Proceeds of Crime
and Terrorism (Tipping Off – Exceptions) (Jersey)
Regulations 2014
Made 9th July 2014
Coming into force 4th
August 2014
THE STATES, in pursuance of Article 19B(2) of the Misuse of Drugs (Jersey) Law 1978[1], Articles 35(5) and 42A of
the Proceeds of Crime (Jersey) Law 1999[2], Article 35(5) of the
Terrorism (Jersey) Law 2002, and Article 51(2)(b)
of the Proceeds of Crime and Terrorism (Miscellaneous Provisions) (Jersey) Law 2014, have made the following Regulations –
1 Interpretation
(1) In
these Regulations –
“1978 Law” means the
Misuse of Drugs (Jersey) Law 1978;
“1999 Law” means the Proceeds of Crime (Jersey) Law 1999;
“2002 Law” means the
Terrorism (Jersey) Law 2002[3];
“D”, in relation to
a disclosure in any specified case, means the person making the disclosure;
“document”
includes a copy of a document and an electronic communication;
“JFCU” means the
Joint Financial Crimes Unit of the States of Jersey Police Force;
“MLRO” means –
(a) a reporting officer; or
(b) a designated person,
as each is defined by
Article 1(1) of the Money Laundering (Jersey) Order 2008[4];
“protected disclosure” means a disclosure which, by
virtue of Regulation 2, does not amount to the commission of an offence;
“R”, in relation to
a disclosure in any specified case, means the person to whom the disclosure is
made;
“relevant person” has the meaning given by Article 1(1)
of the Money Laundering (Jersey) Order 2008[5];
“suspicious activity report”
means a report in writing made pursuant to any of Articles 32(1), 34A(3)
or 34D(9) of the 1999 Law or 18(2), 18(3), 19(3) or 21(4) of the 2002 Law.
(2) Article 10
of the Interpretation (Jersey) Law 1954[6] applies in relation to these
Regulations so that a word or expression used in these Regulations which also occurs
in the 1978 Law, the 1999 Law or the 2002 Law shall be construed
as having the same meaning in these Regulations as it is given by the Law in
which it occurs.
(3) Reference
in these Regulations –
(a) to an employee of a person includes –
(i) where the person is a body corporate, reference to an
officer or a person who is a general partner of that body,
(ii) where that person is a partnership or limited liability
partnership, a person who is a partner in that partnership, and
(iii) where
that person is a limited partnership or separate limited partnership, a person
who is a general partner in that partnership;
(b) to one person being in the same financial group as another
person shall be construed in accordance with Article 16A(2) of the Money
Laundering (Jersey) Order 2008.
(4) R includes
an employee of R in any of the following provisions, namely –
(a) Regulation 4;
(b) paragraphs (2) (in the first place where R is mentioned)
and (4) of Regulation 5; and
(c) paragraphs (1)(b) and (c) and (2) of Regulation 6.
2 Protected
disclosures: general
(1) Subject
to paragraphs (2) and (3), a disclosure which would amount to the
commission of an offence under any the following provisions, namely Article 19B(1)
of the 1978 Law, Article 35(2)(a) and (4)(a) of the 1999 Law or Article 35(2)(a)
and (4)(a) of the 2002 Law (as the case may be), shall not amount to the
commission of such an offence –
(a) if it is made in good faith for the purpose of preventing or
detecting money laundering, and –
(i) it falls within any of the cases specified in Regulations 3
to 7, or
(ii) it is otherwise made to a person who is D’s MLRO;
(b) if and to the extent that it is required to be made by any
enactment or by the law of another jurisdiction; nor
(c) if and to the extent that the JFCU has given, to the person
making the disclosure, permission in writing for the disclosure to be made.
(2) A
disclosure is not a protected disclosure if it is or involves any disclosure, other
than one permitted by paragraph (1)(a)(ii) or
(1)(b) of this Regulation or Regulation 3, of a suspicious activity report
or a document which is a copy of such a report.
(3) A
disclosure to which either of Articles 4 or 5 would otherwise apply is not
a protected disclosure if, being made by a person other than the original
reporter, it reveals the original reporter’s identity.
(4) In paragraph (3),
“original reporter” refers to an individual who has duly made a
disclosure falling within any of the following provisions, namely –
(a) Articles 32(1)
or (5), 34A(3), or 34D(9) of the 1999 Law; or
(b) Articles 18(2)
or (3), 19(3) or (10), or 21(4) of the 2002 Law.
3 Internal
disclosures
(1) Subject
to paragraph (2), a disclosure made by an employee of a person (“D”)
to another employee of the same person (“R”) is a protected
disclosure.
(2) A
disclosure of the kind described in paragraph (1) which is or involves a
suspicious activity report, or a document which is a copy of such a report, is
protected only if it is made to a person within Jersey.
(3) Where
a further disclosure is made by R in accordance with these Regulations of a
disclosure which is protected by virtue of paragraph (1), that further
disclosure is also protected if and to the extent that it does not disclose
D’s identity.
(4) In paragraph (3),
a “further disclosure” refers to a disclosure made otherwise than
between employees of the same person.
4 Disclosures
within a financial group
(1) A
disclosure made by a person who is –
(a) carrying on a financial services business or otherwise
carrying on a trade, profession, business or employment (“D1”); or
(b) an employee of such a person (“D2”),
is a protected
disclosure if and to the extent that it is made to another person (“R”)
within the same financial group as D1 or with whom D1 shares common ownership,
management or compliance control.
(2) Where
a further disclosure is made by R in accordance with these Regulations of a disclosure
which is protected by virtue of paragraph (1), that further disclosure is
protected if and to the extent that it does not disclose the identity of D2.
5 Disclosures
between relevant persons
(1) A
disclosure made by a person who is –
(a) a relevant person (“D1”); or
(b) an employee of such a person (“D2”),
is a protected
disclosure if it is made in accordance with the requirements in paragraph (2).
(2) The
requirements mentioned in paragraph (1) are that the disclosure is made to
another relevant person (“R”), and –
(a) relates to a person who is a customer of both D1 and R; or
(b) relates to a transaction, or the provision of a service,
involving both D1 and R.
(3) For
the purposes of paragraph (2) “customer”, in relation to D1,
includes a former customer.
(4) Where
a further disclosure is made by R in accordance with these Regulations of a
disclosure which is protected by virtue of paragraph (1), that further
disclosure is also protected if and to the extent that it does not disclose –
(a) the identity of D1 and (as the case may be) D2; and
(b) if applicable, the identity of D1’s MLRO.
6 Disclosures
to supervisory etc. bodies
(1) A
disclosure is a protected disclosure if it is made by any person
(“D”) to any of the following (“R”) –
(a) an officer of the Impôts, a
police officer or any member of the JFCU;
(b) the Jersey Financial Services Commission; or
(c) a supervisory
body other than the Jersey Financial Services Commission and designated as such
by an order made under Article 6 of the Proceeds of Crime (Supervisory
Bodies) (Jersey) Law 2008[7].
(2) Where
a further disclosure is made by R in accordance with these Regulations of a
disclosure which is protected by virtue of paragraph (1), that further
disclosure is also protected if and to the extent that it does not disclose
D’s identity.
(3) In paragraph (2),
a “further disclosure” refers to a disclosure made to a person
other than any of those listed in paragraph (1)(a)
to (c).
7 Disclosures
by MLROs
A further disclosure by R, being an MLRO, of a disclosure which is
protected by virtue of these Regulations is a protected disclosure if and to
the extent that it is made –
(a) to any employee of D’s employer other than D; or
(b) to any employee of R’s employer other than R, for the
purpose of carrying out R’s functions in the capacity of MLRO.
8 Disclosures
to professional advisers
(1) In Article 19B
of the 1978 Law, for paragraph (3) there shall be substituted the
following paragraph –
“(3) Paragraph (1)
does not make it an offence –
(a) for a professional
legal adviser to disclose information or any other matter –
(i) to a client or a client’s representative in connection
with giving legal advice to the client, or
(ii) to any person for the purpose of actual or contemplated
legal proceedings;
(b) for a person who is the client of a
professional legal adviser to disclose information or any other matter to that
adviser, for either of the purposes mentioned in sub-paragraph (a)(i) or (ii);
(c) for a person who is the client of an
accountant to disclose information or any other matter to that accountant, for
the purpose of enabling him or her to provide any of the services mentioned in paragraph 2(1)
of Part B of Schedule 2 to the Proceeds of Crime (Jersey) Law 1999[8],
except where the information or other matter is disclosed with a view to
furthering a criminal purpose.
(2) In Article 35(6)
of the 1999 Law, for the word “and” at the end of sub-paragraph (a)
and sub-paragraph (b), there shall be substituted the following
sub-paragraphs –
“(b) is made by a person who is
the client of a professional legal adviser to that adviser, for either of the
purposes mentioned in sub-paragraph (a)(i)
or (ii); or
(c) is made by a person
who is the client of an accountant to that accountant for the purpose of
enabling him or her to provide any of the services listed in paragraph 2(1)
of Part B of Schedule 2,
and is not made with a view to furthering a criminal purpose.”.
(3) In Article 35(6)
of the 2002 Law, for the word “and” at the end of sub-paragraph (a)
and sub-paragraph (b), there shall be substituted the following
sub-paragraphs –
“(b) is made by a person who is
the client of a professional legal adviser to that adviser, for either of the
purposes mentioned in sub-paragraph (a)(i) or
(ii); or
(c) is made by a person who is the client of an
accountant to that accountant for the purpose of enabling him or her to provide
any of the services listed in paragraph 2(1) of Part B of Schedule 2
to the Proceeds of Crime (Jersey) Law 1999[9],
and is not made with a view to furthering a criminal purpose.”.
9 Citation
and commencement
These Regulations may be cited as the Proceeds of Crime and
Terrorism (Tipping Off – Exceptions) (Jersey) Regulations 2014,
and shall come into force immediately following the commencement of the Proceeds
of Crime and Terrorism (Miscellaneous Provisions) (Jersey) Law 2014[10].
l.-m. hart
Deputy Greffier of the States