Crime
(Transnational Organized Crime) (Jersey) Law 2008
A LAW to provide for the
implementation in Jersey of the United Nations Convention Against Transnational
Organised Crime adopted by the General Assembly of the United Nations on 15
November 2000, the Protocol thereto to Prevent, Suppress and Punish
Trafficking in Persons and the Protocol thereto Against Smuggling of Migrants;
and for related purposes.
Commencement [see endnotes]
1 Interpretation
In this Law –
“material benefit” includes, but is not limited to
including, financial, monetary or equivalent benefits and sexual gratification;
“State” means any country or territory, and includes
Jersey.
2 Participating
in criminal organization
(1) A person commits an
offence if he or she –
(a) participates
in a criminal organization, knowing that it is a criminal organization; and
(b) knows,
or is reckless as to whether, his or her participation contributes, or may
contribute, to the occurrence of a serious offence against the law of a State.
(2) A person who commits an
offence against paragraph (1) shall be liable to imprisonment for a term
of 5 years and to a fine.
(3) A person shall only be
taken to participate in a criminal organization for the purposes of paragraph (1)
if he or she is a member, an associate member, or a prospective member, of the
organization.
(4) For the purposes of
this Article, a criminal organization is a group of 3 or more persons who have
as their objective, or one of their objectives, obtaining, directly or
indirectly, a material benefit from the committal of a serious offence against
a law of a State by the organization, or a member, an associate member, or a
prospective member, of the organization, but does not include a group that is
randomly formed for the immediate commission of a single offence.
(5) For the purposes of
this Article, a group of 3 or more persons may be a criminal organization
whether or not –
(a) some
of them are subordinates or employees of other members of the group or other
persons;
(b) only
some of the people involved in the group at a particular time are involved in
the planning, arrangement, or execution, at that time, of any particular action,
activity or transaction;
(c) its
membership changes from time to time;
(d) the
persons are present in Jersey;
(e) a
serious offence against a law of a State was committed by the organization or a
member, an associate member, or a prospective member, of the organization, and
whether a serious offence against a law of a State was, or was intended to be,
committed within or outside Jersey by the organization or a member, an
associate member, or a prospective member, of the organization;
(f) any
person received a material benefit from the commission of a serious offence
against a law of a State by the organization or a member, an associate member,
or a prospective member, of the organization.
(6) In this Article,
participation in a criminal organization includes, but is not limited to
including –
(a) agreeing
with another person to participate in an act that contributes, or may
contribute, to the occurrence of a serious offence against a law of a State;
and
(b) organizing,
directing, taking part in, or assisting in, the commission of a serious offence
against a law of a State by the organization or a member, an associate member,
or a prospective member, of the organization.
(7) In this Article,
“serious offence against a law of a State” means –
(a) an
offence against the law of Jersey that is a serious offence within the meaning
of Article 3 of the Police Procedures and
Criminal Evidence (Jersey) Law 2003; or
(b) an
offence against the law of a State other than Jersey that, if it had been
committed in Jersey, would be a serious offence within the meaning of Article 3
of the Police Procedures and
Criminal Evidence (Jersey) Law 2003.
(8) In criminal proceedings
in relation to the alleged commission of an offence against paragraph (1)
by a person who participates in a criminal organization, it is not necessary to
prove that –
(a) a
serious offence was committed by the organization or a member, an associate
member, or a prospective member, of the organization;
(b) a
serious offence that was, or that was intended to be, committed by the
organization or a member, an associate member, or a prospective member, of the
organization, was committed, or intended to be committed, in Jersey;
(c) any
person received a material benefit from the commission of a serious offence by
the organization or a member, an associate member, or a prospective member, of
the organization; or
(d) the
person knew the identity of any member of the criminal organization.
3 People
smuggling
(1) A person commits an
offence if he or she –
(a) arranges
for an unauthorized migrant to enter
a State;
(b) does
so for the purpose of obtaining, directly or indirectly, a material benefit for
himself or herself or any other person; and
(c) knows
that, or is reckless as to whether, the unauthorized migrant is an unauthorized
migrant.
(2) A person commits an
offence if he or she –
(a) arranges
for an unauthorized migrant to be brought to a State;
(b) does
so for the purpose of obtaining, directly or indirectly, a material benefit for
himself or herself or any other person;
(c) knows
that, or is reckless as to whether, the unauthorized migrant is an unauthorized
migrant; and
(d) knows
that, or is reckless as to whether, the unauthorized migrant intends to try to
enter the State.
(3) A person commits an
offence if he or she –
(a) enables
a person who is not a national or a permanent resident of a State to remain in
the State by the means described in Article 6 or any other illegal means;
(b) does
so for the purpose of obtaining, directly or indirectly, a material benefit for
himself or herself or any other person; and
(c) knows
that the person referred to in sub-paragraph (a) is not a national or a
permanent resident of the State or is reckless as to the person’s status.
(4) A person who commits an
offence against paragraph (1), (2) or (3) shall be liable to imprisonment
for a term of 20 years and to a fine.
(5) An offence against
paragraph (1) may be committed even if the unauthorized migrant in
relation to whom the alleged offence occurred –
(a) consented
to the arrangement for him or her to enter the State; or
(b) did
not enter the State in respect of which the arrangement was made.
(6) An offence against
paragraph (2) may be committed even if the unauthorized migrant in
relation to whom the alleged offence occurred –
(a) consented
to the arrangement for him or her to be brought to the State; or
(b) was
not brought to the State in respect of which the arrangement was made.
(7) In this
Article –
“arrange for an unauthorized migrant to be brought to a
State” includes, but is not limited to including the
following –
(a) organizing,
or procuring, the bringing of an unauthorized migrant to a State;
(b) recruiting
a person to be brought, as an unauthorized migrant, to a State;
(c) carrying
an unauthorized migrant to a State;
“arrange for an unauthorized migrant to enter a State”
includes, but is not limited to including, the following –
(a) organizing
or procuring the entry of an unauthorized migrant into a State;
(b) recruiting
a person to enter, as an unauthorized migrant, into a State;
(c) carrying
an unauthorized migrant into a State;
“unauthorized migrant”, in relation to a State, means a
person who –
(a) is
not a citizen of the State; and
(b) does
not have possession of all the documents required by or under the law of the
State to lawfully enter the State.
4 Trafficking
in persons
(1) A person commits an
offence if, for the purposes of the physical exploitation of another person, he
or she –
(a) recruits
or arranges for the other person to enter a State, or travel within a State; or
(b) arranges,
organizes or procures the reception, concealment or harbouring, in a State of
the other person.
(2) Where the person
physically exploited or intended to be physically exploited is
aged 18 years or more, a person only commits an offence against
paragraph (1) if the recruitment, arrangement, organization or procurement
is by means of any of the following –
(a) the
threat or use of force or other forms of coercion;
(b) abduction;
(c) fraud
or deception;
(d) the
abuse of power or of a position of vulnerability;
(e) the
giving or receiving of payments or benefits to achieve the consent of a person
having control over another person.
(3) A person who commits an
offence against paragraph (1) shall be liable to imprisonment for a term
of 20 years and to a fine.
(4) An offence against
paragraph (1) may be committed even if the person physically exploited or
intended to be physically exploited –
(a) did
not in fact enter, or travel within, the State; or
(b) was
not in fact received, concealed, or harboured, in the State.
(5) An offence against
paragraph (1) may be committed in respect of a person aged 18 years
or more even if steps in the process by which the person entered, or was to
enter, the State, or travelled, or was to travel, within the State, did not
involve means described in paragraph (2).
(6) In this Article, any
reference to the physical exploitation of a person means any of the
following –
(a) the
use of the person for sexual purposes;
(b) the
removal of a body part from the person, unless for the benefit (other than the
financial, monetary, or equivalent, benefit) of the person;
(c) the
use of the person in forced labour or services, slavery or practice similar to
slavery, or servitude.
(7) Paragraph (6)(a) includes,
but is not limited to including, any of the following –
(a) the
taking, or transmission, by any means, of an image of the person engaged in
real or simulated sexual activities;
(b) the
taking, or transmission, by any means, of images of the person’s
genitalia, anus, or breasts, for the purpose of obtaining, directly or
indirectly, a material benefit for the person or any other person;
(c) the
person’s participation, for the purpose of obtaining, directly or
indirectly, a material benefit for the person or any other person, in a
performance or display, or other employment, that involves the exposure of the
person’s genitalia, anus or breasts.
(8) Paragraph (6)(a)
does not include –
(a) the
taking, in good faith, for purposes primarily other than the exposure of body
parts of the person for the sexual gratification of a viewer, of an image of
the person as part of an artistic or cultural performance or display;
(b) the
taking or transmission of an image of the person for the purpose
of –
(i) depicting, for
the instruction or information of health professionals, a medical condition or
a surgical or medical technique,
(ii) providing
medical or health education,
(iii) providing
information relating to medical or health matters, or
(iv) advertising
a product, instrument, or service, intended to be used for medical or health
purposes.
(9) The other person in
respect of whom an offence against this Article is committed, or is suspected
of being committed, shall not be charged as a party to the offence.
5 Aggravating
factors in relation to migrant smuggling and trafficking in persons
(1) In determining the
sentence to be imposed on, or other way of dealing with, a person convicted of
an offence against Article 3 or 4, a court shall take into
account –
(a) whether
bodily harm or death (whether to or of a person in respect of whom the offence
was committed or some other person) occurred during the commission of the
offence;
(b) whether
the life or safety of any person in respect of whom the offence was committed was
endangered or likely to be endangered;
(c) whether
the offence was committed for the benefit of, at the direction of, or in
association with, a criminal organization within the meaning of Article 2;
(d) whether
a person in respect of whom the offence was committed was subject to inhuman or
degrading treatment as a result of the commission of the offence; and
(e) if
during the relevant criminal proceedings the person was convicted of the same
offence in respect of 2 or more people, the number of people in respect of whom
the offence was committed.
(2) In determining the
sentence to be imposed on, or other way of dealing with, a person convicted of
an offence against Article 4, a court shall also take into
account –
(a) whether
a person in respect of whom the offence was committed was also subject to other
exploitation (including but not limited to physical exploitation of the other
person, within the meaning of that Article) as a result of the commission of
the offence;
(b) the
age of the person in respect of whom the offence was committed and, in
particular, whether the person was under the age of 18 years; and
(c) whether
the person committed the offence, or took actions that were part of the
offence, for a material benefit.
(3) This Article does not
limit the matters to which a court may have regard when determining the
sentence to be imposed on, or other way of dealing with, a person convicted of
an offence against Article 3 or 4.
6 Travel
documentation offences
(1) A person commits an
offence if he or she forges, or falsifies, a travel document that he or she
knows, or has reason to suspect, is intended to be used in the course of, or
for purposes related to, the commission of an offence against Article 3 by
any person.
(2) A person commits an
offence if, without reasonable excuse –
(a) knowing
a travel document to be forged, or false, he or she –
(i) uses it, deals
with it, or acts upon it, as if it were genuine, or
(ii) causes
another person to use it, deal with it, or act upon it, as if it were genuine,
in the course of, or for purposes related to, the commission of an
offence against Article 3 by any person;
(b) he or
she has in his or her possession, or under his or her control, a travel
document that he or she knows or has reason to suspect –
(i) is a forged or
false travel document, and
(ii) is
intended to be used in the course of, or for purposes related to, the
commission of an offence against Article 3 by any person;
(c) he or
she sells, hires, lends, gives, or otherwise disposes of to another person, a
travel document that he or she knows or has reason to suspect –
(i) is a forged or
false travel document, and
(ii) is
intended to be used in the course of, or for purposes related to, the
commission of an offence against Article 3 by any person; or
(d) he or
she –
(i) makes, uses, has
in his or her possession, or disposes of to another person, any paper or other
material that he or she knows is specially provided by the proper authorities
of a State for any purpose related to travel documents of the State, and
(ii) knows
or has reason to suspect that the paper or other material is intended to be
used in the course of, or for purposes related to, the commission of an offence
against Article 3 by any person.
(3) A person who commits an
offence against paragraph (1) or (2) shall be liable to imprisonment for a
term of 10 years and to a fine.
(4) In this
Article –
“document” includes a thing that is, or is intended to
be –
(a) attached
to a document; or
(b) stamped
or otherwise signified on a document;
“forge” includes the following –
(a) to
make a copy of an existing document
or writing with the intention of representing it to be the original document or
writing;
(b) to
alter an existing document or
writing with the intention of representing the altered document or writing to
be the original document or writing;
(c) to
make a document or writing that
purports to be made or issued by or on behalf of a person who did not make or
issue it or authorize its making or issue, or who does not exist, with the intention of representing it was made or issued by or on
behalf of that person;
(d) to
make a document or writing that falsely purports to be made at a particular
place or time, or before or witnessed by a particular person, with the
intention of representing that such particulars are true;
“travel document” includes an
identification document.
7 Obstructing
justice
(1) A person commits an
offence if, for the purpose of –
(a) inducing
false testimony;
(b) interfering
with the giving of testimony; or
(c) interfering
with the production of evidence,
in relation to proceedings in respect of an offence against a provision
of this Law, he or she –
(i) uses
physical force, or threats, against;
(ii) intimidates
or attempts to intimidate; or
(iii) promises,
or offers, a benefit to,
a witness, a judicial officer, or a police officer, who takes part
in or engages in activities in respect of the proceedings.
(2) A person who commits an
offence against paragraph (1) shall be liable to imprisonment for a term
of 15 years and to a fine.
(3) In paragraph (1),
a reference to proceedings in respect of an offence against a provision of this
Law includes proceedings in respect of an offence, against a provision of
another enactment, of –
(a) attempting
to commit an offence against a provision of this Law;
(b) aiding,
abetting, counselling or procuring the commission of an offence against a
provision of this Law; or
(c) conspiring
or inciting another person to commit an offence against a provision of this
Law.
8 Territorial
application
(1) Proceedings for an
offence against a provision of this Law (including an offence against any
provision referred to in another paragraph of this Article) by a person may be
brought although some or all of the acts alleged to constitute the offence occurred
outside Jersey, if the person –
(a) is
ordinarily resident in Jersey;
(b) has
been found in Jersey and has not been extradited; or
(c) is a
body corporate incorporated under a law of Jersey, a limited liability company
registered under the Limited Liability Companies
(Jersey) Law 2018 or a limited liability partnership registered under the Limited Liability Partnerships
(Jersey) Law 2017.[1]
(2) Proceedings for an
offence against a provision of this Law (including an offence against any
provision referred to in another paragraph of this Article) by a person may be
brought although some or all of the acts alleged to constitute the offence
occurred outside Jersey, if a person in relation to whom the offence is alleged
to have been committed –
(a) is
ordinarily resident in Jersey; or
(b) has
been found in Jersey.
(3) Proceedings for an
offence against Article 2 by a person may be brought although some or all
of the acts alleged to constitute the offence occurred outside Jersey, if
paragraph (4) applies to the person.
(4) This paragraph applies
to a person if the criminal organization, within the meaning of Article 2,
in which the person is alleged to have participated is alleged to have as its
objective (or one of its objectives) the obtaining of material benefits by the
commission in Jersey of an offence against a law of Jersey that is a serious
offence within the meaning of Article 3 of the Police Procedures and
Criminal Evidence (Jersey) Law 2003.
(5) Proceedings for an
offence against Article 3(1) by a person may be brought although some or
all of the acts alleged to constitute the offence occurred outside Jersey, if
the act or omission is alleged to relate to arranging for a person to enter
Jersey.
(6) Proceedings for an
offence against Article 3(2) by a person may be brought although some or
all of the acts alleged to constitute the offence occurred outside Jersey, if
the act or omission is alleged to relate to arranging to bring a person to
Jersey.
(7) Proceedings for an
offence against Article 4 by a person may be brought although some or all
of the acts alleged to constitute the offence occurred outside Jersey, if the
act or omission is alleged to relate to arranging for a person to enter Jersey
or to travel in Jersey.
9 General
provisions as to offences
(1) A person
who –
(a) aids,
abets, counsels or procures the commission of an offence under any provision of
this Law (a “principal offence”); or
(b) conspires,
attempts or incites another to commit a principal offence,
shall also be guilty of the offence and liable in the same manner as
a principal offender to the penalty provided for the principal offence.
(2) A person alleged to
have committed an offence by virtue of paragraph (1) shall be triable in
the same manner as a person would be tried for the principal offence.
(3) Where
an offence against any provision of this Law committed by a limited liability
partnership or body corporate is proved to have been committed with the consent
or connivance of, or to be attributable to any neglect on the part
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 shall also be guilty of the offence
and liable in the same manner as the partnership or body corporate to the
penalty provided for that offence.
(4) Where
the affairs of a body corporate are managed by its members, paragraph (3)
shall apply in relation to acts and defaults of a member in connection with his
or her functions of management as if he or she were a director of the body
corporate.
(5) Article 8 shall
apply to proceedings for an offence that is an offence by virtue of paragraph (1)
or (3) as it would apply to proceedings for the principal offence.
10 Consent to
prosecution
A prosecution in Jersey for an offence against this Law may only be
brought by, or with the consent of, the Attorney General.
11 Citation
This Law may be cited as the Crime (Transnational Organized Crime)
(Jersey) Law 2008.