Money Laundering and Weapons Development (Directions) (Jersey)
Law 2012
A LAW to
allow for directions to be made in response to threats from abroad to the
interests of Jersey relating to money laundering, terrorist financing or
weapons development and for related and incidental purposes.
Commencement [see endnotes]
1 Interpretation[1]
In this Law unless the
context otherwise requires –
“beneficial ownership
and control” shall have the meaning in Article 2;
“biological agent”
means any microbial or other biological agent;
“biological weapon”
means –
(a) any
biological agent or toxin of a type and in a quantity that has no justification
for prophylactic, protective or other peaceful purposes; or
(b) any
weapon, equipment or means of delivery designed to use biological agents or
toxins for hostile purposes or in armed conflict;
“business relationship”
means a business, professional or commercial relationship between a relevant
person and a customer, which is expected by the relevant person, at the time
when contact is established, to have an element of duration;
“chemical weapon”
has the same meaning as in section 1 of the Chemical Weapons Act 1996
(c.6) of the United Kingdom as extended to Jersey by the Chemical Weapons
Act 1996 (Jersey) Order 1998;
“Commission”
means the Jersey Financial Services Commission established under the Financial Services Commission (Jersey) Law 1998;
“Counter-Terrorism
Act 2008” means the Counter-Terrorism Act 2008 (c.28) of the
United Kingdom as amended from time to time;
“Court” means the
Royal Court;
“customer due diligence
measures” shall be construed in accordance with Article 3;
“designated person”
means a person or government described in Article 6(3) in relation to whom
a direction is given;
“direction” means
a direction under Article 6(1) or (2);
“EEA State” means
a State which is a Contracting Party to the Agreement on the European Economic
Area signed at Oporto on 2nd May 1992 as it has effect for the time
being;
“enhanced customer due
diligence measures” shall be construed in accordance with Article 3(9);
“financial services
business” has the same meaning as in the Proceeds of Crime (Jersey) Law 1999;
“HM Treasury”
means the Commissioners of His Majesty’s Treasury;
“Minister” means
the Minister for External Relations;
“money laundering”
has the same meaning as in the Proceeds of Crime (Jersey) Law 1999;
“nuclear weapon”
includes a nuclear explosive device that is not intended for use as a weapon;
“one-off transaction”
means a transaction which is not part of a business relationship;
“radiological weapon”
means a device designed to cause destruction, damage or injury by means of the
radiation produced by decay of radioactive material;
“recipient” or “recipient
of a direction” means a person to whom a direction is given under Article 6(1)
or (2);
“regulated market”
means –
(a) a
regulated financial market within an EEA State, such market being included in
the most recent list of regulated markets published by the European Commission
on its website under Directive 2004/39/EC of the European Parliament and
of the Council of 21st April 2004 on markets in financial instruments
(OJ L 145, 30.4.2004) as for the time being in force (being the list
published under Article 47 of the Directive); or
(b) a
regulated financial market in a country or territory outside an EEA State,
admission to which for trading purposes requires companies to be subject to
disclosure obligations contained in international standards equivalent to the
disclosure obligations to which companies admitted to markets on the list
described in paragraph (a) are subject;
“relevant activities”
means money laundering or weapons development or both;
“relevant person”
means –
(a) a
person carrying on a financial services business in or from within Jersey; or
(b) any
of the following –
(i) a
body that is incorporated in Jersey,
(ii) a
limited liability partnership that is registered under the Limited Liability Partnerships (Jersey) Law 2017, or
(iii) a
separate limited partnership that is registered under the Separate Limited Partnerships (Jersey) Law 2011,
carrying on a financial
services business in any part of the world;
“relevant supervisory
body” has the same meaning as in the Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008;
“toxin” means any
toxin, whatever its origin or method of production;
“transaction”
means a one-off transaction or a transaction in the course of a business
relationship;
“weapons development”
means the development or production of nuclear, radiological, biological or
chemical weapons or the facilitation of that development or production.
2 Meaning
of beneficial ownership and control
(1) For
the purposes of this Law, each of the following individuals is a beneficial
owner or controller of a person (“other person”) where that other
person is not an individual –
(a) an
individual who is an ultimate beneficial owner of that other person (whether or
not the individual is its only ultimate beneficial owner); and
(b) an
individual who ultimately controls or otherwise exercises control over the
management of that other person (whether the individual does so alone or with
any other person or persons).
(2) For
the purposes of paragraph (1) it is immaterial whether an
individual’s ultimate ownership or control is direct or indirect.
(3) No
individual is to be treated by reason of this Article as a beneficial owner of
a person that is a body corporate the securities of which are listed on a regulated
market.
(4) In
determining whether an individual is a beneficial owner or controller of
another person, regard must be had to all the circumstances of the case, in
particular the size of an individual’s beneficial ownership or degree of
control having regard to the risk of that individual or that other person being
involved in relevant activities.
3 Meaning
of “customer due diligence measures” and “enhanced customer
due diligence measures”
(1) In
this Article –
“customer” means
a person;
“third party”
includes a person, trust or any other legal arrangement.
(2) “Customer
due diligence measures” means, in respect of the customers of a relevant
person’s financial services business, identification measures and
on-going monitoring.
(3) Identification
measures are measures for –
(a) identifying
the customer;
(b) determining
whether the customer is acting for a third party and, if so –
(i) identifying
that third party,
(ii) where
the third party is a person other than an individual, understanding the
ownership and control of that third party and identifying each individual who
is that third party’s beneficial owner or controller,
(iii) where
the third party is not a person –
(A) understanding
the nature of the legal arrangement under which the third party is constituted
(for example, in the case of a trust, the type of trust),
(B) identifying
each person who falls within paragraph (8), and
(C) in
respect of each person falling within paragraph (8) who is not an individual,
understanding the ownership and control of that person and identifying each
individual who is that person’s beneficial owner or controller;
(c) in
respect of a customer who is not an individual –
(i) identifying
any person purporting to act on behalf of the customer and verifying the
authority of any person purporting so to act,
(ii) understanding
the ownership and control structure of that customer and the provisions under
which the customer can enter into contracts, or other similar legally binding
arrangements, with third parties, and
(iii) identifying
the individuals who are the customer’s beneficial owners or controllers;
(d) obtaining
information on the purpose and intended nature of a business relationship or
one-off transaction.
(4) On-going
monitoring means –
(a) scrutinizing
transactions undertaken throughout the course of a business relationship to
ensure that the transactions being conducted are consistent with the relevant
person’s knowledge of the customer, including the customer’s business
and risk profile (such scrutiny to include, where necessary, the source of the
funds); and
(b) ensuring
that documents, data or information obtained under identification measures are
kept up to date and relevant by undertaking reviews of existing records,
including but without prejudice to the generality of the foregoing, reviews
where any inconsistency has been discovered as a result of the scrutiny
described in sub-paragraph (a).
(5) For
the purposes of paragraph (3), identification of a person means –
(a) finding
out the identity of that person, including that person’s name and legal
status; and
(b) obtaining
evidence, on the basis of documents, data or information from a reliable and
independent source that is reasonably capable of verifying that the person to
be identified is who the person is said to be and satisfies the person
responsible for the identification of a person that the evidence does establish
that fact.
(6) For
the purposes of paragraph (3), the measures must include the assessment by
the relevant person of the risk that any business relationship or one-off
transaction will involve relevant activities, including obtaining appropriate
information for assessing that risk.
(7) For
the purposes of paragraph (3)(b) and (c), measures for obtaining evidence
must involve reasonable measures having regard to all the circumstances of the
case, including the degree of risk assessed.
(8) For
the purposes of paragraph (3)(b)(iii), a person falls within this
paragraph if –
(a) that
person is, in relation to a trust that is the third party, a settlor or
protector; or
(b) that
person, having regard to the risk of that person being involved in relevant
activities –
(i) has
a beneficial interest in the third party, or
(ii) is
the object of a trust power in relation to a trust that is the third party.
(9) “Enhanced
customer due diligence measures” mean customer due diligence measures
that involve specific and adequate measures to compensate for the higher risk
of relevant activities in a particular case.
4 Amendment
of Articles
The Minister may, by Order,
amend the meaning of any word, term or expression used in any of Articles 1,
2 and 3.
5 Conditions
for giving a direction
(1) The
Minister may, after consultation with the Commission and any relevant
supervisory body, give a direction under Article 6 if one or more of the
following conditions are met in relation to a country or territory outside
Jersey.
(2) The
first condition is that the international body known as the Financial Action
Task Force has advised that measures should be taken in relation to the country
or territory because of the risk that there is money laundering –
(a) in
the country or territory;
(b) by
the government of the country or territory; or
(c) by
persons resident or incorporated in the country or territory.
(3) The
second condition is that the Minister reasonably believes that there is a risk
that there is money laundering –
(a) in
the country or territory;
(b) by
the government of the country or territory; or
(c) by
persons resident or incorporated in the country or territory,
and that this poses a
significant risk to the interests of Jersey.
(4) The
third condition is that the Minister reasonably believes that –
(a) the
development or production of nuclear, radiological, biological or chemical
weapons, or their means of delivery, in the country or territory; or
(b) the
doing in the country or territory of anything that facilitates the development
or production of such weapons,
poses a significant risk to
the interests of Jersey.
(5) For
the purposes of paragraphs (3) and (4), a direction given by
HM Treasury under paragraph 1(3) or (4) of Schedule 7 to the Counter-Terrorism
Act 2008 shall be sufficient for the Minister to form a reasonable belief
that there is a significant risk to the interests of Jersey.
(6) The
States may, by Regulations, amend any of the conditions in this Article,
including making provision in respect of any factors which will be sufficient
for the Minister to form a reasonable belief that there is a significant risk
to the interests of Jersey.
6 Directions
(1) The
Minister may, by Order, give a direction to –
(a) all
persons who are within a description of relevant persons; or
(b) all
relevant persons.
(2) The
Minister may give a direction to a particular relevant person.
(3) A
direction may impose requirements in relation to transactions or business
relationships with –
(a) a
person carrying on business in the relevant country or territory outside
Jersey;
(b) the
government of that country or territory;
(c) a
person resident or incorporated in that country or territory.
(4) Requirements
referred to in paragraph (3) may be imposed in relation to –
(a) a
particular person;
(b) all
persons who are within a description of persons; or
(c) all
persons,
within that paragraph.
(5) A
direction may make different provision in relation to –
(a) different
descriptions of recipient;
(b) different
descriptions of designated person; and
(c) different
descriptions of transaction or business relationship.
(6) Descriptions
of transactions or business relationships for the purposes of paragraph (5)(c)
may, in particular, include transactions or business relationships of a
particular branch (or description of branch) of a recipient.
(7) The
kinds of requirement that may be imposed by a direction under this Article are
specified in paragraphs (8) to (11A).[2]
(8) A
direction may require a recipient to undertake enhanced customer due diligence
measures –
(a) before
entering into a transaction or business relationship with a designated person;
and
(b) during
a business relationship with such a person.
(9) A
direction imposing a requirement referred to in paragraph (8) may do
either or both of the following –
(a) impose
a general obligation to undertake enhanced customer due diligence measures, it
being for the recipient to determine those measures and to which of the
customer due diligence measures described in Article 3 such enhanced
measures relate;
(b) require
a recipient to undertake specific measures identified or described in the
direction.
(10) A
direction may require a recipient to provide such information and documents as
may be specified in the direction, such information and documents relating to
transactions and business relationships with the designated person.
(11) A
direction may require a recipient not to enter into or not to continue to
participate in –
(a) a
specified transaction or business relationship with a designated person;
(b) transactions
or business relationships of a specified description with a designated person;
or
(c) any
transaction or business relationship with a designated person.
(11A) A
direction may require a recipient to treat a person, in relation to whom requirements
are imposed under paragraphs (3) and (4), as if that person were a
designated person for the purpose of Part 3 of the Sanctions and Asset-Freezing (Jersey) Law 2019.[3]
(12) A
direction imposing a requirement referred to in paragraph (10) must
specify how the direction is to be complied with, including –
(a) the
person to whom the information and documents are to be provided; and
(b) the
period within which, or intervals at which, information and documents are to be
provided.
(13) The
power referred to in paragraph (10) is not exercisable in relation to
information or documents in respect of which a claim to legal professional
privilege could be maintained in legal proceedings.
(14) The
requirements imposed by a direction must be proportionate having regard to the
advice mentioned in Article 5(2) or, as the case may be, the risk
mentioned in Article 5(3) or (4) to the interests of Jersey.
(15) In
this Article, a transaction or business relationship with a designated person
includes any transaction or business relationship between the relevant person
and –
(a) any
person acting on behalf of, or at the direction of, the designated person; and
(b) any
person in relation to whom the designated person is –
(i) a
beneficial owner or controller, or
(ii) a
holding body within the meaning of the Companies (Jersey) Law 1991,
regardless of whether or not
the designated person is directly involved in such transaction or business
relationship.
7 Procedural
requirements for general directions under Article 6(1)
(1) This
Article applies to a direction given under Article 6(1).
(2) The
Minister must take such steps as he or she considers appropriate to bring the
giving of the direction to the attention of the recipients.
(3) The
Order (if not previously revoked and whether or not amended) ceases to have
effect at the end of the period of one year beginning with the day on which it
was made.
(4) Paragraph (3)
is without prejudice to the giving of a further Order.
(5) When
the Order is amended or ceases to have effect (whether on revocation or
otherwise), the Minister must take such steps as he or she considers
appropriate to publicize that fact.
8 Procedural
requirements for specific directions under Article 6(2)
(1) This
Article applies to a direction given to a particular relevant person under Article 6(2).
(2) The
Minister must give notice of the direction to the recipient.
(3) The
Minister may revoke or amend such a direction at any time.
(4) A
direction (if not previously revoked and whether or not amended) ceases to have
effect at the end of the period of one year beginning with the day on which the
direction is given.
(5) Paragraph (4)
is without prejudice to the giving of a further direction.
(6) Where
a direction is amended or ceases to have effect (whether on revocation or
otherwise), the Minister must give notice of that fact to the recipient.
9 Directions
limiting or ceasing business: exemption by licence
(1) Where
a direction contains requirements of a kind mentioned in Article 6(11),
the Minister may grant a licence to exempt acts specified in the licence from
those requirements.
(2) A
licence may be –
(a) general
or granted to all persons who are within a description of persons or to a particular
person;
(b) subject
to conditions; and
(c) of
indefinite duration or subject to an expiry date.
(3) The
Minister may amend or revoke a licence at any time.
(4) On
the grant, amendment or revocation of a licence, the Minister must –
(a) in
the case of a licence granted to a particular person, give notice of the grant,
amendment or revocation to that person; or
(b) in
the case of a general licence or a licence granted to all persons who are
within a description of persons, take such steps as the Minister considers
appropriate to bring notice of the grant, amendment or revocation to the
attention of the persons who are affected by it.
10 Applications
in relation to a direction or licence[4]
(1) Subject
to Article 11, any person affected by a decision of the Minister under
this Law may apply to the Court to set aside the Minister’s decision.
(2) In
determining whether the decision should be set aside, the Court must apply the
principles applicable on an application for judicial review.
(3) If
the Court decides that the decision should be set aside it may make any such
order, or give any such relief, as may be made or given in proceedings for
judicial review.
(4) Without
prejudice to the generality of paragraph (3), if the Court sets aside the
Minister’s decision to give a direction (including amending a direction)
it must –
(a) quash
the direction if given by notice; or
(b) direct
the Minister to revoke the relevant Order forthwith, if the direction is given
by Order.
(5) This
Article does not apply to any decision of the Minister to make an Order under
Article 4.
11 Where
the Minister relies on a HM Treasury direction
(1) No
application under Article 10 shall lie to set aside the Minister’s
decision to give a direction if the Minister certifies that, in giving the
direction, the Minister formed a reasonable belief concerning a risk to the
interests of Jersey in reliance on a direction given by HM Treasury described
in Article 5(5).
(2) A
certificate under paragraph (1) shall specify the direction on which the
Minister relied.
(3) If
the direction specified in accordance with paragraph (2) –
(a) is
set aside (whether or not on appeal) following proceedings under
section 63 of the Counter-Terrorism Act 2008;
(b) ceases
to have effect under paragraph 15(3), or is contained in an order which
ceases to have effect under paragraph 16(4), of Schedule 7 to that
Act; or
(c) is
revoked under paragraph 15(4) of Schedule 7 to that Act or is
contained in an order which was revoked in accordance with paragraph 16(3)
of Schedule 7 to that Act,
the Minister’s
direction given in reliance on that direction shall be deemed to be revoked on
the date that the decision to set aside takes effect or the direction ceases to
have effect or is revoked or the order containing the direction ceases to have
effect or is revoked, as the case may be.
(4) If,
to the Minister’s knowledge, the direction specified in accordance with
paragraph (2) is varied in a material particular, or the order containing
the direction is varied in a material particular, paragraph (1) shall not
apply unless the direction made by the Minister has been amended to achieve an
equivalent effect.
(5) The
States may, by Regulations, amend this Article.
12 Rules
of court, disclosure and special counsel
(1) The
Schedule has effect.
(2) The
States may, by Regulations, amend the Schedule.
13 Disclosure
of information
Information may be disclosed
for the purpose of –
(a) enabling
or facilitating the exercise of the Minister’s functions under this Law;
or
(b) complying
with any requirement under Article 6(10) of this Law,
notwithstanding any restriction
on such disclosure, whether imposed by statute or otherwise, and such
disclosure shall not give rise to any cause of action in any proceedings.
14 Offences
(1) A
person who fails to comply with a requirement imposed by a direction shall be
guilty of an offence.
(2) No
offence under paragraph (1) is committed if the person took all reasonable
steps and exercised all due diligence to ensure that the requirement would be
complied with.
(3) In
deciding whether a person has committed an offence under paragraph (1),
the court must consider whether the person followed any relevant guidance or
code of practice that was at the time issued by the Commission or any other
relevant supervisory body.
(4) In
deciding whether a person has committed an offence under paragraph (1) –
(a) non-compliance
by the person with any relevant provision of guidance or a code of practice may
be relied on as tending to establish liability; and
(b) compliance
by the person with any relevant provision of guidance or such a code may be
relied on as tending to negative liability.
(5) A
recipient of a direction who intentionally participates in activities knowing
that the object or effect of them is (whether directly or indirectly) to
circumvent a requirement imposed by the direction shall be guilty of an
offence.
(6) A
person who, for the purpose of obtaining a licence under Article 9 –
(a) provides
information that is false in a material respect or a document that is not what
it purports to be; and
(b) knows
that, or is reckless as to whether, the information is false or the document is
not what it purports to be,
is guilty of an offence.
(7) A
person guilty of an offence under this Article is liable to imprisonment for a
term of 7 years and to a fine.[5]
(8) A
person may commit an offence under this Law by conduct wholly or partly outside
Jersey.
(9) Nothing
in paragraph (8) affects any criminal liability arising otherwise than
under that paragraph.
15 Service
of notices
(1) Any
notice required by this Law to be given to any person may be given to or served
on the person in question –
(a) by
delivering it to the person;
(b) by
leaving it at the person’s proper address;
(c) by
sending it by post to the person at that address; or
(d) by
sending it to the person at that address by facsimile, electronic transmission
or other similar means that produces a document containing the text of the
communication in legible form or is capable of doing so.
(2) Any
such notice may –
(a) in
the case of a company incorporated in Jersey, be served by being delivered to
its registered office;
(b) in
the case of a partnership, company incorporated outside Jersey or
unincorporated association, be given to or served on the secretary or other
similar officer of the partnership, company or association or any person who
purports to act in any such capacity, by whatever name called, or to or on the
person having the control or management of the business, as the case may be.
(3) For
the purposes of this Article and of Article 7 of the Interpretation (Jersey) Law 1954 in its application to this Article, the proper address of any
person to or on whom a notice is to be given or served by post shall be the
person’s last known address or, where a notice is served as described in
paragraph (2), the address of the registered office (if there is one) or main
business address of the company, partnership, or unincorporated association.
(4) If
the person to or on whom any notice is to be given or served has notified the
Commission or any relevant supervisory body of an address within Jersey other
than the person’s proper address within the meaning of paragraph (3),
as the one at which the person or someone on the person’s behalf will
accept documents, that address shall also be treated for the purposes of this
Article and Article 7 of the Interpretation (Jersey) Law 1954 as the person’s proper address.
16 Regulations and Orders
An Order or Regulations under
this Law may contain such transitional, consequential, incidental or
supplementary provisions as appear to the Minister or the States, as the case
may be, to be necessary or expedient for the purposes of the Order or
Regulations.
17 Citation
This Law may be cited as the Money
Laundering and Weapons Development (Directions) (Jersey) Law 2012.
Schedule[6]
(Article 12)
rULES OF COURT, DISCLOSURE
AND SPECIAL counsel
1 Application
This Schedule applies to –
(a) proceedings
under Article 10 of this Law; or
(b) proceedings on an
appeal relating to proceedings under Article 10 of this Law.
2 Powers to make rules of
court
Article 13 of the Royal Court (Jersey)
Law 1948 or Article 19 of the Court of Appeal (Jersey)
Law 1961, as the case requires, shall be read to include the provisions of
this Schedule for the purpose of making rules of court in relation to
proceedings to which this Schedule applies.
3 General provisions about rules
of court
(1) In
making rules of court, the Court or the Court of Appeal, as the case requires,
must have regard to –
(a) the
need to secure that the decisions that are the subject of the proceedings are
properly reviewed; and
(b) the
need to secure that disclosures of information are not made where they would be
contrary to the public interest.
(2) Rules
of court may make provision –
(a) about
the mode of proof and about evidence in the proceedings;
(b) enabling
or requiring the proceedings to be determined without a hearing; and
(c) about
legal representation in the proceedings.
(3) Rules
of court may make provision –
(a) enabling
the proceedings to take place without full particulars of the reasons for the
decisions to which the proceedings relate being given to a party to the
proceedings (or to any legal representative of a party to the proceedings);
(b) enabling
the court to conduct proceedings in the absence of any person, including a
party to the proceedings (or any legal representative of a party to the
proceedings);
(c) about
the functions of special counsel;
(d) enabling
the court to give a party to the proceedings a summary of evidence taken in the
party’s absence.
(4) In
this paragraph –
(a) references
to a party to the proceedings do not include the Minister;
(b) references
to a party’s legal representative do not include special counsel.
4 Rules
about disclosure
(1) Subject
to sub-paragraphs (2) to (5), rules of court must secure that the Minister
is required to disclose –
(a) material
on which he or she relies;
(b) material
that adversely affects his or her case; and
(c) material
that supports the case of a party to the proceedings.
(2) Rules
of court must secure –
(a) that
the Minister has the opportunity to make an application to the court before
which the proceedings take place for permission not to disclose material
otherwise than to –
(i) the
court, or
(ii) special
counsel;
(b) that
such an application is always considered in the absence of every party to the
proceedings (and in the absence of every legal representative of every party to
the proceedings);
(c) that
the court is required to give permission for material not to be disclosed if it
considers that the disclosure of the material would be contrary to the public
interest;
(d) that,
if permission is given by the court not to disclose material, it must consider
requiring the Minister to provide a summary of the material to every party to
the proceedings (and to every legal representative of every party to the
proceedings); and
(e) that
the court is required to ensure that such a summary does not contain material
the disclosure of which would be contrary to the public interest.
(3) Rules
of court must secure that in cases where the Minister –
(a) does
not receive the court’s permission to withhold material, but elects not
to disclose it; or
(b) is
required to provide every party to the proceedings (and every legal representative
of every party to the proceedings) with a summary of material that is withheld,
but elects not to provide the summary,
provision applies to the
effect set out in sub-paragraph (4).
(4) The
court must be authorized by the rules of court –
(a) if it
considers that the withheld material (whether or not a summary of that material
is required) might adversely affect the Minister’s case or support the
case of a party to the proceedings, to direct that the Minister shall not rely
on the material, or shall make such concessions or take such other steps, as
the court may specify; or
(b) in
any other case, to ensure that the Minister does not rely on the withheld material
(whether or not a summary of that material is required).
(5) Nothing
in this paragraph, or in rules of court as referred to in it, is to be read as
requiring the court to act in a manner inconsistent with Article 6 of the
Human Rights Convention.
(6) In
this paragraph –
(a) references
to a party to the proceedings do not include the Minister;
(b) references
to a party’s legal representative do not include special counsel; and
(c) “the
Human Rights Convention” means the Convention within the meaning of the Human Rights
(Jersey) Law 2000.
5 Appointment
of special counsel
(1) The
Attorney General shall appoint a panel of persons, such panel consisting of not
less than 10 advocates of the Court, for the purposes of this paragraph.
(2) A
person appointed under sub-paragraph (1) may be removed from the panel at
any time by the Attorney General whether or not at the person’s request.
(3) Subject
to sub-paragraph (5), the Court or Court of Appeal, as the case requires, may
appoint a person (“special counsel”) who is –
(a) a
member of the panel; or
(b) eligible
to be appointed as a special advocate under the Counter-Terrorism Act 2008,
for the purposes described in
sub-paragraph (4).
(4) Those
purposes are to represent the interests of a party to –
(a) proceedings
from which the party (and any legal representative of the party) is excluded;
or
(b) proceedings
(being proceedings on an appeal) from which the party (and any legal
representative of the party) is excluded.
(5) A
person referred to in sub-paragraph (3)(b) shall not be appointed under
sub-paragraph (3) unless the Court or the Court of Appeal, as the case
requires, is satisfied that it is in the public interest or in the interests of
justice to appoint such a person in the particular circumstances of the
proceedings in question.
(6) A
person appointed under sub-paragraph (3) is not responsible to the party
to the proceedings whose interests the person is appointed to represent.