Skip to content View accessibility statement

AG v Afex Offshore (Jersey) Limited 18-Dec-2024

View PDF (329 KB)

Inferior Number Sentencing - Deferred Prosecution Agreements

[2024]JRC271

Royal Court

(Samedi)

18 December 2024

Before     :

M. J. Thompson, Esq., Commissioner, and Jurats Ronge and Cornish

The Attorney General

-v-

Afex Offshore (Jersey) Limited

Advocate S. C. Brown for the Attorney General.

Advocate S. C. Thomas for the Defendant.

JUDGMENT

THE COMMISSIONER:

Introduction

1.        This judgment contains the Court’s reasons for making a declaration on 29th July 2024 under Article 6(4) of the Criminal Justice (Deferred Prosecution Agreements) (Jersey) Law 2023 (“the DPA Law”) that the Attorney General and the Defendant entering into a Deferred Prosecution Agreement (a “DPA”) is likely to be in the interests of justice and that the proposed terms of the DPA are fair, reasonable and proportionate.  References in this judgment to Articles are references to Articles of the DPA Law unless the context indicates otherwise.

2.        This judgment also contains the Court’s decision for granting a declaration that the terms of the DPA concluded between the Attorney General and the Defendant are in the interests of justice and that the terms of the DPA are fair, reasonable and proportionate as required by Article 7(2) of the DPA Law.

3.        While the declaration made pursuant to Article 6(4) is initially made in private, as required by Article 6(8), once a declaration is made under Article 7(2), whether that hearing is held in public or in private, the Court is then required to give its reasons in open Court.  In this case, as the reasons for making the declaration under Article 7(2) and the declaration under Article 6(4) are the same, the Court is giving the entirety of its reasons in open Court for both decisions.

4.        It is right to add that while Article 7(8) imposes a requirement on the Attorney General to publish the terms of the DPA agreed with a defendant, the declaration of the Court made under Article 6(4) and the reasons given by the Court under Article 6(6), this requirement does not alter the general obligation of the Court to publish its decisions once a matter has been concluded under the DPA Law.  This occurs once the Court makes a declaration under Article 7(2).  However, it is right to add that the requirement on the Attorney General to publish the materials set out in Article 7 (8) is, by Article 8 (9), subject to any order the Royal Court may make under Article 13 for the postponement of that information

The DPA Law

5.        The application by the Attorney General against the Defendant is the first application brought under the DPA Law.  It is therefore appropriate in this case to explain the key provisions of the DPA Law.

6.        As set out in paragraph 1 of guidance issued by the Attorney General on 3 March 2023 on Deferred Prosecution Agreements (“the Attorney General’s DPA Guidance”), a DPA “is a discretionary tool which enables a corporate to make full and carefully structured reparation for its criminal conduct and avoid the damaging consequences of a conviction. In a small jurisdiction, the harm caused to the reputation of a corporate as a result of a conviction is likely to be significant. In addition, a corporate that enters into a DPA with the Attorney General may avoid a complex, lengthy and costly trial”. The DPA Law does not therefore apply to criminal conduct by individuals but only to criminal conduct committed by any other entity having its own legal personality (see the definition of “entity” in Article 1(1)).

7.        The first stage that applies under the DPA Law is for the entity to make a self-report under Article 4(1) of the DPA Law:

“(1) Where an entity wishes to enter into a DPA in relation to a specified offence it must –

(a) submit to the Attorney General evidence which is reasonably capable of demonstrating that the entity has committed that specified offence; and

(b) request that the Attorney General determines whether to enter into a DPA with the entity in relation to that specified offence.”

8.        Where a self-report is filed, the Attorney General must determine whether the evidence submitted is “reasonably capable of demonstrating that the specified offence has been committed by the entity” (Article 5(1)).  A specified offence is an offence listed in Schedule 1 of the DPA Law.  

9.        Notwithstanding Article 5(1), the Attorney General possesses a discretion not to enter into a DPA if the Attorney General is satisfied that it is not in the interests of justice to do so (Article 5(2)).  In other words, the Attorney General can prosecute an entity that files a self-report on the basis of material in that report and does not have to enter into a DPA merely because a self-report is filed.

10.     Where the criteria set out in Article 5(4) are met, the Attorney General must determine whether it is in the interests of justice to enter into a DPA with the entity that has filed the self-report (Article 5(5)).  The requirements of Article 5(4) are as follows:

“(4) Paragraph (5) applies where –

(a) the Attorney General has determined that the evidence submitted is reasonably capable of demonstrating that the specified offence has been committed by the entity;

(b) the entity has met the costs referred to in paragraph (3); and

(c) the Attorney General is considering prosecuting the entity in respect of the specified offence.”

11.     The “costs” referred to are the costs of the Attorney General in carrying out the determination required by Article 5(1). 

12.     Where the Attorney General has made a determination under Article 5(5), the Attorney General then initiates DPA proceedings (Article 6(1)).

13.     The initiation of such proceedings must comply with the requirements of Article 14(1)(A) of the Criminal Procedure (Jersey) Law 2018 (“the Criminal Procedure Law”).  This occurs by the Attorney General lodging an indictment with the Judicial Greffier in the prescribed form as required by Article 43 of the Criminal Procedure Law and giving notice of this step and a copy of the indictment to the entity.  Article 14(1A)(b) of the Criminal Procedure Law provides that once DPA proceedings have been initiated, the Attorney General then gives notice to suspend the indictment to enable the Attorney General and the entity to explore entering into a DPA.

14.     Once the Attorney General has given such notice under Article 6(4), he must then apply to the Court for a declaration that:

(i)        Entering into a DPA with the entity is likely to be in the interests of justice; and

(ii)       The proposed terms of the DPA are fair, reasonable and proportionate.

15.     In practice this occurs once negotiations have taken place between the Attorney General and the entity about the terms of a DPA.  To commence such negotiations, the Attorney General sends a letter of invitation outlining the basis upon which any negotiations will proceed (see paragraph 18 of the Attorney General’s DPA Guidance). The letter also invites the entity that has made the self-report to notify the Attorney General whether it accepts the invitation to enter into a DPA Agreement. 

16.     If the entity accepts the invitation to negotiate a DPA, the negotiations will continue until either they reach a stage where a DPA can be presented to Court for approval under Article 6(4)) or the withdrawal by the Attorney General or the entity or both from the process. As paragraph 19 of the guidance of the Attorney General states:

“Neither the Attorney General nor the Entity is obliged to give reasons for withdrawal from DPA proceedings. The Entity should understand that a DPA is a discretionary tool that is an alternative to prosecution. The Entity must also keep in mind that a DPA is a voluntary agreement, governed by the provisions of the Law.”

17.     The fact that the Attorney General and the entity are likely to have reached agreement on the proposed terms of a DPA before the first application to Court is made under Article 6(4), has the effect that in many cases the most significant application may be that made pursuant to Article 6(4) because it is at that stage that the Court is likely to scrutinise the detail of the proposed DPA. 

18.     The terms of the DPA are set out in Article 3(1). The terms in particular must specify the “requirements imposed on the entity” (Article 3 (1) (c)).. 

19.     What is meant by the “requirements” is set out in Article 3(3) as follows:

“(3) The requirements that a DPA may impose on the entity include requirements –

(a) to pay a financial penalty;

(b) to compensate victims of the specified offence;

(c) to donate money to a charity or other third party;

(d) to disgorge any profits made by the entity from the specified offence;   

(e) to implement a compliance programme or make changes to an existing compliance programme relating to either or both of the following-

(i) the entity's policies,

(ii) the training of the entity's employees;

(f) to pay any reasonable costs of the Attorney General in relation to the DPA proceedings;

(g) to pay the remuneration of the independent monitor.”

20.     The DPA must also appoint an independent monitor whose function is to monitor and report on compliance with the DPA, while it is in force. This includes the requirement set out in Article 8(1)(c) obliging the independent monitor to:-

“Report to the Attorney General if it appears to the independent monitor that, in the submission of the self-report, in negotiations with a view to entering into the DPA, or at any time while the DPA is in force, the entity or a connected person in relation to the entity has – (i) provided inaccurate, misleading, or incomplete information to the Court, the Attorney General, or the independent monitor, (ii) committed an offence under this Law, or (iii) committed a criminal offence.”

21.     Without fettering the Court’s discretion, there are three possible decisions the Court may take when considering an application under Article 6(4):

(i)        approve the DPA as presented to it;

(ii)       refuse to approve the DPA because one or other of the limbs in Article 6(4) are not met; or

(iii)      approve or indicate that the Court is minded to approve a DPA on different terms.

22.     The latter scenario could arise where the Court feels that there should be a variation to one or more of the requirements contained in Article 3(3).  By way of example, the Court might consider that a different financial penalty (lower or higher) would be appropriate. 

23.     Either a refusal to approve the DPA or an indication that the Court is prepared to approve the DPA with some modifications to its terms will then lead to further negotiations between the Attorney General and the entity.  If those negotiations are successful, there will then be a further application under Article 6(4) because the Court is required to make a declaration under Article 6(4) before a DPA Agreement can be finalised (see Article 7(1)(a)).  Alternatively, the negotiations may break down and it is then a matter for the Attorney General as to whether he wishes to pursue the entity by way of criminal prosecution.

24.     Once the terms of the DPA are finalised, and a declaration is made under Article 6(4), the Attorney General then applies to Court under Article 7(2) as follows:

“(2) The Attorney General must apply to the Court-

(a) for a declaration that - the DPA is in the interests of justice, and the terms of the DPA are fair, reasonable, and proportionate; and

(b) for the appointment of the independent monitor nominated by the Attorney General.”

25.     Such an application can be made in open court or on the papers as recognised by Article 7(5). This provision illustrates the importance of the initial application under Article 6(4) and why in most cases it is at the time of the application under Article 6(4), that the Court will consider the DPA Agreement in full and give its reasons for the conclusions it has reached. The application under Article 7(2) is therefore likely to be based on the same material that the Court has already approved in making a declaration under Article 6(4).

26.     At conclusion of the application under Article 7(2), the DPA comes into force once approved by the Court (see Article 7(7)).

27.     Provided that the entity complies with the terms of the DPA throughout, as monitored by the independent monitor, when the period agreed for the DPA to remain in force comes to an end, the Attorney General then discontinues the proceedings in relation to the offence(s) covered by the DPA. This occurs by the Attorney General giving notice to the Court under Article 81A(2) of the Criminal Procedure Law. The effect of such a notice is that fresh criminal proceedings may not be instituted against the entity in relation to the offence(s) specified in the indictment, unless the requirements of Article 12(3) apply.  Article 12(3) provides:-

“(3) This paragraph applies where, after the DPA has expired, the Attorney General finds that during the course of the negotiations for the DPA the entity –

(a) provided inaccurate, misleading, or incomplete information to the Attorney General; and

(b) knew or ought to have known that the information was inaccurate, misleading, or incomplete.”

28.     The effect of a discontinuance is therefore that the entity avoids a criminal prosecution and a criminal record. This is seen as being of significant benefit because a criminal conviction of an entity, in particular one that that is subject to a regulatory regime, can cause significant damage to its business and in some cases could lead to it ceasing to trade.

29.     There are also provisions in the DPA Law that permit the Attorney General to make an application to the Court where there has been a breach of a DPA (Article 10(3)).  At that stage, if the Court finds a breach it may either:

“(a) invite the Attorney General and the entity to agree proposals to remedy the entity's failure to comply; or

(b) terminate the DPA.”

The Defendant’ s self-report and Indictment

30.     The self-report was produced by the Defendant with the assistance of Baker & Partners and Baker Regulatory Services.  As noted at paragraph 121 of the Agreed Statement of Facts agreed between the Attorney General and the Defendant for this application, Baker & Partners made contact with the Law Officers’ Department in March 2023 to invite consideration of whether a DPA might be an appropriate alternative resolution to criminal proceedings.  The DPA Law came into force on 3 March 2023 and therefore this was the first occasion upon which the Defendant could submit a self-report under Article 4.  We refer to this because in this case, the Defendant was the subject of a criminal investigation before it filed its self-report. This was because Deputy Bailiff MacRae on 12 July 2022 had granted a production order against the Defendant in respect of matters which became the subject of the Defendant’s self-report and the DPA proceedings.  However, the production order granted was only in relation to the conduct in Counts 1-5.   

31.     As the purpose of the DPA Law is to encourage entities to self-report criminal conduct, generally, the DPA Law should not be seen as a way of avoiding the effect of criminal prosecution where an entity is already under investigation or suspicion.  In this case however, the possibility of a self-report was not available to the Defendant until March 2023 because the DPA Law had not come into force. The Attorney General therefore accepted the self-report, notwithstanding that the Defendant was already the subject of a criminal investigation.  We wish to stress that this state of affairs is somewhat unusual; in future cases, where an entity is already the subject of a criminal investigation, the benefits of the DPA Law and the option of filing a self-report either may not be available to an entity or may not be accepted by the Attorney General. We have also referred to this chronology of events because, as is set out in more detail below, it was relevant to our review of the financial penalty proposed in the DPA.

32.     The Defendant filed the self-report on 1 June 2023. On 12 July 2023, in answer to certain queries now reflected in Counts 6 to 11 of the indictment described below, a supplemental self-report was filed.  

33.     On 15 September 2023, the Attorney General wrote to Advocate Thomas for the Defendant, offering the Defendant an invitation to commence negotiations with a view to agreeing the terms of a DPA. This invitation was accepted by the Defendant.

34.     Accordingly on 8 November 2023, notice of the Attorney General’s intention to initiate proceedings under the DPA Law and Articles 14(1)(a) and 43 of the Criminal Procedure Law was given by letter to the Defendant and its legal advisers together with a copy of the Indictment.

35.     The Indictment contained 11 counts. The Agreed Statement of Facts, a copy of which is annexed to the DPA, contains a detailed history of the Defendant’s failings which we have reviewed carefully in relation to each of the counts set out in the Indictment.

36.     The principal business activity of the Defendant was arranging foreign exchange and cross-border payments on behalf of its clients on an execution only basis. Since 2021, the ultimate parent company of the Defendant is Fleetcor Technologies Inc, a company incorporated in the United States of America (“Fleetcor”). 

37.     Counts 1 to 4 all involved failures to comply with the requirements of Articles 3 and 13 of the Money Laundering (Jersey) Law 2008, contrary to Article 37(4) of the Proceeds of Crime (Jersey) Law 1999.  Each count related to a failure to apply identification measures in relation to an application by [redacted] who applied to open an account with the Defendant in Jersey.  The transaction she carried out through the Defendant involved the Defendant receiving €3 million from her via a third party. The sum received by the Defendant represented the sale of certain bonds and the distribution of the sale proceeds. The Defendant received £12,045.30 by way of revenue. The remainder was all distributed out to various persons and entities.

38.     The failures in respect of Counts 1 to 4 were all failures to verify identification measures in respect of different individuals who, at different times up until the transaction being concluded on 17 January 2019, appeared to be involved. 

39.     Count 5 relates to the same transaction and deals with the failure to properly scrutinise, identify and address the money laundering risks arising from the transaction which should have been apparent to the Defendant, as well as money laundering risks emerging from information the Defendant discovered while carrying out the transaction and the subsequent distributions. In particular, the Defendant failed to obtain a clear picture on the source of funds of the bonds, who was their ultimate beneficial owner, what was the relationship between the different individuals involved. The Defendant also failed to obtain properly documented identification documents of those individuals and a clear rationale for the distributions being made and for whose ultimate benefit they were being made.  These were serious failings. As it was put at paragraph 5 of the Agreed Statement of Facts:

“Although a single transaction, the facts in relation to Counts 1-5 illustrate numerous and significant departures from the standards required by the MLO. That the transaction was permitted to occur at all, exposed Jersey to a high risk of money laundering without those risks being increased by the behaviour in Counts 6-11. The actions by individuals within AOL at the time indicate that they must have realised this risk yet drove the transaction forward. The individuals at AOL involved directly in the transaction were motivated by the prospect of repeat business. This brought about circumstances where AOL's obligations under the MLO took second place and ultimately led to the commission of serious criminal offences.”

40.     Again, the detail is set out in the Agreed Statement of Facts.  In summary, there were a number of red flags which should have either prompted questions or further questions about all of the issues summarised in the previous paragraph from the key individuals involved on behalf of the Defendant..

41.     Counts 6 to 10 represent offences in relation to the Defendant’s monitoring and compliance with Article 16 of the Money Laundering Order in relation to four different client relationships.  Counts 6 to 9 all relate to a failure to carry out tests on four different entities, whose policies and procedures the Defendant was relying on in support of identification measures for anti-money laundering purposes. The relevant entities were IQEQ (Jersey) Limited, [redacted].  There were two counts for IQEQ because the relevant provisions of the Money Laundering Order had altered when the relevant conduct, the subject of the indictment, took place.

42.     Count 11 related to a failure by the Defendant to “properly scrutinise and address the money laundering risk of placing reliance on IQEQ Jersey Limited following the imposition of a financial penalty and the issuing of a public statement on 1 July 2022 in relation to IQEQ (Jersey) Limited”.

43.     The Attorney General accepted there was no overlap between Counts 1 to 5 and Counts 6 to 11.  However, paragraph 4 of the Agreed Statement of Facts also stated as followed:

“4. There is no factual connection between Counts 1-5 and 6-11, however, both sets of allegations establish failings by AOL in multiple-core-areas of its business which taken together, seriously undermined its ability to effectively apply and maintain measures designed to prevent and forestall the risk of money laundering.”

44.     This led to the following statement at paragraph 6 of the Agreed Statement of Facts:

“6. The contraventions of the MLO in this case were serious in circumstances where there was a risk of money laundering occurring or being facilitated by AOL. AOL's conduct in its handling of the transaction represented in Counts 1-5 taken together with its other failings in Counts 6-11 was reckless. It is not suggested that this is a case where the Entity intentionally failed to comply with or set out to breach the provisions of the MLO.”

45.     Finally in relation to the financial penalty sought by the Attorney General as part of the DPA, as set out in more detail later in this judgment, we note at this stage that, while Counts 1 to 5 are different from Counts 6 to 11 and do not fall within one transaction, the Attorney General contended that to make the sentences in Counts 1 to 5 consecutive to Counts 6 to 11 was not appropriate in this case because of the obligation to look at the totality of the sentence (see AG v Byrne [2018] JRC 221 at paragraph 37).

The terms of the DPA

46.     The material terms of the DPA are as follows:

(i)        By Clause 4, the Defendant agreed that the Statement of Facts, a copy of which is also attached to the DPA, was “true and accurate to the best of its knowledge and belief”;

(ii)       Clause 5 provided that if the Attorney General were to pursue the prosecution that was now deferred, the Defendant agreed that it would not “contest the admissibility of, nor contradict, the facts stated in the Statement of Facts in any such proceedings”;

(iii)      The Statement of Facts would be treated as an admission by the Defendant of the facts stated in it under Article 2 of the Criminal Justice (Evidence of Procedure) (Jersey) Law 1998;

(iv)     The DPA was to last for twelve months;

(v)      The DPA concluded the investigation into the Defendant for suspected offences concerning contraventions of or failures to comply with the Money Laundering Order. The DPA did not extend to any conduct not disclosed by the Defendant or entities which have had ultimate ownership of the Defendant since the investigation; and

(vi)     The DPA did not provide any protection in its prosecution of any present or former officers, directors or employees of the Defendant or of any persons who performed services for or on behalf of the Defendant.

The DPA therefore suspended the prosecution for the offences on the indictment for the period the DPA remains in force and that, if the Defendant fully complied with all its obligations under the DPA, the criminal proceedings would then be discontinued. 

47.     The Agreement also contained provisions about public statements and certain warranties.

48.     By paragraph 53 of the Attorney General’s DPA Guidance, the Attorney General has set out that he would provide a written justification (described as a “certification”) as to why entering into a DPA with an entity is likely to be in the interests of justice and why the proposed terms of the DPA are fair, reasonable and proportionate. 

49.     We were therefore provided with the Attorney General’s certification in a document dated 18 July 2024.  In his certification, the Attorney General:

(i)        confirmed the detailed submissions made on his behalf by Crown Advocate Brown in the Attorney General’s application for a declaration under Article 6(4);

(ii)       in relation to Counts 1 to 5, stated that what occurred were serious failures in corporate governance driven by individuals within the Defendant acting recklessly, which in turn exposed the Defendant and Jersey to a high risk of money laundering;

(iii)      concluded that had the Defendant’s procedures been applied properly the transaction at the heart of the events, in Counts 1 to 5 would not have occurred and instead the relationship would have been terminated;

(iv)     noted that the Defendant had had at least five opportunities to stand back and consider the obvious money laundering risks involved.  The manner in which that information was handled showed that necessary steps to safeguard Jersey and the Defendant against the risk of international money laundering were not applied;

(v)      accepted that the offences in Counts 1 to 5 did not establish that the Defendant had engaged in dishonest conduct, and it was not said that the Defendant knew it had dealt with the proceeds of crime or that some of the persons within the Defendants suspected they had done so; and

(vi)     contended that the transaction was driven by two individuals rather than a total failure of the Defendant across its business in those areas.  The Defendant did not know or intentionally set out to contravene the money laundering order or to circumvent its application.

50.     In relation to Counts 1 to 6, the Attorney General’s certification explained that these counts on their own would not have meant that a prosecution was inevitable and the failings might instead have been referred to the Jersey Financial Services Commission (“the JFSC”) for it to consider enforcement action and / or the imposition of a civil penalty. 

51.     However, Counts 6 to 11, when taken together with the conduct in Counts 1 to 5, painted a different picture, leading the Attorney General to conclude that the totality of the conduct would have merited a prosecution.

52.     The conduct in Counts 6 to 11 was not intentional and was not driven by gain.

53.     The breaches in Counts 6 to 11 were only in the knowledge of the Defendant and would not have been within the knowledge of the prosecution but for the self-report.  The conduct in Counts 6 to 11 therefore was the subject of a self-report as originally envisaged by the Attorney General’s DPA Guidance namely, disclosure of alleged criminal conduct where there was no pre-existing investigation. 

54.     The Attorney General’s certificate also noted that the Defendant had engaged constructively since filing the self-report and had cooperated in identifying in supplying evidence, including evidence and information not known to the investigation at the time the original production order was sought.

55.     The self-report was also a true account of the misconduct and had held nothing back.  The certification also noted that the key staff involved had left and that the Defendant was now a substantially different entity to the one that contravened the money laundering order.

56.     The Defendant also had no history of similar conduct involving prior criminal, civil or regulatory enforcement actions against it.

57.     The Attorney General’s application took as a starting point for the financial penalty for Counts 1 to 5, the sum of £850,000 for each count; for Counts 6 to 10, £100,000 for each count; and for Count 11, £200,000, with all sentences being concurrent to each other.

58.     The Attorney General then gave full credit of one-third equivalent to the reduction made for a guilty plea amounting to a reduction of £283,000 from the starting point of £850,000. 

59.     While the Attorney General’s Guidance notes that entities should not expect an automatic additional discount of the financial penalty beyond a guilty plea, the Attorney General did recognise that the DPA regime should be an incentive to self-report wrongdoing and that there was a public interest in encouraging corporate responsibility.  The certification said specifically (at paragraph 36):

“…that an important feature of the DPA is to incentivise self- reporting of wrongdoing by organisations in similar situations to AOL.  That is a powerful factor in favour of the DPA in this case.”        

60.     The Attorney General also recognised that in his written and oral submissions that a further discount was appropriate, in order to reflect the benefits which accrue by participation in and engagement with the DPA process. Accordingly, the Attorney General gave credit for the Defendant’s early remedial measures and steps taken by it to rehabilitate its business, which had caused additional financial hardship where the Defendant had a small staff who had remained committed to the DPA process. This led to a further reduction of £158,760 once a one-third discount had been applied of leading to a proposed financial penalty of £408,240. This figure was explained in the Attorney General’s submissions as a further deduction of 28% of the figure remaining once a one-third discount had been applied to the starting point.

61.     The DPA also provided for immediate payment of the Attorney General’s costs of £60,000.

62.     The Agreement also provided for future cooperation with the Economic and Crime Confiscation Unit.  The Defendant would no longer rely on the obliged person provisions for current or future customers, and the agreement to exit certain client relationships was disclosed on a confidential basis.

Submissions

63.     Crown Advocate Brown for the Attorney General, in addition to explaining the background of the DPA Law which we have endeavoured to set out in this judgment, also made the following submissions.

64.     In relation to the role of the Court in reviewing a DPA, Advocate Brown referred to guidance given by the English Courts when applying legislation similar to the DPA Law.  In SFO v Airbus SE2020 WL UK 435 at paragraph 10, Dame Sharpe, President of the Queen’s Bench Division, stated the following:

“10. Whether a DPA is likely to be or is in the interests of justice and whether its terms are likely to be or are fair, reasonable and proportionate are questions to be determined by reference to all of the relevant facts and circumstances of a particular case. It will be rare for one factor alone to dictate the outcome. As identified in the preliminary judgment in Sarclad at para 32:

"In making this assessment, a number of factors fall to be considered. These can be listed as follows:

i) the seriousness of the predicate offence or offences;

ii) the importance of incentivising the exposure and self- reporting of corporate wrongdoing;

iii) the history (or otherwise) of similar conduct;

iv) the attention paid to corporate compliance prior to, at the time of and subsequent to the offending;

v) the extent to which the entity has changed both in its culture and in relation to relevant personnel;

vi) the impact of prosecution on employees and others innocent of any misconduct."”

65.     In SFO v Rolls Royce [2017] Lloyds Rep FC 249 at paragraph 138, the High Court stated:

“Although these proceedings have been required to validate a proposal and, then, a concluded agreement in relation to the investigation by the SFO into the activities of Rolls Royce and RRESI, it is important to underline that the court has not acted merely to provide formal confirmation of that agreement. On the contrary, there has been robust challenge to the approach following a detailed analysis of the circumstances of the investigated offences, and an assessment of the financial penalties that would have been imposed had the indictment proceeded to trial and conviction. Neither have I assessed the position in a way that is identical to the approach adopted by the parties although I recognise that it has been important to stand back and assess, from an overall perspective, whether the terms of the DPA are both in the interests of justice and fair reasonable and proportionate.”

66.     The judgment then continued at paragraph 139:

“139. Thus, as I have observed in relation to previous DPAs, there is no question of the parties having reached a private compromise without appropriate independent judicial consideration of the public interest: furthermore, publication of the relevant material now serves to permit public scrutiny of the circumstances and the agreement. Suffice to say that I am satisfied that the DPA fully reflects the interests of the public in the prevention and deterrence of this type of crime.”

67.     In discharging its functions, the Royal Court, as is the case in England and Wales, does not make findings of fact and is entitled to rely on the agreed Statements of Facts and the submissions made to it.

68.     Advocate Brown also drew a distinction between the customary law discretion vested in the Attorney General as to whether or not to bring a prosecution and the power vested in the Attorney General under the DPA Law to commence DPA proceedings. This distinction means that the Attorney General is entitled to consider whether, notwithstanding it would otherwise be in the public interest to commence a prosecution, that the interests of justice may be served by entering into a DPA.  When the Attorney General elected for the latter option, the Court then determines whether or not a DPA should be approved by the two-stage process under Article 6(4) and 7(2) of the DPA Law and so retains ultimate control of the process whether or not to approve a DPA. 

69.     Furthermore, he submitted, as noted at paragraphs 17 and 25 above, that the initial application under Article 6(4) was always going to be significant, if not critical, because it was likely that, if a declaration was made under Article 6(4), there would be little additional material for the Court to consider when any application was presented under Article 7(2).

70.     The effect of a DPA only protected the entity from criminal prosecution if it adhered to the terms of the DPA.  A DPA did not affect the Attorney General’s discretion whether or not to prosecute individuals.

71.     In relation to publication, it was agreed that the Statement of Facts would be published, but only naming certain individuals.  Otherwise, it would be a matter for the Court whether individuals would be named in its public judgment.  Even if, however, individuals were named in the judgment, the indictment and the published version of the Statement of Facts would be endorsed to recognise that the Royal Court had not made any findings of fact and no process had taken place, by which the culpability of any natural person was determined or assessed. The indictment and Statement of facts would also note that the Court did not hear any evidence from any individual, nor did the Court invite any individual to give evidence.

72.     In relation to the self-reporting process, Advocate Brown emphasised that the Defendant had not withheld anything that would jeopardise or effect an investigation, and it had provided comprehensive information in its initial self-report.  The Defendant had also sought to obtain evidence and information from the two main employees involved in the transaction and identified other material about which the criminal investigation was not originally aware of.

73.     There was also no suggestion that the Defendant’s current senior management either should have or did know about what was occurring during the period alleged in relation to Counts 1 to 5.  They had also behaved in a constructive and responsible manner when faced with the production order and the prospect of a lengthy criminal investigation, as well as in relation to the self-report.

74.     The current offences had also occurred prior to the acquisition of the Defendant by Fleetcor (with the exception of one count).  This meant that the current management of the Defendant and its ultimate owner had to deal with the damage caused as a result of the actions of a minority of employees.  Notwithstanding this, the Defendant supported by its ultimate owner, had accepted responsibility for the actions of a few.

75.     Advocate Brown also noted that the Defendant’s Jersey office was small, and it had a single client for which it drew a significant proportion of its business. The consequence of a conviction could therefore lead to disproportionate collateral damage to the Defendant’s ability to trade on innocent employees and on managers who had done their best to deal with what they had uncovered.  These were all matters that the Court was entitled to take into account. 

76.     We were also informed that the Defendant had engaged with the JFSC and that the latter was supportive of these proceedings.

77.     In relation to the setting of a financial penalty, the Attorney General had applied the general principles set out at paragraphs 42 to 47 of his guidance which are as follows:

“42) Where a financial penalty is to be imposed there should be a transparent approach to the setting of a financial penalty. Previous sentencing decisions of the Royal Court and Court of Appeal will be of limited assistance, save where the conduct is directly analogous.

43) Any financial penalty must be broadly comparable to a fine that the Royal Court could have imposed upon an Entity if had pleaded guilty to all of the offences in the indictment. The assessment of the penalty should include a detailed and evidence-based consideration of an Entity's means. The financial penalty will be fair and proportionate but sufficiently substantial to have a real economic impact on the Entity. The financial penalty must reflect the seriousness of the specified offence contained within the self- report. Where compensation is appropriate, this will usually take priority over a penalty.

44) As entering a DPA is voluntary the fact that the scheme requires a self-report by an Entity will not, without more, be factored into the assessment of the financial penalty leading to a downward adjustment of the amount. Entities should not expect an automatic additional discount to the financial penalty simply because they have made a self-report. The financial penalty must provide for a discount equivalent to that which the Entity would be entitled by an early guilty plea. This will involve an assessment of all the circumstances which include the conduct of the Entity and its legal advisers during the DPA negotiations.

45) The new nature of the DPA regime in Jersey and the limited number of convictions of corporate offenders for offences in Schedule 1 of the Law is likely to mean that financial penalties will be fixed with reference to other sources, for example the JFSC guidance on civil penalties (or the UK FCA's civil penalty guidance). Examples of DPAs from other jurisdictions may serve as illustrations where the conduct alleged is similar to the offences in the indictment. Before negotiations commence, the Attorney General and the Entity should attempt to identify an approximate starting point so that the Royal Court is aware at the outset of the justifications for the financial penalty and other requirements that may be suggested as part of the DPA itself.

46) The Attorney General and the Entity should not attempt to apply directly the sentences specified in definitive English sentencing guidelines issues by the UK Sentencing Guidelines Council. However, it is permissible for the Attorney General to have regard to those guidelines in order to compare any applicable sentencing decisions in Jersey and to assess whether sentences passed in Jersey for the same misconduct are out of step with penalties currently imposed in coordinate jurisdictions.

47) Timely and accurate information about an Entity's means must be provided to the Attorney General. At a minimum, this will be the Entity's annual accounts. Although the process of fixing an agreed financial penalty described in paragraph 62 is to a degree collaborative, where accounts or other financial information are not supplied, the Attorney General will likely conclude the Entity should pay any financial penalty the Attorney General considers is fair and proportionate.”

78.     In this case, the Defendant had provided its annual account statements for 2019 to 2023.  While it had significant assets, these represented group funds banked in Jersey and were based on inter-company loans. The Defendant was also projected to make a net loss in 2024, leading the Attorney General to recognise that the Defendant’s financial position was strained. This had been taken into account by the Attorney General in arriving at the agreed financial penalty.

79.     The Attorney General’s overall focus was on a penalty which would have a real impact on the Defendant in its current financial position. While the Attorney General noted that the Defendant’s ultimate parent might provide financial support, it was submitted that it would be wrong to fix a penalty which would be oppressive on the Defendant (as a subsidiary) on the basis that its parent might pay.  To fix a much higher penalty based on what Fleetcor could pay and not what the Defendant, is able to pay, would be contrary to principle (See R v Bupa Care Homes (BNH) Ltd [2020] 1 Cr. App. R. (S). 48 at [371]. .

80.     The quantum of penalty in a case of breaches of the Money Laundering Order was not therefore fixed exclusively by reference to the value of the amount of money that was laundered, but rather by reference to the failure to manage risk.

81.     The only recent Jersey authorities that provided any form of guidance were AG v Abu Dhabi Commercial Bank PG SC Jersey Branch [2020] JRC 059 and AG v LGL Trustees Limited [2021] JRC 058.

82.     In the Abu Dhabi decision, the Royal Court reduced the starting point by £100,000, to £800,000, and after a discount of one-third for a guilty plea, made a further reduction of just over £50,000 to reflect other mitigating factors to £475,000.  Paragraph 3 noted that the offence related to a failure to maintain appropriate and consistent policies and procedures for two customers.  However, as paragraph 4 noted, there was no suggestion that the customers in question were guilty of money laundering or indeed any financial offending.

83.     In the LGL decision, the failure was again not having policies in place to prevent money laundering.  There was also no suggestion that the funds provided in LGL were of suspicious origin.  Rather, there was a money laundering risk of the possibility of corrupt misuse of funds being diverted from the investment structure that LGL was administering. The fine imposed on LGL was £550,000 and the starting point was £1.2 million with, again, credit being given for the guilty plea of one-third.  There was then a reduction to reflect LGL’s clean record and cooperation.  The penalty was then reduced further to reflect LGL’s financial position and that the great majority of the current directors or shareholders had not benefitted from the fees earned in respect of the structure that led to the prosecution and conviction.

84.     The present case was a transaction of much lower value than that in LGL but, by contrast, the Defendant had opened a gateway to a much higher risk of a money laundering transaction.  This led to the Attorney General to adopt a starting point that was slightly higher than that used by the Court in the Abu Dhabi case (of £800,000). 

85.     In relation to the discount of 28% over and above the guilty plea, the Attorney General had started with an additional discount of 25%, which he had increased by a further 3% to recognise the commercial hardship of the level of penalty being sought and good cooperation received from the Defendant. This however was a discount arrived at by reference to the facts of this case and might not reflect the approach taken by the Attorney General in the future.

86.     In relation to Counts 1 to 5 and 6 to 11, ordinarily a consecutive penalty would be suggested for these offences because they were different in nature and Counts 6 to 11 did not follow on from the conduct leading to Counts 1 to 5.  However, having regard to the totality principle in this case, the Attorney General was content for the level of financial penalty to be based on a cumulative penalty.

87.     Looking at the level of penalty, the Attorney General had not looked at what penalties the JFSC might have imposed if the JFSC had been dealing with those counts as regulatory infractions. 

88.     Advocate Thomas for the Defendant supported the application and confirmed the support that was being provided by the Defendant’s ultimate parent, although it was not obliged to do so. This was important because the Defendant needed support from its ultimate parent in order to pay the financial penalty proposed by the DPA.

89.     In relation to the level of proposed penalty, previous sentencing decisions were only a relevant factor to take into account but were not determinative.  He therefore emphasised looking at the real economic impact of the penalty.  He accepted that in some cases the level of penalty had to be such that an entity might cease trading, but that should not be the norm.  He drew my attention to the remarks of Sir Brian Leveson, President of the Queen’s Bench Division in SFO v Sarclad, dated 8 June 2016, where Leveson P stated the following at paragraph 3:

“3. In one sense, SFO v Standard Bank represented a comparatively straightforward application of the principles and process. This application raises for the first time the problems generated when a modestly resourced small to medium sized enterprise ("SME") is demonstrably guilty of serious breaches of the criminal law. At what level of criminality is it necessary simply to allow the SME to become insolvent and to what extent is it appropriate to mitigate the financial penalty, knowing that the SME is only able to make any substantial payment with the support of the substantial company of which the SME is a wholly owned subsidiary? On the one hand, allowing the SME to continue to trade (assuming necessary compliance has been put in place) is in the public interest but, on the other hand, nothing must be done to encourage the pursuit of criminal behaviour through a corporate vehicle which can be abandoned as insolvent if necessary.”     

90.     This was a case where the defendant was only able to make payment with the support of its parent.  Approval of the DPA would not therefore be encouraging a pursuit of criminal behaviour in the way contemplated by Leveson P.

91.     At paragraph 80 of the same decision, Advocate Thomas also drew my attention to the following remarks:

“80. Once it was decided that it was in the public interest that Sarclad should not be forced into insolvency, what was fair, reasonable and proportionate fell to be considered in the context of the work put into the company to ensure that it was viable and operated in accordance with the law, the expense incurred and whether sufficient financial assistance could be sought to ensure that the criminality had not led to profit. By disgorging or paying by way of financial penalty the total of gross (as opposed to net) profit and by doing so by incurring long term liability to Heico (save for Heico's reimbursement of the dividends it received), I believe that the conclusion is fair, reasonable and proportionate. This is not least because it provides an example of the value of self-report and co-operation along with the introduction of appropriate compliance mechanisms, all of which can only improve corporate attitudes to bribery and corruption.”

92.     That was the scenario that applied in the present case.

Discussion and decision on the Article 6(4) application

93.     In relation to this application, we were firstly satisfied that the steps set out in Article 4(1), Article 5(1) and Article 5(4) as set out above have taken place leading to the Attorney General initiating DPA Proceedings under Article 6(1) and lodging the indictment. This lead the Attorney General to issue an application under Article 6(4) for the Court to review the proposed DPA. The role of the Royal Court under Article 6(4) is to consider whether:

“a. Entering into a DPA with the entity is likely to be in the interests of justice; and

b. The proposed terms of the DPA are fair, reasonable and proportionate.”

94.     We agreed with Advocate Brown that the factors listed in SFO v Airbus set out at paragraph 64 above were relevant factors for us to consider. 

95.     In relation to the indictment and the Statement of Facts, we were provided with all the supporting evidence referred to in the Statement of Facts.  We were also provided with a copy of the self-report.  The Jurats considered all these documents carefully.

96.     In relation to Counts 1 to 5, we agreed with the Attorney General that what occurred in relation to these counts was “a serious failure in corporate governance driven by individuals within the Defendant acting recklessly” (paragraph 12 of the Attorney General’s certificate).  We also agreed that, had the Defendant’s procedures been applied properly, the transaction at the heart of the events would not have occurred and the relationship terminated. The Defendant’s failings were particularly serious because the Defendant, through the individuals at the time, failed to identify the beneficial owner of the funds involved despite having at least five opportunities to do so. As set out at paragraph 15 of the Attorney General’s contentions:

“15. AOL should have realised that the information it was being given must have been untrue or at least inconsistent to the extent that its veracity should have been questioned. No analysis was applied by senior management, principally because the completion of the transaction was being driven by two senior employees who wished the transaction to occur, motivated as they were by the prospect of repeat business.”

97.     We also agreed however with the Attorney General’s position, that the Defendant did not appear to have engaged in money laundering itself or knowingly facilitating money laundering.  We also accepted that the admitted offences did not establish that the Defendant had engaged in dishonest conduct, nor that the Defendant knew or suspected that money laundering was occurring at the time of the conduct.  Rather, the transaction appeared to have been driven by two individuals and not by a total failure of the whole of the Defendant across its business.  We therefore also accepted that the Defendant did not intentionally set out to contravene the money laundering order, nor did it intend to circumvent its application.

98.     In relation to Counts 6 to 11, the Attorney General stated at paragraph 19 of his contentions that this conduct alone would not have made a prosecution inevitable and the matter might have been referred to the JFSC for them to consider enforcement action or the imposition of a civil penalty.  However, because of the conduct leading to Counts 1 to 5, the Attorney General’s position was that a different picture had emerged, and that the totality of the conduct including counts 6 to 11 would have merited a prosecution.  We accepted that conclusion.

99.     We also accepted that the Defendant had an unblemished record and there was no prior history of similar conduct.  We further accepted that the Defendant had changed its culture, its practices, that it has owners who were not present at the time the offences were committed, and that a new money laundering reporting officer was in place. 

100.   In relation to the financial penalties proposed by the Attorney General, we approved the total financial penalty reached by the Attorney General in the sum of £408,240 as meeting the requirements of Article 6(4).  However, as set out in more detail below, we did not agree with all of the reasoning by which the Attorney General had arrived at the final total financial penalty. We accepted the final total penalty for two reasons. 

101.   Firstly, we were satisfied by reference to the totality principle that this figure was one that was fair, reasonable and proportionate. 

102.   This was firstly because we accepted the submission of both counsel that the agreed financial penalty was one which would have a real impact on the Defendant given its current financial position, and that the Defendant could only meet this penalty by reference to monies available to it and because its ultimate parent was prepared to provide support in the future.

103.   We were also satisfied that this was not the sort of case because of the nature of the Defendant’s conduct where it was necessary to allow the Defendant to become insolvent and bear the consequences of its own wrongdoing (see SFO v Sarclad at paragraph 89 above).  This was not the Defendant knowingly or deliberately engaging in money laundering but rather a serious failure to apply money laundering procedures. This was not therefore one of those cases where it was in the public interest to force the Defendant into insolvency leading to innocent individuals suffering the financial consequences of actions of others. 

104.   In approving the financial penalty, we also took into account that the Defendant had accepted responsibility for the actions of a few and had behaved in a constructive and responsible manner in changing its policies and procedures.

105.   We were therefore satisfied that the DPA was both in the interests of justice and its terms were fair, reasonable and proportionate.

106.   We wish to record however that where we did not agree with the Attorney General was in respect of the starting point for the financial penalty for Counts 1 to 5, the proposed discount over and above a one-third guilty plea and its approach in relation to the setting of penalties for Counts 6 to 11.  Given this is the first judgment dealing with approval of a DPA, we consider it appropriate to set out where we did not accept the approach of the Attorney General.

107.   Firstly, in relation to the starting point for Counts 1 to 5, the Abu Dhabi and LGL cases were of limited benefit because both related to failures of procedures over a relatively lengthy period of time where there was no evidence that actual money laundering had occurred.  By contrast, in the present case, it was clear that €3 million had been paid away and therefore the Defendant’s procedural failings appeared to have allowed significant money laundering to occur, albeit the Defendant itself as we have noted above, was not acting dishonestly and was not knowingly engaged in money laundering. 

108.   In future cases, the financial penalty, where a defendant has allowed monies to be paid to third parties through a failure of its money laundering controls leading to a significant risk of money laundering having occurred, should take into account the amount of monies an entity has permitted to be paid away. In making this observation, we accept that it is also relevant to consider what financial benefit the entity may have gained where significant sums are paid away in breach of an entity’s money laundering controls. In England and Wales, the Court’s approach to setting a financial penalty, by reference to guidelines issued in that jurisdiction, focuses on determining a penalty as a multiplier of the profit made by an organisation. However, as this case illustrates, such an approach may not work for this jurisdiction where entities engaging in financial services business may be involved in high value transactions for relatively modest fees. In any event, the sentencing guidance issued in England and Wales does not apply in this jurisdiction. How the Attorney General might approach this question in future cases is however a matter for another day.

109.   Secondly, while we accepted the overall financial penalty for the reasons set out above, we were not satisfied that the additional discount of 28% proposed by the Attorney General was appropriate given that credit had already been given for a guilty plea.  As the Attorney General said at paragraph 44 of his own guidance, an entity should not expect an automatic additional discount of the financial penalty simply because it has made a self-report.  In our view, any additional discount by way of an incentive for entering into a guilty plea, if appropriate at all, should only be for a much lower percentage. What the discount of 28% failed to take into account is that the entity entering into a DPA avoids the consequences of a criminal conviction with the impact on its business that such a conviction would otherwise bring.  Something else is therefore required to justify a significant discount over the normal one-third.

110.   In addition in this case, we noted that the Defendant was already under investigation by the time it filed its self-report, in respect of Counts 1-5. We repeat that, ordinarily, an entity already under investigation is not able to avoid the effect of a prosecution simply by filing a self-report. It is only because in this case the DPA regime was not available until March 2023 and the Defendant immediately approached the Attorney General about the possibility of entering into a DPA and thereafter acted promptly, were we able to approve the terms of the DPA. This is unlikely to apply in future cases where an entity is already under investigation and seeks to take advantage of the DPA regime.

111.   In relation to Counts 6 to 11, in our view a penalty for these counts ordinarily would be consecutive rather than cumulative because they related to different conduct and there was no overlap between the facts leading to Counts 1 to 5 and the facts underpinning Counts 6 to 11. However, we did not impose any financial penalty on a cumulative basis because, having regard to the totality of the sentence, it was not appropriate to impose an additional financial penalty over and above the amount set out in the DPA.

112.   Finally, in relation to Counts 6 to 11, in view of the Attorney General’s own recognition at paragraph 19 of his certification that he might have referred these counts to the JFSC for them to consider enforcement action and/or the imposition of a civil penalty, we should have had drawn to our attention an explanation of the likely level of civil penalty that the JFSC might have imposed on the Defendant in order for us to determine whether the financial penalty proposed for Counts 6 to 11 was fair, reasonable and proportionate. That is not to say that any financial penalty imposed would simply have reflected the likely civil penalty the JFSC would have applied. The circumstances where an entity finds itself facing either a prosecution or a DPA are more serious than those that would lead to a civil penalty. Nevertheless, the range of penalties the JFSC might impose should be looked at to evaluate the reasonableness of any financial penalty proposed by a DPA.  This did not occur in this case. The Court was therefore left in the position that it did not have any justification for the starting point used for each of Counts 6 to 11.

113.   In conclusion, pursuant to Article 6(4), we approved the DPA including the financial penalty as being both in the interests of justice and that the proposed terms of the DPA were fair, reasonable and proportionate. We also approved the appointment of Mr Shorrock and his colleague Mr Hinjosa, as the independent monitor as set out in the DPA.

Application pursuant to Article 7(2) of the DPA Law

114.   Following our decision made pursuant to Article 6(4) for the reasons set out in this judgment, a draft of this judgment was provided to the Attorney General and to the Defendant to address any factual errors. The Attorney General and the Defendant were also invited to make an application on the papers in the first instance for a declaration under Article 7(2) as referred to at paragraph 2 above.  This was for the reasons set out at paragraph 25 above.

115.   In this case, we were informed that, apart from typographical errors, the application for Article 7(2) was made on the same basis as the material that we had already approved in making a declaration under Article 6(4). The Jurats were therefore satisfied that it was appropriate to make such a declaration without the need for a further Court hearing. The Jurats also authorised the Commissioner to give the Court’s reasons for making a declaration in open court as required by Article 7(6) of the DPA Law.

116.   As part of his application on behalf of the Attorney General, Advocate Brown sought that certain parts of the judgment, which at that stage had been provided in draft to the Attorney General and to the Defendant, be redacted.  The Attorney General also made an application under Article 13(1) to order temporary postponement of the publication of the information as set out in Article 7(8) of the DPA Law.  Article 7(8) provides as follows:

“(8) On approval of the DPA by the Court, the Attorney General must publish, in such manner as the Attorney General thinks fit –

(a) the DPA;

(b) the declaration of the Court made under Article 6(4) and the reasons given by the Court under Article 6(6);

(c) in a case where the Court initially declined to make a declaration under Article 6(4), the reasons given by the Court under Article 6(6) for that decision; and

(d) the declaration of the Court made under paragraph (2)(a) and the reasons given by the Court under paragraph (4).”

117.   Two issues therefore arise. The first concerns whether the Court in publishing its own judgment should redact any information. The second issue concerns whether the Attorney General should publish the matters required by Article 7(8) or whether that publication by the Attorney General should be deferred. The basis upon which the Court may defer publication is set out in Article 13(1) which provides as follows:

“Publication of information by the Attorney General

 The Court may order that the publication of information by the Attorney General under Article 7(8) be postponed, for such period as the Court considers necessary or indefinitely, if it appears to the Court that postponement is necessary –

(a) for avoiding a substantial risk of prejudice to the administration of justice in any legal proceedings; or

(b) for some other substantial reason.”

118.   The basis upon which the Court might redact its judgment itself and which might lead the Attorney General to make an application under Article 13(1) are therefore likely to overlap. 

119.   In this case, the Attorney General firstly sought to redact names of certain individuals referred to in the judgment and to redact certain names from the statement of facts to be published by the Attorney General because of ongoing criminal investigations.

120.   Secondly, the Attorney General sought not to publish the names of the trust companies, whose policies and procedure the Defendant had failed to review until such time as the remediation plan of the Defendant had been put into full effect under the services of the Independent Monitor.  The only entity which this did not apply was IQEQ because they had already been the subject of a public statement and it was not possible not to connect their identity with the remaining particulars of Counts 6, 7 and 11.  Identification of the other entities at this stage might also prejudice future regulatory action.

121.   The Attorney General also wished to anonymise indefinitely the name of employees of the Defendant who were blameless and there was no legitimate interest in identifying individuals performing work in a non-public role and who only perform their work on the instructions of others.

122.   Crown Advocate Brown also referred us to English authorities where a similar approach to that suggested by the Attorney General has been taken - see SFO v Amec Foster Wheeler, a judgment dated 25 June 2010, where Edis LJ stating as follows at paragraph 5:

“The purpose of proceeding in this way is to protect the fair trial rights of those who may be prosecuted and to protect other rights of those who reside in some other jurisdictions where those rights may be prejudiced by-publication of their names.”

123.   The same approach was taken in an unreported judgment dated 31 January 2020 in Serious Fraud Office v Airbus [2020] WLOO733359. 

124.   Crown Advocate Brown also reminded me generally of the approach set out to anonymisation in this jurisdiction in HSBC Trustee (CI) Limited v Kwong [2018] JRC 051A which are the principles that we have applied. We were therefore satisfied that the proposed redactions and the Attorney General’s application under Article 7(8) should be granted as requested.

125.   However, if the media wish to challenge this order either in respect of the redactions made to this judgment at paragraph 40 or in relation to the terms of the DPA not being published beyond those described in this judgment, including the agreed statement of facts, then there is liberty to apply to any members of the media who wish to do so.

Authorities

Criminal Justice (Deferred Prosecution Agreements) (Jersey) Law 2023. 

Criminal Procedure (Jersey) Law 2018. 

Money Laundering (Jersey) Law 2008. 

Proceeds of Crime (Jersey) Law 1999. 

AG v Byrne [2018] JRC 221.  

Criminal Justice (Evidence of Procedure) (Jersey) Law 1998

SFO v Airbus SE2020 WL UK 435. 

SFO v Rolls Royce [2017] Lloyds Rep FC 249. 

R v Bupa Care Homes (BNH) Ltd [2020] 1 Cr. App. R. (S). 48

AG v Abu Dhabi Commercial Bank PG SC Jersey Branch [2020] JRC 059. 

AG v LGL Trustees Limited [2021] JRC 058. 

SFO v Sarclad, dated 8 June 2016. 

SFO v Amec Foster Wheeler, dated 25 June 2010. 

Serious Fraud Office v Airbus [2020] WLOO733359. 

HSBC Trustee (CI) Limited v Kwong [2018] JRC 051A. 


Page Last Updated: 18 Dec 2024