Forfeiture of Assets (Civil Proceedings) (Jersey) Law 2018

Forfeiture of Assets (Civil Proceedings) (Jersey) Law 2018 Arrangement Article PART 1 3 interpretation 3 1 Interpretation: general 3 2 Meaning of “tainted property” . 5 3 Property ceasing to be tainted property . 6 PART 2 7 CASH SEIZURE 7 4 Searches for cash . 7 5 Seizure of cash . 8 6 Initial detention of seized cash for 96 hours . 8 7 Orders authorizing detention of cash for longer than 96 hours . 9 8 Treatment of detained cash . 9 9 Release of detained cash . 10 PART 3 11 FORFEITURE OF TAINTED PROPERTY 11 10 Notice to be given of summary procedure . 11 11 Forfeiture of tainted property: summary procedure . 12 12 Property restraint orders . 12 13 Effect of property restraint order 13 14 Discharge of property restraint order 14 15 Forfeiture of tainted property: general procedure . 14 16 Appeals against forfeiture orders . 15 17 Bankruptcy . 15 part 4 16 investigative etc. powers 16 18 Civil forfeiture investigations . 16 19 Production orders . 16 20 Authority for search . 18 21 Customer information . 19 22 Orders to provide customer information . 20 23 Account monitoring orders . 22 24 Disclosure orders . 24 25 Copying and retention of documents . 26 PART 5 26 GENERAL PROVISIONS 26 26 Nature of proceedings, and rules of court 26 27 Release of restrained etc. property . 26 28 Limitation of liability of Viscount 27 29 Limitation of liability of Attorney General 27 30 Compensation where bad faith proven . 28 31 Offence of obstruction . 28 32 Offence of tipping off or interference with documents etc. 29 33 Liability of directors etc. 29 34 Consent to settlement 30 35 Civil Asset Recovery (International Co-operation) (Jersey) Law amended . 30 36 Repeal 30 37 Citation and commencement 31 Forfeiture of Assets (Civil Proceedings) (Jersey) Law 2018 A LAW to provide for the seizure and forfeiture, by way of civil proceedings, of cash and other assets suspected to be property originating, or intended to be used, in unlawful conduct; to confer powers to investigate into the nature, ownership, extent and whereabouts of such property, including powers to search, to require information, and to monitor bank accounts; to create offences of obstruction of, and interference with, such investigations; to compensate owners of property wrongly seized or forfeited; and for connected purposes Adopted by the States 10th April 2018 Sanctioned by Order of Her Majesty in Council 11th July 2018 Registered by the Royal Court 20th July 2018 THE STATES , subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law – PART 1 interpretation 1 Interpretatio n : general (1) In this Law, unless otherwise provided or required by the context – “ account monitoring order ” means an order under Article 23; “ authorized officer ” means any police officer, customs officer, immigration officer, and any other officer of the Financial Intelligence Unit designated under Regulation 2 of the Proceeds of Crime (Financial Intelligence) (Jersey) Regulations 2015 [1] ; “ bank ” means any person or entity carrying on a deposit-taking business as defined in Article 3 of the Banking Business (Jersey) Law 1991 [2] , except – (a) the States; (b) the central bank of a Member State of the European Union; (c) the National Savings Bank of the United Kingdom; or (d) subject to such conditions or restrictions as may be prescribed, any other prescribed person or entity; “ cash ” has the meaning given by paragraph (2); “ cash detention order ” means an order under Article 7; “ civil forfeiture investigation ” has the meaning given by Article 18; “ confiscation order ” has the meaning given by Article 1 of the Proceeds of Crime (Jersey) Law 1999 [3] ; “ Court ” means the Royal Court; “ 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 [4] ; “ customer information ” has the meaning given by Article 21; “ customer information order ” means an order under Article 22; “ disclosure order ” means an order under Article 24; “ forfeiture order ” means an order for the forfeiture of tainted property made under either Article 11 or 15, as the case may be; “ 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 [5] as amended by the Immigration (Jersey) (Amendment) Order 2017 [6] ; “ material ” includes, but is not limited to, the property which is the subject of a civil forfeiture investigation; “ Minister ” means the Chief Minister; “ police officer ” means a member of the States of Jersey Police Force; “ prescribed ” means prescribed by Order of the Minister; “ property ” means movable property situated in Jersey, whether vested or contingent, and including – (a) any legal document or instrument evidencing title to or interest in such property; and (b) any interest in or power in respect of such property, including a right to possession, and for the avoidance of doubt, except where the context does not permit or where otherwise specified, a reference to property includes reference to cash; “ property restraint order ” means an order under Article 12; “ tainted cash ” means tainted property in the form of cash; “ tainted property ” has the meaning given by Article 2; “ unlawful conduct ” means conduct – (a) constituting an offence against a law of Jersey; or (b) which, if it occurs or has occurred outside Jersey, would have constituted such an offence if occurring in Jersey; “ vehicle ” includes a vessel, aircraft or hovercraft. (2) In this Law, “cash” means – (a) currency (that is, banknotes and coins in circulation, whether in Jersey or elsewhere, as a medium of exchange); (b) bearer-negotiable instruments including monetary instruments in bearer form (such as travellers cheques); (c) negotiable instruments (including cheques, promissory notes and money orders) which 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; (d) incomplete instruments (that is, signed instruments including cheques, promissory notes and money orders, with the payee’s name omitted); (e) forged or counterfeit versions of any of the items listed in sub-paragraphs (a) to (d); and (f) such other types of monetary instruments as may be prescribed for the purposes of this definition. (3) In the calculation of any period for the purposes of this Law, if any part of the period includes part or all of a day which 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 [7] , the period shall be calculated without taking into account that day or part of a day. (4) The States may by Regulations amend any provision of this Part. 2 Meaning of “tainted property” (1) For the purposes of this Law, “tainted property” means property (as further defined by paragraphs (2) to (7)) which is or, by the Attorney General or any officer on whom powers are conferred by this Law, is reasonably suspected to be or have been – (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 remains tainted property in the hands of a person to whom it is disposed, if the person disposing of it is – (a) a person who – (i) used the property in, or intended it 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 tainted property was disposed, by a person to whom sub-paragraph (a) or this sub-paragraph applies. (3) If a person enters into a transaction by which the person – (a) disposes of tainted property; and (b) obtains other property in place of the tainted property, the other property so obtained is tainted property, whether or not any of paragraphs (4) to (6) of Article 3 apply in respect of the transaction or the property disposed of. (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 is tainted property. (5) Without limiting the generality of the expression “mixed with other property”, for the purposes of paragraph (4), tainted property is 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 is tainted property. (7) If a person grants an interest in his or her tainted property, the question of whether the interest is also tainted property is to be determined in the same manner as any other disposal of tainted property and accordingly upon the grant of the interest – (a) if the property in which the interest is granted is tainted property, the interest is also to be treated as tainted property; (b) if the property in which the interest is granted is tainted property if held by the person granting it, the interest is also to be treated as tainted property if held by him or her. 3 Property ceasing to be tainted property (1) Property ceases to be tainted property in any of the ways described in paragraphs (2) to (6). (2) Property forfeited under this or any other Law shall cease to be tainted property. (3) Property disposed of pursuant to an enactment shall cease to be tainted property if – (a) the enactment is one which is prescribed for the purposes of this paragraph; and (b) the property is of a class which is so prescribed. (4) If – (a) a person disposes of tainted property; and (b) another person, who obtains the property on the disposal, does so – (i) in good faith, (ii) for value, and (iii) without notice that it is tainted property, the property shall cease to be tainted property. (5) If – (a) pursuant to a judgment in civil proceedings (whether in Jersey or elsewhere) – (i) the respondent or defendant makes a payment to the claimant or plaintiff, or (ii) the claimant or plaintiff otherwise obtains property from the respondent or defendant; (b) the claim in the proceedings arose from the respondent or defendant’s unlawful conduct; and (c) apart from this paragraph, the property received by the claimant or plaintiff would be tainted property, the property shall cease to be tainted property. (6) If – (a) a payment is made to a person pursuant to a compensation order under Article 2 of the Criminal Justice (Compensation Orders) (Jersey) Law 1994 [8] or any like order made under another enactment; and (b) apart from this paragraph, the property received by way of such payment would be tainted property, the property shall cease to be tainted property. PART 2 CASH SEIZURE 4 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 item of furniture, safe or other 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 all or any of the following – (a) bring to a stop a vehicle that the person is driving and permit the officer to search the vehicle and any article in the vehicle; (b) permit the officer to search a vehicle in which the person is or has been situated and to search any article in the vehicle; (c) permit a search by the officer of any article of which the person has possession; (d) permit the officer to break open any container; (e) remove his or her clothing 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 any search under this paragraph. (3) The powers conferred by this Article – (a) are in addition to any similar power otherwise conferred by this Law or any other enactment; and (b) are exercisable only so far as is reasonably required for the purpose of finding tainted cash. 5 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 reasonable to seize only that part. (3) If an authorized officer seizes cash under this Article, he or she must provide to any person – (a) who appears to have had possession of the cash immediately before it was seized; or (b) on whose premises the seized cash was found, a receipt specifying the amount, currency and denomination of the cash. 6 Initial detention of seized cash for 96 hours Cash seized under this Law may be detained for an initial period of up to 96 hours, if the authorized officer continues during that period to have reasonable grounds for his or her suspicion that part or all of the cash is tainted cash. 7 Orders authorizing detention of cash for longer than 96 hours (1) An application may be made to the Bailiff by – (a) the Attorney General; or (b) an authorized officer, with the consent of the Attorney General, for an order (a “cash detention order”) to be made under this Article, authorizing the detention of cash seized under this Part. (2) An application under paragraph (1) must be made before the expiry of the existing authority for detention of the cash to which the application relates, whether such authority is given by Article 6 or by a previous cash detention order. (3) More than one application may be made under paragraph (1) in relation to cash seized under this Law. (4) The Bailiff may not make a cash detention order unless he or she is satisfied – (a) that there are reasonable grounds for suspecting that the cash to which the application relates is tainted cash; and (b) that the continued detention of the cash is justified while – (i) its origin or derivation is further investigated, or (ii) consideration is given to bringing (in Jersey or elsewhere) proceedings against any person for unlawful conduct by reason of which the cash is alleged to be tainted cash. (5) A cash detention order shall provide for notice to be given to all persons affected by it. (6) The Bailiff may cancel a cash detention order if it appears to the Bailiff (whether of the Bailiff’s own motion, or on an application made by a person to whom notice was given under paragraph (5)) that any proposed proceedings to which the order relates have not been instituted within the time which the Bailiff considers reasonable. 8 Treatment of detained cash (1) Subject to paragraph (3), cash detained under the authority of a cash detention order for more than 96 hours shall be paid into and held in an interest-bearing bank account. (2) Any interest accruing to the bank account in respect of detained cash shall be added to the amount of the cash on its forfeiture under Article 15 or its release under Article 9. (3) Paragraph (1) does not apply if and for so long as the cash – (a) is required as evidence of an offence or evidence in proceedings under this Law, the Proceeds of Crime (Jersey) Law 1999 [9] , or the Terrorism (Jersey) Law 2002 [10] ; or (b) is being dealt with for the purposes of being forensically examined. (4) On paying in to the account any cash which was seized under Article 5(2), the authorized officer must release so much of the cash as is not subject to the cash detention order. 9 Release of detained cash (1) This Article applies while any cash is detained under Article 6 or 7. (2) Subject to paragraph (6), the cash may be released – (a) by order of the Bailiff – (i) pursuant to cancellation of a cash detention order under Article 7(6), or (ii) under paragraph (4); (b) by an authorized officer, under Article 8(4); or (c) under the authority of the Attorney General, pursuant to paragraph (5). (3) A person from whom, or from whose premises, cash has been seized and detained under this Law may apply to the Bailiff for an order to release all or any part of the cash. (4) If, on an application under paragraph (3), the Bailiff is satisfied that the conditions in Article 7(4) are not, or are no longer, met in relation to the cash to which the application relates, the Bailiff may order the release to the applicant of the whole or any part of the cash, and such an order shall provide for notice to be given to persons affected by it. (5) The Attorney General may authorize the release of the whole or any part of the cash if satisfied that the detention of the cash is no longer justified. (6) Cash shall not be released – (a) where an application for a forfeiture order has been made in relation to the cash, until any proceedings pursuant to the application (including any proceedings on appeal) are concluded; or (b) where proceedings are started, in Jersey or elsewhere, against any person for unlawful conduct by reason of which the cash is alleged to be tainted cash, until those proceedings are concluded. (7) For the purposes of paragraph (6)(b), proceedings against any person for an offence are concluded when – (a) the prosecution is discontinued; (b) the jury, if any, is discharged without a finding and no further jury is empanelled; (c) the person is acquitted of the offence; (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); or (e) following the person’s conviction, his or her application for leave to appeal, or appeal, against the conviction is either withdrawn or determined by a court from which there lies no further right of appeal. PART 3 FORFEITURE OF TAINTED PROPERTY 10 Notice to be given of summary procedure (1) Where the conditions in paragraph (2) are fulfilled, a notice may be served in accordance with paragraph (4) by the Attorney General upon the holder of an account held at a bank in Jersey. (2) The conditions mentioned in paragraph (1) are that – (a) the Attorney General has reasonable grounds to believe that property held in the bank account is tainted property; (b) in relation to the bank account or any property in the bank account, a consent request has been made to an authorized officer; (c) an authorized officer refused the consent requested; and (d) notification of the refusal was given to the person making the request at least 12 months before the date on which the notice is to be served. (3) For the purposes of paragraph (2)(b), a “consent request” means a request – (a) under Article 32 of the Proceeds of Crime (Jersey) Law 1999, for consent to do any act or to deal with property held in the bank account in any way which would, apart from paragraph (3) of that Article, amount to the commission of an offence under Article 30 or 31 of that Law; or (b) under Article 18 of the Terrorism (Jersey) Law 2002, for consent to do anything which would, apart from paragraph (1) of that Article, amount to the commission of an offence under Article 15 or 16 of that Law, made by a person making a disclosure in accordance with either of those Articles. (4) A notice under this Article shall be a notice by way of representation and shall – (a) state the name of the holder of the bank account to whom it is addressed; (b) specify the details of the bank account and of the property or part of the property in the bank account which in the opinion of the Attorney General is tainted property; (c) state a date on which, and a place and time at which, the holder of the bank account is required to attend a hearing of the Court to show cause why the property so specified is not tainted property and should not be forfeited; and (d) be served on – (i) the holder of the bank account, and (ii) the bank at which the account in question is held, and if an address for service on the holder of the bank account is not known, service on the bank only shall be taken as sufficient for the purposes of this paragraph. 11 Forfeiture of tainted property: summary procedure (1) If the person on whom a notice under Article 10(4)(d)(i) is served (the “respondent”) fails to attend the hearing as required by the notice, the Attorney General may apply forthwith for a forfeiture order, and the Court may make such an order, without further notice to the respondent. (2) If the respondent appears (whether in person or by a legal representative) at the hearing, the respondent may – (a) at the hearing, satisfy the Court that the property is not tainted property; or (b) request that the question of whether or not the property is tainted property be determined at such later date as the Court may order. (3) If the respondent makes a request under paragraph (2)(b), the respondent must provide an affidavit in answer to the notice within the period of 21 days beginning with the date on which the matter is placed on the list, satisfying the Court that the property is not tainted property. (4) Unless the respondent satisfies the Court that the property is not tainted property, the Court shall, upon the application of the Attorney General, make a forfeiture order in relation to the property specified in the notice or any part of it. (5) Property which is forfeited pursuant to a forfeiture order under this Article shall be paid into the Criminal Offences Confiscations Fund established under Article 24 of the Proceeds of Crime (Jersey) Law 1999. 12 Property restraint orders (1) Where, in any case other than one to which Article 10 applies, the Attorney General has reasonable grounds to believe that property held in any bank account is tainted property, the Attorney General may apply for an order under this Article (a “property restraint order”) prohibiting the withdrawal, transfer or payment out of the bank account of the property, or part of the property, as specified in the application. (2) An application under paragraph (1) shall be made ex parte to the Bailiff in Chambers. (3) Pursuant to an application under paragraph (1), and subject to Article 17, the Bailiff may make a property restraint order in relation to any property specified in the order if the Bailiff is satisfied that there are reasonable grounds to believe that the property in question is tainted property, and that either – (a) the making of such an order is justified in all the circumstances and for a reasonable period whilst – (i) the origin or derivation of the property is further investigated, or (ii) consideration is given to bringing proceedings in Jersey in respect of the property; or (b) such proceedings have been commenced but not concluded. (4) In making a property restraint order the Bailiff may make such further provision and give all such directions as the Bailiff considers reasonable, including (but not limited to) – (a) directions relating to the management of or dealing with the property; (b) provision as to the duration of the prohibition to be placed on the property by the order; (c) directions as to service on, or the provision of notice to, persons affected by it; and (d) directions prohibiting any specified person from dealing with any property – (i) held by that person, whether such property is specified in the order or not, or (ii) transferred to that person after the making of the order. (5) A property restraint order shall – (a) state the name of the holder of the bank account in relation to which it is made; (b) specify the details of the bank account and of the property or part of the property in respect of which it is made; (c) specify the date on which that property shall vest in the Viscount under Article 13; and (d) specify any conditions upon which it is made and any directions given under paragraph (4). 13 Effect of property restraint order (1) Property which is specified in a property restraint order shall vest in the Viscount – (a) from the date specified in the order; and (b) in accordance with paragraph (3), and the Viscount shall take possession of and, in accordance with any directions given by the Court, manage or otherwise deal with that property. (2) The bank holding the account in question, or any other person specified in a property restraint order as having possession of the specified property, may be required by the order to give possession of the specified property to the Viscount. (3) Property vesting in the Viscount under this Article shall, to the extent that it is subject to any security interest, or to any right of set-off enjoyed by the bank, continue to be so subject unless the Bailiff, being satisfied that – (a) such an interest or right was not obtained, given or created in good faith; or (b) for any other reason, it is appropriate in the interests of justice so to order, orders otherwise. (4) Any interest accruing to a bank account in respect of property which is specified in a property restraint order shall also be subject to the order, and shall be added to the property upon forfeiture or release. (5) The Viscount shall be entitled to be remunerated, out of property vesting in him or her, for such fees and expenses as he or she may reasonably incur in the management of, or in otherwise dealing with, such property. 14 Discharge of property restraint order (1) A property restraint order in respect of any property shall be discharged upon the making of a forfeiture order in respect of the same property. (2) An application for the discharge or variation of a property restraint order may be made to the Bailiff in Chambers by any person affected by the order and the Bailiff may rule upon the application in accordance with paragraph (3) or, at the Bailiff’s discretion, refer it to the Court for adjudication. (3) The Bailiff may not order the discharge of a property restraint order unless the Bailiff or, following a reference under paragraph (2), the Court is satisfied that the reasons for which the property restraint order was made under Article 12(3) no longer apply. (4) The Bailiff or, as the case may be, the Court may order the release of so much of the property in question as it considers appropriate to enable the applicant to meet legal expenses in connection with the application for variation or discharge. (5) An order for discharge or variation of a property restraint order may be made subject to such terms or upon such conditions as the Bailiff or, as the case may be, the Court may think fit. (6) Notice of an application under this Article shall be given to the Attorney General and to all other persons affected by the property restraint order. 15 Forfeiture of tainted property: general procedure (1) The Attorney General may apply to the Court for a forfeiture order to be made under paragraph (3) in relation to the whole or any part of property which is subject to a cash detention order or a property restraint order. (2) Upon making an application under paragraph (1), the Attorney General shall give notice of the application to all persons to whom notice of the cash detention order or the property restraint order, as the case may be, was given. (3) Unless the Court is satisfied, by the person against whom such an order is proposed to be made, that the property in question is not tainted property, the Court shall make an order for the forfeiture of the property. (4) The Court may order the release of so much of the property in question as it considers appropriate to enable the person against whom such an order is proposed to be made to meet legal expenses in connection with the application under paragraph (1). (5) A forfeiture order may be made subject to any security interest or to any right of set-off enjoyed by the bank in the property, unless the Court is satisfied that such an interest or right was not obtained, given or created in good faith. (6) A forfeiture order may be made whether or not proceedings are or are to be brought against any person for an offence with which the property in question is connected. (7) Cash or other movable property which is forfeited pursuant to a forfeiture order under this Article shall be paid into the Criminal Offences Confiscations Fund established under Article 24 of the Proceeds of Crime (Jersey) Law 1999. 16 Appeals against forfeiture orders (1) Any party (other than the Attorney General) to proceedings in which a forfeiture order is made (whether under Article 11 or Article 15) may appeal to the Court of Appeal against the making of the order. (2) On an appeal under paragraph (1) the Court of Appeal may order the release of so much of the property in question as it considers appropriate to enable the appellant to meet legal expenses in connection with the appeal. (3) Any person who is not a party to proceedings described in paragraph (1), but is affected by such proceedings, may appeal with the leave of the Court of Appeal against the making of a forfeiture order. (4) On hearing an appeal under this Article the Court of Appeal may make such order and give such directions as it considers appropriate. 17 Bankruptcy (1) Where a property restraint order specifies property of a person who is adjudged bankrupt by an order made after the property restraint order, no property of that person specified in the property restraint order or vested in the Viscount under Article 13 shall form part of that person’s estate for the relevant bankruptcy proceedings. (2) The powers conferred on the Bailiff under Article 12 shall not be exercised in relation to – (a) property which a person who has become bankrupt has placed under the control of the Court (a remis entre les mains de la Justice ); (b) property which has been declared en désastre ; (c) property of which a person who has become bankrupt has made a general cession ( a fait cession générale ); or (d) property which has been adjudged renounced ( adjugé renoncé ). (3) Paragraph (2) does not affect the application of Articles 13 or 15 in relation to property which was specified in a property restraint order made before the person mentioned in paragraph (2)(a) or (c) became bankrupt. part 4 investigative etc. powers 18 Civil forfeiture investigations (1) For the purposes of this Law, a “civil forfeiture investigation” is an investigation being conducted, in Jersey or elsewhere, into all or any of the matters listed in paragraph (2), with a view or in relation to – (a) proceedings being brought under this Law in connection with any property which is or is reasonably suspected of being tainted property; (b) non-conviction based proceedings being brought – (i) under legislation in force in any country or territory other than Jersey, (ii) relating to the forfeiture of property in Jersey, (iii) by a court of that other country or territory; or (c) service of a process or document under Article 2 of the Civil Asset Recovery (International Co-operation) (Jersey) Law 2007 [11] , where a request for such service has been received by the Attorney General as described in that Article. (2) The matters mentioned in paragraph (1) are – (a) the question of whether any property is tainted property; (b) the identity, or suspected unlawful conduct, of any person who holds property which is suspected of being tainted property, or to whom such property belongs; (c) the extent or whereabouts of such property. 19 Production orders (1) The Attorney General, or an authorized officer acting with the Attorney General’s consent, may, for the purposes of a civil forfeiture investigation, apply to the Bailiff for an order under this Article in relation to material specified in the application. (2) An application under paragraph (1) must – (a) be made in writing; (b) state the grounds for believing that the material specified in the application is relevant to a civil forfeiture investigation; and (c) give details of that investigation, having regard to Article 18, including details of the property to which it relates. (3) If, on such an application, the Bailiff is satisfied that the conditions in paragraph (5) are fulfilled, the Bailiff may make an order (a “production order”) that the person who appears to be in possession of the material specified in the application shall – (a) produce the material to an authorized officer for the officer to take away; or (b) give an authorized officer access to the material and, if so required by the officer, permit him or her to make copies of it, within such period as the order may specify. (4) The period to be specified in a production order shall be 7 days, unless it appears to the Bailiff that a longer or shorter period would be appropriate in the particular circumstances of the application. (5) The conditions to which paragraph (3) refers are – (a) that there are reasonable grounds for suspecting that the material specified in the application is, forms part of, or relates to, tainted property; (b) that there are reasonable grounds for suspecting that the material so specified – (i) is likely to be of substantial value (whether by itself or together with other material) to the civil forfeiture investigation in relation to which the application is made, and (ii) does not consist of or include items subject to legal privilege or other excluded material; and (c) that there are reasonable grounds for believing that it is in the public interest that the material should be produced or that access to it should be given, having regard – (i) to the benefit likely to accrue to the investigation if the material is produced, and (ii) to the circumstances in which the person in possession of the material holds it. (6) Where by a production order an authorized officer is to be given access to material held in any premises, the Bailiff may further, on the application of the Attorney General or an authorized officer order any person who appears to the Bailiff to be entitled to grant entry to those premises, to allow such an officer to enter the premises and obtain access to the material. (7) An application under paragraph (1) or (6) may be made ex parte to the Bailiff in chambers. (8) A person who, without reasonable excuse, fails to comply with a production order is guilty of an offence and liable to imprisonment for a term of 2 years and to a fine. (9) An application for the discharge or variation of a production order may be made to the Bailiff in chambers, and the Bailiff may rule upon the application or may, at the Bailiff’s discretion, refer it to the Court for adjudication. (10) Where the material to which an application under paragraph (1) or (6) relates consists of information contained in a computer – (a) an order under paragraph (3)(a) to produce material to an authorized officer for the officer to take away shall have effect as an order to produce the material in a form in which it can be taken away and in which it is visible and legible; and (b) an order under paragraph (3)(b) giving an authorized officer access to material shall have effect as an order to give access to the material in a form in which it is visible and legible. (11) A production order – (a) shall not confer any right to production of, or access to, items subject to legal privilege or other excluded material; (b) shall have effect notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by any enactment or contract or otherwise; and (c) may be made in relation to property in the possession of a department of the States of Jersey. (12) In paragraphs (5)(b)(ii) and (11)(a), “excluded material” has the meaning given by Article 6 of the Police Procedures and Criminal Evidence (Jersey) Law 2003 [12] . 20 Authority for search (1) The Attorney General or an authorized officer may, for the purposes of a civil forfeiture investigation, apply to the Bailiff for a warrant under this Article in relation to premises specified in the application. (2) An application under this Article must – (a) be made in writing; (b) state the grounds for believing that material specified in the application is relevant to a civil forfeiture investigation; and (c) give details of that investigation, having regard to Article 18, including details of the property to which it relates. (3) An application by an authorized officer for a warrant under this Article may only be made with the consent of the Attorney General. (4) On such an application, the Bailiff may issue a warrant authorizing the officer together with any other person named in the warrant to enter (if necessary by force) and search the premises, if the Bailiff is satisfied that – (a) an order under Article 19 in relation to the specified material has not been complied with; or (b) the conditions in either – (i) paragraph (4), or (ii) paragraph (5), are fulfilled. (4) The conditions to which paragraph (3)(b)(i) refers are – (a) that the conditions in Article 19(5) are fulfilled in relation to material on the specified premises; and (b) that it would not be appropriate to make an order under Article 19 in relation to the material, because – (i) it is not practicable to communicate with any person entitled to produce the material, (ii) it is not practicable to communicate with any person entitled to grant access to the material or entry to the specified premises on which the material is to be found, or (iii) the civil forfeiture investigation might be seriously prejudiced unless an authorized officer could secure immediate access to the property. (5) The conditions to which paragraph (3)(b)(ii) refers are – (a) that there are reasonable grounds for suspecting that there is, on the specified premises, such material relating to the tainted property, or to the question as to whether or not the specified property is tainted property, as – (i) is (whether by itself or together with other material) likely to be of substantial value to the civil forfeiture investigation, but (ii) cannot at the time of the application be further particularized; and (b) that – (i) it is not practicable to communicate with any person entitled to grant access to the material or entry to the specified premises, (ii) entry to the premises will not be granted unless a warrant is produced, or (iii) the civil forfeiture investigation might be seriously prejudiced unless an authorized officer arriving at the premises could secure immediate entry to them. (6) Where an authorized officer has entered premises in the execution of a warrant issued under this Article, the officer may seize and retain any material (other than items subject to legal privilege) which is likely to be of substantial value (whether by itself or together with other material) to the civil forfeiture investigation. 21 Customer information (1) For the purposes of this Law “customer information” means (subject to Regulations made under paragraph (3)) – (a) information as to whether a business relationship exists or has existed between a bank and a particular person (and where such a relationship exists or has existed, such a person is a “customer” of the bank); (b) a customer’s – (i) account number, (ii) full name, (iii) date of birth, (iv) address or former address; (c) the date on which a business relationship between a bank and a customer begins or ends; (d) any evidence of a customer’s identity obtained by a bank in pursuance of or for the purposes of any legislation relating to money laundering; (e) any evidence otherwise within the knowledge of a bank as to the source of any of a customer’s funds held by that bank; (f) the identity of any person sharing an account with a customer. (2) In paragraph (1) – “business relationship” means a business, professional or commercial relationship between a bank and a customer where that relationship is expected by the bank, at the time when contact is established, to have an element of duration; and “money laundering” has the same meaning as given by Article 1(1) of the Proceeds of Crime (Jersey) Law 1999. (3) The States may by Regulations – (a) provide for a class of information to be customer information, or to cease to be customer information; and (b) extend the meaning of the expression “business relationship”, for the purposes of this Law. 22 Orders to provide customer information (1) The Attorney General or an authorized officer may, for the purposes of a civil forfeiture investigation, apply to the Bailiff for an order under this Article requiring a bank to provide customer information. (2) An application under this Article must – (a) be made in writing; (b) state that property specified in the application is subject to a civil forfeiture investigation, and give details of that investigation, having regard to Article 18; (c) state that – (i) a person specified in the application appears to hold all or a part of the property, or (ii) all or a part of the property appears to belong to such a person; (d) specify the bank against which the order is sought (and an application may specify all banks, a particular description or descriptions of bank, or a particular bank or banks); and (e) specify the customer information sought. (3) An application by an authorized officer for an order under this Article may only be made with the consent of the Attorney General. (4) On an application under this Article, the Bailiff may make an order (a “customer information order”) requiring the bank to provide the customer information in accordance with paragraph (5), if the Bailiff is satisfied that – (a) there are reasonable grounds for suspecting that the specified property is tainted property; (b) there are reasonable grounds for suspecting that the customer information sought by the application is (whether by itself or together with other material) likely to be of substantial value to the civil forfeiture investigation; and (c) it is in the public interest for such customer information to be provided, having regard to the benefit likely to accrue to the investigation and to the circumstances in which the bank in possession of the information holds it. (5) The bank against which a customer information order is made shall provide the customer information – (a) in such manner and within such time as the order may specify; and (b) notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by any enactment or contract or otherwise. (6) A person failing to comply with a requirement imposed by a customer information order shall be guilty of an offence and liable to imprisonment for a term of 6 months and to a fine, but it shall be a defence for a person charged with an offence under this Article to prove that – (a) the customer information was not in the person’s possession; or (b) it was not reasonably practicable for the person to comply with the order. (7) An application for the discharge or variation of a customer information order may be made to the Bailiff in chambers, and the Bailiff may rule upon the application or may, at the Bailiff’s discretion, refer it to the Court for adjudication. (8) Customer information provided by a bank pursuant to a customer information order shall not be admissible as evidence in criminal proceedings against the bank or any of its employees, except – (a) in proceedings for an offence under paragraph (6) or for contempt of court; (b) in proceedings for or in respect of a confiscation order; or (c) subject to paragraph (9), where in any prosecution, in evidence given on the part of the bank a statement is made which is inconsistent with a statement made pursuant to an account monitoring order. (9) A statement may not be used as evidence against a bank by virtue of paragraph (8)(c) unless evidence relating to it is adduced, or a question relating to it is asked, by or on behalf of the bank in the proceedings arising out of the prosecution. 23 Account monitoring orders (1) The Attorney General or an authorized officer may, for the purposes of a civil forfeiture investigation, apply to the Bailiff for an account monitoring order under this Article. (2) An application under this Article must – (a) be made in writing; (b) state that property specified in the application is subject to a civil forfeiture investigation and give details of the investigation, having regard to Article 18; (c) state that a person specified in the application appears to hold all or a part of the property, or all or a part of the property appears to belong to such a person; (d) specify the bank against which the order is sought (and an application may specify all banks, a particular description or descriptions of bank, or a particular bank or banks); and (e) state that the order is sought against the specified bank in relation to information which – (i) relates to an account or accounts held with the bank by the person specified in the application (whether solely or jointly with another), and (ii) is of a description specified in the order. (3) The application must further specify that the information sought is information relating to – (a) all accounts that the specified person holds with the specified bank; (b) a particular description or descriptions of accounts so held; or (c) a particular account or accounts so held. (4) An application by an authorized officer for an order under this Article may only be made with the consent of the Attorney General. (5) On an application under this Article, the Bailiff may make an order requiring the bank to provide the information sought by the application in accordance with paragraph (6) (an “account monitoring order”), if the Bailiff is satisfied that – (a) there are reasonable grounds for suspecting that the specified property is tainted property; (b) there are reasonable grounds for suspecting that the information sought by the application is (whether by itself or together with other material) likely to be of substantial value to the civil forfeiture investigation; and (c) it is in the public interest for such information to be provided, having regard to the benefit likely to accrue to the investigation and to the circumstances in which the bank in possession of the information holds it. (6) An account monitoring order is an order that the specified bank must – (a) for the period specified in the order; (b) in the manner so specified; and (c) at or by a time so specified and at a place so specified, provide information of the specified description to a police officer named in the order. (7) A person failing to comply with a requirement imposed by an account monitoring order shall be guilty of an offence and liable to imprisonment for a term of 6 months and to a fine, but it shall be a defence for a person charged with an offence under this Article to prove that – (a) the information sought was not in the person’s possession; or (b) it was not reasonably practicable for the person to comply with the order. (8) An application for the discharge or variation of an account monitoring order may be made to the Bailiff in chambers, and the Bailiff may rule upon the application or may, at the Bailiff’s discretion, refer it to the Court for adjudication. (9) An account monitoring order – (a) shall not confer any right to production of, or access to, items subject to legal privilege or other excluded material;

(b) shall have effect notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by any enactment or contract or otherwise; and (c) may be made in relation to property in the possession of a department of the States of Jersey, and in paragraph (a), “excluded material” has the meaning given by Article 6 of the Police Procedures and Criminal Evidence (Jersey) Law 2003. (10) A statement made by a bank pursuant to an account monitoring order shall not be admissible as evidence in criminal proceedings against the bank or any of its employees, except – (a) in proceedings for an offence under paragraph (7) or for contempt of court; (b) in proceedings for or in respect of a confiscation order; or (c) subject to paragraph (11), where in any prosecution, in evidence given on the part of the bank a statement is made which is inconsistent with the statement made pursuant to the account monitoring order. (11) A statement may not be used as evidence against a bank by virtue of paragraph (10)(c) unless evidence relating to it is adduced, or a question relating to it is asked, by or on behalf of the bank in the proceedings arising out of the prosecution. 24 Disclosure orders (1) The Attorney General or an authorized officer may, for the purposes of a civil forfeiture investigation, apply to the Bailiff for a disclosure order under this Article. (2) An application under this Article must – (a) be made in writing; (b) state that property specified in the application is subject to a civil forfeiture investigation and give details of the nature of the investigation, having regard to Article 18; and (c) state that a person specified in the application appears to hold information (whether or not contained in a document) which the Attorney General or authorized officer considers to be relevant to the investigation (“relevant information”). (3) An application under this Article – (a) may not be made by an authorized officer except with the consent of the Attorney General; and (b) may be made ex parte to the Bailiff in chambers. (4) On an application under this Article, the Bailiff may make a disclosure order in accordance with paragraph (5), if the Bailiff is satisfied that – (a) there are reasonable grounds for suspecting that the specified property is tainted property; (b) there are reasonable grounds for suspecting that the relevant information sought by the application is (whether by itself or together with other information) likely to be of substantial value to the civil forfeiture investigation; and (c) it is in the public interest for the relevant information to be provided, having regard to the benefit likely to accrue to the investigation and to the circumstances in which the person in possession of the relevant information holds it. (5) A disclosure order is an order authorizing the Attorney General or an authorized officer to give notice in writing – (a) to any person considered to hold relevant information; (b) requiring that person, in respect of any matter relevant to the civil forfeiture investigation, to do all or any of the following – (i) to answer questions, at or by a time specified in the notice or at once, and at a place so specified, (ii) to provide information, or information of a class or description, specified (so far as possible) in the notice, at or by a time and in a manner specified in the notice, (iii) to produce documents, or documents of a class or description specified in the notice, at or by a time so specified or at once, and in a manner so specified. (6) A disclosure order may be made – (a) whether or not notice of the application has been given to any person other than the person required to comply with the notice under paragraph (5); and (b) subject to such further terms and conditions as the Bailiff thinks fit. (7) A person failing without reasonable excuse to comply with a requirement imposed by or under a disclosure order shall be guilty of an offence and liable to imprisonment for a term of 6 months and to a fine, but it shall be a defence for a person charged with an offence under this Article to prove that – (a) the relevant information sought was not in the person’s possession; or (b) it was not reasonably practicable for the person to comply with the order. (8) An application for the discharge or variation of a disclosure order may be made to the Bailiff in chambers, and the Bailiff may rule upon the application or may, at the Bailiff’s discretion, refer it to the Court for adjudication. (9) A disclosure order – (a) shall not confer any right to production of, or access to, items subject to legal privilege or other excluded material; (b) shall have effect notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by any enactment or contract or otherwise; and (c) may be made in relation to property in the possession of a department of the States of Jersey, and in paragraph (a), “excluded material” has the meaning given by Article 6 of the Police Procedures and Criminal Evidence (Jersey) Law 2003. (10) A statement made by a person pursuant to a disclosure order shall not be admissible as evidence in criminal proceedings against a bank or any of its employees, except – (a) in proceedings for an offence under paragraph (7) or for contempt of court; (b) in proceedings for or in respect of a confiscation order; or (c) subject to paragraph (11), where in any prosecution, in evidence given on the part of the person a statement is made which is inconsistent with the relevant information given pursuant to the disclosure order. (11) A statement may not be used as evidence against a person by virtue of paragraph (10)(c) unless evidence relating to it is adduced, or a question relating to it is asked, by or on behalf of the person in the proceedings arising out of the prosecution. 25 Copying and retention of documents (1) The Attorney General and any other person authorized for the purpose by a production order under Article 19, a search warrant under Article 20 or a disclosure order may take copies of any documents which are produced, or to which access is given, in compliance with a requirement in the order or warrant (as the case may be). (2) Original documents so produced may be retained for so long as it is necessary to retain them in connection with the civil forfeiture investigation for the purposes of which the order was made or the warrant was given. (3) Notwithstanding paragraph (2), if the Attorney General has reasonable grounds for believing that a document – (a) may need to be produced for the purposes of any legal proceedings; and (b) might otherwise be unavailable for those purposes, the document may be retained until the proceedings are concluded. PART 5 GENERAL PROVISIONS 26 Nature of proceedings, and rules of court (1) Proceedings under – (a) Parts 2 to 4 of this Law (except under Article 19(8), 22(6), 23(7) or 24(7)); and (b) Article 27, are civil proceedings and any issue in such proceedings shall be determined on the balance of probabilities. (2) The power to make Rules of Court under the Royal Court (Jersey) Law 1948 [13] shall include a power to make Rules for the purposes of this Law and proceedings under this Law. 27 Release of restrained etc. property (1) A person who claims that any property (other than cash) detained, seized or otherwise restrained under this Law (including, for the purposes of this Article, any part of such property) lawfully belongs to him or her may apply for that property to be released to him or her. (2) The application may be made in the course of proceedings under Part 3 or 4 or at any other time before the property in question is forfeited pursuant to a forfeiture order. (3) An application in the course of proceedings under Article 11 or 12 may be made to the Bailiff or to the Court, and where such an application is made to the Bailiff the Bailiff may rule upon the application or may, at the Bailiff’s discretion, refer it to the Court for adjudication. (4) An application made otherwise than in the course of proceedings under Article 11 or 12 shall be made to the Court. (5) If it appears to the Bailiff or Court that – (a) the property lawfully belongs to the applicant; (b) the applicant was deprived of the property by unlawful conduct; and (c) immediately before the applicant was deprived of it, the property – (i) was not property obtained by or in return for unlawful conduct, and (ii) did not represent cash or property so obtained, the Bailiff or Court may order the property to be released to the applicant (and, where the application is made in the course of proceedings under Article 11 or 15, shall do so instead of making a forfeiture order). 28 Limitation of liability of Viscount (1) Where the Viscount, or any officer of the Viscount’s department – (a) takes any action in relation to property that is not tainted property, being action that the Viscount would be entitled to take if it were such property; and (b) believes and has reasonable grounds for believing that such action may lawfully be taken, the Viscount shall not be liable to any person in respect of any loss or damage sustained resulting from the action taken. (2) Paragraph (1) does not apply – (a) if it is shown that the action was done in bad faith; or (b) so as to prevent an award of damages made in respect of an act on the ground that the act was unlawful as a result of Article 7(1) of the Human Rights (Jersey) Law 2000 [14] . 29 Limitation of liability of Attorney General (1) Paragraph (2) applies to – (a) the Attorney General; and (b) a person who is or is acting as an officer, employee or agent of the Attorney General. (2) A person to whom this paragraph applies is not liable in damages for any act done in the discharge, or purported discharge, of the functions of the Attorney General under this Law. (3) Paragraph (2) does not apply – (a) if it is shown that the act was done in bad faith; or (b) so as to prevent an award of damages made in respect of an act on the ground that the act was unlawful as a result of Article 7(1) of the Human Rights (Jersey) Law 2000. (4) The Attorney General shall not be liable in costs for any proceedings under this Law, except where it is shown that the proceedings were commenced, or (having been lawfully commenced) were continued, in bad faith. 30 Compensation where bad faith proven (1) Where it is shown that any act done – (a) in the discharge, or purported discharge, of the functions of the Viscount or the Attorney General under this Law; or (b) in respect of any property restrained, seized or otherwise detained under this Law, was done in bad faith, the person to whom the property belongs may make an application to the Court for compensation. (2) The Court may, after receiving an application under paragraph (1), order compensation to be paid to the applicant if – (a) the Court is satisfied that the person has suffered loss as a result of the detention of the property under this Law; and (b) having regard to all the circumstances the Court considers it appropriate to make such an order. (3) The amount of compensation which the Court may order to be paid under this Article shall be the amount the Court thinks reasonable having regard to – (a) the loss suffered; (b) the amount of any interest already paid under this Law; and (c) any other relevant circumstances. (4) Compensation ordered to be paid under this Article shall be paid by the States. (5) If a forfeiture order is made in respect only of a part of property detained under this Law, this Article has effect in relation to the other part of that property. (6) A person to whom cash detained under Article 6 or 7 belongs may not make an application under this Article if an order for the release of all or part of the cash has been made under Article 9. 31 Offence of obstruction A person who, without reasonable excuse, obstructs the Attorney General, the Viscount or an authorized officer in the lawful exercise of powers conferred by this Law shall be guilty of an offence and liable to imprisonment for a term of 2 years and to a fine. 32 Offence of tipping off or interference with documents etc. (1) Where a person knows or suspects that the Attorney General or an authorized officer is acting or proposing to act in connection with a civil forfeiture investigation that is being or is about to be conducted, it is an offence for the person – (a) to disclose to another person any information relating to the investigation; or (b) to interfere with material which is likely to be relevant to the investigation. (2) For the purposes of this Article, interference with material includes falsifying, concealing, destroying or disposing of the material or part of it. (3) Paragraph (1)(a) does not apply to a disclosure which – (a) is made by a professional legal adviser – (i) to a client, or to the client’s representative, in connection with the provision of legal advice to the client, or (ii) to any person for the purpose of actual or contemplated legal proceedings; (b) is made by a person who is the client of a professional legal adviser to that adviser, for either of the purposes mentioned in sub-paragraph (a)(i) or (ii); or (c) is made by a person who is the client of an accountant for the purpose of enabling him or her to provide any of the services listed in paragraph 2(1) of Part B of Schedule 2 to the Proceeds of Crime (Jersey) Law 1999. (4) The States may by Regulations specify further cases in which a disclosure or interference to which paragraph (1) would otherwise apply shall not amount to the commission of an offence. (5) A person shall not be guilty of an offence under this Article in respect of anything done by the person in the course of acting in connection with the enforcement, or intended enforcement, of any provision of this Law or of any other enactment relating to criminal conduct or the proceeds of criminal conduct. (6) A person guilty of an offence under this Article is liable to imprisonment for a term of 5 years and to a fine. (7) A prosecution for an offence under this Article may only be initiated with the consent of the Attorney General. 33 Liability of directors etc. (1) Where an offence under this Law, committed by a limited liability partnership, a separate limited partnership, any other partnership having separate legal personality or a body corporate, is proved to have been committed with the consent or connivance of – (a) a person who is a partner of the partnership, or director, manager, secretary or other similar officer of the body corporate; or (b) any person purporting to act in any such capacity, the person is also guilty of the offence and liable in the same manner as the partnership or body corporate to the penalty provided for the offence. (2) Where the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to acts and defaults of a member in connection with the member’s functions of management as if he or she were a director of the body corporate. 34 Consent to settlement (1) On an application made by the Attorney General for the purpose, and if the condition in paragraph (2) is fulfilled, the Court may make an order in any proceedings under Article 11, 12 or 15, on terms agreed between the Attorney General and other parties to the proceedings, for the disposal of the proceedings. (2) The condition mentioned in paragraph (1) is that each person to whose property the proceedings and the agreement relate is a party both to the proceedings and to the agreement. (3) An order under paragraph (1) may – (a) in particular, and without derogation from the Court’s discretion, make provision for any property – (i) which may be liable to forfeiture under this Law, to cease to be so liable, or (ii) to be returned to a person to whom it belongs; and (b) make such further provision as the Court may think fit. 35 Civil Asset Recovery (International Co-operation) (Jersey) Law amended In Article 1(1) of the Civil Asset Recovery (International Co-operation) (Jersey) Law 2007 [15] , for the definition “property” there shall be substituted the following definition – “ ‘property’ means all property, whether vested or contingent, and whether in Jersey or elsewhere, including – (a) any legal document or instrument evidencing title to or interest in immovable property; (b) any interest in or power in respect of immovable property; (c) in relation to movable property, any right, including a right to possession;”. 36 Repeal The Proceeds of Crime (Cash Seizure) (Jersey) Law 2008 [16] (the “Cash Seizure Law”) is repealed. 37 Citation and commencement This Law may be cited as the Forfeiture of Assets (Civil Proceedings) (Jersey) Law 2018 and shall come into force one month after the day on which it is registered. dr. m. egan Greffier of the States [1] chapter 08.780.65 [2] chapter 13.075 [3] chapter 08.780 [4] chapter 24.660 [5] chapter 21.700 [6] L.23/2017 [7] chapter 15.560 [8] chapter 08.200 [9] chapter 08.780 [10] chapter 17.860 [11] chapter 17.145 [12] chapter 23.750 [13] chapter 07.770 [14] chapter 15.350 [15] chapter 17.145 [16] L.11/2008 (chapter 08.770)