Drug Trafficking Offences (Amendment) (Jersey) Law 2008

Drug Trafficking Offences (Amendment) (Jersey) Law 2008 Arrangement Article part 1 177 interpretation 177 1 Interpretation . 177 Part 2 177 Failure to Disclose knowledge or suspicion of money laundering 177 2 Article 1 amended . 177 3 Article 40 amended . 178 4 Articles 40A to 40D inserted . 178 5 Article 41 amended . 181 6 Article 44A inserted . 181 7 Article 47 amended . 181 8 Schedule 2 added . 181 Part 3 187 Miscellaneous and closing 187 9 Article 24 amended . 187 10 Article 39 substituted . 187 11 Saving for Regulations . 188 12 Citation and commencement 188 Drug Trafficking Offences (Amendment) (Jersey) Law 2008 A LAW to amend further the Drug Trafficking Offences (Jersey) Law 1988. 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 Drug Trafficking Offences (Jersey) Law 1988 [1] . Part 2 Failure to Disclose knowledge or suspicion of money laundering 2 Article 1 amended In Article 1(1) of the principal Law – (a) after the definition “defendant” there shall be inserted the following definition – “ ‘drug money laundering’ means doing any act which constitutes an offence under Article 30, 37 or 38 or in the case of an act done outside Jersey would constitute such an offence if done in Jersey; and for the purposes of this definition, having possession of any property shall be taken to be doing an act in relation to it;”; (b) after the definition “external confiscation order” there shall be inserted the following definition – “ ‘financial services business’ has the same meaning as it has in Article 1(1) of the Proceeds of Crime (Jersey) Law 1999 [2] ;”; (c) in the definition “items subject to legal professional privilege”, after the words “a criminal offence” there shall be inserted the words “; and ‘legal professional privilege’ has a corresponding meaning”. 3 Article 40 amended In Article 40 of the principal Law – (a) in paragraph (2), for the words “privileged circumstances” there shall be substituted the words “circumstances of legal professional privilege”; (b) for paragraphs (7), (8), (9) and 10) there shall be substituted the following paragraph – “(7) This Article 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.”. 4 Articles 40A to 40D inserted After Article 40 of the principal Law there shall be inserted the following Articles – “40A 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 drug 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; (b) the person is a professional legal adviser and the information or other matter comes to him or her in circumstances of legal professional 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 of the Proceeds of Crime (Jersey) Law 1999 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 drug 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 guilty of an offence under this Article shall be liable to imprisonment for a term not exceeding 5 years or to a fine or to both. 40B Restrictions on disclosure (1) Information that is disclosed to a police officer under Article 37, 38, 40 or 40A shall not be disclosed by that police officer, or by any person who obtains the information directly or indirectly from the police officer, unless its disclosure is permitted under Article 40C or 40D. (2) A person who contravenes paragraph (1) shall be guilty of an offence and 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. (3) In proceedings against a person for an offence under this Article, it shall be a defence to prove that the person took all reasonable steps and exercised due diligence to avoid committing the offence. (4) No prosecution shall be instituted for an offence under this Article without the consent of the Attorney General. 40C Disclosure for purposes within Jersey (1) Article 40B does not prohibit the disclosure of information to a person in Jersey for the purposes of the investigation of crime in Jersey or of criminal proceedings in Jersey. (2) Article 40B does not prohibit the disclosure of information, for other purposes in Jersey, to – (a) the Attorney General; (b) the Jersey Financial Services Commission; (c) a police officer; or (d) any other person who is for the time being authorized in writing by the Attorney General to obtain that information. 40D Disclosure for purposes outside Jersey (1) Article 40B does not prohibit the disclosure of information if – (a) the Attorney General has consented to the disclosure and has not withdrawn that consent; and (b) the information is disclosed – (i) for the purposes of the investigation of crime outside Jersey or of criminal proceedings outside Jersey, or (ii) to an authority outside Jersey which is a competent authority for the purposes of Article 3(3) of the Investigation of Fraud (Jersey) Law 1991 [3] . (2) The Attorney General may give consent – (a) generally or specifically; and (b) unconditionally or subject to such conditions as the Attorney General may stipulate. (3) Without prejudice to the generality of paragraph (2), the Attorney General’s consent may be given in terms that permit the disclosure from time to time (as the occasion requires) of such a class of information as is specified in the consent to such a person or authority or class of persons or authorities as is so specified. (4) Without prejudice to the generality of paragraph (2), a condition – (a) may be expressed generally or in respect of any specified information; (b) may provide that information may only be disclosed in specified circumstances or for a specified purpose; or (c) may provide that any person or authority to whom information is disclosed shall not disclose it to any other person or body without the prior consent of the Attorney General.”. 5 Article 41 amended Article 41(7) of the principal Law shall be deleted. 6 Article 44A inserted After Article 44 of the principal Law there shall be inserted the following Article – “44A Financial information and monitoring (1) Part 1 of Schedule 2 shall have effect in respect of the obtaining of financial information. (2) Part 2 of Schedule 2 shall have effect in respect of account monitoring orders.”. 7 Article 47 amended In Article 47(1) of the principal Law, for the words “the Schedule” there shall be substituted the words “Schedule 1”. 8 Schedule 2 added (1) The Schedule to the principal Law shall be renumbered as Schedule 1. (2) After Schedule 1 to the principal Law (as so renumbered) there shall be added the following Schedule – “SCHEDULE 2 (Article 44A) FINANCIAL INFORMATION AND MONITORING ORDERS PART 1 (Article 44A(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 drug 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 otherwise. (4) A financial services business that fails to comply with a requirement under this paragraph shall be 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 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), 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. 3 Who may make order 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 drug money laundering; (b) there are reasonable grounds for suspecting that the person specified in the application for the order has committed a drug money laundering offence; (c) there are reasonable grounds for believing that customer information which 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. 6 Customer information (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 drug 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. 7 Self-incrimination (1) Customer information provided by a financial services business under this Part of 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 44A(2)) ACCOUNT MONITORING ORDER 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 drug money laundering; (b) there are reasonable grounds for suspecting that the person specified in the application for the order has committed a drug money laundering offence; (c) there are reasonable grounds for believing that account information which 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. 2 Applications (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. 3 Discharge or variation (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. 4 Effect of orders (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. 5 Statements (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 Miscellaneous and closing 9 Article 24 amended In Article 24(8) of the principal Law, for the definition “assets-sharing agreement” there shall be substituted the following definition – “ ‘asset sharing agreement’ means an agreement or arrangement made by or on behalf of Jersey with a country or territory outside Jersey for the sharing of the proceeds of drug trafficking that, as a result of mutual assistance, have been confiscated or forfeited either in Jersey or elsewhere;”. 10 Article 39 substituted For Article 39 of the Drug Trafficking Offences (Jersey) Law 1988 there shall be substituted the following Article – “39 Enforcement of confiscation orders and 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) 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. (3) Without prejudice to the generality of paragraphs (1) and (2), Regulations made under either of them may make – (a) such provision as to the evidence or proof of any matter for the purposes of such Regulations or this Article; and (b) such incidental, consequential and transitional provision, as appears to the States to be necessary or expedient. (4) In this Law – ‘ external confiscation order’ means an order made by a court in a country or territory outside Jersey for the purpose of recovering payments or other rewards received in connection with drug trafficking or their value; and ‘ modifications’ includes additions, alterations and omissions. (5) On an application made by or on behalf of the government of a country or territory outside Jersey, the Court may register an external confiscation order made there if – (a) it is satisfied that at the time of registration the order is in force and 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 him or her 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. (6) In paragraph (5)(a), ‘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. (7) The Court shall cancel the registration of an external confiscation order if it appears to the Court that the order has been satisfied by 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.”. 11 Saving for Regulations Regulations made under Article 39 of the Drug Trafficking Offences (Jersey) Law 1988 which are in force immediately before this Law comes into force shall remain in force until revoked by further Regulations made under that Article as substituted by this Law. 12 Citation and commencement This Law may be cited as the Drug Trafficking Offences (Amendment) (Jersey) Law 2008 and shall come into force 7 days after it is registered. a.h. harris Deputy Greffier of the States [1] chapter 08.580 [2] chapter 08.780 [3] chapter 08.640