TERRORISM
(JERSEY) LAW 2002
____________
A LAW to replace the Prevention of Terrorism
(Jersey) Law 1996 and to make further provision about terrorism; sanctioned by
Order of Her Majesty in Council of the
22nd day of OCTOBER 2002
____________
(Registered
on the 8th day of November 2002)
____________
STATES
OF JERSEY
____________
The 25th
day of June 2002
____________
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council,
have adopted the following Law -
PART 1
GENERAL INTERPRETATION
ARTICLE 1
Interpretation
(1) In this Law unless the context otherwise
requires -
“2000
Act” means the Terrorism Act 2000 of the United Kingdom Parliament;
“act” and “action” include omission;
“action taken for the purposes of terrorism” shall be construed in
accordance with Article 2(5);
“article” includes substance and any other thing;
“authorized officer” means any officer of the Force, customs officer
or immigration officer;
“Commission” means the Proscribed Organizations Appeal Commission
constituted under Article 8;
“Committee” means the Home Affairs Committee;
“cordoned area” shall be construed in accordance with Article 28;
“customs officer” means the Agent of the Impôts and any other officer
appointed pursuant to Article 4 of the Customs and Excise (Jersey) Law
1999;
“dwelling” means a building or part of a building used as a
dwelling, and a vehicle which is habitually stationary and which is used as a
dwelling;
“explosive” means -
(a) an article or substance manufactured for
the purpose of producing a practical effect by explosion;
(b) materials for making an article or
substance within paragraph (a);
(c) anything used or intended to be used for
causing or assisting in causing an explosion; and
(d) a part of anything within sub-paragraph (a)
or (c) above;
“financial institution” means a person carrying on any business
described in the Second Schedule to the Proceeds of Crime (Jersey) Law 1999;
“firearm” includes an air gun or air pistol;
“Force” means the States of Jersey Police Force;
“Immigration Act 1971” means the Immigration Act 1971 of the United
Kingdom Parliament as it is extended to the Island by Order in Council;
“immigration officer” means a person appointed as an immigration
officer under paragraph 1 of Schedule 2 to the Immigration Act 1971;
“the Islands” means the Bailiwick of Guernsey and the Isle of Man;
“items subject to legal privilege” shall be construed in accordance
with Article 5;
“Jersey Financial Services Commission” means the Commission
established under the Financial Services Commission (Jersey) Law 1998;
“legal representative” means -
(a) an advocate;
(b) a solicitor; or
(c) any person employed by a firm of advocates
or solicitors who is not an advocate or solicitor but who is, for the time
being, notified by his employer to the Chief Officer of the Force as a legal
representative for the purposes of this Law;
“organization” includes any association or combination of persons;
“police officer” means an officer of the Force or a member of the
Honorary Police;
“premises” includes any place and in particular includes -
(a) a vehicle;
(b) an offshore installation; and
(c) a tent or moveable
structure;
“prescribe” means prescribe by Order of the Committee;
“property” includes all property whether movable or immovable,
vested or contingent and whether situated in the Island or elsewhere;
“proscribed organization” shall be construed in accordance with
Article 6;
“public place” means a place to which members of the public have or
are permitted to have access, whether or not for payment;
“road” has the same meaning as in the Road Traffic (Jersey) Law
1956;
“terrorism” shall be construed in accordance with Article 2;
“terrorist investigation” shall be construed in accordance with
Article 4;
“terrorist property” shall be construed in accordance with Article
3;
“vehicle”, except in Articles 44 to 48 and
Schedule 8, includes an aircraft, hovercraft or vessel.
(2) In this Law a reference to a Part, Article
or Schedule by number only, and without further identification, is a reference
to the Part, Article or Schedule of that number in this Law.
(3) A reference in an Article or Schedule of
this Law to a paragraph, sub-paragraph or clause by number or letter only and
without further identification is a reference to the paragraph, sub-paragraph
or clause of that number or letter in the Article or Schedule in which it
appears.
(4) In this Law a reference to an enactment is
a reference to that enactment as amended from time to time and includes a
reference to that enactment as extended or applied under another enactment,
including another provision of this Law.
(5) For the purposes of paragraph (4),
“enactment” includes an Act of the United Kingdom Parliament.
ARTICLE 2
“Terrorism”
(1) In this Law “terrorism” means the use or
threat of action where -
(a) the action falls within paragraph (2);
(b) the use
or threat is designed to influence the States of Jersey or the government of
any other place or country or to intimidate the public or a section of the
public; and
(c) the use
or threat is made for the purpose of advancing a political, religious or
ideological cause.
(2) Action falls within this paragraph if it -
(a) involves serious violence against a person;
(b) involves serious damage to property;
(c) endangers
a person’s life, other than that of the person committing the action;
(d) creates
a serious risk to the health or safety of the public or a section of the
public; or
(e) is
designed seriously to interfere with or seriously to disrupt an electronic
system.
(3) The use or threat of action falling within
paragraph (2) which involves the use of firearms or explosives is terrorism
whether or not paragraph (1)(b) is satisfied.
(4) In this Article -
(a) “action” includes action outside the
Island;
(b) a
reference to any person or to property is a reference to any person, or to
property wherever situated;
(c) a
reference to the public includes a reference to the public of a place or
country other than the Island.
(5) In this Law a reference to action taken for
the purposes of terrorism includes a reference to action taken for the benefit
of a proscribed organization.
ARTICLE 3
“Terrorist
property”
(1) In this Law “terrorist property” means -
(a) property
which is likely to be used for the purposes of terrorism (including any
resources of a proscribed organization);
(b) proceeds of the commission of acts of
terrorism; and
(c) proceeds of acts carried out for the
purposes of terrorism.
(2) In paragraph (1) -
(a) a
reference to proceeds of an act includes a reference to any property which
wholly or partly, and directly or indirectly, represents the proceeds of the
act (including payments or other rewards in connection with its commission);
and
(b) the
reference to an organization’s resources includes a reference to any property
which is applied or made available, or is to be applied or made available, for
use by the organization.
ARTICLE 4
Terrorist
Investigation
In this Law
“terrorist investigation” means an investigation of -
(a) the commission, preparation or instigation
of acts of terrorism;
(b) an act which appears to have been done for
the purposes of terrorism;
(c) the resources of a proscribed organization;
(d) the possibility of making an order under
Article 6(3); or
(e) the
commission, preparation or instigation of an offence under this Law.
ARTICLE 5
“Items subject to legal privilege”
(1) Subject to paragraph (2), in this Law
“items subject to legal privilege” means -
(a) communications between a professional legal
adviser and his client or any person representing his client made in connection
with the giving of legal advice to the client;
(b) communications between a professional legal
adviser and his client or any person representing his client or between such an
adviser or his client or any such representative and any other person made in
connection with or in contemplation of legal proceedings and for the purposes
of such proceedings; and
(c) items enclosed with or referred to in such
communications and made in connection with the giving of legal advice or in
connection with or in contemplation of legal proceedings and for the purposes
of such proceedings, when they are in the possession of a person who is
entitled to possession of them.
(2) Items held with the intention of furthering
a criminal purpose are not items subject to legal privilege.
PART 2
PROSCRIBED ORGANIZATIONS
Procedure
ARTICLE 6
Proscription
(1) For the purposes of this Law an organization
is proscribed if -
(a) it is listed in Schedule 1; or
(b) it operates under the same name as an
organization listed in that Schedule.
(2) Paragraph (1)(b) shall not apply in
relation to an organization listed in Schedule 1 if its entry is the subject of
a note in that Schedule.
(3) The Committee may by Order -
(a) add an organization to Schedule 1;
(b) remove an organization from that Schedule;
(c) amend that Schedule in some other way.
(4) The Committee may exercise its power under
paragraph (3)(a) in respect of an organization only if it believes that it
is concerned in terrorism.
(5) For the purposes of paragraph (4) an
organization is concerned in terrorism if it -
(a) commits or participates in acts of
terrorism;
(b) prepares for terrorism;
(c) promotes or encourages terrorism; or
(d) is otherwise concerned in terrorism.
ARTICLE
7
Deproscription:
application
(1) An application may be made to the Committee
for the exercise of its power under Article 6(3)(b) to remove an
organization from Schedule 1.
(2) An application may be made by -
(a) the organization; or
(b) any person affected by the organization’s
proscription.
(3) The Committee shall make an Order
prescribing the procedure for applications under this Article.
(4) An Order under paragraph (3) shall, in
particular -
(a) require the Committee to determine an
application within a specified period of time; and
(b) require an application to state the grounds
on which it is made.
ARTICLE
8
Deproscription:
appeal
(1) There shall be a commission, to be known as
the Proscribed Organizations Appeal Commission.
(2) Where an application under Article 7 has
been refused, the applicant may appeal to the Commission.
(3) The Commission shall allow an appeal
against a refusal to deproscribe an organization if it considers that the
decision to refuse was flawed when considered in the light of the principles
applicable on an application for judicial review.
(4) Where the Commission allows an appeal under
this Article by or in respect of an organization, it may make an order under
this paragraph.
(5) Where an order is made under paragraph (4)
the Committee shall as soon as is reasonably practicable make an Order under
Article 6(3)(b) removing the organization from the list in Schedule 1.
(6) Schedule 2 shall have effect in
respect of the constitution and procedures of the Commission.
ARTICLE
9
Further
appeal
(1) A party to an appeal under Article 8 which
the Commission has determined may bring a further appeal on a question of law
to the Court of Appeal.
(2) An appeal under paragraph (1) may be
brought only with the permission -
(a) of the Commission; or
(b) where the Commission refuses permission, of
the Court of Appeal.
(3) An order under Article 8(4) shall not
require the Committee to take any action until the final determination or
disposal of an appeal under this Article (including any appeal to the Privy
Council).
ARTICLE 10
Appeal: effect on conviction, etc.
(1) This Article applies where -
(a) an appeal under Article 8 has been
allowed in respect of an organization;
(b) an order has been made under Article 6(3)(b)
in respect of the organization in accordance with an order of the Commission
under Article 8(4);
(c) a person has been convicted of an offence
in respect of the organization under any of Articles 12 to 18, 20 and 52; and
(d) the activity to which the charge referred
took place on or after the date of the refusal to deproscribe against which the
appeal under Article 8 was brought.
(2) If the person mentioned in paragraph (1)(c)
was convicted by or before the Royal Court -
(a) he may appeal against the conviction to the
Court of Appeal; and
(b) the Court of Appeal shall allow the appeal.
(3) A person may appeal against a conviction by
virtue of paragraph (2) whether or not he has already appealed against the
conviction.
(4) An appeal by virtue of paragraph (2) -
(a) must be brought within the period of 28 days
beginning with the date on which the order mentioned in paragraph (1)(b)
comes into force; and
(b) shall be treated as an appeal under Article 24
of the Court of Appeal (Jersey) Law 1961 (but does not require any leave).
(5) If the person mentioned in paragraph (1)(c)
was convicted by the Magistrate’s Court -
(a) he may appeal against the conviction to the
Royal Court; and
(b) the Royal Court shall allow the appeal.
(6) A person may appeal against a conviction by
virtue of paragraph (5) -
(a) whether or not he pleaded guilty;
(b) whether or not he has already appealed
against the conviction; and
(c) whether or not he has made an application
in respect of the conviction under Article 18 of the Magistrate’s Court
(Miscellaneous Provisions) (Jersey) Law 1949.
(7) An appeal by virtue of paragraph (5) -
(a) must be brought within the period of 28 days
beginning with the date on which the order mentioned in paragraph (1)(b)
comes into force; and
(b) shall be treated as an appeal under
Article 14(1)(b) of the Magistrate’s Court (Miscellaneous Provisions)
(Jersey) Law 1949.
ARTICLE 11
Evidence:
inadmissibility
(1) The following shall not be admissible as
evidence in proceedings for an offence under any of Articles 12 to 18, 20 and
52 -
(a) evidence of anything done in relation to an
application to the Committee under Article 7;
(b) evidence of anything done in relation to
proceedings before the Commission under Article 8;
(c) evidence of anything done in relation to
proceedings under Article 9; and
(d) any document submitted for the purposes of
proceedings mentioned in any of sub-paragraphs (a) to (c).
(2) But paragraph (1) shall not prevent
evidence from being adduced on behalf of the accused.
Offences
ARTICLE 12
Membership
(1) A person commits an offence if he belongs
or professes to belong to a proscribed organization.
(2) It is a defence for a person charged with
an offence under paragraph (1) to prove -
(a) that the
organization was not proscribed on the last (or only) occasion on which he
became a member or began to profess to be a member; and
(b) that he
has not taken part in the activities of the organization at any time while it
was proscribed.
(3) A person guilty of an offence under this
Article shall be liable to imprisonment for a term not exceeding 10 years or to
a fine, or both.
(4) In paragraph (2) “proscribed” means
proscribed for the purposes of this Law.
ARTICLE 13
Support
(1) A person commits an offence if -
(a) he invites support for a proscribed
organization; and
(b) the
support is not, or is not restricted to, the provision of property (within the
meaning of Article 16).
(2) A person commits an offence if he arranges,
manages or assists in arranging or managing a meeting which he knows is -
(a) to support a proscribed organization;
(b) to further the activities of a proscribed
organization; or
(c) to be
addressed by a person who belongs or professes to belong to a proscribed
organization.
(3) A person commits an offence if he addresses
a meeting and the purpose of his address is to encourage support for a
proscribed organization or to further its activities.
(4) Where a person is charged with an offence
under paragraph (2)(c) in respect of a private meeting it is a defence for
him to prove that he had no reasonable cause to believe that the address
mentioned in paragraph (2)(c) would support a proscribed organization or
further its activities.
(5) In paragraph (2) to (4) -
(a) “meeting”
means a meeting of 3 or more persons, whether or not the public are admitted;
and
(b) a meeting is private if the public are not
admitted.
(6) A person guilty of an offence under this
Article shall be liable to imprisonment for a term not exceeding 10 years or to
a fine, or both.
ARTICLE 14
Uniform
(1) A person in a public place commits an
offence if he -
(a) wears an item of clothing; or
(b) wears, carries or displays an article,
in such a way or in such circumstances as to arouse reasonable
suspicion that he is a member or supporter of a proscribed organization.
(2) A person guilty of an offence under this
Article shall be liable to imprisonment for a term not exceeding 6 months
or to a fine not exceeding level 4 on the standard scale, or both.
PART 3
TERRORIST
PROPERTY
ARTICLE 15
Fund-raising
(1) A person commits an offence if he -
(a) invites another to provide property; and
(b) intends that it should be used, or has
reasonable cause to suspect that it may be used, for the purposes of terrorism.
(2) A person commits an offence if he -
(a) receives property; and
(b) intends that it should be used, or has
reasonable cause to suspect that it may be used, for the purposes of terrorism.
(3) A person commits an offence if he -
(a) provides property; and
(b) knows or has reasonable cause to suspect
that it will or may be used for the purposes of terrorism.
(4) A person guilty of an offence under this
Article shall be liable to imprisonment for a term not exceeding 14 years or to
a fine, or both.
(5) In this Article, a reference to the
provision of property is a reference to its being given, lent or otherwise made
available, whether or not for consideration.
ARTICLE 16
Use and possession
(1) A person commits an offence if he uses
property for the purposes of terrorism.
(2) A person commits an offence if he -
(a) possesses property; and
(b) intends
that it should be used, or has reasonable cause to suspect that it may be used,
for the purposes of terrorism.
(3) A person guilty of an offence under this
Article shall be liable to imprisonment for a term not exceeding 14 years or to
a fine, or both.
ARTICLE
17
Funding arrangements
(1) A person commits an offence if -
(a) he enters into or becomes concerned in an
arrangement as a result of which property is made available or is to be made
available to another; and
(b) he knows or has reasonable cause to suspect
that it will or may be used for the purposes of terrorism.
(2) A person guilty of an offence under this
Article shall be liable to imprisonment for a term not exceeding 14 years or to
a fine, or both.
ARTICLE 18
Money laundering
(1) A person commits an offence if he enters into or becomes
concerned in an arrangement which facilitates the retention or control by or on
behalf of another person of terrorist property -
(a) by concealment;
(b) by removal from the Island;
(c) by transfer to nominees; or
(d) in any other way.
(2) It is a
defence for a person charged with
an offence under paragraph (1) to prove that he did not know and had no
reasonable cause to suspect that the arrangement related to terrorist property.
(3) A person guilty of an offence under this
Article shall be liable to imprisonment for a term not exceeding 14 years or to
a fine, or both.
ARTICLE 19
Articles 15 to 18: jurisdiction
(1) If -
(a) a person does anything outside the Island;
and
(b) his
action would have constituted the commission of an offence under any of
Articles 15 to 18 if it had been done in the Island,
he shall be guilty of the offence.
(2) For the purposes of paragraph (1)(b),
Article 18(1)(b) shall be read as if for “the Island” there were substituted
“any country or place outside the Island”.
ARTICLE 20
Disclosure of information: duty
(1) This Article applies where a person -
(a) believes
or suspects that another person has committed an offence under any of Articles
15 to 18; and
(b) bases his
belief or suspicion on information which comes to his attention in the course
of a trade, profession, business or employment.
(2) But this Article shall not apply if the
information came to the person in the course of the business of a financial
institution.
(3) The person commits an offence if he does
not disclose to an officer of the Force or customs officer as soon as is
reasonably practicable -
(a) his belief or suspicion; and
(b) the information on which it is based.
(4) It is a defence for a person charged with
an offence under paragraph (3) to prove that he had a reasonable excuse
for not making the disclosure.
(5) Where -
(a) a person is in employment;
(b) his
employer has established a procedure for the making of disclosures of the
matters specified in paragraph (3); and
(c) he is charged with an offence under that
paragraph,
it is a defence for him to prove that he disclosed the matters
specified in that paragraph in accordance with the procedure.
(6) Paragraph (3) does not require
disclosure by a professional legal adviser of -
(a) information which he obtains in privileged
circumstances; or
(b) a belief
or suspicion based on information which he obtains in privileged circumstances.
(7) For the purpose of paragraph (6)
information is obtained by an adviser in privileged circumstances if it comes
to him, otherwise than with a view to furthering a criminal purpose -
(a) from a client or a client’s representative,
in connection with the provision of legal advice by the adviser to the client;
(b) from a
person seeking legal advice from the adviser, or from the person’s
representative; or
(c) from any
person, for the purpose of actual or contemplated legal proceedings.
(8) For the purposes of paragraph (1)(a) a
person shall be treated as having committed an offence under one of Articles 15
to 18 if -
(a) he has
taken an action or been in possession of a thing; and
(b) he would
have committed an offence under one of those Articles if he had been in the
Island at the time when he took the action or was in possession of the thing.
(9) A person guilty of an offence under this
Article shall be liable to imprisonment for a term not exceeding 5 years or to
a fine, or both.
ARTICLE 21
Disclosure of information: permission
(1) A person may disclose to an officer of the
Force or customs officer -
(a) a
suspicion or belief that any property is terrorist property or is derived from
terrorist property;
(b) any
matter on which the suspicion or belief is based.
(2) A person may make a disclosure to an
officer of the Force or customs officer in the circumstances mentioned in
Article 20(1) and (2).
(3) Paragraphs (1) and (2) shall have effect
notwithstanding any restriction on the disclosure of information imposed by any
enactment or otherwise.
(4) Where -
(a) a person is in employment; and
(b) his
employer has established a procedure for the making of disclosures of the kinds
mentioned in paragraph (1) and Article 20(3),
paragraphs (1) and (2) shall have effect in relation to that person
as if any reference to disclosure to an officer of the Force included a
reference to disclosure in accordance with the procedure.
ARTICLE 22
Co-operation
with police
(1) A person does not commit an offence under
any of Articles 15 to 18 if he is acting with the express consent of an officer
of the Force or customs officer.
(2) Subject to paragraphs (3) and (4), a person
does not commit an offence under any of Articles 15 to 18 by involvement in a
transaction or arrangement relating to property if he discloses to an officer
of the Force or customs officer -
(a) his
suspicion or belief that the property is terrorist property; and
(b) the
information on which his suspicion or belief is based.
(3) Paragraph (2) applies only where a
person makes a disclosure -
(a) after he
becomes concerned in the transaction concerned;
(b) on his own initiative; and
(c) as soon as reasonably practicable.
(4) Paragraph (2) does not apply to a person if
-
(a) an
officer of the Force or customs officer forbids him to continue his involvement
in the transaction or arrangement to which the disclosure relates; and
(b) he
continues his involvement.
(5) It is a defence for a person charged with
an offence under any of Articles 15(2) and (3) and 16 to 18 to prove that -
(a) he
intended to make a disclosure of the kind mentioned in paragraphs (2) and (3);
and
(b) there is
reasonable excuse for his failure to do so.
(6) Where -
(a) a person
is in employment; and
(b) his employer
has established a procedure for the making of disclosures of the same kind as
may be made to an officer of the Force or customs officer under paragraph (2),
this Article shall have effect in relation to that person as if any
reference to disclosure to an officer of the Force or customs officer included
a reference to disclosure in accordance with the procedure.
(7) A reference in this Article to a
transaction or arrangement relating to property includes a reference to use or
possession.
ARTICLE 23
Failure to disclose: financial institutions
(1) A person commits an offence if each of the following 3 conditions
is satisfied.
(2) The first condition is that he -
(a) knows or suspects; or
(b) has reasonable grounds for knowing or
suspecting,
that another person
has committed an offence under any of Articles 15 to 18.
(3) The second condition is that the information or other
matter -
(a) on which his knowledge or suspicion is
based; or
(b) which gives reasonable grounds for such
knowledge or suspicion,
came to him in the course of the business of a
financial institution.
(4) The third condition is that he does not disclose the information
or other matter to an officer of the Force, a customs officer or a nominated
officer as soon as is practicable after it comes to him.
(5) But a person does not commit an offence under this Article
if -
(a) he has a reasonable excuse for not
disclosing the information or other matter;
(b) he is a professional legal adviser and the
information or other matter came to him in privileged circumstances.
(6) In deciding whether a person committed an offence under this
Article the court must consider whether he followed any relevant guidance which
was at the time concerned -
(a) issued by the Jersey Financial Services
Commission; and
(b) published in a manner approved by the
Commission as appropriate in its opinion to bring the guidance to the attention
of persons likely to be affected by it.
(7) A disclosure to a nominated officer is a disclosure which -
(a) is made to a person nominated by the
alleged offender’s employer to receive disclosures under this Article; and
(b) is made in the course of the alleged
offender’s employment and in accordance with the procedure established by the
employer for the purpose.
(8) 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 connection 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 a person in connection with legal
proceedings or contemplated legal proceedings.
(9) But paragraph (8) does not apply to information or other
matter which is communicated or given with a view to furthering a criminal
purpose.
(10) For the purposes of paragraph (2), a person is to be taken to
have committed an offence there mentioned if -
(a) he has taken action or been in possession of a thing; and
(b) he would have committed the offence if he
had been in the Island at the time when he took the action or was in possession
of the thing.
(11) A person guilty of an offence under this Article shall be liable
to imprisonment for a term not exceeding 5 years or to a fine, or both.
ARTICLE 24
Protected disclosures
(1) A disclosure which satisfies the following 3 conditions is
not to be taken to breach any restriction on the disclosure of information
(however imposed).
(2) The first condition is that the information or other matter
disclosed came to the person making the disclosure (the discloser) in the
course of the business of a financial institution.
(3) The second condition is that the information or other
matter -
(a) causes the discloser to know or suspect; or
(b) gives him reasonable grounds for knowing or
suspecting,
that another person
has committed an offence under any of Articles 15 to 18.
(4) The third condition is that the disclosure is made to an officer
of the Force or a customs officer or nominated officer as soon as is
practicable after the information or other matter comes to the discloser.
(5) A disclosure to a nominated officer is a disclosure which -
(a) is made to a person nominated by the discloser’s
employer to receive disclosures under this Article; and
(b) is made in the course of the discloser’s
employment and in accordance with the procedure established by the employer for
the purpose.
ARTICLE 25
Proceeds
of Crime (Jersey) Law 1999: amendments
In the Proceeds of Crime (Jersey) Law 1999 -
(a) in Article 1(1), in the definition
“money laundering”, for sub-paragraph (a)(iii) there shall be substituted the
following sub-paragraph -
“(iii) under any of Articles 15 to 18 of the Terrorism (Jersey) Law 2002;”;
(b) in paragraph 1 of the First Schedule,
for sub-paragraph (b) there shall be substituted the following
sub-paragraph -
“(b) an offence under any of
Articles 15 to 18 of the Terrorism (Jersey) Law 2002.”.
Forfeiture
ARTICLE 26
Forfeiture of property
(1) The court by or before which a person is
convicted of an offence under any of Articles 15 to 18 may make a forfeiture
order in accordance with the provisions of this Article.
(2) Where a person is convicted of an offence
under Article 15(1) or (2) or Article 16 the court may order the
forfeiture of any property -
(a) which,
at the time of the offence, he had in his possession or under his control; and
(b) which,
at that time, he intended should be used, or had reasonable cause to suspect
might be used, for the purposes of terrorism.
(3) Where a person is convicted of an offence
under Article 15(3) the court may order the forfeiture of any property -
(a) which,
at the time of the offence, he had in his possession or under his control; and
(b) which,
at that time, he knew or had reasonable cause to suspect would or might be used
for the purposes of terrorism.
(4) Where a person is convicted of an offence
under Article 17 the court may order the forfeiture of the property -
(a) to which
the arrangement in question related; and
(b) which,
at the time of the offence, he knew or had reasonable cause to suspect would or
might be used for the purposes of terrorism.
(5) Where a person is convicted of an offence
under Article 18 the court may order the forfeiture of the property to
which the arrangement in question related.
(6) Where a person is convicted of an offence
under any of Articles 15 to 18, the court may order the forfeiture of any
property which wholly or partly, and directly or indirectly, is received by any
person as a payment or other reward in connection with the commission of the
offence.
(7) Where a person other than the convicted
person claims to be the owner of or otherwise interested in anything which can
be forfeited by an order under this Article, the court shall give him an
opportunity to be heard before making an order.
(8) Schedule 3 shall have effect to make
further provision for forfeiture orders under this Article.
ARTICLE
27
Civil forfeiture of terrorist cash
(1) Schedule 4 shall have effect to make
provision for detention and forfeiture of terrorist cash in civil proceedings.
(2) The powers conferred by
Schedule 4 -
(a) are
exercisable in relation to any cash, whether or not any proceedings have been
brought for an offence in connection with the cash;
(b) are in
addition to, and not in derogation of, the powers in Article 26.
PART 4
TERRORIST
INVESTIGATION
Cordons
ARTICLE 28
Cordoned areas
(1) An area is a cordoned area for the purposes
of the Law if it is designated under this Article.
(2) A designation may be made by an officer of
the Force of at least the rank of chief inspector and only if he considers it
expedient for the purposes of a terrorist investigation.
(3) If a designation is made orally, the
officer making it shall confirm it in writing as soon as is reasonably
practicable.
(4) The officer making a designation shall
arrange for the demarcation of the cordoned area, so far as is reasonably practicable
-
(a) by means of tape marked with the word
“police”; or
(b) in such
other manner as an officer of the Force considers appropriate.
(5) An officer of the Force who is not of the
rank required by paragraph (2) may make a designation if he considers it
necessary by reasons of urgency.
(6) Where an officer of the Force makes a
designation in reliance on paragraph (5) he shall as soon as is reasonably
practicable -
(a) make a
written record of the time at which the designation was made; and
(b) ensure
that an officer of the Force of at least the rank of chief inspector is
informed.
(7) An officer who is informed of a designation
in accordance with paragraph (6)(b) -
(a) shall
confirm the designation or cancel it with effect from such time as he may
direct; and
(b) shall,
if he cancels the designation, make a written record of the cancellation and
the reason for it.
ARTICLE 29
Duration
(1) A designation under Article 28 has
effect, subject to paragraphs (2) to (5), during the period -
(a) beginning at the time when it is made; and
(b) ending
with a date or at a time specified in the designation.
(2) The date or time specified under paragraph (1)(b)
must not occur after the end of the period of 14 days beginning with the day
on which the designation is made.
(3) The period during which a designation has
effect may be extended in writing from time to time by -
(a) the person who made it; or
(b) an
officer of the Force of at least the rank of chief inspector.
(4) An extension shall specify the additional
period during which the designation is to have effect.
(5) A designation shall not have effect after
the end of the period of 28 days beginning with the day on which it is
made.
ARTICLE 30
Police powers
(1) A police officer may -
(a) order a person in a cordoned area to leave
it immediately;
(b) order a
person immediately to leave premises which are wholly or partly in or adjacent
to a cordoned area;
(c) order
the driver or person in charge of a vehicle in a cordoned area to move it from
the area immediately;
(d) arrange for the removal of a vehicle from a
cordoned area;
(e) arrange
for the movement of a vehicle within a cordoned area;
(f) prohibit
or restrict access to a cordoned area by pedestrians or vehicles.
(2) A police officer not in uniform shall, if
requested by a person given an order or affected by the exercise of any other
power under paragraph (1), produce proof of his authority.
(3) A person commits an offence if he fails to
comply with an order, prohibition or restriction imposed by virtue of paragraph (1).
(4) It is a defence for a person charged with
an offence under paragraph (3) to prove that he had a reasonable excuse
for his failure.
(5) A person guilty of an offence under paragraph
(3) shall be liable to imprisonment for a term not exceeding 3 months or
to a fine not exceeding level 3 on the standard scale, or both.
Information and evidence
ARTICLE 31
Powers
Schedule 5
shall have effect to confer powers required for the purposes of a terrorist
investigation.
ARTICLE 32
Financial information
Schedule 6
shall have effect to confer powers required to obtain financial information.
ARTICLE 33
Account monitoring orders
Schedule 7 shall have effect to confer further powers to obtain
information regarding terrorist finance.
ARTICLE
34
Information
about acts of terrorism
(1) This Article applies where a person has
information which he knows or believes might be of material assistance -
(a) in preventing the commission by another
person of an act of terrorism;
(b) in securing the apprehension, prosecution
or conviction of another person, in the Island, for an offence involving the
commission, preparation or instigation of an act of terrorism.
(2) The person commits an offence if he does
not disclose the information as soon as reasonably practicable in accordance
with paragraph (3).
(3) Disclosure is in accordance with this
paragraph if it is made to an officer of the Force.
(4) It is a defence for a person charged with
an offence under paragraph (2) to prove that he had a reasonable excuse
for not making the disclosure.
(5) A person guilty of an offence under this
Article shall be liable to imprisonment for a term not exceeding 5 years
or to a fine, or both.
(6) Proceedings for an offence under this
Article may be taken, and the offence may for the purposes of those proceedings
be treated as having been committed, in any place where the person charged is
or has at any time been since he first knew or believed that the information
might be of material assistance as mentioned in paragraph (1).
(7) Where -
(a) a disclosure is made; and
(b) a failure to have made it would have
constituted an offence under this Article,
the disclosure is not to be taken to breach
any restriction on the disclosure of information (however imposed).
ARTICLE 35
Tipping off
and interference with material
(1) Paragraph (2) applies where a person
knows or has reasonable cause to suspect that a police officer is conducting or
proposes to conduct a terrorist investigation.
(2) The person commits an offence if he -
(a) discloses
to another anything which is likely to prejudice the investigation; or
(b) interferes
with material which is likely to be relevant to the investigation.
(3) Paragraph (4) applies where a person
knows or had reasonable cause to suspect that a disclosure has been or will be
made under any of Articles 20 to 22.
(4) The person commits an offence if he -
(a) discloses
to another anything which is likely to prejudice an investigation resulting
from the disclosure under that Article; or
(b) interferes
with material which is likely to be relevant to an investigation resulting from
the disclosure under that Article.
(5) It is a defence for a person charged with
an offence under paragraph (2) or (4) to prove -
(a) that he
did not know and had no reasonable cause to suspect that the disclosure or
interference was likely to affect a terrorist investigation; or
(b) that he
had a reasonable excuse for the disclosure or interference.
(6) Paragraphs (2) and (4) do not apply to a
disclosure which is made by a professional legal adviser -
(a) to his
client or to his client’s representative in connection with the provision of
legal advice by the adviser to the client and not with a view to furthering a
criminal purpose; or
(b) to any
person for the purpose of actual or contemplated legal proceedings and not with
a view to furthering a criminal purpose.
(7) A person guilty of an offence under this
Article shall be liable to imprisonment for a term not exceeding 5 years
or to a fine, or both.
(8) For the purposes of this Article -
(a) a
reference to conducting a terrorist investigation includes a reference to
taking part in the conduct of, or assisting, a terrorist investigation; and
(b) a person
interferes with material if he falsifies it, conceals its, destroys it or
disposes of it, or if he causes or permits another to do any of those things.
PART 5
COUNTER-TERRORIST POWERS
Suspected terrorists
ARTICLE 36
Interpretation of Part 5: “terrorist”
(1) In this Part “terrorist” means a person who
-
(a) has
committed an offence under any of Articles 12, 13, 15 to 18 or 50 to 55; or
(b) is or
has been concerned in the commission, preparation or instigation of acts of
terrorism.
(2) The reference in paragraph (1)(b) to a
person who has been concerned in the commission, preparation or instigation of
acts of terrorism includes a reference to a person who has been, whether before
or after the passing of this Law concerned in the commission, preparation or
instigation of acts of terrorism within the meaning given by Article 2.
ARTICLE 37
Arrest and detention of suspected terrorists
(1) A police officer may arrest a person whom
he reasonably suspects to be a terrorist.
(2) Where a person is arrested under this
Article the provisions of Schedule 9 shall apply to regulate his detention.
(3) Subject to paragraphs (4) to (7), a person
detained under this Article shall (unless detained under any other power) be
released not later than the end of the period of 48 hours beginning -
(a) with the time of his arrest under this
Article; or
(b) if he
was being detained under Schedule 8 when he was arrested under this Article, with
the time when his examination under that Schedule began.
(4) If on a review of a person’s detention
under Part 2 of Schedule 9 the review officer does not authorize
continued detention, the person shall (unless detained in accordance with
paragraph (5) or (6) or under any other power) be released.
(5) Where a police officer intends to make an
application for a warrant under paragraph 25 of Schedule 9 extending
a person’s detention, the person may be detained pending the making of the
application.
(6) Where an application has been made under
paragraph 25 or 32 of Schedule 9 in respect of a person’s detention,
he may be detained pending the conclusion of proceedings on the application.
(7) Where an application under paragraph 25
or 32 of Schedule 9 is granted in respect of a person’s detention, he may
be detained, subject to paragraph 33 of that Schedule, during the period
specified in the warrant.
(8) The refusal of an application in respect of
a person’s detention under paragraph 25 or 32 of Schedule 9 shall not
prevent his continued detention in accordance with this Article.
ARTICLE 38
Warrant for search of premises for terrorist
(1) The Bailiff may on the application of a
police officer issue a warrant in relation to specified premises if he is
satisfied that there are reasonable grounds for suspecting that a person whom
the police officer reasonably suspects to be a terrorist is to be found there.
(2) A warrant under this Article shall
authorize any police officer to enter and search the specified premises for the
purpose of arresting the person referred to in paragraph (1) under Article 37.
ARTICLE 39
Search of suspected terrorist
(1) A police officer may stop and search a
person whom he reasonably suspects to be a terrorist to discover whether he has
in his possession anything which may constitute evidence that he is a
terrorist.
(2) A police officer may search a person
arrested under Article 37 to discover whether he has in his possession
anything which may constitute evidence that he is a terrorist.
(3) A search of a person under this Article
must be carried out by someone of the same sex.
(4) A police officer may seize and retain
anything which he discovers in the course of a search of a person under
paragraph (1) or (2) and which he reasonably suspects may constitute
evidence that the person is a terrorist.
Power to stop and search
ARTICLE 40
Authorization to stop and search to prevent acts of terrorism
(1) An authorization under this paragraph
authorizes an officer of the Force in uniform to stop a vehicle in an area or
at a place specified in the authorization and to search -
(a) the vehicle;
(b) the driver of the vehicle;
(c) a passenger in the vehicle;
(d) anything
in or on the vehicle or carried by the driver or a passenger.
(2) An authorization under this paragraph
authorizes any officer of the Force in uniform to stop a pedestrian in an area
or at a place specified in the authorization and to search -
(a) the pedestrian;
(b) anything carried by him.
(3) An authorization under paragraph (1) or (2)
may be given only if the person giving it considers it expedient for the
prevention of acts of terrorism.
(4) An authorization may be given by an officer
of the Force of at least the rank of chief inspector.
(5) If an authorization is given orally, the
person giving it shall confirm it in writing as soon as is reasonably
practicable.
ARTICLE 41
Exercise of power
(1) The power conferred by an authorization
under Article 40(1) or (2) -
(a) may be exercised
only for the purpose of searching for articles of a kind which could be used in
connection with terrorism; and
(b) may be
exercised whether or not the officer of the Force has grounds for suspecting
the presence of articles of that kind.
(2) An officer of the Force may seize and
retain an article which he discovers in the course of a search by virtue of
Article 40(1) or (2) and which he reasonably suspects is intended to be
used in connection with terrorism.
(3) An officer of the Force exercising the
power conferred by an authorization may not require a person to remove any
clothing in public except for headgear, footwear, an outer coat, a jacket or
gloves.
(4) A search of a person under this Article
must be carried out by someone of the same sex.
(5) Where an officer of the Force proposes to
search a person or vehicle by virtue of Article 40(1) or (2) he may detain
the person or vehicle for such time as is reasonably required to permit the
search to be carried out at or near the place where the person or vehicle is
stopped.
(6) Where -
(a) a
vehicle or pedestrian is stopped by virtue of Article 40(1) or (2); and
(b) the
driver of the vehicle or the pedestrian applies for a written statement that
the vehicle was stopped, or that he was stopped, by virtue of Article 40(1)
or (2),
the written statement shall be provided.
(7) An application under paragraph (6)
must be made within the period of 12 months beginning with the date on
which the vehicle or pedestrian was stopped.
ARTICLE 42
Duration of authorization
(1) An authorization under Article 40 has
effect, subject to paragraphs (2) to (7), during the period -
(a) beginning at the time when the
authorization is given; and
(b) ending
with a date or at a time specified in the authorization.
(2) The date or time specified under paragraph (1)(b)
must not occur after the end of the period of 28 days beginning with the
day on which the authorization is given.
(3) The officer who gives an authorization
shall inform the Committee as soon as is reasonably practicable.
(4) If an authorization is not confirmed by the
Committee before the end of the period of 48 hours beginning with the time
when it is given -
(a) it shall cease to have effect at the end of
that period; but
(b) its
ceasing to have effect shall not affect the lawfulness of anything done in
reliance on it before the end of that period.
(5) Where the Committee confirms an
authorization it may substitute an earlier date or time for the date or time
specified under paragraph (1)(b).
(6) The Committee may cancel an authorization
with effect from a specified time.
(7) An authorization may be renewed in writing
by any officer of the Force of at least the rank of chief inspector and
paragraphs (1) to (6) shall apply as if a new authorization were given on each
occasion on which the authorization is renewed.
ARTICLE 43
Offences
(1) A person commits an offence if he -
(a) fails to
stop a vehicle when required to do so by an officer of the Force in the
exercise of the power conferred by an authorization under Article 40(1);
(b) fails to
stop when required to do so by an officer of the Force in the exercise of the
power conferred by an authorization under Article 40(2);
(c) wilfully
obstructs an officer of the Force in the exercise of the power conferred by an
authorization under Article 40(1) or (2).
(2) A person guilty of an offence under this
Article shall be liable to imprisonment for a term not exceeding 6 months
or to a fine not exceeding level 4 on the standard scale, or both.
Parking
ARTICLE 44
Interpretation of Articles 45 to 48
In Articles 45
to 48 -
“disabled person’s badge” means such a badge issued pursuant to an
Order made under Article 32C of the Road Traffic (Jersey) Law 1956;
“driver” means, in relation to a vehicle which has been left on any
road, the person who was driving it when it was left there;
“parking” means leaving a vehicle or permitting it to remain at
rest;
“parking place” means a place under the administration of a public or
parochial authority where vehicles may be parked;
“traffic sign” has the same meaning as in the Road Traffic (Jersey)
Law 1956.
ARTICLE 45
Authorization
to prohibit or restrict parking
(1) An authorization under this Article
authorizes a police officer to prohibit or restrict the parking of vehicles on
a road specified in the authorization.
(2) An authorization may be given only if the
officer giving it considers it expedient for the prevention of acts of
terrorism.
(3) An authorization may be given by an officer
of the Force of at least the rank of chief inspector.
(4) If an authorization is given orally, the
person giving it shall confirm it in writing as soon as is reasonably
practicable.
ARTICLE 46
Exercise of
powers
(1) The power conferred by an authorization
under Article 45 shall be exercised by placing a traffic sign on the road
concerned.
(2) A police officer
exercising the power conferred by an authorization under Article 45 may
suspend a parking place.
(3) Where a parking place is suspended under
paragraph (2), the suspension shall be treated as a restriction imposed by
Article 45 for the purposes of Article 31 of the Road Traffic
(Jersey) Law 1956 and of any Order made under it.
(4) A police officer not in uniform shall, if
requested by a person affected by the exercise by him of the power conferred by
an authorization under Article 45, produce proof of his authority.
ARTICLE 47
Duration of authorization
(1) An authorization under Article 45 has
effect, subject to paragraphs (2) and (3), during the period specified in
the authorization.
(2) The period specified shall not exceed 28
days.
(3) An authorization may be renewed in writing
by the person who gave it or by a person who could have given it and paragraphs
(1) and (2) shall apply as if a new authorization were given on each occasion
on which the authorization is renewed.
ARTICLE 48
Offences
(1) A person commits an offence if he parks a
vehicle in contravention of a prohibition or restriction imposed by virtue of
Article 45.
(2) A person commits an offence if -
(a) he is
the driver or other person in charge of a vehicle which has been permitted to
remain at rest in contravention of any prohibition or restriction imposed by
virtue of Article 45; and
(b) he fails
to move the vehicle when ordered to do so by a police officer.
(3) It is a defence for a person charged with
an offence under this Article to prove that he had a reasonable excuse for the
act or omission in question.
(4) Possession of a current disabled person’s
badge shall not itself constitute a reasonable excuse for the purposes of
paragraph (3).
(5) A person guilty of an offence under
paragraph (1) shall be liable to a fine not exceeding level 4 on the
standard scale.
(6) A person guilty of an offence under
paragraph (2) shall be liable to imprisonment for a term not exceeding 3 months
or to a fine not exceeding level 3 on the standard scale,15 or both.
Port controls
ARTICLE 49
Port controls
(1) Schedule 8 shall have effect to confer
powers exercisable at ports.
(2) The States may by Regulations repeal
paragraph 13 of Schedule 8.
(3) The powers conferred by Schedule 8
shall be exercisable notwithstanding the rights conferred by section 1 of
the Immigration Act 1971.
PART 6
FURTHER TERRORIST OFFENCES
ARTICLE 50
Weapons training
(1) Subject to paragraph (5), a person
commits an offence if he provides instruction or training in the making or use
of -
(a) firearms;
(b) radioactive material or weapons designed or
adapted for the discharge of any radioactive material;
(c) explosives; or
(d) chemical, biological or nuclear weapons.
(2) Subject to paragraph (5), a person
commits an offence if he receives instruction or training in the making or use
of -
(a) firearms;
(b) radioactive material or weapons designed or
adapted for the discharge of any radioactive material;
(c) explosives; or
(d) chemical, biological or nuclear weapons.
(3) Subject to paragraph (5), a person
commits an offence if he invites another to receive instruction or training and
the receipt -
(a) would constitute an offence under paragraph (2);
or
(b) would
constitute an offence under paragraph (2) but for the fact that it is to
take place outside the Island.
(4) For the purpose of paragraphs (1) and (3) -
(a) a
reference to the provision of instruction includes a reference to making it
available either generally or to one or more specific persons; and
(b) an
invitation to receive instruction or training may be either general or
addressed to one or more specific persons.
(5) It is a defence for a person charged with
an offence under this Article in relation to instruction or training to prove
that his action or involvement was wholly for a purpose other than assisting,
preparing for or participating in terrorism.
(6) A person guilty of an offence under this
Article shall be liable to imprisonment for a term not exceeding 10 years
or to a fine, or both.
(7) A court by or before which a person is
convicted of an offence under this Article may order the forfeiture of anything
which the court considers to have been in the person’s possession for purposes
connected with the offence.
(8) Before making an order under paragraph (7)
a court must give an opportunity to be heard to any person, other than the
convicted person, who claims to be the owner of or otherwise interested in
anything which can be forfeited under that paragraph.
(9) An order under paragraph (7) shall not
come into force until there is no further possibility of it being varied, or
set aside, on appeal (disregarding any power of a court to grant leave to
appeal out of time).
(10) In this Article -
“biological weapon” means anything to which section 1(1)(b) of the
Biological Weapons Act 1974, as it is extended to the Island by Order in
Council, applies;
“chemical weapon” has the meaning given by section 1 of the Chemical
Weapons Act 1996 as it is extended to the Island by Order in Council;
“nuclear weapon” means a weapon which contains nuclear material within
the meaning of Article 1(a) and (b) of the Convention on the Physical
Protection of Nuclear Material opened for signature at Vienna and New York on
3rd March 1980;
“radioactive material” means radioactive material capable of
endangering life or causing harm to human health.
ARTICLE 51
Directing terrorist organization
(1) A person commits an offence if he directs,
at any level, the activities of an organization which is concerned in the
commission of acts of terrorism.
(2) A person guilty of an offence under this
Article is liable to imprisonment for life.
ARTICLE 52
Possession for terrorist purposes
(1) A person commits an offence if he possesses
an article in circumstances which give rise to a reasonable suspicion that his
possession is for a purpose connected with the commission, preparation or
instigation of an act of terrorism.
(2) It is a defence for a person charged with
an offence under this Article to prove that his possession of the article was
not for a purpose connected with the commission, preparation or instigation of
an act of terrorism.
(3) In proceedings for an offence under this
Article, if it is proved that an article -
(a) was on any premises at the same time as the
accused; or
(b) was on
premises of which the accused was the occupier or which he habitually used
otherwise than as a member of the public,
the court may assume that the accused possessed the article, unless
he proves that he did not know of its presence on the premises or that he had
no control over it.
(4) A person guilty of an offence under this
Article shall be liable to imprisonment for a term not exceeding 10 years
or to a fine, or both.
ARTICLE 53
Collection of information
(1) A person commits an
offence if -
(a) he
collects or makes a record of information of a kind likely to be useful to a
person committing or preparing an act of terrorism; or
(b) he
possesses a document or record containing information of that kind.
(2) In this Article “record” includes a
photographic or electronic record.
(3) It is a defence for a person charged with
an offence under this Article to prove that he had a reasonable excuse for his
action or possession.
(4) A person guilty of an offence under this
Article shall be liable to imprisonment for term not exceeding 10 years or
to a fine, or both.
(5) A court by or before which a person is
convicted of an offence under this Article may order the forfeiture of any
document or record containing information of the kind mentioned in paragraph (1)(a).
(6) Before making an order under paragraph (5)
a court must give an opportunity to be heard to any person, other than the
convicted person, who claims to be the owner of or otherwise interested in
anything which can be forfeited under that paragraph.
(7) An order under paragraph (5) shall not
come into force until there is no further possibility of it being varied, or
set aside, on appeal (disregarding any power of a court to grant leave to
appeal out of time).
ARTICLE 54
Inciting terrorism overseas
(1) A person commits an offence if -
(a) he
incites another person to commit an act of terrorism wholly or partly outside
the Island; and
(b) the act
would, if committed in the Island, constitute one of the offences listed in
paragraph (2).
(2) Those offences are -
(a) murder;
(b) grave and criminal assault;
(c) malicious damage to property.
(3) A person guilty of an offence under this
Article shall be liable to any penalty to which he would be liable on
conviction of the offence listed in paragraph (2) which corresponds to the
act which he incites.
(4) For the purposes of paragraph (1) it
is immaterial whether or not the person incited is in the Island at the time of
the incitement.
(5) Nothing in this Article imposes criminal
liability on any person acting on behalf of, or holding office under, the
Crown.
ARTICLE 55
Terrorist bombing: jurisdiction
(1) If -
(a) a person
does anything outside the Island as an act of terrorism or for the purposes of
terrorism; and
(b) his
action would have constituted the commission of one of the offences listed in
paragraph (2) if it had been done in the Island,
he shall be guilty of
the offence.
(2) The offences
referred to in paragraph (1)(b) are -
(a) an
offence under Article 2 or 3 of the Loi (1884) sur les matières explosives;
(b) an
offence under section 1 of the Biological Weapons Act 1974, as it is extended
to the Island by Order in Council;
(c) an
offence under section 2 of the Chemical Weapons Act 1996, as it is
extended to the Island by Order in Council.
PART 7
GENERAL
ARTICLE 56
Police powers
(1) A power conferred by virtue of this Law on
a police officer -
(a) is
additional to powers which he has at customary law or by virtue of any other
enactment; and
(b) shall not be taken to affect those powers.
(2) A police officer may if necessary use
reasonable force for the purpose of exercising a power conferred on him by
virtue of this Law (apart from paragraph 2 of Schedule 8).
(3) Where
anything is seized by a police officer under a power conferred by virtue of
this Law, it may (unless the contrary intention appears) be retained only for
so long as is necessary in all the circumstances.
ARTICLE 57
Exercise of officers’ powers
An authorized
officer or an examining officer within the meaning of Schedule 8 may -
(a) enter a
vehicle for the purpose of exercising any functions conferred on him by virtue
of this Law; and
(b) use
reasonable force for the purpose of exercising a power conferred on him by
virtue of this Law (apart from paragraph 2 of Schedule 8).
ARTICLE 58
Powers to
stop and search
(1) A power to search premises conferred by
virtue of this Law shall be taken to include power to search a container.
(2) A power conferred by virtue of this Law to
stop a person includes power to stop a vehicle (other than an aircraft which is
airborne).
(3) A person commits an offence if he fails to
stop a vehicle when requires to do so by virtue of this Article.
(4) A person guilty of an offence under
paragraph (3) shall be liable to imprisonment for a term not exceeding 6 months
or to a fine not exceeding level 4 on the standard scale, or both.
ARTICLE 59
Defences
(1) Paragraph (2) applies where in
accordance with a provision mentioned in paragraph (5) it is a defence for
a person charged with an offence to prove a particular matter.
(2) If the person adduces evidence which is
sufficient to raise an issue with respect to the matter the court or jury shall
assume that the defence is satisfied unless the prosecution proves beyond
reasonable doubt that it is not.
(3) Paragraph (4) applies where in
accordance with a provision mentioned in paragraph (5) a court -
(a) may make
an assumption in relation to a person charged with an offence unless a
particular matter is proved; or
(b) may
accept a fact as sufficient evidence unless a particular matter is proved.
(4) If evidence is adduced which is sufficient
to raise an issue with respect to the matter mentioned in paragraph (3)(a)
or (b) the court shall treat it as proved unless the prosecution disproves it
beyond reasonable doubt.
(5)
The
provisions in respect of which paragraphs (2) and (4) apply are Articles 13(4),
35(5)(a), 50, 52 and 53 of this Law.
ARTICLE 60
Evidence
(1) A document which purports to be a notice or
direction given under this Law by and signed on behalf of the Committee or by
the Lieutenant Governor shall be received in evidence and shall, unless the
contrary is proved, be deemed to be made or given by them.
(2) A document bearing a certificate or
purporting to be signed on behalf of the Committee or by the Lieutenant
Governor, stating that the document is a true copy of such a notice or
direction mentioned in paragraph (1) shall, in any legal proceedings, be
evidence of the notice or direction.
ARTICLE 61
Crown servants, regulators, etc.
(1) The Committee may by Order provide for any
of Articles 15 to 24, 26 and 35 to apply to persons in the public service of
the Crown.
(2) The Committee may by Order provide for
either or both of Articles 21 and 34 not to apply to persons who are in its
opinion performing or connected with the performance of regulatory,
supervisory, investigative or registration functions of a public nature.
(3) Orders under this Article -
(a) may make different provision for different
purposes;
(b) may make
provision which is to apply only in specified circumstances; and
(c) may make
provision which applies only to particular persons or to persons of a
particular description.
ARTICLE 62
Aiders, abettors, etc.
Any person who
aids, abets, counsels or procures the commission of an offence under this Law
shall also be guilty of the offence and liable in the same manner as a
principal offender to the penalty provided for that offence.
ARTICLE 63
Offences by body corporate, etc.
(1) Where an offence under
this Law committed by a limited liability partnership or body corporate is
proved to have been committed with the consent or connivance of, or to be
attributable to any neglect on the part of -
(a) a person who is a partner of the
partnership, or director, manager, secretary or other similar officer of the
body corporate; or
(b) any person purporting to act in any such
capacity,
the person shall also be guilty of the
offence and, save as provided in paragraph 8 of Schedule 6, liable in
the same manner as the partnership or body corporate to the penalty provided
for that offence.
(2) Where the affairs of a body corporate are
managed by its members, paragraph (1) shall apply in relation to acts and
defaults of a member in connection with his functions of management as if he
were a director of the body corporate.
ARTICLE 64
Consent to prosecution
Proceedings for
an offence under this Law shall not be instituted without the consent of the
Attorney General.
ARTICLE 65
Orders and Rules
(1) The Committee may by
Order amend the definition “financial institution” in Article 1(1).
(2) The Committee may by Order prescribe
anything that shall or may be prescribed for the purposes of this Law.
(3) The Subordinate Legislation (Jersey) Law
1960 shall apply to Orders and Rules made under this Law.
ARTICLE 66
Consequential amendments of Drug Trafficking Offences (Jersey) Law
1988 and Human Rights (Jersey) Law 2000
(1) In Article 21(2) of the Drug Trafficking
Offences (Jersey) Law 1988, for the words “or an order made under paragraph (2), (3) or (4) of
Article 12 of the Prevention of Terrorism (Jersey) Law 1996” there shall be
substituted the words “or a forfeiture order under Article 26 of the Terrorism
(Jersey) Law 2002”.
(2) In the Human Rights (Jersey) Law 2000 -
(a) in
Article 1(1), for the definition “designated derogation” there shall be
substituted the following definition -
“ ‘designated derogation’
means any derogation by the United Kingdom from an Article of the Convention,
or of any protocol to the Convention, on the Island’s behalf which is contained
in a Designation Order;”;
(b) in
Article 14(1), for the words “amended or replaced” there shall be substituted the
words “amended, replaced or withdrawn”;
(c) in
Article 14(3),21 the words “Schedule 2 to” shall be deleted; and
(d) Schedule
2 shall be repealed.
ARTICLE 67
Repeal and transitional provisions
(1) In this Article -
“1996 Law” means the Prevention of Terrorism (Jersey)
Law 1996;
“commencement date” means the date this Law comes
into force.
(2) The 1996 Law23 shall be repealed.
(3) Where, immediately before the commencement
date, a person is being detained by virtue of a provision of the 1996 Law the
provisions of that Law shall continue to apply to him, in place of the
corresponding provisions of this Law, until his detention comes to an end.
(4) Proceedings instituted, before the
commencement date, for an application for registration of an order under
paragraph 8 or 9 of the Fourth Schedule to the 1996 Law may be continued as if
this Law had not come into force.
(5) An order registered, either before the
commencement date or pursuant to an application described in paragraph (4),
under paragraph 8 or 9 of the Fourth Schedule to the 1996 Law may be
enforced as if this Law had not come into force.
(6) Where, pursuant to Article 19(2) of
the Interpretation (Jersey) Law 1954, an investigation is instituted or continued by an authorized
investigator under the 1996 Law, any code of practice made under
paragraph 7 of the Eighth Schedule to the 1996 Law shall continue to have
effect in connection with the investigation.
ARTICLE 68
Citation and commencement
This
Law may be cited as Terrorism (Jersey) Law 2002 and shall come into force on
such day or days as the States by Act appoint and different days may be
appointed for different provisions of this Law and for different purposes.
M.N.
DE LA HAYE
Deputy Greffier of the States.
SCHEDULE 1
(Article 6)
PROSCRIBED
ORGANIZATIONS
The Irish
Republican Army.
Cumann na mBan.
Fianna na
hEireann.
The Red Hand
Commando.
Saor Eire.
The Ulster
Freedom Fighters.
The Ulster Volunteer
Force.
The Irish
National Liberation Army.
The Irish People’s
Liberation Organisation.
The Ulster
Defence Association.
The Loyalist
Volunteer Force.
The Continuity
Army Council.
The Orange
Volunteers.
The Red Hand
Defenders.
Al-Qa’ida.
Egyptian Islamic
Jihad.
Al-Gama’at
al-Islamiya.
Armed Islamic Group (Groupe Islamique Armée) (GIA).
Salafist Group for Call and Combat (Groupe Salafiste pour la Prédication et
le Combat) (GSPC).
Babbar Khalsa.
International
Sikh Youth Federation.
Harakat
Mujahideen.
Jaish e
Mohammed.
Lashkar e
Tayyaba.
Liberation
Tigers of Tamil Eelam (LTTE).
Hizballah
External Security Organisation.
Hamas-Izz al-Din
al-Qassem Brigades.
Palestinian
Islamic Jihad - Shaqaqi.
Abu Nidal
Organisation.
Islamic Army of
Aden.
Mujaheddin e
Khalq.
Kurdistan
Workers’ Party (Partiya Karkeren Kurdistan) (PKK).
Revolutionary
Peoples’ Liberation Party - Front (Devrimci Halk Kurtulus Partisi-Cephesi)
(DHKP-C).
Basque Homeland
and Liberty (Euskadi ta Askatasuna) (ETA).
17 November
Revolutionary Organisation (N17).
Note: The
entry for The Orange Volunteers refers to the organization which uses that name
and in the name of which a statement described as a press release was published
on 14th October 1998.
SCHEDULE 2
(Article 8)
THE
PROSCRIBED ORGANIZATIONS APPEAL COMMISSION
Constitution
1.-(1) The Commission shall
consist of members appointed by the Bailiff.
(2) The Bailiff shall appoint one of the
members as chairman.
(3) A member shall hold and vacate office in
accordance with the terms of his appointment.
(4) A member may resign at any time by notice
in writing to the Bailiff.
Officers,
etc.
2. The Human Resources Committee may appoint
officers and servants for the Commission.
Expenses
3. The Finance and Economics Committee -
(a) may pay sums by way of remuneration,
allowances, pensions and gratuities to or in respect of members, officers and
servants;
(b) may pay compensation to a person who ceases
to be a member of the Commission if it thinks it appropriate because of special
circumstances; and
(c) may pay sums in respect of expenses of the
Commission.
Sittings
4.-(1) The Commission shall
sit at such times and in such places as the Bailiff may direct.
(2) At each sitting of the Commission -
(a) 3 members shall attend;
(b) one of the members shall be an ordinary
judge of the Court of Appeal;
(c) the chairman or another member nominated by
him shall preside and report the Commission’s decision.
Procedure
5.-(1) The Bailiff may make Rules
-
(a) regulating the exercise of the right of
appeal to the Commission;
(b) prescribing practice and procedure to be
followed in relation to proceedings before the Commission;
(c) providing for proceedings before the
Commission to be determined without an oral hearing in specified circumstances;
(d) making provision about evidence in
proceedings before the Commission (including provision about the burden of
proof and admissibility of evidence);
(e) making provision about proof of the Commission’s
decisions.
(2) In making Rules the Bailiff shall, in
particular, have regard to the need to secure -
(a) that decisions which are the subject of
appeals are properly reviewed; and
(b) that information is not disclosed contrary
to the public interest.
(3) The Rules shall make provision permitting
organizations to be legally represented in proceedings before the Commission.
(4) The Rules may, in particular -
(a) provide for full particulars of the reasons
for proscription or refusal to deproscribe to be withheld from the organization
or applicant concerned and from any person representing it or him;
(b) enable the Commission to exclude persons
(including representatives) from all or part of proceedings;
(c) enable the Commission to provide a summary
of evidence taken in the absence of a person excluded by virtue of clause (b);
(d) permit preliminary or incidental functions
to be discharged by a single member;
(e) permit proceedings for permission to appeal
under Article 9 to be determined by a single member;
(f) make provision about the functions of
persons appointed under paragraph 7;
(g) make different provision for different
parties or descriptions of party.
(5) In this paragraph a reference to
proceedings before the Commission includes a reference to proceedings arising
out of proceedings before the Commission.
Conduct
of proceedings
6.-(1) This paragraph applies
to -
(a) proceedings brought by an organization
before the Commission; and
(b) proceedings arising out of proceedings to
which clause (a) applies.
(2) Proceedings shall be conducted on behalf of
the organization by a person designated by the Commission (with such legal
representation as he may choose to obtain).
(3) In paragraphs 5 and 8, a reference to an
organization includes a reference to a person designated under this paragraph.
Representation
of excluded person in proceedings
7.-(1) The Attorney General
may appoint a person to represent the interests of an organization or other
applicant in proceedings in relation to which an order has been made by virtue
of paragraph 5(4)(b).
(2) A person shall
not be eligible for appointment under this paragraph unless he is an advocate
or solicitor of the Royal Court.
(3) A representative appointed under this
paragraph shall not be responsible to the organization or other applicant whose
interests he is appointed to represent.
(4) In paragraphs 5 and 8, a reference to a
representative does not include a reference to a person appointed under this paragraph.
Evidence
8.-(1) Article 10(1) of
the Interception of Communications (Jersey) Law 1993 shall not apply in
relation to -
(a) proceedings before the Commission: or
(b) proceedings arising out of proceedings to
which clause (a) applies.
(2) Evidence admitted by virtue of
sub-paragraph (1) shall not be disclosed to -
(a) the organization concerned;
(b) the applicant (where the organization is
not also the applicant); or
(c) any person representing the organization
concerned or the applicant.
SCHEDULE 3
(Article 26(8))
FORFEITURE ORDERS RELATING TO PROPERTY
Implementation and enforcement
1.-(1) Where
the Royal Court makes an order under Article 26 (in this Schedule referred
to as a “forfeiture order”) it may make an order -
(a) requiring
any property to which the forfeiture order applies to be paid or handed over to
the Viscount;
(b) directing
any such property other than money or immovable property to be sold or
otherwise disposed of in such manner as the Royal Court may direct and the
proceeds paid to the Viscount;
(c) directing
that any such property which is immovable property -
(i) shall
vest in the Viscount, subject to such conditions and exceptions as may be
specified by the Royal Court, and
(ii) shall
be realized by the Viscount in such manner as the Royal Court may further direct;
(d) directing
a specified part of any property which is money, or of the proceeds of sale,
disposal or realisation of any property to be paid by the Viscount to or for a
specified person falling within Article 26(7);
(e) making
such other provision as appears to the Royal Court to be necessary for giving
effect to the forfeiture order or to any order made by virtue of clause (a),
(b), (c) or (d).
(2) A forfeiture order shall not come into
force until (disregarding any power of a court to grant leave to appeal out of
time) there is no further possibility of the order being set aside.
(3) The balance of any sums in the hands of the
Viscount by virtue of an order made under sub-paragraph (1) shall, after
making payment (where appropriate) under sub-paragraph (1)(d) be treated
as if it were a fine imposed by the Royal Court.
(4) The Viscount shall, on the application of
Attorney General or the defendant in the proceedings in which the forfeiture
order was made, certify in writing the extent (if any) to which, at the date of
the certificate, effect has been given to the order in respect of the property
to which it applies.
(5) In this paragraph references to the
proceeds of sale, disposal or realisation of property are references to the
proceeds after deduction of the costs of sale, disposal or realisation.
Liability etc. of Viscount
2.-(1) Where
the Viscount takes any action -
(a) in
relation to property which is not subject to forfeiture being action which he
would be entitled to take if it were such property;
(b) believing,
and having reasonable grounds for believing, that he is entitled to take that
action in relation to that property,
he shall not be liable to any person in respect of any loss or
damage resulting from his action unless he is shown to have acted negligently
or in bad faith.
(2) The Viscount is entitled to be paid his
remuneration and expenses out of the proceeds of realisation of the property.
Restraint
orders
3.-(1) The
Royal Court may, in accordance with this paragraph, by order (in this Schedule
referred to as a “restraint order”) prohibit any person, subject to such
conditions and exceptions as may be specified therein, from dealing with any
property liable to forfeiture, that is to say any property in respect of which
a forfeiture order has been made or could be made in any proceedings mentioned
in paragraph (3) or (4).
(2) A restraint order may apply -
(a) to all
property in the possession of or under the control of a specified person,
whether the property is described or not;
(b) to
property coming into the possession of or under the control of a specified
person after the making of the order.
(3) A restraint order may be made where -
(a) proceedings
have been instituted against a person for an offence under any of Articles 15
to 18;
(b) the proceedings have not been concluded;
and
(c) either a
forfeiture order has been made or it appears to the Royal Court that a
forfeiture order may be made in the proceedings.
(4) A restraint order may also be made where -
(a) a
criminal investigation has been started in the Island with regard to an offence
under any of Articles 15 to 18; and
(b) it
appears to the Royal Court that a forfeiture order may be made in any
proceedings for the offence.
(5) For the purposes of this paragraph, dealing
with property includes, without prejudice to the generality of that expression
-
(a) where a
debt is owed to the person concerned, making a payment to any person in
reduction of the amount of the debt; and
(b) removing property from the Island.
(6) In exercising the powers conferred by this
paragraph, the Royal Court shall not take account of any obligations of any
person having an interest in the property subject to the restraint order which
might frustrate the making of a forfeiture order.
(7) In this paragraph, “criminal investigation”
means an investigation which police officers or other persons have a duty to
conduct with a view to it being ascertained whether a person should be charged
with an offence.
(8) For the purposes of this paragraph
proceedings for an offence are instituted -
(a) when the
Bailiff issues a warrant in respect of the offence for the arrest of a person
who is out of the Island;
(b) when a
person is arrested for and charged with the offence;
(c) when a
summons in respect of the offence is served on a person at the instance of the
Attorney General or in accordance with Article 8 of the Magistrate’s Court
(Miscellaneous Provisions) (Jersey) Law 1949,
and where the application of this sub-paragraph would result in
there being more than one time for the institution of proceedings, they shall
be taken to be instituted at the earliest of those times.
(9) For the purposes of this paragraph and
paragraph 5(2) proceedings are concluded -
(a) when a
forfeiture order has been made in those proceedings and effect has been given
to it in respect of all the property to which it applies; or
(b) when
(disregarding any power of a court to grant leave to appeal out of time) there
is no further possibility of a forfeiture order being made in the proceedings.
Procedure for restraint order
4. A restraint order -
(a) may be
made only on an application by or on behalf of the Attorney General;
(b) may be
made on an ex parte application to the Bailiff in chambers (and
references in paragraphs 3, 6 and 7 to the Royal Court shall be construed
accordingly); and
(c) shall
provide for notice to be given to persons affected by the order.
Discharge or variation of restraint order
5.-(1) A restraint order may be discharged or varied by the
Royal Court on the application of a person affected by it.
(2) A restraint order made by virtue of
paragraph 3(3) shall, in particular, be discharged on an application under
sub-paragraph (1) if the proceedings for the offence have been concluded.
(3) A restraint order made by virtue of
paragraph 3(4) shall, in particular, be discharged on an application under
sub-paragraph (1) -
(a) if no
proceedings in respect of offences under any of Articles 15 to 18 are
instituted within such time as the Royal Court considers reasonable; and
(b) if all
proceedings in respect of offences under any of Articles 15 to 18 have been
concluded.
Effect of restraint order
6.-(1) Where
the Royal Court has made a restraint order, an officer of the Force may seize
any property subject to the order for the purpose of preventing it from being
removed from the Island.
(2) Property seized under this paragraph shall
be dealt with in accordance with the Royal Court’s directions.
Further effect and registration of order affecting immovable
property
7.-(1) A restraint order in respect of immovable property
shall have effect as an injunction restraining any person from disposing of or
hypothecating the property.
(2) Where the Royal Court makes a restraint
order affecting immovable property in the Island it shall direct the Judicial
Greffier, in accordance with Rules of Court, to place a copy of the order,
until it is discharged, in a file which shall form part of the Public Registry.
Compensation
8.-(1) Where
-
(a) a
restraint order is discharged under paragraph 5(3); or
(b) proceedings
are instituted against a person for an offence under any of Articles 15 to 18
and either -
(i) the
proceedings do not result in his conviction for any such offence, or
(ii) where
he is convicted of one or more such offences, the conviction or convictions are
quashed, or he is pardoned by Her Majesty in respect of the conviction or
convictions concerned,
the Royal Court may, on application by a person who had an interest
in any property which was subject to a forfeiture or restraint order made in or
in relation to those proceedings, and subject to sub-paragraphs (2) and (3),
order compensation to be paid to the applicant if, having regard to all the
circumstances, it considers it appropriate to do so.
(2) The Royal Court shall not order
compensation to be paid in any case unless it is satisfied that -
(a) there is
some serious default on the part of a person concerned in the investigation or
prosecution of the offence concerned; and
(b) the
applicant has suffered loss in consequence of anything done in relation to the
property by or in pursuance of a forfeiture order or restraint order.
(3) The amount of compensation to be paid under
this paragraph shall be such as the Royal Court thinks just in all the
circumstances of the case.
(4) Compensation payable under this paragraph
shall be paid out of the annual income of the States.
Enforcement of orders made elsewhere in the British Islands
9. In the following provisions of this
Schedule -
“an English order” means -
(a) an order made in England or Wales under
section 23 of the 2000 Act (an “English forfeiture order”);
(b) an order made under paragraph 5 of
Schedule 4 to the 2000 Act (an “English restraint order”); or
(c) an order made under any other provision of
Part I of that Schedule in relation to an English forfeiture or restraint
order;
“a Scottish order” means -
(a) an order made in Scotland under section 23
of the 2000 Act (a “Scottish forfeiture order”);
(b) an order made under paragraph 18 of
Schedule 4 to the 2000 Act (a “Scottish restraint order”); or
(c) an order made under any other provision of
Part II of that Schedule in relation to a Scottish forfeiture or restraint
order;
“a Northern Irish order” means -
(a) an order made in Northern Ireland under
section 23 of the 2000 Act (a “Northern Irish forfeiture order”);
(b) an order made under paragraph 30 of
Schedule 4 to the 2000 Act (a “Northern Irish restraint order”); or
(c) an order made under any other provision of
Part III of that Schedule in relation to a Northern Irish forfeiture or
restraint order;
“an Islands order” means -
(a) an order made in any of the Islands under a
provision of the written law of that Island corresponding to Article 26 of
this Law;
(b) a restraint order made in any of the
Islands under a provision of the written law of that Island corresponding to
paragraph 3 of this Schedule;
(c) an order made in any of the Islands under a
provision of the written law of that corresponding to any of the other
foregoing paragraphs of this Schedule.
Procedures and enforcement for orders made elsewhere in the British
Islands
10.-(1) An English, Scottish,
Northern Irish or Islands order shall, subject to this paragraph, have effect
in the law of the Island but shall be enforced in the Island only in accordance
with this paragraph and any rules of court as to the manner in which and the
conditions subject to which such orders are to be enforced in the Island.
(2) The Royal Court shall on an application
made to it in accordance with rules of court for the registration of an
English, Scottish, Northern Irish or Islands order, direct that the order
shall, in accordance with such rules, be registered in the Royal Court.
(3) Rules of court shall also make provision -
(a) for
cancelling or varying the registration of an English, Scottish, Northern Irish
or Islands forfeiture order when effect has been given to it (whether in the
Island or elsewhere) in respect of all or, as the case may be, part of the
property to which the order applies;
(b) for
cancelling or varying the registration of an English, Scottish, Northern Irish
or Islands restraint order which has been discharged or varied by the court by
which it was made.
(4) If an English, Scottish, Northern Irish or
Islands forfeiture order is registered under this paragraph, the Royal Court
shall have in relation to that order, the same powers as it has under paragraph 1(1)
in relation to a forfeiture order made by it (and paragraph 2 applies
accordingly).
(5) The balance of any sums received by the
Viscount by virtue of an order made under sub-paragraph (4) shall, after
making payment (where appropriate) under paragraph 1(1)(d) or 2(2), be
paid by him to the Treasurer of the States.
(6) Paragraphs 3(5), 6 and 7 apply to a
registered English, Scottish, Northern Irish or Islands restraint order as they
apply to a restraint order, and the Royal Court shall have the same power to
make an order for or in relation to the arrest of any property in relation to
proceedings brought or likely to be brought for an English, Scottish, Northern
Irish or Islands restraint order as it would have if those proceedings had been
brought or were likely to be brought in the Royal Court.
(7) Without prejudice to the foregoing
provisions, if an English, Scottish, Northern Irish or Islands order is
registered under this paragraph -
(a) the
Royal Court shall have in relation to its enforcement, the same power;
(b) proceedings
for or in respect of its enforcement may be taken; and
(c) proceedings
for or in respect of any contravention of it (whether before or after such
registration) may be taken,
as if the order had originally been made in the Royal Court.
(8) The Royal Court may additionally, for the
purpose of -
(a) assisting
the achievement in the Island of the purposes of an English, Scottish, Northern
Irish or Islands order; or
(b) assisting
any receiver or other person directed by any such order to sell or otherwise
dispose of property,
make such orders or do otherwise as seems to it appropriate.
(9) A document which purports to be a copy of
an English, Scottish, Northern Irish or Islands order and which purports to be
certified as such by a proper officer of the court by which it was made and a
document which purports to be a certificate for purposes corresponding to those
of paragraph 1(4) and which purports to be certified by a proper officer
of the court concerned shall, in the Islands be received in evidence without
further proof.
(10) The power to make rules of court under
Article 11 of the Royal Court (Jersey) Law 1948 shall include power to make rules for the purposes of this
paragraph.
Enforcement
of external orders
11.-(1) The
States may by Regulations make provision for the purpose of enabling the
enforcement in the Island of external orders.
(2) An “external order” means an order -
(a) which is
made in a country or territory which is for the time being designated by the
Regulations for the purposes of this paragraph; and
(b) which makes relevant provision.
(3) “Relevant provision” means -
(a) provision
for the forfeiture of terrorist property (“an external forfeiture order”); or
(b) provision
prohibiting dealing with property which is subject to an external forfeiture
order or in respect of which such an order could be made in proceedings which
have been or are to be instituted in the designated country or territory (“an
external restraint order”).
(4) Regulations under this paragraph may, in
particular, include provision -
(a) which,
for the purpose of facilitating the enforcement of any external order that may
be made, has effect at times before there is an external order to be enforced;
(b) for
matters corresponding to those for which provision is made by, or can be made
under, paragraph 10(1) to (8) in relation to the orders to which that paragraph
applies;
(c) for the
proof of any matter relevant for the purposes of anything falling to be done in
pursuance of the Regulations.
(5) Regulations under this paragraph may also
make provision with respect to anything falling to be done on behalf of the
Island in a designated country or territory in relation to proceedings in that
country or territory for or in connection with the making of an external order.
(6) Regulations under this paragraph may make
different provision for different cases.
SCHEDULE 4
(Article 27)
CIVIL
FORFEITURE OF TERRORIST CASH
PART 1
INTRODUCTORY
Application
and general interpretation of Schedule 4
1.-(1) This
Schedule applies to terrorist cash.
(2) In this Schedule -
“cash”
means -
(a) coins and notes in any currency;
(b) postal orders;
(c) cheques of any kind, including travellers’
cheques;
(d) bankers’ drafts;
(e) bearer bonds and bearer shares,
found at any
place in the Island and also includes any kind of monetary instrument which is found
at any place in the Island, if the instrument is prescribed;
“criminal
conduct” means conduct which constitutes an offence in the Island, or would
constitute an offence in the Island if it occurred there;
“forfeiture
order” means an order made under paragraph 8;
“interest”, in
relation to property other than land, includes any right (including a right to
possession of the property);
“part”, in
relation to property, includes a portion;
“property
obtained through terrorism” has the meaning given by paragraph 13;
“property
earmarked as terrorist property” is to be read in accordance with Part 5 of
this Schedule;
“terrorist cash”
means cash which -
(a) is intended to be used for the purposes of
terrorism;
(b) consists of resources
of an organization which is a proscribed organization; or
(c) is property earmarked
as terrorist property;
“value” means
market value.
(3) In this Schedule, any references to a
person’s property and to obtaining and disposing of property shall be construed
in accordance with paragraphs 2 and 3.
(4) For the purpose of deciding whether or not
property was earmarked as terrorist property at any time (including times
before commencement), it is to be assumed that this Schedule was in force at
that and any other relevant time.
(5) References to anything done for the
purposes of terrorism include anything done for the purposes of a proscribed
organization.
(6) An organization’s resources include any
cash which is applied or made available, or is to be applied or made available,
for use by the organization.
(7) Where property
earmarked as terrorist property belongs to joint tenants, a joint tenant who
obtained the property in circumstances in which it would not (as against him)
be earmarked is referred to as an excepted joint owner; and references to his
share of the earmarked property are to so much of the property as would have
been his if the tenancy had been converted into a tenancy in common.
Meaning
of person’s property
2.-(1) Any
reference to a person’s property (whether expressed as a reference to the
property he holds or otherwise) is to be read as follows.
(2) In relation to land, it is a reference to
any interest which he holds in the land.
(3) In relation to property other than land, it
is a reference -
(a) to the property (if it belongs to him); or
(b) to any other interest which he holds in the
property.
Meaning
of obtaining and disposing of property
3.-(1) References to a person disposing of his property
include a reference -
(a) to his disposing of a part of it; or
(b) to his granting an interest in it,
(or to both); and references to the
property disposed of are to any property obtained on the disposal.
(2) A person who makes a payment to another is
to be treated as making a disposal of his property to the other, whatever form
the payment takes.
(3) Where a person’s property passes to another
under a will or intestacy or by operation of law, it is to be treated as
disposed of by him to the other.
PART 2
SEIZURE
AND DETENTION
Seizure
of cash
4.-(1) An authorized officer may seize any cash if he has
reasonable grounds for suspecting that it is terrorist cash.
(2) An authorized officer may also seize cash
part of which he has reasonable grounds for suspecting to be terrorist cash if
it is not reasonably practicable to seize only that part.
Detention
of seized cash
5.-(1) While the authorized officer continues to have
reasonable grounds for his suspicion, cash seized under this Schedule may be
detained initially for a period of 48 hours.
(2) The period for which the cash or any part
of it may be detained may be extended by an order made by the Bailiff; but the
order may not authorize the detention of any of the cash -
(a) beyond the end of the period of 3 months
beginning with the date of the order;
(b) in the case of any further order under this
sub-paragraph, beyond the end of the period of 2 years beginning with the
date of the first order.
(3) An order under sub-paragraph (2) must
provide for notice to be given to persons affected by it.
(4) An application for an order under
sub-paragraph (2) may only be made by or with the consent of the Attorney
General, and the Bailiff may make the order if satisfied, in relation to any
cash to be further detained, that one of the following conditions is met.
(5) The first condition is that there are
reasonable grounds for suspecting that the cash is intended to be used for the
purposes of terrorism and that either -
(a) its continued detention is justified while
its intended use is further investigated or consideration is given to bringing
(in the Island or elsewhere) proceedings against any person for an offence with
which the cash is connected; or
(b) proceedings against any person for an
offence with which the cash is connected have been started and have not been
concluded.
(6) The second condition is that there are
reasonable grounds for suspecting that the cash consists of resources of an
organization which is a proscribed organization and that either -
(a) its continued detention is justified while
investigation is made into whether or not it consists of such resources or
consideration is given to bringing (in the Island or elsewhere) proceedings
against any person for an offence with which the cash is connected; or
(b) proceedings against any person for an
offence with which the cash is connected have been started and have not been
concluded.
(7) The third condition is that there are
reasonable grounds for suspecting that the cash is property earmarked as
terrorist property and that either -
(a) its continued detention is justified while
its derivation is further investigated or consideration is given to bringing
(in the Island or elsewhere) proceedings against any person for an offence in
respect of the terrorism with which it is connected; or
(b) proceedings against any person for an
offence with which the cash is connected have been started and have not been
concluded.
(8) Proceedings against any person for an
offence are concluded for the purpose of this paragraph when -
(a) the person is convicted or acquitted;
(b) the prosecution is discontinued; or
(c) the jury, if any, is discharged without a
finding.
Payment
of detained cash into an account
6.-(1) If cash is detained under this Schedule for more
than 48 hours, it is to be held in an interest-bearing account and the interest
accruing on it is to be added to it on its forfeiture or release.
(2) In the case of cash seized under paragraph 4(2),
the authorized officer must, on paying it into the account, release so much of
the cash then held in the account as is not attributable to terrorist cash.
(3) Sub-paragraph (1) does not apply if
the cash is required as evidence of an offence or evidence in proceedings under
this Schedule.
Release
of detained cash
7.-(1) This paragraph applies while any cash is detained
under this Schedule.
(2) The Bailiff may direct the release of the
whole or any part of the cash if satisfied, on an application by the person
from whom it was seized, that the conditions in paragraph 5 for the
detention of cash are no longer met in relation to the cash to be released.
(3) An authorized officer, having first
obtained the consent of the Attorney General, may release the whole or any part
of the cash if satisfied that the detention of the cash to be released is no
longer justified.
(4) But cash is not to be released -
(a) if an application for its forfeiture is
made under this Schedule, until any proceedings in pursuance of the application
(including any proceedings on appeal) are concluded; or
(b) if (in the Island or elsewhere) proceedings
are started against any person for an offence with which the cash is connected,
until the proceedings are concluded.
(5) Proceedings against any person for an
offence are concluded for the purpose of sub-paragraph (4)(b) when -
(a) the person is convicted or acquitted;
(b) the prosecution is discontinued; or
(c) the jury, if any is discharged without a
finding.
PART 3
FORFEITURE
Forfeiture
8.-(1) While cash is detained under this Schedule, an
application for the forfeiture of the whole or any part of it may be made by
the Attorney General to the Royal Court.
(2) The Royal Court may order the forfeiture of
the cash or any part of it if satisfied that the cash or part is terrorist
cash.
(3) The Royal Court must decide on a balance of
probabilities whether it is proved -
(a) that any person
intended to use any cash for the purposes of terrorism; or
(b) that any matters
alleged to constitute acts of terrorism, or acts carried out for the purposes
of terrorism, have occurred.
(4) In the case of property
earmarked as terrorist property which belongs to joint tenants one of whom is
an excepted joint owner, the order may not apply to so much of it as the Royal
Court thinks is attributable to the excepted joint owner’s share.
Appeal
against forfeiture
9.-(1) Any party to proceedings in which a forfeiture order
is made (other than the Attorney General) who is aggrieved by the order may
appeal to the Court of Appeal.
(2) An appeal under sub-paragraph (1) must be
made -
(a) within the period of 30 days
beginning with the date on which the order is made; or
(b) if sub-paragraph (6)
applies, before the end of the period of 30 days beginning with the date
on which the order under Article 6(3)(b) referred to in that sub-paragraph
comes into force.
(3) The appeal is to be by way of a rehearing.
(4) The Court of Appeal may make any order it
thinks appropriate.
(5) If the Court of Appeal upholds the appeal,
it may order the release of the cash.
(6) Where a successful application for a
forfeiture order relies (wholly or partly) on the fact that an organization is
proscribed, this sub-paragraph applies if -
(a) a deproscription appeal
under Article 8 is allowed in respect of the organization;
(b) an order is made under
Article 6(3)(b) in respect of the organization in accordance with an order
of the Commission under Article 8(4); and
(c) the forfeited cash was
seized under this Schedule on or after the date of the refusal to deproscribe
against which the appeal under Article 8 was brought.
Application
of forfeited cash
10.-(1) Cash forfeited under this Schedule, and any accrued
interest on it shall be paid into the annual income of the States.
(2) But it is not to be paid in -
(a) before the end of the
period within which an appeal under paragraph 9 may be made; or
(b) if a person appeals
under that paragraph, before the appeal is determined or otherwise disposed of.
PART 4
MISCELLANEOUS
Victims
11.-(1) A person who claims that any cash detained under
this Schedule, or any part of it, belongs to him may apply for the cash or part
to be released to him under this paragraph.
(2) The application may be made in the course
of proceedings under paragraph 5 or 8 or at any other time.
(3) An application made in the course of
proceedings under paragraph 5 shall be made to the Bailiff and any other
application shall made to the Royal Court.
(4) If it appears to the Bailiff or Royal Court
that -
(a) the applicant was deprived of the cash
claimed, or of property which it represents, by criminal conduct;
(b) the property he was deprived of was not,
immediately before he was deprived of it, property obtained by or in return for
criminal conduct and nor did it then represent such property; and
(c) the cash claimed belongs to him,
the
Bailiff or Court may order the cash to be released to the applicant (and, where
the application is made in the course of proceedings under paragraph 8,
must do so instead of making a forfeiture order).
Compensation
12.-(1) If no forfeiture order is made in respect of any
cash detained under this Schedule, the person to whom the cash belongs or from
whom it was seized may make an application to Royal Court for compensation.
(2) If the Royal Court is satisfied that the
applicant has suffered loss as a result of the detention of the cash and that
the circumstances are exceptional it may order compensation to be paid to him.
(3) The amount of compensation to be paid under
sub-paragraph (2) is the amount the Court thinks reasonable, having regard
to the loss suffered, the amount of any interest paid under this Schedule and
any other relevant circumstances.
(4) Compensation payable under this paragraph
shall be paid out of the annual income of the States.
(5) If a forfeiture order is made in respect
only of a part of any cash detained under this Schedule, this paragraph has
effect in relation to the other part.
(6) This paragraph does not apply if the Royal
Court makes an order under paragraph 11.
PART 5
PROPERTY
EARMARKED AS TERRORIST PROPERTY
Property
obtained through terrorism
13.-(1) A person obtains property through terrorism if he
obtains property by or in return for acts of terrorism, or acts carried out for
the purposes of terrorism.
(2) In deciding whether any property was
obtained through terrorism -
(a) it is immaterial
whether or not any money, goods or services were provided in order to put the
person in question in a position to carry out the acts;
(b) it is not necessary to
show that the act was of a particular kind if it is shown that the property was
obtained through acts of one of a number of kinds, each of which would have
been an act of terrorism, or an act carried out for the purposes of terrorism.
Property
earmarked as terrorist property
14.-(1) Property obtained through terrorism is earmarked as
terrorist property.
(2) But if property obtained through terrorism
has been disposed of (since it was so obtained), it is earmarked as terrorist
property only if it is held by a person into whose hands it may be followed.
(3) Earmarked property obtained through
terrorism may be followed into the hands of a person obtaining it on a disposal
by -
(a) the person who through
terrorism obtained the property; or
(b) a person into whose
hands it may (by virtue of this sub-paragraph) be followed.
Tracing
property
15.-(1) Where property obtained through terrorism (the
“original property”) is or has been earmarked as terrorist property, property
which represents the original property is also earmarked.
(2) If a person enters into a transaction by
which -
(a) he disposes of
earmarked property, whether original property or property which (by virtue of
this Part of this Schedule) represents the original property; and
(b) he obtains other
property in place of it,
the other property represents the original
property.
(3) If a person disposes of property which
represents the original property, the property may be followed into the hands
of the person who obtains it (and it continues to represent the original
property).
Mixing
property
16.-(1) Sub-paragraph (2) applies if a person’s
property which is earmarked as terrorist property is mixed with other property
(whether his property or another’s).
(2) The portion of the mixed property which is
attributable to the property earmarked as terrorist property represents the
property obtained through terrorism.
(3) Property earmarked as terrorist property is
mixed with other property if, for example, it is used -
(a) to increase funds held in a bank account;
(b) in part payment for the acquisition of an
asset;
(c) for the restoration or improvement of land;
(d) for the purpose of
merging or extinguishing interests in land.
Accruing
profits
17.-(1) This paragraph applies where a person who has
property earmarked as terrorist property obtains further property consisting of
profits accruing in respect of the earmarked property.
(2) The further property is to be treated as
representing the property obtained through terrorism.
General
exceptions
18.-(1) If -
(a) a person disposes of
property earmarked as terrorist property; and
(b) the person who obtains
it on the disposal does so in good faith, for value and without notice that it
was earmarked,
the property may not be followed into that
person’s hands and, accordingly, it ceases to be earmarked.
(2) If -
(a) in pursuance of a
judgment in civil proceedings (whether in the Island or elsewhere), the
defendant makes a payment to the claimant or the claimant otherwise obtains
property from the defendant;
(b) the claimant’s claim is
based on the defendant’s criminal conduct; and
(c) apart from this
sub-paragraph, the sum received, or the property obtained, by the claimant
would be earmarked as terrorist property,
the property ceases to be earmarked.
(3) If -
(a) a payment is made to a person in pursuance
of a compensation order made under Article 2 of the Criminal Justice
(Compensation Orders) (Jersey) Law 1994 or pursuant to any like order made under any other enactment; and
(b) apart from this sub-paragraph, the sum
received would be earmarked as terrorist property,
the property ceases to be earmarked.
(4) Where -
(a) a person enters into a
transaction to which paragraph 15(2) applies; and
(b) the disposal is one to
which sub-paragraph (1) applies,
this paragraph does not affect the question
whether (by virtue of paragraph 15(2)) any property obtained on the
transaction in place of the property disposed of is earmarked.
Granting
interests
19.-(1) If a person grants an interest in property of his
which is earmarked as terrorist property, the question whether the interest is
also earmarked is to be determined in the same manner as it is on any other
disposal of earmarked property.
(2) Accordingly, on his granting an interest in
the property (the “property in question”) -
(a) where the property in
question is property obtained through terrorism, the interest is also to be
treated as obtained through that terrorism;
(b) where the property in
question represents in his hands property obtained through terrorism, the
interest is also to be treated as representing in his hands the property so
obtained.
SCHEDULE 5
(Article 31)
TERRORIST INVESTIGATIONS: INFORMATION
Searches
Warrant
for search of premises
1.-(1) An
officer of the Force may apply to the Bailiff for the issue of a warrant under
this paragraph for the purposes of a terrorist investigation.
(2) A warrant under this paragraph shall
authorize any officer of the Force -
(a) to enter the premises specified in the
warrant;
(b) to search the premises and any person found
there; and
(c) to seize and retain any relevant material
which is found on a search under clause (b).
(3) For the purpose of sub-paragraph (2)(c)
material is relevant if the officer of the Force has reasonable grounds for
believing that -
(a) it is likely to be of substantial value,
whether by itself or together with other material, to a terrorist
investigation; and
(b) it must be seized in order to prevent it
from being concealed, lost, damaged, altered or destroyed.
(4) A warrant under this
paragraph shall not authorize -
(a) the seizure and retention of items subject
to legal privilege; or
(b) an officer of the Force to require a person
to remove any clothing in public except for headgear, footwear, an outer coat,
a jacket or gloves.
(5) Subject to paragraph 2, the Bailiff
may grant an application under this paragraph if satisfied -
(a) that the warrant is sought for the purposes
of a terrorist investigation;
(b) that there are reasonable grounds for
believing that there is material on premises specified in the application which
is likely to be of substantial value, whether by itself or together with other
material, to a terrorist investigation and which does not consist of or include
items subject to legal privilege; and
(c) that the issue of a warrant is likely to be
necessary in the circumstances of the case.
Extended
power to issue warrant for search of non-residential premises
2.-(1) This
paragraph applies where an application is made under paragraph 1 and -
(a) the application is made by an officer of
the Force of at least the rank of chief inspector;
(b) the application does not relate to
residential premises; and
(c) the Bailiff is not satisfied of the matter
referred to in paragraph 1(5)(c).
(2) The Bailiff may grant the application if
satisfied of the matters referred to in paragraph 1(5)(a) and (b).
(3) Where a warrant under paragraph 1 is
issued by virtue of this paragraph, the powers under paragraph 1(2)(a) and
(b) are exercisable only within the period of 24 hours beginning with the
time when the warrant is issued.
(4) For the purpose of sub-paragraph (1), “residential
premises” means any premises which the officer making the application has
reasonable grounds for believing are used wholly or mainly as a dwelling.
Search
of premises within cordoned area
3.-(1) Subject
to sub-paragraph (2), an officer of the Force of at least the rank of
chief inspector may by a written authority signed by him authorize a search of
specified premises which are wholly or partly within a cordoned area.
(2) An officer of the Force who is not of the
rank required by sub-paragraph (1) may give an authorization under this
paragraph if he considers it necessary by reason of urgency.
(3) An authorization under this paragraph shall
authorize any officer of the Force -
(a) to enter the premises specified in the authority;
(b) to search the premises and any person found
there; and
(c) to seize and retain any relevant material (within
the meaning of paragraph 1(3)) which is found on a search under
clause (b).
(4) The powers under sub-paragraph (3)(a)
and (b) may be exercised -
(a) on one or more occasions; and
(b) at any time during the period when the
designation of the cordoned area under Article 28 has effect.
(5) An authorization under
this paragraph shall not authorize -
(a) the seizure and retention of items subject
to legal privilege;
(b) an officer of the Force to require a person
to remove any clothing in public except for headgear, footwear, an outer coat,
a jacket or gloves.
(6) A person commits an offence if he wilfully
obstructs a search under this paragraph.
(7) A person guilty of an offence under
sub-paragraph (6) shall be liable to imprisonment for a term not exceeding
3 months or to a fine not exceeding level 3 on the standard scale, or both.
Order for production of material
4.-(1) An
officer of the Force may, for the purposes of a terrorist investigation, apply
to the Royal Court for an order under sub-paragraph (2) in relation to
particular material or material of a particular description.
(2) If on such an application the Royal Court
is satisfied on information on oath that the conditions referred to in
sub-paragraph (3) are fulfilled, it may make an order that the person who
appears to it to have in his possession, custody or power the material to which
the application relates shall -
(a) produce
it to an officer of the Force for him to take away; or
(b) give an
officer of the Force access to it, within such period as the order may specify
or, if the material is not in that person’s possession, custody or power (and
will not come into his possession, custody or power within that period), that
he shall state to the best of his knowledge and belief where it is.
(3) The conditions referred to in
sub-paragraph (2) are -
(a) that a
terrorist investigation is being carried out and that there are reasonable
grounds for believing that the material is likely to be of substantial value
(whether by itself or together with other material) to the investigation for
the purpose of which the application is made;
(b) that
there are reasonable grounds for believing that it is in the public interest,
having regard -
(i) to
the benefit likely to accrue to the investigation if the material is obtained,
and
(ii) to
the circumstances under which the person in possession of the material holds
it,
that the material should be produced or
that access to it should be given; and
(c) that the
material does not consist of or include items subject to legal privilege.
(4) An order under sub-paragraph (2) may
relate to material expected to come into existence or to become available to
the person concerned in the period of 28 days beginning with the date of
the order; and in this case the order shall require that person to notify a
named officer of the Force as soon as possible after the material comes into
existence or becomes available to that person.
(5) The period to be
specified in an order under sub-paragraph (2) shall be 7 days from
the date of the order or, in the case of an order made by virtue of
sub-paragraph (4), from the notification to the named officer of the
Force, unless it appears in either case to the Royal Court that a longer or
shorter period would be appropriate in all the circumstances.
(6) Where the Royal Court makes an order under
sub-paragraph (2)(b) in relation to material on any premises, it may, on
the application of an officer of the Force, order any person who appears to it
to be entitled to grant entry to the premises to allow an officer of the Force
to enter the premises to obtain access to the material.
Rules of court for orders under paragraph 4
5.-(1) The
power to make rules of court under Article 11 of the Royal Court (Jersey)
Law 1948 shall include a power to make rules as to -
(a) the
discharge and variation of orders made under paragraph 4;
(b) proceedings relating to such orders.
(2) Pending the making of such rules -
(a) an order
under paragraph 4 may be discharged or varied by the Royal Court on a
written application made by any person subject to the order; and
(b) unless
the Royal Court otherwise directs on grounds of urgency, the applicant shall,
not less than 48 hours before making the application, send a copy of it and a
notice in writing of the time and place where it is to be made to the Attorney
General and to the officer of the Force on whose application the order to be
discharged or varied was made or to any other officer of the Force.
(3) Where the material to which an application
under paragraph 4 relates consists of information contained in a computer -
(a) an order
under paragraph 4(2)(a) shall have effect as an order to produce the
material in a form in which it can be taken away and in which it is visible and
legible; and
(b) an order
under paragraph 4(2)(b) shall have effect as an order to give access to
the material in a form in which it is visible and legible.
(4) An order under paragraph 4 -
(a) confers
no right to production of, or access to, items subject to legal privilege;
(b) has
effect notwithstanding any obligation as to secrecy or other restriction on the
disclosure of information imposed by any enactment or otherwise.
(5) An order may be made under paragraph 4
in relation to material in the possession, custody or control of a Committee of
the States and any such order (which shall be served as if the proceedings were
civil proceedings against the Committee of the States concerned) may require
any officer of the Committee, whether named in the order or not, who may for
the time being have in his possession, custody or control the material concerned,
to comply with the order.
Explanations
6.-(1) An
officer of the Force may apply to the Royal Court for an order under this
paragraph requiring any person specified in the order to provide an explanation
of any material seized in pursuance of a warrant under paragraph 1 or
produced or made available to an officer of the Force under paragraph 4.
(2) An order under this paragraph shall not
require any person to disclose any information which he would be entitled to
refuse to disclose on grounds of legal professional privilege.
(3) However, a lawyer may be required to
provide the name and address of his client.
(4) A statement by a person in response to a
requirement imposed by an order under this paragraph -
(a) may be made orally or in writing; and
(b) may be used in evidence against him only on
a prosecution for an offence under paragraph 7.
Offence
7.-(1) A
person commits an offence if, in purported compliance with an order under
paragraph 6, he -
(a) makes a statement which he knows to be
false or misleading in a material particular; or
(b) recklessly makes a statement which is false
or misleading in a material particular.
(2) A person guilty of an offence under
sub-paragraph (1) shall be liable to imprisonment for a term not exceeding
2 years or to a fine, or both.
Urgent
cases: authority for search
8.-(1) An
officer of the Force of at least the rank of chief inspector may by a written
order signed by him give to any officer of the Force the authority which may be
given by a search warrant under paragraph 1.
(2) An order shall not be made under this
paragraph unless the officer has reasonable grounds for believing -
(a) that the case is one of great emergency;
and
(b) that immediate action is necessary.
(3) Where an order is made under this paragraph,
particulars of the case shall be notified as soon as is reasonably practicable
to the Committee, the Bailiff and the Attorney General.
(4) A person commits an offence if he wilfully
obstructs a search under this paragraph.
(5) A person guilty of an offence under
sub-paragraph (4) shall be liable to imprisonment for a term not exceeding
6 months or to a fine not exceeding level 4 on the standard scale, or both.
Urgent
cases: explanations
9.-(1) If
an officer of the Force of at least the rank of chief inspector has reasonable
grounds for believing that the case is one of great emergency he may by a
written notice signed by him require any person specified in the notice to
provide an explanation of any material seized in pursuance of an order under
paragraph 8.
(2) Paragraph 6(2) to (4) and
paragraph 7 shall apply to a notice under this paragraph as they apply to
an order under paragraph 6.
(3) A person commits an offence if he fails to
comply with a notice under this paragraph.
(4) It is a defence for a person charged with
an offence under sub-paragraph (3) to show that he had a reasonable excuse
for his failure.
(5) A person guilty of an offence under
sub-paragraph (3) shall be liable to imprisonment for a term not exceeding
6 months or to a fine not exceeding level 4 on the standard scale,30 or both.
Supplementary
10.-(1) An
application may only be made under paragraph 1(1), 4 or 6 with the consent
of the Attorney General.
(2) An officer of the Force may, if necessary,
use reasonable force for the purpose of exercising any power conferred on him
by this Schedule.
(3) A search of a person under this Schedule
may only be carried out by a person of the same sex.
SCHEDULE 6
(Article 32)
FINANCIAL INFORMATION
Order to provide customer information
1.-(1) Where
an order has been made under this paragraph in relation to a terrorist
investigation, an officer of the Force named in the order may require a
financial institution to which the order applies to provide customer
information for the purposes of the investigation.
(2) The order may provide that it applies to -
(a) all financial institutions;
(b) a
particular description, or particular descriptions, of financial institutions;
or
(c) a
particular financial institution or particular financial institutions.
(3) The information shall be provided -
(a) in such
manner and within such time as the officer of the Force may specify; and
(b) notwithstanding
any restriction on the disclosure of information imposed by any enactment or
otherwise.
(4) An institution which fails to comply with a
requirement under this paragraph shall be guilty of an offence.
(5) It is a defence for an institution charged
with an offence under sub-paragraph (4) to prove -
(a) that the
information required was not in the institution’s possession; or
(b) that it
was not reasonably practicable for the institution to comply with the
requirement.
(6) An institution guilty of an offence under
sub-paragraph (4) shall be liable to a fine not exceeding level 4 on the
standard scale.
Procedure
2. An order under paragraph 1 may be
made on the application of an officer of the Force of at least the rank of
chief inspector.
3. An order under paragraph 1 may be
made only by the Bailiff.
4. An application for an order under
paragraph 1 may only be made with the consent of the Attorney General.
5. The power to make rules
of court under Article 11 of the Royal Court (Jersey) Law 1948 shall include power to make provision about the procedure for an
application under paragraph 1.
Criteria for making order
6. The Bailiff may only make an order
under paragraph 1 if satisfied that -
(a) the
order is sought for the purposes of a terrorist investigation;
(b) the
tracing of terrorist property is desirable for the purposes of the
investigation; and
(c) the
order will enhance the effectiveness of the investigation.
Customer information
7.-(1) In
this Schedule “customer information” means (subject to sub-paragraph (3)) -
(a) information
whether a business relationship exists or existed between a financial
institution and a particular person (“a customer”);
(b) a customer’s account number;
(c) a customer’s full name;
(d) a customer’s date of birth;
(e) a customer’s address or former address;
(f) the
date on which a business relationship between a financial institution and a
customer begins or ends;
(g) any
evidence of a customer’s identity obtained by a financial institution in
pursuance of or for the purposes of any legislation relating to money
laundering; and
(h) the
identity of a person sharing an account with a customer.
(2) For the purposes of this Schedule there is
a business relationship between a financial institution and a person if (and
only if) -
(a) there is
an arrangement between them designed to facilitate the carrying out of frequent
or regular transactions between them; and
(b) the
total amount of payments to be made in the course of the arrangement is neither
known nor capable of being ascertained when the arrangement is made.
(3) The States may by Regulations provide for a
class of information -
(a) to be
customer information for the purposes of this Schedule; or
(b) to cease
to be customer information for the purposes of this Schedule.
Offence by
body corporate, etc.
8. Where an individual is convicted of an
offence under paragraph 1(4) by virtue of this paragraph and Article 63,
he shall be liable to imprisonment for a term not exceeding 6 months or to
a fine not exceeding level 4 on the standard scale, or both.
Self-incrimination
9.-(1) Customer
information provided by a financial institution under this Schedule shall not
be admissible in evidence in criminal proceedings against the institution or
any of its officers or employees.
(2) Sub-paragraph (1) shall not apply in
relation to proceedings for an offence under paragraph 1(4) (including
proceedings brought by virtue of paragraph 8).
SCHEDULE 7
(Article 33)
ACCOUNT
MONITORING ORDERS
Account
monitoring orders
1.-(1) The Bailiff may, on an application made to him by an
officer of the Force of at least the rank of chief inspector, make an account
monitoring order if he is satisfied that -
(a) the order is sought for
the purposes of a terrorist investigation;
(b) the tracing of
terrorist property is desirable for the purposes of the investigation; and
(c) the order will enhance
the effectiveness of the investigation.
(2) An application for an order under
sub-paragraph (1) may only be made with the consent of the Attorney
General.
(3) The application for an account monitoring
order must state that the order is sought against the financial institution
specified in the application in relation to information which -
(a) relates to an account or accounts held at
the institution by the person specified in the application (whether solely or
jointly with another); and
(b) is of the description so specified.
(4) The application for an account monitoring
order may specify information relating to -
(a) all accounts held by the person specified
in the application for the order at the financial institution so specified;
(b) a particular description, or particular
descriptions, of accounts so held; or
(c) a particular account, or particular accounts,
so held.
(5) An account monitoring order is an order
that the financial institution specified in the application for the order must
-
(a) for the period specified in the order;
(b) in the manner so specified;
(c) at or by the time or times so specified;
and
(d) at the place or places so specified,
provide information of the description
specified in the application to an officer of the Force named in the order.
(6) The period stated in an account monitoring
order must not exceed the period of 90 days beginning with the day on
which the order is made.
Applications
2.-(1) An application for an
account monitoring order may be made ex parte to the Bailiff in
chambers.
(2) The description of information specified in
an application for an account monitoring order may be varied by the officer who
applied for the order or another officer of the Force of at least the rank of
chief inspector.
Discharge
or variation
3.-(1) An application to
discharge or vary an account monitoring order may be made to the Bailiff by -
(a) the officer who applied for the order or
another officer of the Force of at least the rank of chief inspector;
(b) any person affected by the order.
(2) The Bailiff may confirm, vary or discharge
the order.
Rules
of court
4. The power to
make rules of court under Article 11 of the Royal Court (Jersey) Law 1948 shall include power to make provision as to the practice and
procedure to be followed in connection with proceedings relating to account
monitoring orders.
Effect
of orders
5.-(1) An account monitoring order has effect in spite of
any restriction on the disclosure of information (however imposed).
(2) An account monitoring order has effect as
if it were an order of the Royal Court.
Statements
6.-(1) A statement made by a financial institution in
response to an account monitoring order may not be used in evidence against it
in criminal proceedings.
(2) But sub-paragraph (1) does not apply -
(a) in the case of proceedings for contempt of
court;
(b) in the case of proceedings under
Article 26 where the financial institution has been convicted of an
offence under any of Articles 15 to 18;
(c) on a prosecution for an offence where, in
giving evidence, the financial institution makes a statement inconsistent with
the statement mentioned in sub-paragraph (1).
(3) A statement may not be used by virtue of
sub-paragraph (2)(c) against a financial institution unless -
(a) evidence relating to it is adduced; or
(b) a question relating to it is asked,
by or on behalf of the financial
institution in the proceedings arising out of the prosecution.
SCHEDULE 8
(Article 49)
PORT CONTROLS
Interpretation
1.-(1) In
this Schedule -
“captain” means master of a ship or commander of an
aircraft;
“examining
officer” means any of the following -
(a) a police officer;
(b) an immigration officer; or
(c) a
customs officer;
“port” includes
an airport.
(2) A place shall be treated as a port for the
purposes of this Schedule in relation to a person if an examining officer
believes that the person -
(a) has gone
there for the purpose of embarking on a ship or aircraft; or
(b) has
arrived there on disembarking from a ship or aircraft.
Power to question
2.-(1) An
examining officer may question a person to whom this paragraph applies for the
purpose of determining whether he appears to be a person falling within
Article 36(1)(b).
(2) This paragraph applies to a person if -
(a) he is at a port; and
(b) the examining
officer believes that the person’s presence at the port or in the area is
connected with his entering or leaving the Island.
(3) This paragraph also applies to a person on
a ship or aircraft which has arrived in the Island.
(4) An examining officer may exercise his
powers under this paragraph whether or not he has grounds for suspecting that a
person falls within Article 36(1)(b).
Requirement to give information
3. A person who is questioned under paragraph
2 must -
(a) give the
examining officer any information in his possession which the officer requests;
(b) give the
examining officer on request either a valid passport which includes a
photograph or another document which establishes his identity;
(c) declare
whether he has with him documents of a kind specified by the examining officer;
(d) give the
examining officer on request any document which he has with him and which is of
a kind specified by the officer.
Power to stop and detain
4.-(1) For
the purposes of exercising a power under paragraph 2 an examining officer may -
(a) stop a person or vehicle;
(b) detain a person.
(2) For the purpose of detaining a person under
this paragraph, an examining officer may authorize the person’s removal from a
ship, aircraft or vehicle.
(3) Where a person is detained under this
paragraph the provisions of Part 1 of Schedule 9 shall apply.
(4) A person detained under this paragraph
shall (unless detained under any other power) be released not later than the
end of the period of 9 hours beginning with the time when his examination
begins.
Search of ship or aircraft
5. For the purpose of satisfying himself
whether there are any persons whom he may wish to question under paragraph 2
an examining officer may -
(a) search a ship or aircraft;
(b) search anything on a ship or aircraft;
(c) search
anything which he reasonably believes has been, or is about to be, on a ship or
aircraft.
Search of person
6.-(1) An
examining officer who questions a person under paragraph 2 may, for the
purpose of determining whether he falls within Article 36(1)(b) -
(a) search the person;
(b) search
anything which he has with him, or which belongs to him, and which is on a ship
or aircraft;
(c) search
anything which he has with him, or which belongs to him, and which the
examining officer reasonably believes has been, or is about to be, on a ship or
aircraft;
(d) search a
ship or aircraft for anything falling within clause (b);
(e) search a vehicle;
(f) search anything in or on a vehicle;
(g) search
anything which he reasonably believes has been, or is about to be, in or on a
vehicle.
(2) A search of a person under this paragraph
must be carried out by someone of the same sex.
Power to examine goods
7.-(1) An
examining officer may examine goods to which this paragraph applies for the
purpose of determining whether they have been used in the commission,
preparation or instigation of acts of terrorism.
(2) This paragraph applies to goods which have
arrived in or are about to leave the Island.
(3) In this paragraph “goods” includes -
(a) property of any description; and
(b) containers.
(4) An examining officer may board a ship or
aircraft or enter a vehicle for the purpose of determining whether to exercise
his power under this paragraph.
Person authorized to carry out search etc.
8.-(1) An
examining officer may authorize a person to carry out on his behalf a search or
examination under any of paragraphs 5 to 7.
(2) A person authorized under this paragraph
shall be treated as an examining officer for the purposes of paragraphs 7(4)
and 9 of this Schedule.
Detention of property
9.-(1) This
paragraph applies to anything which -
(a) is given
to an examining officer in accordance with paragraph 3(d);
(b) is searched or found on a search under
paragraph 6; or
(c) is examined under paragraph 7.
(2) An examining officer may detain the thing -
(a) for the
purpose of examination, for a period not exceeding 7 days beginning with
the day on which the detention commences;
(b) while he
believes that it may be needed for use as evidence in criminal proceedings; or
(c) while he
believes that it may be needed in connection with a decision by the Lieutenant
Governor whether to make a deportation order under the Immigration Act 1971.
Designated ports
10.-(1) This
paragraph applies to any journey to or from the Island.
(2) Where a ship or aircraft is employed to
carry passengers for reward on a journey to which this paragraph applies the
owners or agents of the ship or aircraft shall not arrange for it to call at a
port in the Island for the purpose of disembarking or embarking passengers
unless -
(a) the port is a designated port; or
(b) an authorized officer approves the
arrangement.
(3) Where an aircraft is employed on a journey
to which this paragraph applies otherwise than to carry passengers for reward,
the captain of the aircraft shall not permit it to call at or leave a port in
the Island unless -
(a) the port is a designated port; or
(b) he gives
at least 12 hours’ notice in writing to an officer of the Force.
(4) A designated port is a port which appears
in the Table at the end of this Schedule.
(5) The Committee may by Order -
(a) add an entry to the Table;
(b) remove an entry from the Table.
Designation of control areas
11.-(1) The
Committee, after consultation with the Lieutenant Governor, may by notice in
writing to the owners or agents of ships or aircraft -
(a) designate control areas in any port in the
Island;
(b) specify
conditions for or restrictions on the embarkation or disembarkation of
passengers in a control area.
(2) Where owners or agents of a ship or
aircraft receive notice under sub-paragraph (1) in relation to a port they
shall take all reasonable steps to ensure, in respect of the ship or aircraft -
(a) that
passengers do not embark or disembark at the port outside a control area; and
(b) that any
specified conditions are met and any specified restrictions are complied with.
(3) The Committee may by notice in writing to
persons concerned with the management of a port (“the port managers”) -
(a) designate control areas in the port;
(b) require
the port managers to provide at their own expense specified facilities in a
control area for the purposes of the embarkation or disembarkation of
passengers or their examination under this Schedule;
(c) require
conditions to be met and restrictions to be complied with in relation to the
embarkation or disembarkation of passengers in a control area;
(d) require
the port managers to display, in specified locations in control areas, notices
containing specified information about the provisions of this Schedule in such
form as may be specified.
(4) Where port managers receive notice under
sub-paragraph (3) they shall take all reasonable steps to comply with any
requirements set out in the notice.
(5) The Committee shall inform the Harbours and
Airport Committee of any designations made and requirements imposed under this
paragraph.
Duty of captain on arrival and departure
12.-(1) This paragraph applies
to a ship employed to carry passengers for reward, or an aircraft, which -
(a) arrives in the Island;
(b) leaves the Island.
(2) The captain shall ensure -
(a) that
passengers and members of the crew do not disembark at a port in the Island
unless either they have been examined by an examining officer or they disembark
in accordance with arrangements approved by an examining officer;
(b) that
passengers and members of the crew do not embark at a port in the Island except
in accordance with arrangements approved by an examining officer;
(c) where a
person is to be examined under this Schedule on board the ship or aircraft,
that he is presented for examination in an orderly manner.
(3) Where paragraph 27 of Schedule 2
to the Immigration Act 1971 applies, the requirements of
sub-paragraph (2)(a) are in addition to the requirements of paragraph 27
of that Schedule.
Carding
13.-(1) The
Committee may by Order make provision requiring a person to whom this paragraph
applies, if required to do so by an examining officer, to complete and produce
to the officer a card containing such information in such form as the Order may
specify.
(2) An Order under this paragraph may require
the owners or agents of a ship or aircraft employed to carry passengers for
reward to supply their passengers with cards in the form required by virtue of
sub-paragraph (1).
(3) This paragraph applies to a person -
(a) who disembarks in the Island from a ship or
aircraft; or
(b) who embarks in the Island on a ship or
aircraft.
Provision of passenger information
14.-(1) This
paragraph applies to a ship or aircraft which arrives or is expected to arrive
in the Island or leaves or is expected to leave the Island.
(2) If an examining officer gives the owners or
agents of a ship or aircraft to which this paragraph applies a written request
to provide specified information, the owners or agents shall comply with the
request as soon as is reasonably practicable.
(3) A request to an owner or agent may relate -
(a) to a particular ship or aircraft;
(b) to all
ships or aircraft of the owner or agent to which this paragraph applies; or
(c) to specified ships or aircraft.
(4) Information may be specified in a request
only if it is of a kind which is prescribed by Order of the Committee and which
relates -
(a) to passengers;
(b) to crew; or
(c) to vehicles belonging to passengers or
crew.
(5) A passenger or member of the crew on a ship
or aircraft shall give the captain any information required for the purpose of
enabling the owners or agents to comply with a request under this paragraph.
(6) Sub-paragraphs (2) and (5) shall not
require the provision of information which is required to be provided under or
by virtue of paragraph 27(2) of Schedule 2 to the Immigration Act
1971.
Offences
15.-(1) A
person commits an offence if he -
(a) wilfully
fails to comply with a duty imposed under or by virtue of this Schedule;
(b) wilfully
contravenes a prohibition imposed under or by virtue of this Schedule; or
(c) wilfully
obstructs, or seeks to frustrate, a search or examination under or by virtue of
this Schedule.
(2) A person guilty of an offence under this
paragraph shall be liable to imprisonment for a term not exceeding 3 months
or to a fine not exceeding level 3 on the standard scale, or both.
TABLE
DESIGNATED PORTS
Seaports
|
St. Helier, harbours
|
|
Gorey harbour
|
Airports
SCHEDULE 9
(Article 37 and Schedule 8)
DETENTION
PART I
TREATMENT OF PERSONS DETAINED UNDER ARTICLE 37 OR SCHEDULE 8
Place of detention
1.-(1) The Committee shall
designate places at which persons may be detained under Article 37 or Schedule
8.
(2) In this Schedule a reference to a police
station includes a reference to any place which the Committee has designated
under sub-paragraph (1) as a place where a person may be detained under Article 37.
(3) Where a person is detained under
Schedule 8, he may be taken in the custody of an examining officer or of a
person acting under an examining officer’s authority to and from any place
where his attendance is required for the purpose of -
(a) his examination under that Schedule;
(b) establishing his nationality or
citizenship; or
(c) making
arrangements for his admission to a country or territory outside the Island.
(4) A police officer who arrests a person under
Article 37 shall take him as soon as is reasonably practicable to the
police station which the police officer considers the most appropriate.
(5) In this paragraph “examining officer” has
the meaning given in Schedule 8.
Identification
2.-(1) An
authorized person may take any steps which are reasonably necessary for -
(a) photographing the detained person;
(b) measuring him; or
(c) identifying him.
(2) In sub-paragraph (1) “authorized
person” means any of the following -
(a) a police officer;
(b) a prison officer;
(c) a person
authorized by the Committee; and
(d) in the
case of a person detained under Schedule 8, an examining officer (within
the meaning of that Schedule).
(3) This paragraph does not confer the power to
take fingerprints, non-intimate samples or intimate samples (within the meaning
given by paragraph 16).
Recording of interviews
3.-(1) The Committee shall -
(a) issue a
code of practice about the audio recording of interviews to which this
paragraph applies; and
(b) make an
Order requiring the audio recording of interviews to which this paragraph
applies in accordance with any relevant code of practice under clause (a).
(2) The Committee may make an Order requiring
the video recording of interviews to which this paragraph applies.
(3) An Order under sub-paragraph (2) shall
specify whether the video recording which it requires is to be silent or with
sound.
(4) Where an Order is made under
sub-paragraph (2) -
(a) the
Committee shall issue a code of practice about the video recording of
interviews to which the Order applies; and
(b) the
Order shall require the interviews to be video recorded in accordance with any
relevant code of practice under clause (a).
(5) Where the Committee has made an Order under
sub-paragraph (2) requiring certain interviews to be video recorded with
sound, it need not, but may, make an order under sub-paragraph (1)(b) in
relation to those interviews.
(6) This paragraph applies to any interview by
an officer of the Force of a person detained under Article 37 or
Schedule 8 if the interview takes place in a police station.
Code of practice - supplementary
4.-(1) When
the Committee proposes to bring into operation a code of practice, it shall
prepare and publish a draft of that code, shall consider any representations
made to it about the draft and may modify the draft accordingly.
(2) After the Committee has complied with
sub-paragraph (1), it may bring the code into operation by Order.
(3) The Committee may revise a code and issue
the revised code, and sub-paragraphs (1) and (2) shall apply to a revised
code as they apply to the first code brought into operation.
(4) The failure by an officer of the Force to
observe a provision of a code shall not of itself make him liable to criminal
or civil proceedings.
(5) A code shall be admissible in evidence in
all criminal proceedings, and if any provision of a code appears to the court
or tribunal conducting the proceedings to be relevant to any question arising
in the proceedings, it shall be taken into account in determining that
question.
Status
5. A detained person shall be deemed to be in
legal custody throughout the period of his detention.
Right to have someone informed when detained
6.-(1) Subject
to paragraph 8, a person detained under Article 37 or Schedule 8
at a police station shall be entitled, if he so requests, to have one named
person informed as soon as is reasonably practicable that he is being detained
there.
(2) The person named must be -
(a) a friend of the detained person;
(b) a relative; or
(c) a person
who is known to the detained person or who is likely to take an interest in his
welfare.
(3) Where a detained person is transferred from
one police station to another, he shall be entitled to exercise the right under
this paragraph in respect of the police station to which he is transferred.
Access to legal advice
7.-(1) Subject
to paragraph 8, a person detained under Article 37 or Schedule 8
at a police station shall be afforded facilities, if he so requests, to consult
a legal representative in private at any time, by telephone, in writing or in
person.
(2) Where a request is made under sub-paragraph (1),
the request and the time at which it was made shall be recorded.
Authority to delay rights under paragraphs 6 and 7
8.-(1) Subject
to sub-paragraph (2), an officer of the Force at least the rank of chief
inspector may authorize a delay -
(a) in
informing the person named by a detained person under paragraph 6;
(b) in
affording a detained person the facilities mentioned in paragraph 7(1).
(2) But where a person is detained under
Article 37 he must be permitted to exercise his rights under paragraphs 6
and 7 before the end of the period mentioned in paragraph (3) of that
Article.
(3) Subject to sub-paragraph (5), an
officer may give an authorization under sub-paragraph (1) only if he has
reasonable grounds for believing -
(a) in the
case of an authorization under sub-paragraph (1)(a), that informing the
named person of the detained person’s detention will have any of the
consequences specified in sub-paragraph (4); or
(b) in the
case of an authorization under sub-paragraph (1)(b), that the exercise of
the right under paragraph 7 at the time when the detained person desires
to exercise it will have any of the consequences specified in
sub-paragraph (4).
(4) Those consequences are -
(a) interference
with or harm to evidence of a serious offence;
(b) interference with or physical injury to any
person;
(c) the
alerting of persons who are suspected of having committed a serious offence but
who have not been arrested for it;
(d) the
hindering of the recovery of property obtained as a result of a serious offence
or in respect of which a forfeiture order could be made under Article 26;
(e) interference
with the gathering of information about the commission, preparation or
instigation of acts of terrorism;
(f) the
alerting of a person and thereby making it more difficult to prevent an act of
terrorism; and
(g) the
alerting of a person and thereby making it more difficult to secure a person’s
apprehension, prosecution or conviction in connection with the commission,
preparation or instigation of an act of terrorism.
(5) An officer may also give an authorization
under sub-paragraph (1) if he has reasonable grounds for believing that -
(a) the
detained person has committed an offence mentioned in the First Schedule to the
Proceeds of Crime (Jersey) Law 1999;
(b) the
detained person has benefited from the offence within the meaning of that Law;
and
(c) by
informing the named person of the detained person’s detention (in the case of
an authorization under sub-paragraph (1)(a)), or by the exercise of the
right under paragraph 7 (in the case of an authorization under
sub-paragraph (1)(b)), the recovery of the value of that benefit will be
hindered.
(6) If an authorization under sub-paragraph (1)
is given orally, the person giving it shall confirm it in writing as soon as is
reasonably practicable.
(7) Where an authorization under
sub-paragraph (1) is given -
(a) the
detained person shall be told the reason for the delay as soon as is reasonably
practicable; and
(b) the
reason shall be recorded as soon as is reasonably practicable.
(8) Where the reason for authorizing delay
ceases to subsist there may be no further delay in permitting the exercise of
the right in the absence of a further authorization under sub-paragraph (1).
Meaning of “serious offence”
9.-(1) This paragraph has
effect for determining whether an offence is a serious offence for the purposes
of paragraph 8.
(2) The following offences are always serious -
(a) any
offence of -
(i) treason,
(ii) murder,
(iii) manslaughter,
(iv) rape,
(v) kidnapping,
(vi) incest with a girl under the age of 13,
(vii) sodomy with a person under the age of 16,
(viii) gross indecency,
(ix) indecent assault,
(x) publication of obscene material,
whether
under customary law or under any enactment;
(b) any
offence under -
(i) Articles
2 and 3 of the Loi (1884) sur les matières explosives,
(ii) Article 2 of the Loi (1895) modifiant le
droit criminel,
(iii) Articles 38 and 39 of the Firearms (Jersey)
Law 2000,
(iv) Section 1 of the Taking of Hostages Act 1982
as extended to the Island by Order in Council,
(v) Section 1 of the Aviation Security Act 1982
as extended to the Island by Order in Council,
(vi) Section 1 of the Aviation and Maritime
Security Act 1990 as extended to the Island by Order in Council,
(vii) Articles 14A and 15A of the Road Traffic
(Jersey) Law 1956,
(viii) Article
1 of the Torture (Jersey) Law 1990,
(ix) Article 2 of the Protection of Children
(Jersey) Law 1994,
(x) the Official Secrets (Jersey) Law 1952;
(c) any of
the offences mentioned in the definition “drug trafficking offence” in Article 1(1)
of the Drug Trafficking Offences (Jersey) Law 1988.
(3) Subject to sub-paragraph (4), any
other offence is serious only if its commission -
(a) has led
to any of the consequences specified in sub-paragraph (5); or
(b) is
intended or is likely to lead to any of those consequences.
(4) An offence which consists of making a
threat is serious if carrying out the threat would be likely to lead to any of
the consequences specified in sub-paragraph (5).
(5) The consequences mentioned in
sub-paragraphs (3) and (4) are -
(a) serious
harm to the security of the British Islands or to public order;
(b) serious
interference with the administration of justice or with the investigation of
offences or of a particular offence;
(c) the
death of any person;
(d) serious
injury to any person;
(e) substantial
financial gain to any person;
(f) serious
financial loss to any person.
(6) Loss is serious for the purposes of this
paragraph if, having regard to all the circumstances, it is serious for the
person who suffers it.
(7) In this paragraph “injury” includes any
disease and any impairment of a person’s physical or mental condition.
(8) Any offence of conspiring or attempting to
commit a serious offence or aiding, abetting, counselling or procuring the
commission of a serious offence is a serious offence.
(9) The States may, by Regulations, amend
sub-paragraph (2)(a) and (b).
Direction regarding access to legal advice
10.-(1) A direction under this paragraph may provide that a
detained person who wishes to exercise the right under paragraph 7 may
only consult a legal representative in the sight and hearing of a qualified
officer.
(2) A direction under this paragraph may be
given by an officer of the Force of at least the rank of chief inspector where
the person is detained at a police station.
(3) A direction under this paragraph may be
given only if the officer giving it has reasonable grounds for believing that,
unless the direction is given, the exercise of the right by the detained person
will have any of the consequences specified in paragraph 8(4) or the
consequence specified in paragraph 8(5)(c).
(4) In this paragraph “a qualified officer”
means an officer of the Force who is of at least the rank of inspector
and, in the opinion of the officer giving the direction, has no connection with
the detained person’s case.
(5) A direction under this paragraph shall
cease to have effect once the reason for giving it ceases to subsist.
Fingerprints and samples
11.-(1) Fingerprints
may be taken from the detained person only if they are taken by a police
officer -
(a) with the appropriate consent given in
writing; or
(b) without that consent, under sub-paragraph (3).
(2) A non-intimate sample may be taken from the
detained person only if it is taken by a police officer -
(a) with the appropriate consent given in
writing; or
(b) without that consent, under sub-paragraph
(3).
(3) Fingerprints or a non-intimate sample may
be taken from the detained person without the appropriate consent only if he is
detained at a police station and an officer of the Force of at least the rank
of chief inspector authorizes the fingerprints or sample to be taken.
(4) An intimate sample may be taken from the
detained person only if -
(a) he is detained at a police station;
(b) the appropriate consent is given in
writing;
(c) an
officer of the Force of at least the rank of chief inspector authorizes the
sample to be taken; and
(d) subject
to paragraph 14(2) and (3), the sample is taken by a police officer.
(5) Subject to sub-paragraph (6), an
officer may give an authorization under sub-paragraph (3) or (4)(c) only
if -
(a) in the
case of a person detained under Article 37, the officer reasonably
suspects that the person has been involved in an offence under any of the provisions
mentioned in Article 36(1)(a), and the officer reasonably believes that
the fingerprints or sample will tend to confirm or disprove his involvement; or
(b) in any
case, the officer is satisfied that the taking of the fingerprints or sample
from the person is necessary in order to assist in determining whether he falls
within Article 36(1)(b).
(6) An officer may also give an authorization
under sub-paragraph (3) for the taking of fingerprints if -
(a) he is
satisfied that the fingerprints of the detained person will facilitate the
ascertainment of that person’s identity; and
(b) that
person has refused to identify himself or the officer has reasonable grounds
for suspecting that that person is not who he claims to be.
(7) If an authorization under sub-paragraph (3)
or (4)(c) is given orally, the person giving it shall confirm it in writing as
soon as is reasonably practicable.
(8) In this paragraph, references to
ascertaining a person’s identity include references to showing that he is not a
particular person.
Right to be informed
12.-(1) Before
fingerprints or a sample are taken from a person under paragraph 11, he shall
be informed -
(a) that the
fingerprints or sample may be used for the purposes of paragraph 15(3), or
checked against any fingerprints or samples or the information derived from
samples taken and contained -
(i) in
records held by or on behalf of the Force,
(ii) in
any similar records held by a police force elsewhere in the British Islands or
in Northern Ireland, or
(iii) in
any similar records held by any other police force or authority, body or person
specified pursuant to sub-paragraph (4);
(b) where
the fingerprints or sample are to be taken under paragraph 11(1)(a),
(2)(a) or (4)(b), of the reason for taking the fingerprints or sample.
(2) Before fingerprints or a sample are taken
from a person upon an authorization given under paragraph 11(3)or (4)(c),
he shall be informed -
(a) that the authorization has been given;
(b) of the grounds upon which it has been
given; and
(c) where
relevant, of the nature of the offence in which it is suspected that he has
been involved.
(3) After fingerprints or a sample are taken
under paragraph 11, there shall be recorded as soon as is reasonably
practicable any of the following which apply -
(a) the fact
that the person has been informed in accordance with sub-paragraphs (1) and
(2);
(b) the reason referred to in sub-paragraph
(1)(b);
(c) the authorization given under paragraph
11(3) or (4)(c);
(d) the
grounds upon which that authorization has been given; and
(e) the fact that the appropriate consent has
been given.
(4) The Committee may prescribe, for the
purposes of sub-paragraph (1)(a)(iii) -
(a) any
police force of a country or territory outside the British Islands and Northern
Ireland;
(b) any
person or public authority in the British Islands or Northern Ireland having
functions which consist of or include the provision of criminal intelligence,
the prevention and detection of serious crime, the investigation of crimes and
the charging of offences;
(c) any
person or public authority of a country or territory outside the British
Islands and Northern Ireland whose functions correspond to those of a police
force or otherwise consist of or include the investigation of conduct contrary
to the law of that country or territory, or the apprehension of persons guilty
of such conduct;
(d) any
person with functions under any international agreement which consist of or
include -
(i) the
investigation of conduct which is unlawful under the law of one or more places,
prohibited by such an agreement or contrary to international law, or
(ii) the
apprehension of persons guilty of such conduct.
Intimate samples: further provisions
13.-(1) This
paragraph applies where -
(a) 2 or
more non-intimate samples suitable for the same means of analysis have been
taken from a person under paragraph 11;
(b) those samples have proved insufficient; and
(c) the person has been released from
detention.
(2) An intimate sample may be taken from the
person if -
(a) the appropriate consent is given in
writing;
(b) an
officer of the Force of at least the rank of chief inspector authorizes
the sample to be taken; and
(c) subject
to paragraph 14(2) and (3), the sample is taken by a police officer.
(3) Paragraphs 11(5) and (6) and 12 shall apply
in relation to the taking of an intimate sample under this paragraph and a
reference to a person detained under Article 37 shall be taken as a reference
to a person who was detained under Article 37 when the non-intimate
samples mentioned in sub-paragraph (1)(a) were taken.
Inference from refusal of consent
14.-(1) Where appropriate
written consent to the taking of an intimate sample from a person under
paragraph 11 or 13 is refused without good cause, in any proceedings
against that person for an offence -
(a) the
court, in determining whether to commit him for trial or whether there is a
case to answer, may draw such inferences from the refusal as appear proper; and
(b) the court
or jury, in determining whether that person is guilty of the offence charged,
may draw such inferences from the refusal as appear proper.
(2) An intimate sample other than a sample of
urine or a dental impression may be taken under paragraph 11 or 13 only by
a person registered as a medical practitioner under the Medical Practitioners
(Registration) (Jersey) Law 1960 acting on the authority of a police officer.
(3) An intimate sample which is a dental
impression may be taken under paragraph 11 or 13 only by a person
registered as a dentist under the Dentists (Registration) (Jersey) Law 1961 acting on the authority of a police officer.
(4) Where a sample of hair other than pubic
hair is to be taken under paragraph 11 the sample may be taken either by
cutting hairs or by plucking hairs with their roots so long as no more are
plucked than the person taking the sample reasonably considers to be necessary
for a sufficient sample.
Use of fingerprints or samples
15.-(1) This
paragraph applies to -
(a) fingerprints
or samples taken under paragraph 11 or 13; and
(b) information derived from those samples.
(2) The fingerprints, samples or information
may be used only for the purpose of a terrorist investigation.
(3) The fingerprints, samples or information
may be checked, subject to sub-paragraph (2), against -
(a) other
fingerprints or samples taken under paragraph 11 or 13 or information derived
from those samples;
(b) any of
the fingerprints, samples and information held by any police force, authority,
body or person mentioned in or specified for the purposes of paragraph
12(1)(a).
Interpretation of paragraphs 11 to 15
16. In the application of paragraphs 11 to 15 -
“appropriate
consent” means -
(i) in
relation to a person who has attained the age of 17 years, the consent of
that person,
(ii) in
relation to a person who has not attained that age but has attained the age of
14 years, the consent of that person and his parent or guardian, and
(iii) in
relation to a person who has not attained the age of 14 years, the consent
of his parent or guardian;
“fingerprints”
includes palm prints;
“insufficient”
and “sufficient” in relation to a sample, means sufficient or insufficient (in
point of quantity or quality) for the purpose of enabling information to be
produced by the means of analysis used or to be used in relation to the sample;
“intimate
sample” means -
(i) a
sample of blood, semen or any other tissue fluid, urine or pubic hair,
(ii) a dental impression,
(iii) a
swab taken from a person’s body orifice other than the mouth;
“non-intimate
sample” means -
(i) a sample of hair other than pubic hair,
(ii) a sample taken from a nail or from under a
nail,
(iii) a
swab taken from any part of a person’s body including the mouth but not any
other body orifice,
(iv) saliva,
(v) a
footprint or a similar impression of any part of a person’s body other than a
part of his hand.
PART 2
REVIEW OF DETENTION UNDER ARTICLE 37
Requirement for review
17.-(1) A
person’s detention shall be periodically reviewed by a review officer.
(2) The first review shall be carried out as
soon as is reasonably practicable after the time of the person’s arrest.
(3) Subsequent reviews shall, subject to
paragraph 18, be carried out at intervals of not more than 12 hours.
(4) No review of a person’s detention shall be
carried out after a warrant extending his detention has been issued under
Part 3 of this Schedule.
Postponement
18.-(1) A
review may be postponed if at the latest time at which it may be carried out in
accordance with paragraph 17 -
(a) the
detained person is being questioned by a police officer and an officer is
satisfied that an interruption of the questioning to carry out the review would
prejudice the investigation in connection with which the person is being
detained;
(b) no review officer is readily available; or
(c) it is
not practicable for any other reason to carry out the review.
(2) Where a review is postponed it shall be
carried out as soon as is reasonably practicable.
(3) For the purposes of ascertaining the time
within which the next review is to be carried out, a postponed review shall be
deemed to have been carried out at the latest time at which it could have been
carried out in accordance with paragraph 17.
Grounds for continued detention
19.-(1) A
review officer may authorize a person’s continued detention only if satisfied
that it is necessary -
(a) to
obtain relevant evidence whether by questioning him or otherwise;
(b) to preserve relevant evidence;
(c) pending
a decision whether to apply to the Lieutenant Governor for a deportation notice
to be served on the detained person;
(d) pending
the making of an application to the Lieutenant Governor for a deportation notice
to be served on the detained person;
(e) pending
consideration by the Lieutenant Governor whether to serve a deportation notice
on the detained person; or
(f) pending
a decision whether the detained person should be charged with an offence.
(2) The review officer shall not authorize
continued detention by virtue of sub-paragraph (1)(a) or (b) unless he is
satisfied that the investigation in connection with which the person is
detained is being conducted diligently and expeditiously.
(3) The review officer shall not authorize
continued detention by virtue of sub-paragraph (1)(c) to (f) unless he is
satisfied that the process pending the completion of which detention is
necessary is being conducted diligently and expeditiously.
(4) In sub-paragraph (1)(a) and (b)
“relevant evidence” means evidence which -
(a) relates
to the commission by the detained person of an offence under any of the
provisions mentioned in Article 36(1)(a); or
(b) indicates
that the detained person falls within Article 36(1)(b).
(5) In sub-paragraph (1) “deportation
notice” means notice of a decision to make a deportation order under the
Immigration Act 1971.
Review officer
20.-(1) The
review officer shall be an officer who has not been directly involved in the investigation
in connection with which the person is detained.
(2) In the case of a review carried out within
the period of 24 hours beginning with the time of arrest, the review
officer shall be an officer of the Force of at least the rank of inspector.
(3) In the case of any other review, the review
officer shall be an officer of the Force of at least the rank of chief
inspector.
Directions by officer of higher rank
21.-(1) This
paragraph applies when -
(a) the review officer is of a rank lower than
chief inspector;
(b) an
officer of higher rank than the review officer gives directions relating to the
detained person; and
(c) those
directions are at variance with the performance by the review officer of a duty
imposed on him under this Schedule.
(2) The review officer shall refer the matter
at once to the Chief Officer of the Force.
Representations
22.-(1) Before
determining whether to authorize a person’s continued detention, a review
officer shall give either of the following persons an opportunity to make
representations about the detention -
(a) the detained person; or
(b) any
legal representative representing him who is available at the time of the
review.
(2) Representations may be oral or written.
(3) A review officer may refuse to hear oral
representations from the detained person if he considers that he is unfit to
make representations because of his condition or behaviour.
Rights
23.-(1) Where
a review officer authorizes continued detention he shall inform the detained
person -
(a) of any
of his rights under paragraphs 6 and 7 which he has not yet exercised; and
(b) if the
exercise of any of his rights under either of those paragraphs is being delayed
in accordance with the provisions of paragraph 8 of the fact that it is
being so delayed.
(2) Where a review of a person’s detention is
being carried out at a time when his exercise of a right under either of those
paragraphs is being delayed -
(a) the
review officer shall consider whether the reason or reasons for which the delay
was authorized continue to subsist; and
(b) if in
his opinion the reason or reasons have ceased to subsist, he shall inform the
officer who authorized the delay of his opinion (unless he was that officer).
Record of review
24.-(1) A
review officer carrying out a review shall make a written record of the outcome
of the review and of any of the following which apply -
(a) the grounds upon which continued detention
is authorized;
(b) the reasons for postponement of the review;
(c) the fact
that the detained person has been informed as required under paragraph 23(1);
(d) the
officer’s conclusions on the matter considered under paragraph 23(2)(a);
(e) the fact
that he has taken action under paragraph 23(2)(b); and
(f) the fact
that the detained person is being detained by virtue of Article 37(5) or
(6).
(2) The review officer shall -
(a) make the
record in the presence of the detained person; and
(b) inform
him at that time whether the review officer is authorizing continued detention,
and if he is, of his grounds.
(3) Sub-paragraph (2) shall not apply
where, at the time when the record is made the detained person is -
(a) incapable of understanding what is said to
him;
(b) violent or likely to become violent; or
(c) in urgent need of medical attention.
PART 3
EXTENSION OF DETENTION UNDER ARTICLE 37
Warrant of further detention
25.-(1) An
officer of the Force of at least the rank of chief inspector may apply to the
Bailiff for the issue of a warrant of further detention under this Part.
(2) A warrant of further detention -
(a) shall
authorize the further detention under Article 37 of a specified person for
a specified period; and
(b) shall state the time at which it is issued.
(3) The specified period in relation to a
person shall end not later than the end of the period of 7 days beginning
-
(a) with the time of his arrest under Article
37; or
(b) if he
was being detained under Schedule 8 when he was arrested under
Article 37, with the time when his examination under that Schedule began.
Time limit for application
26.-(1) An
application for a warrant shall be made -
(a) during the period mentioned in Article
37(3); or
(b) within 6 hours of the end of that period.
(2) The Bailiff hearing an application made by
virtue of sub-paragraph (1)(b) shall dismiss the application if he considers
that it would have been reasonably practicable to make it during the period
mentioned in Article 37(3).
(3) For the purposes of this Schedule, an
application for a warrant is made when written or oral notice of an intention
to make the application is given to the Bailiff.
Notice of application
27. An application for a warrant may not be
heard unless the person to whom it relates has been given a notice stating -
(a) that the application has been made;
(b) the time at which the application was made;
(c) the time at which it is to be heard; and
(d) the grounds upon which further detention is
sought.
Grounds for
extension
28.-(1) The
Bailiff may issue a warrant of further detention only if satisfied that -
(a) there
are reasonable grounds for believing that the further detention of the person
to whom the application relates is necessary to obtain relevant evidence
whether by questioning him or otherwise or to preserve relevant evidence; and
(b) the
investigation in connection with which the person is detained is being
conducted diligently and expeditiously.
(2) In sub-paragraph (1) “relevant
evidence” means, in relation to the person to whom the application relates,
evidence which -
(a) relates
to his commission of an offence under any of the provisions mentioned in
Article 36(1)(a); or
(b) indicates that he is a person falling
within Article 36(1)(b).
Representation
29.-(1) The
person to whom an application relates shall -
(a) be given
an opportunity to make oral or written representations to the Bailiff about the
application; and
(b) subject
to sub-paragraph (3), may be legally represented at the hearing.
(2) The Bailiff shall adjourn the hearing of an
application to enable the person to whom the application relates to seek legal
representation where -
(a) he is not legally represented; and
(b) he wishes to be so represented.
(3) The Bailiff may exclude any of the following
persons from any part of the hearing -
(a) the person to whom the application relates;
(b) anyone representing him.
(4) The Bailiff may, after giving an
opportunity for representations to be made by or on behalf of the applicant and
the person to whom the application relates, direct -
(a) that the
hearing of the application must be conducted; and
(b) that all
representations by or on behalf of a person for the purposes of the hearing
must be made,
by such means (whether a live television link or other means)
falling within sub-paragraph (5) as may be specified in the direction and
not in the presence (apart from by those means) of the applicant, of the person
to whom the application relates or of any legal representative of that person.
(5) A means of conducting the hearing and of
making representations falls within this sub-paragraph if it allows the person
to whom the application relates and any legal representative of his (without
being present at the hearing and to the extent that they are not excluded from
it under sub-paragraph (3)) -
(a) to see
and hear the Bailiff and the making of representations to him by other persons;
and
(b) to be
seen and heard by the Bailiff.
(6) If the person to whom the application
relates wishes to make representations about whether a direction should be
given under sub-paragraph (4), he must do so by using the facilities that
will be used if the Bailiff decides to give a direction under that
sub-paragraph.
(7) Sub-paragraph (2)
applies to the hearing of representations about whether a direction should be
given under sub-paragraph (4) in the case of any application as it applies
to the hearing of the application.
(8) The Bailiff shall not give a direction
under sub-paragraph (4) unless he has been informed that facilities are
available at the place where the person to whom the application relates is held
for the Bailiff to conduct a hearing by means falling within
sub-paragraph (5).
(9) If in a case where he has power to do so
the Bailiff decides not to give a direction under sub-paragraph (4), he
shall state his reasons for not giving it.
Information
30.-(1) The
officer who has made an application for a warrant may apply to the Bailiff for
an order that specified information upon which he intends to rely be withheld
from -
(a) the person to whom the application relates;
and
(b) anyone representing him.
(2) Subject to sub-paragraph (3), the
Bailiff may make an order under sub-paragraph (1) in relation to specified
information only if satisfied that there are reasonable grounds for believing
that if the information were disclosed -
(a) evidence
of an offence under any of the provisions mentioned in Article 36(1)(a) would
be interfered with or harmed;
(b) the
recovery of property obtained as a result of an offence under any of those
provisions would be hindered;
(c) the
recovery of property in respect of which a forfeiture order could be made under
Article 26 would be hindered;
(d) the
apprehension, prosecution or conviction of a person who is suspected of falling
within Article 36(1)(a) or (b) would be made more difficult as a result of
his being alerted;
(e) the
prevention of an act of terrorism would be made more difficult as a result of a
person being alerted;
(f) the
gathering of information about the commission, preparation or instigation of an
act of terrorism would be interfered with; or
(g) a person would be interfered with or
physically injured.
(3) The Bailiff may also make an order under
sub-paragraph (1) in relation to specified information if satisfied that
there are reasonable grounds for believing that -
(a) the
detained person has committed an offence referred to in the First Schedule to
the Proceeds of Crime (Jersey) Law 1999;
(b) the
detained person has benefited from the offence within the meaning of that Law;
and
(c) the
recovery of the value of that benefit would be hindered, if the information
were disclosed.
(4) The Bailiff shall direct that the following
be excluded from the hearing of the application under this paragraph -
(a) the
person to whom the application for a warrant relates; and
(b) anyone representing him.
Adjournments
31.-(1) The
Bailiff may adjourn the hearing of an application for a warrant only if the
hearing is adjourned to a date before the expiry of the period mentioned in
Article 37(3).
(2) This paragraph shall not apply to an
adjournment under paragraph 29(2).
Extensions of warrant
32.-(1) An
officer of the Force of at least the rank of chief inspector may apply to the
Bailiff for the extension or further extension of the period specified in a
warrant of further detention.
(2) Where the period specified is extended, the
warrant shall be endorsed with a note stating the new specified period.
(3) The specified period shall end not later than
the end of the period of 7 days beginning -
(a) with the time of the person’s arrest under
Article 37; or
(b) if he
was being detained under Schedule 8 when he was arrested under Article 37
with the time when his examination under that Schedule began.
(4) Paragraphs 26(3) and 27 to 30 shall
apply to an application under this paragraph as they apply to an application
for a warrant of further detention.
(5) The Bailiff may adjourn the hearing of an
application under sub-paragraph (1) only if the hearing is adjourned to a
date before the expiry of the period specified in the warrant.
(6) Sub-paragraph (5) shall not apply to
an adjournment under paragraph 29(2).
Effect of
warrant or order
33. A warrant given or order
made by the Bailiff under this Part of this Schedule shall have effect as if it
were an order of the Royal Court.
Detention -
conditions
34. A person detained by virtue of a warrant
issued under this Part shall (unless detained in accordance with Article 37(5)
or (6) or under any other power) be released immediately if the officer having
custody of him becomes aware that any of the grounds under
paragraph 28(1)(a) and (b) upon which the Bailiff authorized his further
detention have ceased to apply.