Proceeds of Crime (Cash Seizure) (Jersey) Law 2008

Proceeds of Crime (Cash Seizure) (Jersey) Law 2008 Arrangement Article 1 Interpretation . 73 2 Meaning of “tainted cash ” . 74 3 Searches for cash . 76 4 Seizure of cash . 77 5 Seized cash may be detained initially for 48 hours . 77 6 Orders authorizing detention of cash for longer than 48 hours . 78 7 Payment of detained cash into an account 78 8 Release of detained cash . 79 9 Forfeiture of seized cash . 79 10 Appeal against forfeiture . 80 11 Victims . 80 12 Compensation . 81 13 Offence of obstructing authorized officer 81 14 Law does not derogate from other powers . 82 15 Proceedings and r ules of court 82 16 Misuse of Drugs (Jersey) Law 1978 amended . 82 17 Drug Trafficking Offences (Jersey) Law 1988 amended . 82 18 Proceeds of Crime (Jersey) Law 1999 amended . 82 19 Terrorism (Jersey) Law 2002 amended . 83 20 Public Finances (Jersey) Law 2005 amended . 83 21 Citation and commencement 83 Proceeds of Crime (Cash Seizure) (Jersey) Law 2008 A LAW to provide for the search for, and the seizure, detention and forfeiture of, cash that is used in, or intended to be used in, or obtained in the course of, from the proceeds of, or in connection with, the commission of an offence against a law of a country or territory, including Jersey, and to amend the provisions of the Proceeds of Crime (Jersey) Law 1999 regarding the making of confiscation orders and saisies judiciaires. Adopted by the States 22nd November 2007 Sanctioned by Order of Her Majesty in Council 12th February 2008 Registered by the Royal Court 22nd February 2008 THE STATES , subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law – 1 Interpretation (1) In this Law, unless the context otherwise requires – “ authorized officer ” means any police officer, customs officer or immigration officer; “ cash ” means – (a) bearer-negotiable instruments including monetary instruments in bearer form (such as travellers cheques); (b) negotiable instruments (including cheques, promissory notes and money orders) that are – (i) in bearer form, (ii) endorsed without restriction, (iii) made out to a fictitious payee, or (iv) otherwise in such form that title to them passes upon delivery; (c) incomplete instruments (including cheques, promissory notes and money orders) signed, but with the payee's name omitted; (d) currency (banknotes and coins that are in circulation, whether in Jersey or elsewhere, as a medium of exchange); (e) a monetary instrument of a type prescribed under paragraph (2); (f) a forged or counterfeit version of any instrument or currency mentioned in sub-paragraph (a) to (e) of this definition; “ cash detention order ” means an order made under Article 6(2); “ customs officer ” means the Agent of the Impôts and any other officer appointed pursuant to Article 4 of the Customs and Excise (Jersey) Law 1999 [1] ; “ forfeiture order ” means an order made under Article 9(2); “ immigration officer ” means a person appointed as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971 of the United Kingdom, as extended to Jersey by the Immigration (Jersey) Order 1993 [2] ; “ Minister ” means the Minister for Home Affairs; “ property ” means all property whether movable or immovable, vested or contingent and whether situated in Jersey or elsewhere; “ tainted cash ” has the meaning assigned to it by Article 2; “ unlawful conduct ” means the commission of – (a) an offence against a law of Jersey; or (b) an offence against a law of a country or territory outside Jersey, that, if it had been committed in Jersey, would have been an offence against a law of Jersey; “ vehicle ” includes vessels, aircraft and hovercraft. (2) The Minister may, by Order, prescribe types of monetary instruments for the purposes of the definition of “cash” in paragraph (1). (3) For the purposes of Articles 5 and 7, if any part of a period of 48 hours to which one of those Articles relates includes part or all of a day that is – (a) a Saturday or a Sunday; (b) Christmas Day or Good Friday; or (c) a bank holiday under the Public Holidays and Bank Holidays (Jersey) Law 1951 [3] , the period shall be calculated without taking into account so much of the period as occurs during such a day. 2 Meaning of “tainted cash ” (1) Subject to this Article, in this Law – “tainted cash” is cash that is tainted property; “tainted property” is property that is – (a) used in, or intended to be used in, unlawful conduct; or (b) obtained in the course of, from the proceeds of, or in connection with, unlawful conduct. (2) Property that is held by a person to whom it was disposed after it became tainted property remains tainted property if it was disposed of to the person by – (a) a person who – (i) used the property in, or intended the property to be used in, unlawful conduct, or (ii) obtained the property in the course of, from the proceeds of, or in connection with, unlawful conduct; or (b) a person to whom the property was, after it became tainted property, disposed by a person to whom sub-paragraph (a) or this sub-paragraph applies. (3) If a person enters into a transaction by which – (a) the person disposes of tainted property (including property which is tainted property by virtue of this paragraph or paragraph (4) or (5)); and (b) the person obtains other property in place of it, the other property shall be tainted property. (4) If a person’s tainted property is mixed with other property (whether his or her property or another’s), the portion of the mixed property which is attributable to the tainted property shall be tainted property. (5) Without limiting the generality of the expression “mixed with other property”, for the purposes of paragraph (4), tainted property shall be mixed with other property if it is used – (a) to increase funds held in a bank account; (b) in part payment for the acquisition of an asset; (c) for the restoration or improvement of land; or (d) for the purpose of merging or extinguishing interests in land. (6) If a person who has tainted property obtains further property consisting of profits accruing in respect of the tainted property, the further property shall be tainted property. (7) If a person grants an interest in property of his or hers which is tainted property, the question whether the interest is also tainted property is to be determined in the same manner as it is on any other disposal of tainted property and accordingly, on the person’s granting an interest in the property (the “property in question”) – (a) where the property in question is tainted property, the interest is also to be treated as tainted property; (b) where the property in question is, if held by him or her, tainted property , the interest is also to be treated as tainted property when held by him or her. (8) If – (a) a person disposes of tainted property ; and (b) the person who obtains it on the disposal does so in good faith, for value and without notice that it was tainted property , the property shall cease to be tainted property. (9) If – (a) in pursuance of a judgment in civil proceedings (whether in Jersey or elsewhere), the respondent or defendant makes a payment to the claimant or plaintiff or the claimant or plaintiff otherwise obtains tainted property from the respondent or defendant; (b) the claimant or plaintiff’s claim is based on the respondent or defendant’s unlawful conduct; and (c) apart from this paragraph, the sum received by the claimant or plaintiff would be tainted property , the property shall cease to be tainted property. (10) If – (a) a payment is made to a person in pursuance of a compensation order made under Article 2 of the Criminal Justice (Compensation Orders) (Jersey) Law 1994 [4] or any like order made under any other enactment; and (b) apart from this paragraph, the sum received would be tainted property , the property shall cease to be tainted property. (11) Where – (a) a person enters into a transaction to which paragraph (3) applies; and (b) the disposal is one to which paragraph (8) applies, paragraphs (8), (9) and (10) do not affect the question whether (by virtue of paragraph (3)) any property obtained on the transaction in place of the property disposed of shall be tainted property. (12) If tainted property is forfeited under this or any other Law, the property shall cease to be tainted property. (13) Property that is disposed of in pursuance of an enactment shall cease to be tainted property if – (a) the enactment is prescribed in an Order made by the Minister for the purposes of this paragraph; and (b) the property is of a class prescribed in an Order made by the Minister for the purposes of this paragraph. 3 Searches for cash (1) An authorized officer – (a) who is lawfully on any premises; and (b) who has reasonable grounds for suspecting that there is on the premises cash that is tainted cash, may search the premises for cash and may, for the purposes of such a search, break open and search any container found on the premises. (2) An authorized officer who has reasonable grounds for suspecting that a person is carrying tainted cash (including carrying it in any vehicle) may require the person, or a person who is in the company of the person, to do any or all of the following – (a) bring to a stop a vehicle that the person is driving and permit the authorized officer to search the vehicle and any article in the vehicle; (b) permit the authorized officer to search a vehicle in which the person is or has been situated and any article in the vehicle; (c) permit a search by the authorized officer of any article of which the person has possession; (d) permit the authorized officer to break open any container; (e) remove his or her outer coat, jacket, gloves or headgear so as to enable a search of the person to be conducted; (f) permit an authorized officer of the same sex as the person to search the person, and to remain in the officer’s detention for as long as is necessary to complete such a search. (3) The powers conferred by this Article – (a) are exercisable only so far as is reasonably required for the purposes of finding tainted cash; and (b) are in addition to any power otherwise conferred. 4 Seizure of cash (1) An authorized officer may seize any cash if he or she has reasonable grounds for suspecting that it is tainted cash. (2) An authorized officer may also seize cash, part of which he or she has reasonable grounds for suspecting to be tainted cash, if it is not reasonably practicable to seize only that part. (3) If an authorized officer seizes cash under this Article, he or she shall provide to the person who appears to have had possession of the cash immediately before the seizure, or on whose premises the seized cash was found, a receipt specifying the amount, denominations and currency of the cash. 5 Seized cash may be detained initially for 48 hours Cash seized under this Law may be detained, initially, for a period of up to 48 hours, if the authorized officer continues during that period to have reasonable grounds for his or her suspicion under Article 4 that part or all of the cash is tainted cash. 6 Orders authorizing detention of cash for longer than 48 hours (1) The Attorney General, or, with the consent of the Attorney General, an authorized officer, may apply to the Bailiff for an order to be made under paragraph (2) in relation to cash seized under this Law. (2) The Bailiff may, after receiving an application under paragraph (1), make an order (a “cash detention order”) authorizing the detention, for a period specified in the order, of the cash to which the application relates. (3) The Bailiff may only make a cash detention order in relation to cash if he or she is satisfied – (a) that there are reasonable grounds for suspecting that the cash is tainted cash ; and (b) that the continued detention of the cash is justified while its origin or derivation is further investigated or consideration is given to bringing (in Jersey or elsewhere) proceedings against any person for an offence – (i) in which the cash was used or intended to be used, or (ii) in which, or from the proceeds of which, or in connection with which, the tainted cash was obtained. (4) More than one application may be made under paragraph (1) in relation to cash seized under this Law. (5) An application may only be made under paragraph (1) before the expiry of the authority for detention of the cash, whether detention is authorized under Article 5 or by a cash detention order. (6) A cash detention order – (a) may only authorize the detention of the cash for a period not exceeding 3 months, beginning with the date of the order; (b) shall not authorize the detention of the cash for an aggregate period of more than 2 years, beginning with the date of the first cash detention order made in relation to it. (7) A cash detention order shall provide for notice to be given to persons affected by it. 7 Payment of detained cash into an account (1) If cash is detained under this Law for more than 48 hours, it shall be held in an interest-bearing account and the interest accruing on it shall be added to it on its forfeiture or release. (2) If cash is seized under Article 4(2), the authorized officer shall, on paying it into the account, release so much of the cash then held in the account as is not tainted cash. (3) Paragraph (1) does not apply if the cash – (a) is required as evidence of an offence or evidence in proceedings under this Law; or (b) is being dealt with for the purposes of being forensically examined. 8 Release of detained cash (1) This Article applies while any cash is detained under Article 5 or 6. (2) A person from whom, or from whose premises, cash was seized and detained under this Law may apply to the Bailiff for a direction under paragraph (3) to be made in relation to all or any part of the cash. (3) The Bailiff may, after an application is made by a person under paragraph (2), direct the release to the person of the whole or any part of the cash to which the application relates, if the Bailiff is satisfied that the conditions in Article 6(3) for the detention of cash are not, or are no longer, met in relation to the cash to be released. (4) An authorized officer may, with the consent of the Attorney General, release the whole or any part of the cash if satisfied that the detention of the cash to be released is no longer justified. (5) Cash shall not be released pursuant to paragraph (3) or (4) – (a) where an application for a forfeiture order has been made in relation to the cash, until any proceedings in pursuance of the application, including any proceedings on appeal, are concluded; (b) where proceedings are started, in Jersey or elsewhere, against any person for an offence in which the cash was used or intended to be used or in which, from the proceeds of which or in connection with which, the cash was obtained, until those proceedings are concluded. (6) For the purposes of paragraph (5)(b), proceedings are concluded against any person for an offence when – (a) the prosecution is discontinued; (b) the jury, if any, is discharged without a finding; (c) the person is acquitted; (d) following the person’s conviction, the time within which an application for leave to appeal, or an appeal, against the conviction expires (disregarding any power to grant an application after that time has expired); (e) following the person’s conviction, his or her application for leave to appeal, or appeal, against the conviction is withdrawn or is determined by a court without any further right of appeal. 9 Forfeiture of seized cash (1) The Attorney General may apply to the Royal Court for an order to be made under paragraph (2) in relation to any cash that has been seized and detained under this Law. (2) The Royal Court shall, if it receives an application under paragraph (1) in relation to any cash seized and detained under this Law, make an order (a “forfeiture order”) forfeiting the cash, unless the person against whom the order would be made satisfies the court that the cash is not tainted cash. (3) Proceedings under this Article are civil proceedings. (4) An order may be made under this Article whether or not proceedings are brought against any person for an offence with which the cash in question is connected. (5) Any cash that is forfeited under a forfeiture order shall be paid into a special fund, within the meaning of the Public Finances (Jersey) Law 2005 [5] , that is designated by an Order made by the Minister for Treasury and Resources. 10 Appeal against forfeiture (1) Any party to proceedings in which a forfeiture order is made (other than the Attorney General) may appeal to the Court of Appeal against the making of the order. (2) The Court of Appeal, on an application by an appellant, may order the release of so much of the money to which the forfeiture order relates as it considers appropriate to enable the appellant to meet legal expenses in connect with the appeal. (3) The Court of Appeal, on hearing an appeal under this Article, may make such order as it considers appropriate. 11 Victims (1) A person who claims that any cash detained under this Law, or any part of it, belongs to him or her may apply for the cash or part to be released to him or her under this Article. (2) The application may be made in the course of proceedings under Article 6 or 9 or at any other time before the cash is forfeited pursuant to a forfeiture order. (3) An application made in the course of proceedings under Article 6 shall be made to the Bailiff. (4) An application made other than in the course of proceedings under Article 6 shall be made to the Royal Court. (5) If it appears to the Bailiff or Royal Court that – (a) the applicant was deprived of the cash claimed, or of property which it represents, by unlawful conduct; (b) the cash or property the applicant was deprived of was not, immediately before he or she was deprived of it, obtained by or in return for unlawful conduct and nor did it then represent cash or property obtained by or in return for unlawful conduct; and (c) the cash claimed belongs, or the property which the case represents belonged, to him or her, the Bailiff or Court may order the cash to be released to the applicant (and, where the application is made in the course of proceedings under Article 9, shall do so instead of making a forfeiture order). 12 Compensation (1) If no forfeiture order is made in respect of any cash detained under this Law, the person to whom the cash belongs may make an application to the Royal Court for compensation. (2) The Royal Court may, after receiving an application under paragraph (1) from a person, order compensation to be paid to the person, if – (a) the Court is satisfied that the person has suffered loss as a result of the detention of cash under this Law; (b) having regard to all the circumstances, the Court considers it appropriate to make such an order; and (c) there has been, in relation to the seizure or detention of the cash under this Law, some serious default on the part of another person who – (i) seized or detained the cash, (ii) applied for an order under Article 6 or 9 in relation to the cash, (iii) investigated the origin or derivation of the cash, or (iv) prosecuted the person for an offence in which the tainted cash was used or intended to be used, or in which, from the proceeds of which, or in connection with which, the tainted cash was obtained. (3) The Court shall not order compensation to be paid in any case where it appears to the Court that the application under Article 6 or 9, or the prosecution for an offence, would have been instituted or continued even if the serious default had not occurred. (4) The amount of compensation to be paid under paragraph (2) shall be the amount the Court thinks reasonable, having regard to the loss suffered, the amount of any interest paid under this Law and any other relevant circumstances. (5) Compensation ordered to be paid under this Article shall be paid out of the consolidated fund. (6) If a forfeiture order is made in respect only of a part of any cash detained under this Law, this Article has effect in relation to the other part. (7) A person to whom cash detained under Article 5 or 6 belongs may not make an application under this Article if an order for the release to the person of all or part of the cash has been made under Article 11. 13 Offence of obstructing authorized officer A person who, without reasonable excuse, obstructs an authorized officer in the lawful exercise of the powers conferred on the officer by this Law shall be guilty of an offence and liable to imprisonment for a term of 6 months and to a fine. 14 Law does not derogate from other powers The powers specified in this Law are in addition to, and not in derogation of, any powers given under any other enactment. 15 Proceedings and r ules of court (1) Proceedings under this Law (apart from Article 13) are civil proceedings. (2) The power to make Rules of Court under the Royal Court (Jersey) Law 1948 [6] shall include a power to make Rules for the purposes of this Law and proceedings under this Law. 16 Misuse of Drugs (Jersey) Law 1978 amended In the Misuse of Drugs (Jersey) Law 1978 [7] , for Article 7(5) there shall be substituted the following paragraph – “(5) No information obtained pursuant to an Order shall be disclosed except for the purposes of criminal proceedings or of proceedings under – (a) the provisions of the Drug Trafficking Offences (Jersey) Law 1988 [8] relating to the confiscation of the proceeds of drug trafficking; or (b) the Proceeds of Crime (Cash Seizure) (Jersey) Law 2008.”. 17 Drug Trafficking Offences (Jersey) Law 1988 amended In the Drug Trafficking Offences (Jersey) Law 1988 [9] , Articles 31 to 36 (inclusive) shall be repealed. 18 Proceeds of Crime (Jersey) Law 1999 amended (1) In this Article, a reference to an Article or Schedule by number only is a reference to the Article or Schedule of that number in the Proceeds of Crime (Jersey) Law 1999 [10] . (2) For Article 2(2) there shall be substituted the following paragraph – “(2) However, property is not realisable property if an order under Article 29 of the Misuse of Drugs (Jersey) Law 1978 [11] , Article 26 of the Terrorism (Jersey) Law 2002 [12] or Article 9 of the Proceeds of Crime (Cash Seizure) (Jersey) Law 2008 is in force in respect of the property.”. (3) For Article 3(5)(a)(iii) there shall be substituted the following clause – “(iii) making any forfeiture order under Article 29 of the Misuse of Drugs (Jersey) Law 1978, Article 26 of the Terrorism (Jersey) Law 2002 or Article 9 of the Proceeds of Crime (Cash Seizure) (Jersey) Law 2008; and”. (4) In Article 3(9), the words following “drug trafficking offence” to the end of the paragraph shall be deleted. (5) For Article 10(1)(a)(iii) there shall be substituted the following clause – “(iii) making any forfeiture order under Article 29 of the Misuse of Drugs (Jersey) Law 1979, Article 26 of the Terrorism (Jersey) Law 2002 or Article 9 of the Proceeds of Crime (Cash Seizure) (Jersey) Law 2008; and”. (6) In Schedule 1, for the words “but not being -” to the end of the Schedule there shall be substituted the words “but not being a drug trafficking offence”. 19 Terrorism (Jersey) Law 2002 amended In the Terrorism (Jersey) Law 2002 [13] , Article 27 and Schedule 4 shall be repealed. 20 Public Finances (Jersey) Law 2005 amended In the Public Finances (Jersey) Law 2005 [14] – (a) in Article 1(1), for the definition “special fund” there shall be substituted the following definition – “ ‘special fund’ means – (a) a fund established under Article 3(3); and (b) a fund declared by any enactment to be a special fund for the purposes of this Law;”; (b) in Article 3(4), after the words “a special fund” there shall be inserted the words “(apart from a special fund established in, or declared to be a special fund by, any enactment)”. 21 Citation and commencement This Law may be cited as the Proceeds of Crime (Cash Seizure) (Jersey) Law 2008 and shall come into force 7 days after it is registered. a.h. harris Deputy Greffier of the States [1] chapter 24.660 [2] chapter 21.700 [3] chapter 15.560 [4] chapter 08.200 [5] chapter 24.900 [6] chapter 07.770 [7] chapter 08.680 [8] chapter 08.580 [9] chapter 08.580 [10] chapter 08.780 [11] chapter 08.680 [12] chapter 17.860 [13] chapter 17.860 [14] chapter 24.900