Proceeds of Crime (Enforcement
of Confiscation Orders) (Jersey) Regulations 2008
Made 16th July 2008
Coming into force 23rd
July 2008
THE STATES, in pursuance of Articles 28A and 38 of the Proceeds of Crime (Jersey)
Law 1999[1], have made the following
Regulations –
Interpretation
1 Interpretation
In these Regulations, unless the context
otherwise requires –
“appropriate authority”
means, when used in relation to a country or territory outside Jersey, the
authority appearing to the Royal Court to be the appropriate authority of that
country or territory for the purposes of these Regulations;
“court”, when used
to refer to a court of a country or territory outside Jersey, includes a court
of any state or territory within that country or territory;
“Law” means the Proceeds of Crime (Jersey) Law 1999[2] and, in Regulations 3, 4, 6 and 8(2), that Law as modified by these
Regulations.
(2) In
these Regulations, a reference to an order of a court of a country or territory
outside Jersey includes a reference to a judgment of a court.
Enforcement in Jersey of external
confiscation orders
2 Application of the Law in
relation to countries and territories outside Jersey
(1) The
Law shall apply to –
(a) external
confiscation orders; and
(b) proceedings
that have been or are to be instituted in a country or territory outside Jersey
and may result in an external confiscation order being made there,
with the modifications specified in Schedule 1.
(2) Schedule
2 has effect to reproduce the Law as modified by Schedule 1.
3 Proof of orders of a court in a country or
territory outside Jersey
(1) For
the purposes of these Regulations and the Law –
(a) an
order made by a court in a country or territory outside Jersey, purporting to
bear the seal of that court or to be signed by any person in the person’s
capacity as a judge, magistrate or officer of the court, shall be taken without
further proof to have been duly sealed or (as the case may be) to have been
signed by that person; and
(b) a
duly authenticated document, purporting to be a copy of any order made by a
court in a country or territory outside Jersey, shall be taken without further
proof to be a true copy.
(2) A
document is duly authenticated for the purpose of paragraph (1)(b) if it
purports to be certified –
(a) by
any person in the person’s capacity as a judge, magistrate or officer of
the court in question; or
(b) by
or on behalf of the appropriate authority of the country or territory outside
Jersey.
4 Evidence of proceedings and orders in a country or
territory outside Jersey
(1) For
the purposes of these Regulations and the Law, a certificate purporting to be
issued by or on behalf of the appropriate authority of a country or territory
outside Jersey and stating –
(a) that
proceedings have been instituted and have not been concluded there, or that
proceedings are to be instituted there;
(b) that
the defendant has been notified, in accordance with the laws of the country or
territory, that proceedings have begun there against the person in respect of
an offence;
(c) that
an external confiscation order is in force there and is not subject to appeal;
(d) that
all or a certain amount of the sum payable under an external confiscation order
remains unpaid in that country or territory, or that other property recoverable
under an external confiscation order remains unrecovered there;
(e) that
any person has been notified of any proceedings in accordance with the law of
that country or territory;
(f) that
an order (however described) made or to be made by a court of that country or
territory has the purpose or (as the case may be) will have the purpose of
recovering property obtained as a result of or in connection with criminal
conduct or the value of property so obtained; or
(g) that
an order (however described) made or to be made by a court of that country or
territory has the purpose or (as the case may be) will have the purpose of
depriving a person of a pecuniary advantage obtained as a result of or in
connection with criminal conduct,
shall, in any proceedings in the Royal Court, be admissible as
evidence of the facts so stated.
(2) In
any such proceedings in the Royal Court, a statement contained in a duly
authenticated document that purports –
(a) to
have been received in evidence;
(b) to
be a copy of a document so received; or
(c) to
set out or summarize evidence given in proceedings in a court in a country or
territory outside Jersey,
shall be admissible as evidence of any fact contained in that
statement.
(3) A
document is duly authenticated for the purposes of paragraph (2) if it
purports to be certified –
(a) by
any person in the person’s capacity as a judge, magistrate or officer of
the court in the country or territory outside Jersey; or
(b) by
or on behalf of the appropriate authority of that country or territory,
as having been received in evidence or as being a copy of a document
so received, or (as the case may be) as being the original document containing
or summarizing the evidence or as being a true copy of that document.
(4) Nothing
in this Regulation shall prejudice the admission of any evidence, whether
contained in any document or in any other form, that is admissible apart from
this Regulation.
5 Evidence as to appropriate authority of a country or
territory outside Jersey
A certificate by the Attorney General stating that an authority
specified in that certificate is the appropriate authority of a country or
territory outside Jersey for the purposes of these Regulations shall be
sufficient evidence of that fact.
6 Representation
of overseas governments in Royal Court
(1) In
any proceedings in the Royal Court under the Law, the government of a country
or territory outside Jersey shall be represented by the Attorney General.
(2) In
any such proceedings in the Royal Court a request for assistance sent to the
Attorney General by the appropriate authority of a country or territory outside
Jersey shall, unless the contrary is shown, constitute the authority of the
government of that country or territory for the Attorney General to act on the
government’s behalf.
Enforcement outside Jersey of
confiscation order made in Jersey
7 Satisfaction
of confiscation orders in a country or territory
outside Jersey
(1) Where –
(a) a
confiscation order has been made under Article 3 of the Law;
(b) a
request has been sent by the Attorney General to the appropriate authority of a
country or territory outside Jersey for assistance in enforcing that order; and
(c) in
execution of that request, property is recovered in that country or territory,
the amount payable under the confiscation order shall be treated as
reduced by the value of the property so recovered.
(2) For
the purposes of this Regulation, and without prejudice to the admissibility of
any evidence otherwise than under this paragraph, a certificate purporting to
be issued by or on behalf of the appropriate authority of a country or territory
outside Jersey and stating –
(a) that
property has been recovered there in execution of a request by the Attorney
General;
(b) the
value of the property so recovered; and
(c) the
date on which it was recovered,
shall, in any proceedings under the Law in the Royal Court, be
admissible as evidence of the facts so stated.
Miscellaneous and closing
8 Conversion
of currency
(1) Where
the value of property recovered in the circumstances described in Regulation 7(1)
is expressed in a currency other than that of Jersey, the extent to which the
amount payable under the confiscation order is to be reduced under that paragraph
shall be calculated on the basis of the exchange rate prevailing on the date on
which the property was recovered in the country or territory outside Jersey
concerned.
(2) Where
an amount of money payable or remaining to be paid under an external
confiscation order registered in the Royal Court under Article 39(1) of
the Law is expressed in a currency other than that of Jersey, the amount shall
for the purposes of any action taken under the Law in relation to that order be
converted into the currency of Jersey on the basis of the exchange rate
prevailing on the date of registration of the order.
(3) For
the purposes of this Regulation, a written certificate –
(a) purporting
to be signed by a person acting in the person’s capacity as an officer of
any bank in Jersey; and
(b) stating
the exchange rate prevailing on a specified date,
shall be admissible as evidence of the facts so stated.
9 Revocation
The Proceeds of Crime (Designated Countries and Territories)
(Jersey) Regulations 1999 shall be revoked.
10 Citation
These Regulations may be cited as the Proceeds of Crime Enforcement
of Confiscation Orders) (Jersey) Regulations 2008 and shall come into force
7 days after they are made.
m.n. de la haye
Greffier of the States
SCHEDULE 1
(Regulation 2(1))
MODIFICATION OF THE PROCEEDS OF CRIME (JERSEY) LAW 1999
1 Article
1 amended
(1) In
Article 1(1), the following definitions shall be omitted –
“to benefit from relevant criminal conduct”,
“to benefit from an offence”,
“to benefit from criminal conduct”,
“exported”,
“financial services business”,
“investigation”,
“items subject to legal privilege”,
“legal privilege”,
“modifications”,
“money laundering”,
“proceeds of criminal conduct”,
“relevant criminal conduct”.
(2) In
Article (1)(1) –
(a) at
the end of the definition of “confiscation order” there shall be
added the words “of this Law disregarding any modification made by the
Enforcement Regulations”;
(b) for
the definition of “criminal conduct” there shall be substituted the
following definition –
“‘criminal
conduct’ means conduct corresponding to an offence specified in Schedule
1;”;
(c) for
the definition of “defendant” there shall be substituted the
following definition –
“‘defendant’
means –
(a) a
person against whom an external confiscation order has been made; or
(b) a
person against whom proceedings have been or are to be instituted in a court in
a country or territory outside Jersey that may result in an external
confiscation order being made;”;
(d) in sub-paragraph (a)
of the definition of “external confiscation order”, for the words
“conduct corresponding to an offence specified in Schedule 1” there
shall be substituted the words “criminal conduct”;
(e) for
the definitions of “gift caught by Part 2” and “gift caught
by this Part” there shall be substituted the following
definition –
“’gift caught by
this Law’ has the meaning given in Article 2(9);”.
(3) In
Article 1(1), there shall be inserted in its appropriate alphabetical
order the following definition –
“‘Enforcement
Regulations’ means the Proceeds of
Crime (Enforcement of Confiscation Orders) (Jersey) Regulations 2008;”.
(4) In
Article 1(2) –
(a) in sub-paragraph (a) –
(i) the words
“with the commission of an offence or” shall be deleted,
(ii) after the words “and
in some other connection” there shall be inserted the words
“(whether received before or after the commencement of the Enforcement
Regulations)”;
(b) in sub-paragraph (b) –
(i) the words
“with the commission of an offence or” shall be deleted,
(ii) the words “the
commission of that offence, or” shall be deleted.
(5) For
Article 1(3), (4), (5) and (6) there shall be substituted the following paragraphs –
“(3) For the purposes of this Law,
proceedings are instituted in a country or territory outside Jersey
when –
(a) the
defendant has been notified in writing in accordance with the laws of that
country or territory proceedings have begun there against the defendant in
respect of an offence; or
(b) an
application has been made to a court in that country or territory for an
external confiscation order,
and where the application of
this paragraph would result in there being more than one time for the
institution of proceedings, they shall be taken to have been instituted at the
earlier of those times.
(4) Proceedings for an offence are
concluded –
(a) when
(disregarding any power of a court to grant leave to appeal out of time) there
is no further possibility of an external confiscation order being made in the
proceedings; or
(b) on
the satisfaction of an external confiscation order made in the proceedings,
whether by the recovery of all property liable to be recovered or the payment
of any amount due.”.
(6) For
Article 1(7) there shall be substituted the following paragraph –
“(7) For the purposes of this Law,
an external confiscation order is satisfied when no property remains liable to
be recovered under it, or no amount is due under it.”.
(7) In
Article 1(8) –
(a) for
the words “Part 2” there shall be substituted the words “this
Law”;
(b) for
the words “an order” there shall be substituted the words “an
external confiscation order”.
2 Article
2 amended
(1) For
Article 2(1), (2) and (3) there shall be substituted the following paragraphs –
“(1) In this Law,
“realisable property” means –
(a) in
relation to an external confiscation order in respect of specified property,
the property that is specified in the order; and
(b) in
any other case –
(i) any property held by the defendant,
(ii) any property held by a person to whom
the defendant has directly or indirectly made a gift caught by this Law, and
(iii) any property to which the defendant is
beneficially entitled.
(2) However, property is not realisable property
if –
(a) a
confiscation order;
(bb) an
order under Article 9 of the Proceeds of Crime (Cash Seizure) (Jersey) Law
2008;
(b) an
order under Article 16C of the Drug
Trafficking Offences (Jersey) Law 1988; or
(c) an
order under Article 29 of the Misuse
of Drugs (Jersey) Law 1978,
is in force in respect of the
property.”.
(2) For
the words “Part 2”, wherever they appear in Article 2(4), (5)
and (7), there shall be substituted the words “this Law”.
(3) For
Article 2(9) there shall be substituted the following paragraph –
“(9) A gift (including a gift made
before the commencement of the Enforcement Regulations) is caught by this Law
if –
(a) it
was made by the defendant at any time after the conduct to which the external
confiscation order relates; and
(b) the
Court considers it appropriate in all the circumstances to take the gift into
account.”.
(4) For
the words “Part 2” in Article 2(10) there shall be substituted
the words “this Law”.
3 Heading
to Part 2 substituted
For the heading to Part 2 there shall be substituted the following
heading –
“EXTERNAL CONFISCATION
ORDERS”.
4 Articles
3 to 14 omitted
Articles 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 shall be
omitted.
5 Article
15 substituted
For Article 15 there shall be substituted the following Article –
“15 Cases
in which saisies judiciaires may be made
(1) The powers conferred on the Court by Article 16
are exercisable where –
(a) proceedings have been instituted against the
defendant in a country or territory outside Jersey and –
(i) the
proceedings have not been concluded, and
(ii) either
an external confiscation order has been made in the proceedings, or it appears
to the Court that there are reasonable grounds for believing that such an order
may be made in the proceedings; or
(b) it appears to the Court that proceedings are
to be instituted against the defendant in a country or territory outside
Jersey, and that there are reasonable grounds for believing that an external
confiscation order may be made in those proceedings.
(2) Where the Court has made an order under
Article 16 by virtue of paragraph (1)(b), the Court shall discharge
the order if the proceedings have not been instituted within such time as the
Court considers reasonable.”.
6 Article
16 amended
(1) For
the words “an application made by or on behalf of the Attorney
General” in Article 16(1) there shall be substituted the words “an
application made on behalf of the government of a country or territory outside
Jersey”.
(2) For
Article 16(6)(b) there shall be substituted the following sub-paragraph –
“(b) shall be discharged when the
proceedings in relation to which it was made are concluded.”.
7 Article
17 amended
In Article 17(1) –
(a) for
sub-paragraphs (a), (b) and (c) there shall be substituted the following sub-paragraph –
“(a) an external confiscation
order has been registered under Article 39; and”;
(b) after
the words “the Court may” there shall be inserted the words
“on an application by the Attorney General”.
8 Articles
18 and 19 omitted
Articles 18 and 19 shall be omitted.
9 Article
20 amended
For the words “confiscation order”, wherever they appear
in Article 20(1), (2) and (3), there shall be substituted the words
“external confiscation order”.
10 Article
21 omitted
Article 21 shall be omitted.
11 Article
22 amended
In Article 22(2), the numbers “, 18, 19”
shall be omitted.
12 Article
24 amended
(1) For
Article 24(2)(a) there shall be substituted the following sub-paragraph –
“(a) recovered under or in
satisfaction of an external confiscation order; or”.
(2) After
Article 24(8) there shall be inserted the following paragraph –
“(9) In this Article, ‘criminal
conduct’ includes criminal conduct as defined in this Law, disregarding
any modification made by the Enforcement Regulations.”.
13 Articles
25 to 28A omitted
Articles 25, 26, 27, 28
and 28A shall be omitted.
14 Part
3 omitted
Part 3 shall be omitted.
15 Heading
to Part 4 substituted
For the heading to Part 4 there shall be substituted the following
heading –
“REGISTRATION OF
EXTERNAL CONFISCATION ORDERS”
16 Article
38 omitted
Article 38 shall be omitted.
17 Articles
40 to 43 omitted
Articles 40, 41, 41A, 42 and 43 shall be omitted.
18 Article
44 amended
In Article 44, all of the words following the words “the
purposes of this Law” shall be deleted.
19 Schedule
1 amended
In Schedule 1 –
(a) for
the words “(Articles 1(1), 3(1), (6), (9), 5(2)(a), (5)(a)(ii),
(5)(b), 9(1), (3), 12(1), 15(1)(b), (c)(i), (2)(b), (3), 25(1), 34(1), (2) and
35(8))” there shall be substituted the words “(Article 1(1))”;
(b) for
the words “Offences for which confiscation orders may be made” there
shall be substituted the words “Offences that are relevant to the
definition of “criminal conduct” ”.
20 Schedules
2 and 3 omitted
Schedules 2 and 3 shall be omitted.
SCHEDULE 2
(Regulation 2(2))
THE PROCEEDS OF CRIME (JERSEY) LAW 1999, AS MODIFIED by schedule 1
PART 1
INTRODUCTORY
1 Interpretation
(1) In
this Law, unless the context otherwise requires –
“Commission” and
“Financial Services Commission”
mean the Jersey Financial Services Commission established by Article 2 of
the Financial Services Commission (Jersey) Law 1998;
“competent authority”
means a competent authority for the purposes of Article 3(3) of the Investigation of Fraud (Jersey) Law 1991;
“confiscation order”
means an order made under Article 3, and also means any order under that Article
that is made by virtue of Article 9, 12 or 13 of this Law disregarding any
modification made by the Enforcement Regualations;
“Court” means the
Royal Court;
“criminal conduct” means conduct corresponding to an
offence specified in Schedule 1;
“Criminal Offences Confiscations
Fund” and “Fund”
mean the Criminal Offences Confiscations Fund established under Article 24;
“defendant” means –
(a) a
person against whom an external confiscation order has been made; or
(b) a
person against whom proceedings have been or are to be instituted in a court in
a country or territory outside Jersey that may result in an external
confiscation order being made;
“drug trafficking offence”
has the meaning given in Article 1(1) of the Drug Trafficking Offences (Jersey) Law 1988;
“Enforcement Regulations” means the Proceeds of Crime (Enforcement of Confiscation
Orders) (Jersey) Regulations 2008;
“external confiscation order”
means an order made by a court in a country or territory outside
Jersey –
(a) for
the purpose of recovering property obtained as a result of or in connection
with criminal conduct;
(b) for
the purpose of recovering the value of the property so obtained; or
(c) for
the purpose of depriving a person of a pecuniary advantage so obtained;
“gift caught by this Law” has the meaning given in
Article 2(9);
“interest”, in
relation to property, includes right;
“making a gift” has
the meaning given in Article 2(10);
“Minister” means the Minister for Treasury and
Resources;
“money” means cash
(that is to say, coins or notes in any currency) or any negotiable instrument;
“police officer”
means a member of the Honorary Police, a member of the States of Jersey Police
Force, the Agent of the Impôts or any other officer of the Impôts;
“property” means all
property, whether movable or immovable, or vested or contingent, and whether
situated in Jersey or elsewhere;
“realisable property”
has the meaning given in Article 2(1) and (2);
“saisie judiciaire”
means an order to which Article 16(1) refers;
“value of a gift”
has the meaning given in Article 2(7) and (8);
“value of property”
has the meaning given in Article 2(4), (5) and (6).
(2) For
the purposes of this Law –
(a) references
to property obtained, or to a pecuniary advantage derived, in connection with
criminal conduct include a reference to property obtained or to a pecuniary
advantage derived both in that connection and in some other connection (whether
received before or after the commencement of the Enforcement Regualtions); and
(b) where
a person derives a pecuniary advantage as a result of or in connection with
criminal conduct, the person is to be treated as if the person had obtained as
a result of or in connection with that conduct, a sum of money equal to the
value of the pecuniary advantage.
(3) For
the purposes of this Law, proceedings are instituted in a country or territory
outside Jersey when –
(a) the
defendant has been notified in writing in accordance with the laws of that
country or territory that proceedings have begun there against the defendant in
respect of an offence; or
(b) an
application has been made to a court in that country or territory for an
external confiscation order,
and where the application of this paragraph would result in there
being more than one time for the institution of proceedings, they shall be taken
to have been instituted at the earlier of those times.
(4) Proceedings
for an offence are concluded –
(a) when
(disregarding any power of a court to grant leave to appeal out of time) there
is no further possibility of an external confiscation order being made in the
proceedings; or
(b) on
the satisfaction of an external confiscation order made in the proceedings,
whether by the recovery of all property liable to be recovered or the payment
of any amount due.
(7) For
the purposes of this Law, an external confiscation order is satisfied when no
property remains liable to be recovered under it, or no amount is due under it.
(8) For
the purposes of this Law, an external confiscation order is subject to appeal
until (disregarding any power of a court to grant leave to appeal out of time)
there is no further possibility of an appeal on which the order could be varied
or set aside.
2 Meanings of
expressions relating to realisable property
(1) In
this Law, “realisable property” means –
(a) in
relation to an external confiscation order in respect of specified property,
the property that is specified in the order; and
(b) in
any other case –
(i) any property held
by the defendant,
(ii) any property held
by a person to whom the defendant has directly or indirectly made a gift caught
by this Law, and
(iii) any property to which
the defendant is beneficially entitled.
(2) However,
property is not realisable property if –
(a) a
confiscation order;
(bb) an order
under Article 9 of the Proceeds of Crime (Cash Seizure) (Jersey) Law 2008;
(b) an
order under Article 16C of the Drug
Trafficking Offences (Jersey) Law 1988; or
(c) an
order under Article 29 of the Misuse
of Drugs (Jersey) Law 1978,
is in force in respect of the property.
(4) Subject
to the following provisions of this Article, for the purposes of this Law the
value of property (other than cash) in relation to any person holding the
property means the market value of the property.
(5) References
in this Law to the value at any time (referred to in paragraph (6) as the
“material time”) of any property obtained by a person as a result
of or in connection with an offence are references to –
(a) the
value of the property to the person when the person obtained it, adjusted to
take account of subsequent changes in the value of money; or
(b) where
paragraph (6) applies, the value there mentioned,
whichever is greater.
(6) If
at the material time the person holds –
(a) the
property that the person obtained (not being cash); or
(b) property
that, in whole or in part, directly or indirectly represents in the
person’s hands the property that the person obtained,
the value referred to in paragraph (5)(b) is the value to the
person at the material time of the property mentioned in sub-paragraph (a)
of this paragraph or (as the case may be) the property mentioned in sub-paragraph (b)
of this paragraph so far as it so represents the property that the person
obtained.
(7) Subject
to paragraph (10), references in this Law to the value at any time
(referred to in paragraph (8) as the “material time”) of a
gift caught by this Law are references to –
(a) the
value of the gift to the recipient when he or she received it, adjusted to take
account of subsequent changes in the value of money; or
(b) where
paragraph (8) applies, the value there mentioned,
whichever is greater.
(8) Subject
to paragraph (10), if at the material time the person holds –
(a) the
property that he or she received (not being cash); or
(b) property
that, in whole or in part, directly or indirectly represents in his or her
hands the property that he or she received,
the value referred to in paragraph (7)(b) is the value to him
or her at the material time of the property mentioned in sub-paragraph (a)
of this paragraph or (as the case may be) sub-paragraph (b) of this paragraph
so far as it so represents the property that he or she received.
(9) A
gift (including a gift made before the commencement of the Enforcement
Regulations) is caught by this Law if –
(a) it
was made by the defendant at any time after the conduct to which the external
confiscation order relates; and
(b) the
Court considers it appropriate in all the circumstances to take the gift into
account.
(10) For the
purposes of this Law –
(a) the
circumstances in which the defendant is to be treated as making a gift include
those where the defendant transfers property to another person directly or
indirectly for a value that is significantly less than the value provided by
the defendant; and
(b) in
those circumstances, the preceding provisions of this Article shall apply as if
the defendant had made a gift of such share in the property as bears to the
whole property the same proportion as the difference between the values
referred to in sub-paragraph (a) bears to the value provided by the
defendant.
PART 2
EXTERNAL CONFISCATION ORDERS
15 Cases
in which saisies judiciaires may be made
(1) The
powers conferred on the Court by Article 16 are exercisable
where –
(a) proceedings
have been instituted against the defendant in a country or territory outside
Jersey and –
(i) the
proceedings have not been concluded, and
(ii) either
an external confiscation order has been made in the proceedings, or it appears
to the Court that there are reasonable grounds for believing that such an order
may be made in the proceedings; or
(b) it
appears to the Court that proceedings are to be instituted against the
defendant in a country or territory outside Jersey, and that there are
reasonable grounds for believing that an external confiscation order may be
made in those proceedings.
(2) Where
the Court has made an order under Article 16 by virtue of
paragraph (1)(b), the Court shall discharge the order if the proceedings
have not been instituted within such time as the Court considers reasonable.
16 Saisies
judiciaires
(1) The
Court may, subject to such conditions and exceptions as may be specified in it,
make an order (in this Part referred to as a saisie
judiciaire) on an application made on behalf of the government of a
country or territory outside Jersey.
(2) An
application for a saisie judiciaire may be made
ex parte to the Bailiff in chambers.
(3) A saisie judiciaire shall provide for notice to be
given to any person affected by the order.
(4) Subject
to paragraph (5), on the making of a saisie
judiciaire –
(a) all
the realisable property held by the defendant in Jersey shall vest in the
Viscount;
(b) any
specified person may be prohibited from dealing with any realisable property
held by that person whether the property is described in the order or not;
(c) any
specified person may be prohibited from dealing with any realisable property
transferred to the person after the making of the order,
and the Viscount shall have the duty to take possession of and, in
accordance with the Court’s directions, to manage or otherwise deal with
any such realisable property; and any specified person having possession of any
realisable property may be required to give possession of it to the Viscount.
(5) Any
property vesting in the Viscount pursuant to paragraph (4)(a) shall so
vest subject to all hypothecs and security interests with which such property
was burdened prior to the vesting.
(6) A
saisie judiciaire –
(a) may
be discharged or varied in relation to any property; and
(b) shall
be discharged when the proceedings in relation to which it was made are
concluded.
(7) An
application for the discharge or variation of a saisie
judiciaire may be made to the Bailiff in chambers by any person affected
by it and the Bailiff may rule upon the application or may, at the
Bailiff’s discretion, refer it to the Court for adjudication.
(8) Where
it appears to the Court that any order made by it under this Article may affect
immovable property situate in Jersey, it shall order the registration of the
order in the Public Registry.
(9) For
the purposes of this Article, dealing with property held by any person includes
(without prejudice to the generality of the expression) –
(a) where
a debt is owed to that person, making a payment to any person in reduction of
the amount of the debt; and
(b) removing
the property from Jersey.
(10) Where
the Court has made a “saisie judiciaire”
a police officer may, for the purpose of preventing the removal of any
realisable property from Jersey, seize the property.
(11) Property
seized under paragraph (10) shall be dealt with in accordance with the
Court’s directions.
17 Realisation
of property
(1) Where –
(a) an
external confiscation order has been registered under Article 39; and
(d) the
Court has made a saisie judiciaire,
the Court may on an application by the Attorney General empower the
Viscount to realise, in such manner as it may direct, any realisable property
that has vested in the Viscount or come into the Viscount’s possession
pursuant to Article 16.
(2) The
Court shall not in respect of any property exercise its power under paragraph (1)
unless a reasonable opportunity has been given for persons holding any interest
in the property to make representations to the Court.
20 Application
of proceeds of realisation and other sums
(1) The
following sums in the hands of the Viscount, that is to say –
(a) money
that has vested in the Viscount or come into the Viscount’s possession
pursuant to Article 16; and
(b) the
proceeds of the realisation of any property under Article 17,
shall, after such payments (if any) as the Court may direct have
been made out of those sums and then after payment of the Viscount’s fees
and expenses, be applied on the defendant’s behalf towards the
satisfaction of the external confiscation order.
(2) The
amount applied by the Viscount towards the satisfaction of the external
confiscation order shall be paid into the Criminal Offences Confiscations Fund.
(3) If,
after payment of the Viscount’s fees and expenses and of the amount
payable under the external confiscation order, any sums remain in the hands of
the Viscount, the Viscount shall distribute those sums –
(a) among
such of those persons who held the property that has been realised under this Part;
and
(b) in
such proportions,
as the Court may direct after giving them a reasonable opportunity
to make representations to the Court.
22 Bankruptcy
of defendant
(1) Where
a person who holds realisable property becomes bankrupt –
(a) no
property for the time being subject to a saisie
judiciaire made before the order adjudging the person bankrupt; and
(b) no
proceeds of property realised by virtue of Article 16(4) or 17 for
the time being in the hands of the Viscount,
shall form part of the person’s estate for the relevant
bankruptcy proceedings.
(2) Where
a person has become bankrupt, the powers conferred on the Court by Articles 16, 17
and 20 or on the Viscount shall not be exercised in relation
to –
(a) property
which the bankrupt has placed under the control of the Court (a remis entre les mains de la Justice);
(b) property
which has been declared en désastre;
(c) property
of which the bankrupt has made a general cession (a
fait cession générale); or
(d) property
which has been adjudged renounced (adjugé
renoncé).
(3) Paragraph
(2) does not affect the enforcement of a saisie
judiciaire –
(a) made
before the person becomes bankrupt; or
(b) on
property that was subject to a saisie judiciaire
when the person became bankrupt.
23 Limitation
of liability of Viscount
Where the Viscount –
(a) takes
any action in relation to property that is not realisable property, being
action that the Viscount would be entitled to take if it were such property;
and
(b) believes
and has reasonable grounds for believing that the Viscount is entitled to take
that action in relation to that property,
the Viscount shall not be liable to any person in respect of any
loss or damage resulting from the Viscount’s action, except in so far as
the loss or damage is caused by the Viscount’s negligence.
24 Criminal
Offences Confiscations Fund
(1) There
shall be established a Fund to be called the Criminal Offences Confiscations
Fund which, subject to this Article, shall be managed and controlled by the
Minister.
(2) All
amounts –
(a) recovered
under or in satisfaction of an external confiscation order; or
(b) received
under an asset sharing agreement,
shall be included in the monies which are paid into the Fund.
(3) Monies
paid into the Fund shall not form part of the annual income of the States.
(3A) The Fund shall
be a special fund for the purposes of the Public Finances (Jersey) Law 2005.
(4) Subject
to paragraph (5), monies in the Fund shall be applied by the Minister for
the following purposes, that is to say –
(a) in
promoting or supporting measures that, in the opinion of the Minister, may
assist –
(i) in preventing,
suppressing or otherwise dealing with criminal conduct,
(ii) in dealing with
the consequences of criminal conduct, or
(iii) without prejudice to
the generality of clauses (i) and (ii), in facilitating the enforcement of any
enactment dealing with criminal conduct;
(b) discharging
Jersey’s obligations under asset sharing agreements; and
(c) meeting
the expenses incurred by the Minister in administering the Fund.
(5) Before
promoting or supporting any measure under paragraph (4)(a), the Minister
shall consult the Attorney General and other persons or bodies (including other
Ministers) as the Minister considers appropriate.
(6) Monies
paid into the Fund, while not applied for any of the purposes mentioned in paragraph (4),
may be –
(a) held
in the custody of the Treasurer of the States at the States Treasury; or
(b) placed,
in the name of the States, in a current or deposit account with one or more
banks selected by the Minister,
and any interest earned on such monies while held in such an account
shall be paid by the States into the Fund.
(7) Monies
held in any account by virtue of paragraph (6)(b) may be withdrawn on the
signature of the Treasurer of the States.
(8) In
this Article, “asset sharing agreement” means any agreement or
arrangement made by or on behalf of Jersey with a country or territory outside
Jersey for the sharing of the proceeds of criminal conduct that, as a result of
mutual assistance, have been confiscated or forfeited either in Jersey or elsewhere.
(9) In
this Article, “criminal conduct” includes criminal conduct as
defined in this Law, disregarding any modification made by the Enforcement
Regulations.
PART 4
REGISTRATION OF EXTERNAL CONFISCATION ORDERS
39 Registration
of external confiscation orders
(1) On
the application of the Attorney General, the Court may register an external
confiscation order if –
(a) the
Court is satisfied that at the time of registration the order is in force and
is not subject to appeal;
(b) it
is satisfied, where the person against whom the order is made did not appear in
the proceedings, that the person received notice of the proceedings in
sufficient time to enable the person to defend them; and
(c) it
is of the opinion that enforcing the order in Jersey would not be contrary to
the interests of justice.
(2) In paragraph (1),
“appeal” includes –
(a) any
proceedings by way of discharging or setting aside a judgment; and
(b) an
application for a new trial or a stay of execution.
(3) The
Court shall cancel the registration of an external confiscation order if it
appears to the Court that the order has been satisfied by the payment of the
amount due under it or by the person against whom it was made serving
imprisonment in default of payment or by any other means.
PART 5
MISCELLANEOUS
44 Rules
of Court
The power of the Superior Number of the Royal Court to make Rules of
Court under the Royal Court (Jersey)
Law 1948 includes a power to make Rules for the purposes of this
Law.
45 Citation
This Law may be cited as the Proceeds of Crime (Jersey)
Law 1999.
SCHEDULE 1
(Article 1(1))
OFFENCES THAT ARE RELEVANT TO THE DEFINITION OF
“CRIMINAL CONDUCT”
Any offence in Jersey for which a person is liable on conviction to
imprisonment for a term of one or more years (whether or not the person is also
liable to any other penalty), but not being a drug trafficking offence