Proceeds of Crime
(Amendment) (Jersey) Law 2008
A LAW to amend further the Proceeds
of Crime (Jersey) Law 1999.
Adopted by the
States 7th November 2007
Sanctioned by
Order of Her Majesty in Council 12th March 2008
Registered by the
Royal Court 28th
March 2008
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
Part 1
Interpretation
1 Interpretation
In this Law, “principal Law” means the Proceeds of Crime
(Jersey) Law 1999[1].
Part 2
failure to disclose knowledge or
suspicion of money laundering
2 Article
1 amended
In Article 1(1) of the principal Law, in the definition
“items subject to legal privilege” –
(a) the
words “in Articles 40 and 41” shall be deleted;
(b) after
the words “not items subject to legal privilege” there shall be
inserted the words “; and ‘legal privilege’ has a
corresponding meaning”.
3 Article
29 amended
In Article 29(1) of the principal Law, for sub-paragraphs (a)
and (b) there shall be substituted the following sub-paragraph –
“(a) under any of Articles 32, 33,
34A and 34D; or”.
4 Articles
34A to 34D inserted
After Article 34 of the principal Law there shall be inserted
the following Articles –
“34A Failure
to disclose knowledge or suspicion of money laundering
(1) A person shall be guilty of an offence
if –
(a) the person knows or suspects that another
person is engaged in money laundering;
(b) the information, or other matter, on which
that knowledge or suspicion is based comes to the person’s attention in
the course of his or her trade, profession, business or employment; and
(c) the person does not disclose the information
or other matter to a police officer as soon as is reasonably practicable after
it comes to his or her attention.
(2) It is not an offence under this Article for
a professional legal adviser to fail to disclose any information or other
matter that comes to him or her in circumstances of legal privilege.
(3) Where a person discloses to a police
officer –
(a) the person’s suspicion or belief that
another person is engaged in money laundering; or
(b) any information or other matter on which
that suspicion or belief is based,
the disclosure shall not be
treated as a breach of any restriction imposed by statute, contract or
otherwise.
(4) A person who is guilty of an offence under
this Article is liable to imprisonment for a term not exceeding 5 years or
to a fine or to both.
(1) It is a defence to a charge of committing an
offence under Article 34A that the person charged had a reasonable excuse
for not disclosing the information or other matter in question.
(2) In the case of a person who was in
employment at the relevant time, it is a defence to a charge of committing an
offence under Article 34A that the person disclosed the information or
other matter in question to the appropriate person in accordance with the
procedure established by the person’s employer for the making of such
disclosures.
(3) A disclosure to which paragraph (2)
applies shall not be treated as a breach of any restriction imposed by statute,
contract or otherwise.
34C Cases
to which Article 34A does not apply
(1) Article 34A does not apply to
information or other matter that comes to a person, as an employer or employee,
in the course of the carrying on of a financial services business.
(2) Article 34A does not apply –
(a) to any person designated by Regulations made
by the States for the purposes of this Article; or
(b) in such circumstances as may be specified,
to any person who falls within such category of person as may be specified in
Regulations made by the States for the purposes of this Article.
(3) Regulations made for the purposes of this
Article may designate any person appearing to the States to be performing
regulatory, supervisory, investigative or registration functions.
(4) The categories of person specified in
Regulations made for the purposes of this Article shall be such categories of
person connected with the performance by any designated person of regulatory,
supervisory, investigative or registration functions.
34D Failure
in a financial institution to report to police officer or nominated officer
(1) A person commits an offence if each of the
following 3 conditions is satisfied.
(2) The first condition is that the
person –
(a) knows or suspects; or
(b) has reasonable grounds for knowing or
suspecting,
that another person is
engaged in money laundering.
(3) The second condition is that the information
or other matter –
(a) on which the person’s knowledge or
suspicion is based; or
(b) that gives reasonable grounds for such
knowledge or suspicion,
comes to him or her in the
course of the carrying on of a financial services business.
(4) The third condition is that the person does
not disclose the information or other matter to a police officer or to a
nominated officer as soon as is practicable after it comes to him or her.
(5) A person does not commit an offence under
this Article if –
(a) the person has a reasonable excuse for not
disclosing the information or other matter; or
(b) the person is a professional legal adviser
and the information or other matter comes to him or her in circumstances of
legal privilege.
(6) A person does not commit an offence under
this Article by failing to disclose any information or other matter that has come
to his or her attention, if –
(a) it comes to the person in the course of his
or her employment in the financial services business;
(b) the person carrying on the financial
services business was required by an Order made under Article 37 to provide the
employee with training, but had not done so;
(c) the training, if it had been given, would
have been material; and
(d) the employee does not know or suspect that
the other person concerned is engaged in money laundering.
(7) In deciding whether a person has committed
an offence under this Article the court must consider whether he or she has
followed any relevant guidance which was at the time concerned –
(a) issued by the 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.
(8) A disclosure to a nominated officer is a
disclosure which –
(a) is made to a person nominated by the
employer of the person making the disclosure 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.
(9) Where a person to whom paragraph (1)
refers discloses to a police officer or a nominated officer –
(a) the person’s suspicion or belief that
another person is engaged in money laundering; or
(b) any information or other matter on which
that suspicion or belief is based,
the disclosure shall not be
treated as a breach of any restriction imposed by statute, contract or
otherwise.
(10) A person who is guilty of an offence under this
Article is liable to imprisonment for a term not exceeding 5 years or to a
fine or to both.”.
5 Article
41A inserted
After Article 41 of the principal Law there shall be inserted
the following Article –
“41A Financial
information and monitoring
(1) Part 1 of Schedule 3 shall have
effect in respect of the obtaining of financial information.
(2) Part 2 of Schedule 3 shall have
effect in respect of account monitoring orders.”.
6 Article
44 amended
In Article 44 of the principal Law, for the words “and
40(11)” there shall be substituted the words “, 40(11) and 41A and
Schedule 3”.
7 Schedule
3 added
After Schedule 2 to the principal Law there shall be added the
following Schedule –
“SCHEDULE 3
(Article 41A)
FINANCIAL INFORMATION AND
MONITORING ORDERS
PART 1
(Article 41A(1))
ORDERS FOR PROVISION OF
FINANCIAL INFORMATION
1 Order to provide customer
information
(1) Where an order is made under this Part of
this Schedule in relation to an investigation into money laundering a police
officer named in the order may require a financial services business to which
the order applies to provide customer information for the purposes of the
investigation.
(2) An order under this Part of this Schedule
may provide that it applies to –
(a) all financial services businesses;
(b) a particular description, or particular
descriptions, of financial services businesses; or
(c) a particular financial services business or
particular financial services businesses.
(3) The information shall be
provided –
(a) in such manner and within such time as the
police officer may specify; and
(b) notwithstanding any restriction on the
disclosure of information imposed by any statute or contract or otherwise.
(4) A financial services business that fails to
comply with a requirement under this paragraph is guilty of an offence.
(5) It is a defence for a financial services
business that is charged with an offence under sub-paragraph (4) to
prove –
(a) that the information required was not in the
possession of the financial services business; or
(b) that it was not reasonably practicable for
the financial services business to comply with the requirement.
(6) a financial services business that is guilty
of an offence under sub-paragraph (4) shall be liable to a fine not
exceeding level 4 on the standard scale.
(7) Where an individual is convicted of an
offence under paragraph 1(4) by virtue of Article 42, the individual
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 to both.
2 Who may apply for order
An order under this Part of
this Schedule may be made on the application of a police officer of at least
the rank of chief inspector.
An order under this Part of
this Schedule may be made by the Bailiff.
4 Consent required for
application
An application for an order
under this Part of this Schedule may only be made with the consent of the
Attorney General.
5 Criteria for making order
The Bailiff may only make an
order under this Part of this Schedule if satisfied that –
(a) the order is sought for the purposes of an
investigation into money laundering;
(b) there are reasonable grounds for suspecting
that the person specified in the application for the order has committed a
money laundering offence;
(c) there are reasonable grounds for believing
that customer information that may be provided in compliance with the order is
likely to be of substantial value (whether or not by itself) to the
investigation for the purposes of which the order is sought; and
(d) there are reasonable grounds for believing
that it is in the public interest for the customer information to be provided,
having regard to the benefit likely to accrue to the investigation if the
information is obtained, and to the circumstances under which the person in
possession of the information holds it.
(1) In this Part of this Schedule
‘customer information’ means (subject to sub-paragraph
(3)) –
(a) information whether a business relationship
exists or existed between a financial services business 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 services business and a customer begins or
ends;
(g) any evidence of a customer’s identity
obtained by a financial services business 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 Part of this
Schedule there is a business relationship between a financial services business
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 –
(a) provide for a class of information to be
customer information, or to cease to be customer information, for the purposes
of this Part of this Schedule; or
(b) extend the meaning of the expression ‘business
relationship’ for the purposes of this Part of this Schedule.
(1) Customer information provided by a financial
services business under this Schedule shall not be admissible in evidence in
criminal proceedings against the financial services business or any of its
employees.
(2) Sub-paragraph (1) shall not apply in
relation to proceedings for an offence under paragraph 1(4).
PART 2
(Article 41A(2))
ACCOUNT MONITORING ORDERS
1 Account monitoring orders
(1) The Bailiff may, on an application made to
him or her by a police officer of at least the rank of chief inspector, make an
account monitoring order against a financial services business if the Bailiff
is satisfied that –
(a) the order is sought for the purposes of an
investigation into money laundering;
(b) there are reasonable grounds for suspecting
that the person specified in the application for the order has committed a
money laundering offence;
(c) there are reasonable grounds for believing
that account information that may be provided in compliance with the order is
likely to be of substantial value (whether or not by itself) to the
investigation for the purposes of which the order is sought; and
(d) there are reasonable grounds for believing
that it is in the public interest for the account information to be provided,
having regard to the benefit likely to accrue to the investigation if the
information is obtained, and to the circumstances under which the person in
possession of the information holds it.
(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 services
business specified in the application in relation to information
which –
(a) relates to an account or accounts held at
the financial services business 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 services business 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 services business 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 a police officer 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.
(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 police
officer who applied for the order or another police officer of at least the
rank of chief inspector.
(1) An application to discharge or vary an
account monitoring order may be made to the Bailiff by –
(a) the police officer who applied for the order
or another police officer of at least the rank of chief inspector; or
(b) any person affected by the order.
(2) The Bailiff may confirm, vary or discharge
the order.
(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 Court.
(1) A statement made by a financial services
business in response to an account monitoring order may not be used in evidence
against it in criminal proceedings.
(2) However, sub-paragraph (1) does not
apply –
(a) in the case of proceedings for contempt of
court;
(b) in the case of proceedings for or in respect
of a confiscation order; or
(c) on a prosecution for an offence where, in
giving evidence, the financial services business 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 services business unless –
(a) evidence relating to it is adduced; or
(b) a question relating to it is asked,
by or on behalf of the
financial services business in the proceedings arising out of the
prosecution.”.
Part 3
Enforcement of External confiscation
orders
8 Article
1 amended
In Article 1(1) of the principal Law in
the definition “external confiscation order”, for the words
“a designated country or territory” there shall be substituted the
word “a country or territory outside Jersey”.
9 Article
28A inserted
After Article 28 of the principal Law
there shall be inserted the following Article –
“28A Enforcement of confiscation orders in a country
or territory outside Jersey
(1) The
States may by Regulations –
(a) make
such provision in connection with the taking of action in a country or
territory outside Jersey with a view to satisfying a confiscation order as
appears to the States to be necessary or expedient;
(b) without
prejudice to the generality of sub-paragraph (a), direct that, in such
circumstances as may be specified in the Regulations, proceeds which arise out
of action taken in a country or territory outside Jersey with a view to
satisfying a confiscation order and which are retained there shall nevertheless
be treated as reducing the amount payable under the order to such extent as may
be specified in the Regulations.
(2) Without
prejudice to the generality of paragraph (1), Regulations made under it
may make –
(a) such
provision as to the evidence or proof of any matter for the purposes of such
Regulations; and
(b) such
incidental, consequential and transitional provision,
as appears to the States to be necessary or expedient.”.
10 Article
38 substituted
For Article 38 of the principal Law there
shall be substituted the following Article –
“38 Recognition of external
confiscation orders
(1) The States may by
Regulations direct that, subject to such modifications as may be specified in
the Regulations, this Law shall apply to –
(a) external confiscation
orders; and
(b) proceedings which 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.
(2) Without
prejudice to the generality of paragraph (1), Regulations made under it
may make –
(a) such
provision as to the evidence or proof of any matter for the purposes of such
Regulations and Article 39; and
(b) such
incidental, consequential and transitional provision,
as appears to the States to be necessary or expedient.”.
11 Article
39 amended
In Article 39(1) of the principal Law, the words “made in
a designated country or territory” shall be deleted.
12 Saving
for Regulations
(1) Regulations
made under Article 38 of the principal Law which are in force immediately
before this Law comes into force shall, to the extent that they make provision
regarding the taking of action with a view to satisfying a confiscation order,
remain in force until revoked by further Regulations made under Article 28A as
inserted by this Law.
(2) Regulations
made under Article 38 of the principal Law which are in force immediately
before this Law comes into force shall, to the extent that they make provision
for the application of the principal Law to external confiscation orders,
remain in force until revoked by further Regulations made under Article 38 as substituted
by this Law.
Part 4
miscellaneous and closing
13 Long
title amended
In the long title of the principal Law, for the words
“forestall and prevent” there shall be substituted the words
“forestall, prevent and detect”.
14 Article
24 amended
(1) In Article
24 of the principal Law –
(a) in
paragraph (2)(b),for the words “assets-sharing arrangement”
there shall be substituted the words “asset sharing agreement”;
(b) in
paragraph (4)(b), for the words “assets-sharing arrangements”
there shall be substituted the words “asset sharing agreements”;
(c) in
paragraph (8),for the words “assets-sharing arrangement” there
shall be substituted the words “asset sharing agreement”.
(2) In
Article 24 of the principal Law, after paragraph (3) there shall be
inserted the following paragraph –
“(3A) The Fund shall be a special fund for the
purposes of the Public Finances (Jersey) Law 2005[2].”.
(3) For
Article 24(8) of the principal Law, there shall be substituted the
following paragraph –
“(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.”.
15 Article
37 amended
(1) In
the heading to Article 37 of the principal Law, for the words
“forestall and prevent” there shall be substituted the words
“prevent and detect”.
(2) For
Article 37(1) to (3) of the principal Law there shall be substituted the
following paragraphs –
“(1) The Minister shall, by Order,
prescribe measures to be taken (including measures not to be taken) by persons
who carry on financial services business, for the purposes of preventing and
detecting money laundering.
(1A) Without prejudice to the generality of
paragraph (1), such measures may include –
(a) identification procedures;
(b) record keeping procedures;
(c) internal reporting procedures; and
(d) training procedures,
to be maintained by persons
who carry on financial services business.
(2) An Order made under this
Article –
(a) may specify supervisory authorities for the
purposes of the Order;
(b) may authorize or require any person who
acquires information in the course of the application of any procedure under
any such Order, or in the course of carrying out any function under any such
Order, or under any other enactment to which the Order refers, to disclose that
information to a police officer, the Commission or any person or institution with
whom that person shares common ownership, management or compliance control; and
(c) may make such other provision as is
reasonably necessary or incidental to the purposes of the Order.
(3) No disclosure in accordance with an Order
made under this Article to any person mentioned in paragraph (2)(b) shall
be treated as a breach of any restriction on disclosure imposed by any
enactment or contract or otherwise or involve the person making it in liability
of any kind.”.
16 Citation
and commencement
This Law may be cited as the Proceeds of Crime (Amendment) (Jersey)
Law 2008 and shall come into force 7 days after it is registered.
a.h. harris
Deputy Greffier of the States