any information or other matter which is
disclosed with a view to furthering any criminal purpose.
(6) In
proceedings against a person for an offence under paragraph (1), (2) or (3), it
is a defence to prove that he did not know or suspect that the disclosure was
likely to be prejudicial in the way mentioned in that paragraph.
(7) In
this Article “drug money laundering” has the same meaning as in
Article 18A.
(8) A
person guilty of an offence under this Article shall be liable to imprisonment
for a term not exceeding five years or to a fine or to both.
(9) No
police officer or other person shall be guilty of an offence under this Article
in respect of anything done by him in the course of acting in connexion with
the enforcement, or intended enforcement, of any provision of this Law or of
any other enactment relating to drug trafficking or the proceeds of such
trafficking.”.
ARTICLE 30
In Article 19 of
the 1988 Law –
(a) in paragraph (6) for
the words “this Article” there shall be substituted the words
“paragraph (1)”; and
(b) after paragraph (7)
there shall be inserted the following paragraph –
“(8) An application
under paragraph (1) or (4) may be made ex
parte to the Bailiff in Chambers.”.
ARTICLE 31
In paragraph (2)
of Article 20 of the 1988 Law for the words “a police officer to
enter” there shall be substituted the words “any police officer
together with any other person named in the warrant to enter, if necessary by
force,”.
ARTICLE 32
After paragraph
(2) of Article 21 of the 1988 Law there shall be inserted the following paragraphs
–
“(2A) Nothing in paragraph (1)
makes it an offence for a professional legal adviser to disclose any
information or other matter –
(a) to, or to a
representative of, a client of his in connexion with the giving by an adviser
of legal advice to the client; or
(b) to any person –
(i) in contemplation
of, or in connexion with, legal proceedings; and
(ii) for the purpose of
those proceedings.
(2B) Paragraph
(2A) does not apply in relation to any information or other matter which is
disclosed with a view to furthering any criminal purpose.”.
ARTICLE 33
After Article 21
of the 1988 Law there shall be inserted the following Articles –
“ARTICLE 21A
Offences on Jersey vessels
Anything which
would constitute a drug trafficking offence if done on land in the Island shall
constitute that offence if done on a ship registered in the Island (“a
Jersey ship”).
ARTICLE 21B
Ships used for illicit traffic
(1) This
Article applies to a Jersey ship, a British ship, a ship registered in a state
other than the United Kingdom which is a party to the Vienna Convention
(“a Convention state”) and a ship not registered in any country or
territory.
(2) A
person is guilty of an offence if on a ship to which this Article applies,
wherever it may be, he –
(a) has a controlled drug
in his possession; or
(b) is in any way knowingly
concerned in the carrying or concealing of a controlled drug on that ship,
knowing or having
reasonable grounds to suspect that the drug is intended to be imported or has
been exported contrary to Article 4 of the Misuse of Drugs (Jersey) Law 1978 or
the law of any other state or territory.
(3) A
certificate purporting to be issued by or on behalf of the government of any
state to the effect that the importation or export of a controlled drug is
prohibited by the law of that state shall be evidence of the matters stated.
(4) A
person guilty of an offence under this Article is liable –
(a) in a case where the
controlled drug is a Class A drug, to a fine or to imprisonment for life, or to
both;
(b) in a case where the
controlled drug is a Class B drug, to a fine or to imprisonment for a term not
exceeding fourteen years, or to both;
(c) in a case where the
controlled drug is a Class C drug, to a fine or to imprisonment for a term not
exceeding five years, or to both.
(5) In
this Article “a controlled drug” and the references to controlled
drugs of a specified class have the same meaning as in the Misuse of Drugs
(Jersey) Law 1978 ; and an offence under this
Article shall be included in the offences to which Article 22 of that Law
(defences) applies.
ARTICLE 21C
Enforcement powers
(1) The
powers conferred on an enforcement officer by the Schedule to this Law
(“the powers”) shall be exercisable in relation to any ship to
which Article 21A or 21B applies for the purpose of detecting and the taking of
appropriate action in respect of the offences mentioned in those Articles.
(2) The
powers shall not be exercised outside the territorial sea of the Island in
relation to a ship registered in a Convention state except with the authority
of the Attorney General and he shall not give his authority unless that state
has in relation to that ship –
(a) requested the
assistance of the Island for the purpose mentioned in paragraph (1); or
(b) authorized the Island
to act for that purpose.
(3) In
giving his authority pursuant to a request or authorization from a Convention
state, the Attorney General shall impose such conditions or limitations on the
exercise of the powers as may be necessary to give effect to any conditions or
limitations imposed by that State.
(4) The
Attorney General may, either of his own motion or in response to a request from
a Convention state, authorize a Convention state to exercise, in relation to a
Jersey ship, powers corresponding to the powers, but subject to such conditions
or limitations, if any, as he may impose.
(5) The
powers shall not be exercised in the territorial sea of any other country or
territory without the authority of the Attorney General and he shall not give
his authority unless that country or territory has consented to the exercise of
those powers.
(6) The
Attorney General may, by instrument in writing, delegate to the Agent of the
Impôts all or any of his functions under this Article, subject to such
conditions, exceptions or qualifications as may be specified in the instrument.
ARTICLE 21D
Jurisdiction and prosecutions
(1) Proceedings
under this Law in respect of an offence on a ship may be taken, and the offence
may be treated as having been committed, within the Island.
(2) Section
3 of the Territorial Waters Jurisdiction Act 1878 (consent of Secretary of
State for certain prosecutions) shall not apply to any proceedings under this
Law.”.
ARTICLE 34
After Article 24
of the 1988 Law there shall be inserted the Schedule set out in the Second
Schedule to this Law.
PART III
SUPPLEMENTAL
ARTICLE 35
(1) This
Law may be cited as the Drug Trafficking (Miscellaneous Provisions) (Jersey)
Law 1996 and, subject to paragraph (2), shall come into force on such day as
the States may by Act appoint (“the appointed day”).
(2) Articles
10, 11, 13, 14, 16, 17, 18, 19 and 21 shall not apply where the drug
trafficking offence, or any of the drug trafficking offences, in respect of
which the confiscation order was made was committed before the appointed day,
and proceedings for any such offence or offences shall be conducted as if this
Law had not been passed.
C.M. NEWCOMBE
Deputy Greffier
of the States.
FIRST SCHEDULE
(Article 7)
“FIFTH SCHEDULE
(Articles 5A and
5B)
Substances
useful for manufacturing controlled drugs
|
TABLE I
|
|
N-Acetylanthranilic
acid
|
|
Ephedrine
|
|
Ergometrine
|
|
Ergotamine
|
|
Isosafrole
|
|
Lysergic acid
|
|
3,
4-Methylenedioxyphenyl-2-propanone
|
|
1-phenyl-2-propanone
|
|
Piperonal
|
|
Pseudoephedrine
|
|
Safrole
|
The salts of the
substances listed in this Table whenever the existence of such salts is
possible.
|
TABLE II
|
|
Acetic
anhydride
|
|
Acetone
|
|
Anthranilic
acid
|
|
Ethyl
ether
|
|
Hydrochloric
acid
|
|
Methyl ethyl ketone (also
referred to as 2-Butanone or M.E.K.)
|
|
Phenylacetic
acid
|
|
Piperidine
|
|
Potassium
permanganate
|
|
Sulphuric
acid
|
|
Toluene
|
The salts of the
substances listed in this Table except hydrochloric acid and sulphuric acid
whenever the existence of such salts is possible.”.
SECOND SCHEDULE
(Article 34)
“SCHEDULE
(Article 21C)
ENFORCEMENT POWERS
IN RESPECT OF SHIPS
Preliminary
1.-(1) In this Schedule “an enforcement
officer” means –
(a) a police officer; and
(b) such other person of a
description specified in an Order made for the purposes of this Schedule by the
Committee.
(2) The Subordinate
Legislation (Jersey) Law 1960 shall apply to Orders made under
this paragraph.
(3) In this Schedule
“the ship” means the ship in relation to which the powers conferred
by this Schedule are exercised.
Power to stop,
board, divert and detain
2.-(1) An enforcement officer may stop the ship,
board it and, if he thinks it necessary for the exercise of his functions,
require it to be taken to a port in the Island and detain it there.
(2) Where an enforcement
officer is exercising his powers with the authority of the Attorney General
given under paragraph (2) of Article 21C, the officer may require the ship to
be taken to a port in the Convention state in question or, if that state has so
requested, in any other country or territory willing to accept it.
(3) For any of those
purposes he may require the master or any member of the crew to take such
action as may be necessary.
(4) If an enforcement
officer detains a vessel he shall serve on the master a notice in writing
stating that it is to be detained until the notice is withdrawn by the service
on him of a further notice in writing signed by an enforcement officer.
Power to search
and obtain information
3.-(1) An enforcement officer may search the
ship, anyone on it and anything on it including its cargo.
(2) An enforcement officer
may require any person on the ship to give information concerning himself or
anything on the ship.
(3) Without prejudice to
the generality of those powers an enforcement officer may –
(a) open any containers;
(b) make tests and take
samples of anything on the ship;
(c) require the production
of documents, books or records relating to the ship or anything on it;
(d) make photographs or
copies of anything whose production he has power to require.
Powers in respect
of suspected offences
4.-(1) If an enforcement officer has reasonable
grounds to suspect that an offence mentioned in Article 21A or 21B has been
committed on a ship to which that Article applies he may –
(a) arrest anyone whom he
has reasonable grounds for suspecting to be guilty of the offence; and
(b) seize and detain
anything found on the ship which appears to him to be evidence of the offence.
(2) The powers conferred by
this paragraph shall be in addition to and not in derogation of any other
powers conferred on a police officer apart from this paragraph.
Assistants
5.-(1) An enforcement officer may take with
him, to assist him in exercising his powers –
(a) any other persons; and
(b) any equipment or
materials.
(2) A person whom an
enforcement officer takes with him to assist him may perform any of the
officer’s functions but only under the officer’s supervision.
Use of reasonable
force
6. An
enforcement officer may use reasonable force, if necessary, in the performance
of his functions.
Evidence of authority
7. An
enforcement officer shall, if required, produce evidence of his authority.
Protection of
officers
8. An
enforcement officer shall not be liable in any civil or criminal proceedings
for anything done in the purported performance of his functions under this
Schedule if the court is satisfied that the act was done in good faith and that
there were reasonable grounds for doing it.
Offences
9.-(1) A person is guilty of an offence if he
–
(a) intentionally obstructs
an enforcement officer in the performance of any of his functions under this
Schedule;
(b) fails without
reasonable excuse to comply with a requirement made by an enforcement officer
in the performance of those functions; or
(c) in purporting to give
information required by an enforcement officer for the performance of those
functions –
(i) makes a statement
which he knows to be false in a material particular or recklessly makes a
statement which is false in a material particular, or
(ii) intentionally fails to
disclose any material particular.
(2) A person guilty of an
offence under this paragraph is liable to a fine not exceeding level 4 on the
standard scale or to imprisonment for a term not
exceeding three months, or to both.”