Civil Asset
Recovery (International Co-operation) (Jersey) Law 2007
A LAW to enable Jersey to co-operate
with other countries in external civil asset recovery proceedings and
investigations and for related purposes
Adopted by the
States 22nd November 2007
Sanctioned by
Order of Her Majesty in Council 12th December 2007
Registered by the
Royal Court 21st
December 2007
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
PArt 1
Introductory
provisions
1 Interpretation
(1) In
this Law –
“document” includes
information recorded in any form and, in relation to information recorded
otherwise than in legible form, references to its production include references
to producing a copy of the information in legible form;
“evidence” includes
documents and other articles;
“external civil asset recovery order” means an order or
other judicial authority, that –
(a) is made, other than in
the course of criminal proceedings, by an external decision-making body in a
country or territory outside Jersey; and
(b) specifies that property
specified in the order is tainted property, or specifies an amount of money to
be money to be forfeited or recovered in lieu of tainted property;
“external civil asset recovery proceedings” means
proceedings –
(a) which are judicial in
nature but are not criminal proceedings; and
(b) in which external civil
asset recovery orders may be made;
“external decision-making body” means a court or
tribunal, or other body or person, who or which is authorized, under a law of a
country or territory outside Jersey, to make external civil asset recovery
orders;
“items subject to legal
professional privilege” has the meaning assigned to that expression
by the Drug Trafficking Offences (Jersey)
Law 1988[1];
“Minister” means the Minister for Treasury and
Resources;
“premises” includes
any place and, in particular, includes –
(a) any
vehicle, vessel, aircraft or hovercraft;
(b) any
offshore installations; and
(c) any
tent or movable structure;
“property” means all property whether movable or
immovable, vested or contingent and whether situated in Jersey or elsewhere;
“property restraint order” means an order made under
Article 7;
“recoverable property” means any property in respect of
which an external civil asset recovery order has been, or could be, made in
external civil asset recovery proceedings;
“respondent” means a person against whom, or against
whose property, an external civil asset recovery order has been made or against
whom, or against whose property, external civil asset recovery proceedings have
been, or are to be, instituted;
“responsible authority” means –
(a) an external
decision-making body;
(b) a person or body who or
which –
(i) is authorized
under a law of a country or territory outside Jersey to conduct investigations
on behalf of the country or territory in relation to external civil asset
recovery proceedings that are or may be instituted, and
(ii) is conducting
such an investigation; and
(c) any other authority in
a country or territory which appears to the Attorney General to have the
function of making requests, in relation to external civil asset recovery
proceedings, of the kind to which Article 2 or 3 applies;
“tainted property” means property that has been found by
an external decision-making body to have been –
(a) used in, or intended to
be used in, unlawful conduct; or
(b) obtained in the course
of, from the proceeds of, or in connection with, unlawful conduct;
“unlawful conduct” means the commission of an offence
against a law of a country or territory, including Jersey.
(2) For
the purposes of this Law, external civil asset recovery proceedings are
instituted in a country or territory outside Jersey when an application has been
made to an external decision-making body in the other country or territory for
an external civil asset recovery order.
(3) For
the purposes of this Law, external civil asset recovery proceedings are
concluded in a country or territory outside Jersey –
(a) when
(disregarding any power of an external decision-making body to grant leave to
appeal out of time) there is no further possibility of an external civil asset
recovery order being made in the proceedings; or
(b) on
the satisfaction of an external civil asset recovery order made in the
proceedings, whether by forfeiture, recovery, or realisation, of all property
liable to be forfeited, recovered, realised or otherwise dealt with under the
order.
(4) An
external civil asset recovery order is subject to appeal until (disregarding
any power of an external decision-making body or a court to grant leave to
appeal out of time) there is no further possibility of an appeal on which the
order could be varied or set aside.
2 Service of external civil
asset recovery process in Jersey
(1) If
the Attorney General receives from the government of, or a responsible
authority in, a country or territory outside Jersey –
(a) a summons or other
process requiring a person to appear as a respondent, or to attend as a witness,
in external civil asset recovery proceedings in that country or territory; or
(b) a document issued by an
external decision-making body in that country or territory as part of external
civil asset recovery proceedings and recording a decision of the body made in
the course of those proceedings,
together with a request for it to be served on a person in Jersey,
the Attorney General may cause the process or document to be served by post,
or, if the request is for personal service, instruct the Viscount to cause it
to be personally served.
(2) Service
by virtue of this Article of any process mentioned in paragraph (1)(a)
shall not impose an obligation under the law of Jersey to comply with it.
(3) A
process served by virtue of this Article shall be accompanied by a notice –
(a) stating the effect of paragraph (2);
(b) indicating that the
person on whom it is served may wish to seek advice as to the possible
consequences of the person’s failing to comply with the process under the
law of the country or territory where it was issued; and
(c) indicating that under
that law the person may not, as a witness, be accorded the same rights and
privileges as would be accorded to the person as a witness in civil proceedings
in Jersey.
(4) If
the Viscount is instructed under this Article to cause a process or document to
be served, the Viscount shall –
(a) if it is has been
served, inform the Attorney General as soon as practicable when and how it was
served and (if possible) provide the Attorney General with a receipt signed by
the person on whom it was served; or
(b) if he or she has been
unable to cause the process or document to be served, inform the Attorney
General as soon as practicable of that fact and of the reason he or she has
been unable to cause the process to be served.
PArt 2
Evidence
in relation to external civil asset recovery
proceedingS
3 Evidence for, and
assistance in relation to, external civil asset recovery proceedings
(1) This
Article applies in relation to a request if –
(a) the Attorney General receives
from a responsible authority a request for assistance in obtaining evidence in
Jersey in connection with –
(i) external civil
asset recovery proceedings that have been instituted in a country or territory,
or
(ii) an investigation
for the purpose of external civil asset recovery proceedings that are being, or
may be, instituted in a country or territory; and
(b) the Attorney General is
satisfied that there are reasonable grounds to suspect that the evidence
is, or relates to, property that –
(i) has been used in,
or is intended to be used in, unlawful conduct, or
(ii) has been, or was
intended to be, obtained in the course of, from the proceeds of, or in
connection with, unlawful conduct.
(2) If
this Article applies in relation to a request, the Attorney General may issue a
notice in writing to a person specifying any of, or any combination of, the
following requirements –
(a) that
the person is required to give to the Attorney General, by the date specified in the notice, documents, or other articles,
which are specified in the notice and that may constitute evidence for the
purposes of the request;
(b) that
the person –
(i) is required to
give, to a court or the Viscount (as specified in the notice) documents, or
other articles, which are specified in the notice and that may constitute
evidence for the purposes of the request, and
(ii) may be required
by a court or the Viscount (as specified in the notice) to attend and to give
evidence in proceedings before the court specified or the Viscount in relation
to that evidence;
(c) that
the person may be required by a court or the Viscount
(as specified in the notice) to attend and to give
evidence in proceedings before the court specified or the Viscount in relation
to the request.
(3) A
person shall not, without reasonable excuse, fail to comply with a requirement
of a notice given to the person under paragraph (2) that is a requirement
of the kind specified in sub-paragraph (a) of that paragraph, in relation
to evidence that the person may, under Article 4, be compelled to give in
proceedings under this Article.
(4) A
person who contravenes paragraph (3) commits an offence and shall be
liable to a fine of level 4 on the standard scale.
(5) A
court shall have the same powers for securing the attendance of –
(a) a
person to whom a notice has been given under paragraph (2) specifying a
requirement of the kind that is specified in sub-paragraph (b) or (c) of
that paragraph; or
(b) any
other witness,
for the purpose of proceedings under this Article as it has for the
purpose of other proceedings before it.
(6) The
Viscount shall have the same powers for securing the attendance of –
(a) a
person to whom a notice has been given under paragraph (2) specifying a
requirement of the kind that is specified in sub-paragraph (b) or (c) of
that paragraph; or
(b) any
other witness,
for the purposes of proceedings before the Viscount under this
Article as the Royal Court has for the purposes of any proceedings before it.
(7) A
court or the Viscount, as the case may be, may in proceedings before it or him
or her under this Article, take evidence on oath.
(8) An
order for costs shall not be made in proceedings before a court or the Viscount
under this Article.
(9) For
the avoidance of doubt it is declared that the Bankers’ Books Evidence (Jersey)
Law 1986[2] applies to any proceedings
before a court or the Viscount under this Article as it applies to other
proceedings before the court or, in the case of the Viscount, would apply to
proceedings before the Royal Court.
(10) The Bankers’ Books Evidence (Jersey)
Law 1986 applies to the giving to the Attorney General, in
pursuance of a requirement of a kind that is referred to in sub-paragraph (a)
of paragraph (2) and that is specified in a notice given under that
paragraph, of any evidence to which that Law applies, as if the giving of the
evidence to the Attorney General took place in proceedings before a court.
4 Giving of evidence in proceedings
under Article 3
(1) A
person shall not be compelled to give in proceedings under Article 3 any
evidence which the person could not be compelled to give –
(a) in
civil proceedings in Jersey; or
(b) subject
to paragraph (2), in civil proceedings in the country or territory from
which the request under Article 3(1) has come.
(2) Paragraph (1)(b)
does not apply unless the claim of the person questioned to be exempt from
giving the evidence is conceded by the responsible authority which made the
request under Article 3(1).
(3) If
the claim made by a person is not conceded in accordance with paragraph (2) –
(a) the
person may (subject to the other provisions of this Article) be required to
give the evidence to which the claim relates; and
(b) the
evidence shall not be transmitted to the responsible authority which requested
it if a court in the country or territory in question, on the matter being
referred to it, upholds the claim.
(4) In
this Article, references to giving evidence include references to answering any
question and to producing any document or other article and the references in paragraph (3)
to the transmission of evidence given by a person shall be construed
accordingly.
(5) In
this Article, references to giving evidence in proceedings under Article 3
shall include the giving of evidence to the Attorney General pursuant to a
requirement that is specified in a notice given under Article 3(2) and
that is of a kind that is specified in sub-paragraph (a) of Article 3(2).
5 Transmission
of evidence received in proceedings under Article 3
(1) The
evidence received by a court or the Viscount, as the case may be, under
Article 3 shall be provided to the Attorney General for transmission to
the responsible authority which made the request under that Article.
(2) If,
in order to comply with the request, it is necessary for the evidence to be
accompanied by any certificate, affidavit or other verifying document, the
court or the Viscount, as the case may be, shall also provide for transmission
by the Attorney General of any document of that nature as may be specified in
the notice nominating the court or Viscount.
(3) The
Attorney General may transmit to the responsible authority which made the
request under Article 3 any evidence that is provided to him or her
pursuant to a notice given to a person under that Article in relation to the
request.
(4) If
the evidence consists of a document the original or a copy may be transmitted,
and if it consists of any other article the article itself or a description,
photograph or other representation of it may be transmitted, as may be
necessary in order to comply with the request.
PART 3
Enforcement of EXTERNAL CIVIL ASSET
RECOVERY orders
6 Making of property restraint order
(1) The
Attorney General may apply to the Royal Court to make a property restraint
order under this Article in respect of recoverable property specified in the
application.
(2) An
application under paragraph (1) may also be made on an ex parte application to the Bailiff in Chambers.
(3) After
receiving an application under paragraph (1), the Royal Court may –
(a) make
a property restraint order in respect of any recoverable property specified in
the application; and
(b) give
directions in relation to the management or dealing with the property, other
than directions to dispose of, or realise, the property (other than perishable
property).
(4) The
Royal Court may only make a property restraint order if the application is made
on behalf of the government of a country or territory outside Jersey and if the
requirements of either paragraph (5) or (6) have been complied with.
(5) The
requirements of this paragraph are that –
(a) external
civil asset recovery
proceedings that relate to property in Jersey have been
instituted in a country or territory outside Jersey;
(b) the
proceedings have not been concluded; and
(c) it
appears to the Royal Court that there are reasonable grounds for believing that
an external civil asset recovery order may be made in the proceedings.
(6) The
requirements of this paragraph are that –
(a) it
appears to the Royal Court that external civil asset recovery proceedings that may relate to property in Jersey are
to be instituted in a country or territory outside Jersey; and
(b) it
appears to the Royal Court that there are reasonable grounds for believing that
an external civil asset recovery order may be made in the proceedings.
(7) A
property restraint order –
(a) shall
specify the respondent, if any, to whom it relates;
(b) shall
specify the recoverable property to which it relates;
(c) shall
provide for service on, or the provision of notice to, persons affected by it
in the manner that the Royal Court may direct; and
(d) may
be made subject to conditions or restrictions specified in the order.
(8) If
the Royal Court has made a property restraint order, it shall discharge it if
any proposed external civil asset recovery proceedings to which it relates are
not instituted within the time that the Court considers reasonable.
7 Effect,
and discharge of, property restraint order
(1) Subject
to paragraph (3), on the making of a property restraint order –
(a) all
the recoverable property that is specified in the order shall vest in the
Viscount;
(b) any
specified person may be prohibited from dealing with any recoverable property
held by that person that is specified in the order;
(c) any
specified person may be prohibited from dealing with any recoverable property
that is specified in the order and that is transferred to the person after the
making of the order; and
(d) any
specified person having possession of any recoverable property that is
specified in the order may be required to give possession of it to the
Viscount.
(2) Subject
to paragraph (3), on the making of a property restraint order the
Viscount shall take possession of, and, in accordance with the directions of
the Royal Court under Article 6(3), manage or otherwise deal with, any
recoverable property that is specified in the order.
(3) Any
property vesting in the Viscount pursuant to paragraph (1)(a) shall so
vest subject to all hypothecs and security
interests with which the property was burdened before it was so vested.
(4) A
property restraint order –
(a) may
be discharged or varied in respect of any property to which the external civil asset recovery proceedings in
respect of which the order was made may relate; and
(b) shall
be discharged on satisfaction of an order made under Article 10.
(5) An
application for the discharge or variation of a property restraint order 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 the Bailiff’s discretion, refer
it to the Royal Court for adjudication.
(6) If
it appears to the Royal Court that any property restraint order, or any
variation or discharge of such an order, made by it may affect immovable
property situate in Jersey, it shall order the registration of the order in the
Public Registry.
(7) If
it appears to the Bailiff that any variation or discharge of a property
restraint order made by him or her pursuant to paragraph (5) affects
immovable property situate in Jersey, the Bailiff shall order the registration
of the order in the Public Registry.
(8) For
the purposes of this Article, dealing with property held by any person includes
(without prejudice to the generality of the expression) –
(a) where
a debt is owed to that person, making a payment to any person in reduction of
the amount of the debt; and
(b) removing
the property from Jersey.
(9) If
the Royal Court has made a property restraint order, a police officer may, for
the purpose of preventing any recoverable property to which the property
restraint order relates being removed from Jersey, seize the property.
(10) Property
seized under paragraph (9) shall be dealt with in accordance with directions
of the Royal Court.
8 Liability and costs of Viscount
(1) If
the Viscount takes any action under a property restraint order in relation to
property which is not liable to be dealt with under an external civil asset
recovery order, the Viscount shall not be liable to any person in respect of
any loss or damage resulting from the Viscount’s action (except in so far
as the loss or damage is caused by the Viscount’s negligence) if –
(a) the
action taken was action which the Viscount would be entitled to take if the
property were property which is liable to be
dealt with under an external civil asset recovery order; and
(b) the
Viscount believed, and had reasonable grounds for believing, that the Viscount
was entitled to take that action in relation to that property.
(2) The
Viscount shall be entitled –
(a) to
be remunerated for managing property that has vested in him or her under this
Law; and
(b) to
be paid any expenses he or she has reasonably incurred in managing property
that has vested in him or her under this Law.
9 Registration
of external civil asset
recovery orders
On an application made on behalf of the government of a country or
territory outside Jersey, the Royal Court may register an external civil asset
recovery order made in the country or territory if –
(a) it
is satisfied that at the time of registration the order is in force and not
subject to appeal;
(b) where
the respondent in relation to the order did not appear in the proceedings in
which the order was made, it is satisfied that he or she received notice of the
proceedings in sufficient time to enable him or her to defend them; and
(c) it
is of the opinion that enforcing the order in Jersey would not be contrary to
the interests of justice.
10 Recovery
of property
(1) If
an external civil asset recovery order has been registered in the Royal Court
under Article 9, the Court may, on the application of the Attorney
General, order that –
(a) so
much of the property, specified in the order, as is not subject to a property
restraint order, shall vest in the Viscount and may, in accordance with the
directions of the Court, be managed, dealt with, or realised, by the Viscount;
and
(b) any
property specified in the order that is subject to a property restraint order
may, in accordance with the directions of the Court, be managed, dealt with, or
realised, by the Viscount.
(2) The
Royal Court shall not exercise the powers conferred by paragraph (1) in
respect of any property unless a reasonable opportunity has been given for
persons holding any interest in the property to make representations to the
Court.
(3) Subject
to paragraph (4), on the making of an order under paragraph (1) the
Viscount shall take possession of, and, in accordance with directions of the
Royal Court under paragraph (1), manage or otherwise deal with, the
recoverable property that is specified in the order.
(4) Any
property vesting in the Viscount pursuant to paragraph (1) shall so vest
subject to all hypothecs and security interests
with which the property was burdened before it was so vested.
(5) If
it appears to the Royal Court that any order made by it under paragraph (1)(a)
may affect immovable property situate in Jersey, it shall order the
registration of the order in the Public Registry.
11 Civil
Asset Recovery Fund
(1) There
shall be established a fund to be called the Civil Asset Recovery Fund.
(2) The
Civil Asset Recovery Fund shall be managed and controlled by the Minister.
(3) Any
money that is –
(a) obtained
by the Viscount under Article 10, including by the realisation of property
to which an order under that Article relates; or
(b) obtained
under an asset sharing agreement,
shall be paid into the Civil Asset Recovery Fund.
(4) Except
as required by paragraph (9), money that is paid into the Civil Asset
Recovery Fund is not required to be credited to the consolidated fund.
(5) The
Civil Asset Recovery Fund shall be a special fund for the purposes of the
Public Finances (Jersey) Law 2005[3].
(6) The
Minister shall apply monies in the Civil Asset Recovery Fund –
(a) to
discharge Jersey’s obligations under any asset sharing agreement;
(b) to
pay to the Viscount –
(i) any
amount required under Article 8(2), and
(ii) any
amount required to be paid to the Viscount under any other enactment pursuant
to which money recovered by any process is required to be paid into the Fund;
(c) to meet
the expenses reasonably incurred by the Minister in administering the Fund;
(d) to
meet the expenses reasonably incurred by the Attorney General in the discharge
of his or her functions under –
(i) this
Law, and
(ii) any
other enactment pursuant to which money recovered by any process is required to
be paid into the Fund.
(7) At
the end of each financial year, the Minister shall pay into the consolidated
fund so much of the amount of money standing to the account of the Civil Asset
Recovery Fund as has not been applied or is not required to be applied, to
discharge the obligation described in paragraph (6)(a), or to pay the
remuneration for, and meet the expenses incurred, in the year, in accordance
with paragraph (6)(b) to (d).
(8) Monies
paid into the Civil Asset Recovery Fund, while not applied for any of the purposes
mentioned in paragraph (6) or not required to be paid into the
consolidated fund under paragraph (7), shall be held by the Treasurer of
the States.
(9) In
this Article –
“asset sharing agreement” means any agreement or
arrangement made by or on behalf of Jersey with a country or territory outside
Jersey for the sharing of the proceeds of unlawful conduct that, as a result of
mutual assistance in proceedings (other than criminal proceedings), have been
confiscated or forfeited either in Jersey or elsewhere;
“consolidated fund” has the meaning assigned to it in
the Public Finances (Jersey) Law 2005.
12 Representation
of governments of other countries or territories
(1) In
any proceedings pursuant to Article 7 or 9, the government of a country or
territory outside Jersey shall be represented by the Attorney General.
(2) In
any proceedings pursuant to Article 7 or 9, a request for assistance sent
to the Attorney General by a responsible authority of a country or territory
outside Jersey shall, unless the contrary is shown, be deemed to constitute the
authority of the government of that country or territory for the Attorney
General to act on its behalf.
PART 4
CONCLUDING PROVISIONS
13 Application in
event of death or disappearance of person
(1) A
notice that may be given by a person under this Law to another person who is
deceased shall be deemed to have been given if it is given to the personal
representatives of the other person’s estate or, if none, his or her
heirs.
(2) If
a person’s whereabouts is unknown, or a person has absconded, the Royal Court
shall not make an order in relation to the person, or in relation to the
property of the person, unless it is satisfied that the Attorney General has
taken reasonable steps to contact the person.
(3) Where –
(a) a
notice is or may be issued under Article 3(2) in relation to external
civil asset recovery proceedings, or investigations for the purpose of such
proceedings, that are being, or may be, instituted; and
(b) the
person, if any, to whom the proceedings relate, or who has possession of
evidence to which the notice may relate, dies,
then, despite that death, Part 2 shall continue to apply in relation
to –
(i) any
evidence; and
(ii) any
person who may be required to give any evidence under that Part in relation to
the proceedings or investigations,
if the proceedings or investigations may, under the law of the
country or territory in which they are or may be instigated, continue despite
the death of the deceased.
(4) The
death of a person in relation to whom external civil asset recovery proceedings
are or may be instigated shall not prevent the making of, or the continuance in
force of, a property restraint order, or an order under Article 10, in
respect of property to which the external civil asset recovery proceedings
relates or may relate, if the proceedings may, under the law of the country or
territory in which the proceedings are or may be instigated, continue, despite
the death of the person.
(5) The
death of a person in relation to whom an external civil asset recovery order is
made, shall not prevent the making of, or the continuance in force of, a
property restraint order, or an order under Article 10, in respect of
recoverable property to which the external civil asset recovery order relates.
(6) The
death of a person who has an interest in property in Jersey in relation to
which a property restraint order, or an order under Article 10, may be
made shall not prevent such an order being made or continuing in force in
relation to the property.
14 Right
of person affected to make representation to Royal Court
Any person appearing to
the Royal Court to be likely to be affected by the making of an order under this Law by
the Court shall be entitled to appear before the Court and make
representations.
15 Rules
of Court
(1) The
power to make Rules of Court under Article 13 of the Royal Court (Jersey) Law 1948[4] shall include a power to
make Rules for the purposes of giving effect to, and regulating the procedure
under, this Law.
(2) Rules
made for the purposes of giving effect to, and regulating the procedure under
this Law, may, in particular, make provision with respect to the persons
entitled to appear or take part in proceedings, before a court or the Viscount,
to which this Law applies and for excluding the public from any such
proceedings.
16 Regulations
(1) The
States may by Regulations make such provision as to the
evidence or proof of any matter for the purposes of this Law as appears to the
States to be necessary or expedient.
(2) The States may by Regulations make provision
for the issue of, and the powers conferred by, warrants for the search of
premises, of persons on such premises, and of articles on such premises or
persons, where –
(a) external civil asset recovery proceedings
have been issued; or
(b) where investigations are being, or have
been, undertaken for the purpose of determining whether to institute external
civil asset recovery proceedings.
(3) Regulations made under paragraph (2)
may further provide for the keeping, use and onward transmission of any
evidence seized pursuant to such a warrant.
(4) Regulations made by the States under this
Article may include such incidental, consequential and transitional provisions as
appear to the States to be necessary or expedient.
17 Transitional
provisions
This Law shall apply to and in relation to –
(a) external
civil asset recovery proceedings;
(b) investigations
for the purpose of external criminal asset recovery proceedings that are being,
or may be, conducted; and
(c) any
order or other judicial authority, or document or evidence,
whether or not –
(i) the
proceedings or investigations began before or after the commencement of this
Law; or
(ii) any
order or other judicial authority, or document or evidence was made, or came
into existence, before or after the commencement of this Law.
18 Citation
and commencement
(1) This
Law may be cited as the Civil Asset Recovery (International Co-operation)
(Jersey) Law 2007.
(2) This
Law shall come into force 7 days after it is registered.
m.n. de la haye
Greffier of the States