Democratic Republic
of the Congo (United Nations Sanctions) (Channel Islands) Order 2005
Sanctioned by Order of Her Majesty in
Council 7th June 2005
In force date 9th
June 2005
Registered by the Royal
Court 16th
December 2005
WHEREAS
under
Article 41 of the Charter of the United Nations the Security Council of
the United Nations has, by resolution 1596 (2005) adopted on 18th
April 2005, called upon Her Majesty’s Government in the United
Kingdom and all other States to apply certain measures to give effect to
decisions of that Council in relation to the Democratic Republic of the Congo;
NOW,
THEREFORE, HER MAJESTY, in exercise of the powers vested in Her by section 1 of the United
Nations Act 1946, is pleased, by and with the advice of Her Privy Council,
to order, and it is hereby ordered, as follows –
INTRODUCTORY
1 Citation, commencement,
extent and application
(1) This
Order may be cited as the Democratic Republic of the Congo (United Nations Measures) (Channel
Islands) Order 2005 and shall come into force on 9th
June 2005.
(2) If the Security Council of the United Nations takes any decision which
has the effect of cancelling, extending, or suspending the operation of
resolution 1596 (2005) adopted by it on 18th April 2005, in whole or
in part, this Order shall cease to have effect or its operation shall be
suspended, in whole or in part, as the case may be, in accordance with that
decision; and particulars of that decision shall be published by the Secretary
of State in a notice in the London, Edinburgh and Belfast Gazettes.
(3) This
Order shall extend to the Channel Islands so as to be
law, respectively in Guernsey and Jersey.
(4) Articles 3,
4 and 5 apply to any person within Guernsey or, as the case
may be, Jersey and to any person elsewhere who –
(a) is a British citizen, a
British Dependent Territories citizen, a British Overseas citizen, a British
National (Overseas), a British subject or a British protected person and is
ordinarily resident in Guernsey or, as the case may be,
Jersey; or
(b) is a body incorporated
or constituted under the law of any part of Guernsey or, as
the case may be, Jersey.
2 Interpretation
(1) In
this Order unless the context otherwise requires –
“Attorney
General” means –
(a) in
the application of this Order to Guernsey, the Attorney General or the
Solicitor General for Guernsey; and
(b) in
the application of this Order to Jersey, the Attorney General for Jersey;
“States Revenue Officer”, in the application of this
Order to Guernsey, has the meaning it bears in the Customs and Excise (General Provisions)
(Bailiwick of Guernsey) Law 1972, as amended; and “States
Revenue Officer” in the application of this Order to Jersey, means the
Agent of the Impôts and any officer of the Impôts (and any person authorised by the Agent of the
Impôts);
“designated person” means an
individual designated by the Committee established by paragraph 3(a) of
resolution 1533 (2004) adopted by the Security Council of the United Nations on
12th March 2004;
“direction” means a direction under article 4(1);
“document” includes information recorded in any form,
and in relation to information recorded otherwise than in legible form,
references to its production include references to producing a copy of the
information in legible form;
“funds, other financial assets or economic resources”
means financial assets and economic benefits of any kind, including (but not
limited to) gold coin, gold bullion, cash, cheques, claims on money, drafts,
money orders and other payment instruments; deposits with financial
institutions or other entities, balances on accounts, debts and debt
obligations; securities and debt instruments (including stocks and shares, certificates
representing securities, bonds, notes, warrants, debentures, debenture stock
and derivatives contracts); interest, dividends or other income on or value
accruing from or generated by assets; credit, rights of set-off, guarantees,
performance bonds or other financial commitments; letters of credit, bills of
lading, bills of sale; documents evidencing an interest in funds or financial
resources, and any other instrument of export financing;
“Guernsey” means the Bailiwick of Guernsey;
“Jersey” means the Bailiwick of Jersey; and
“licensing authority”
means –
(a) in
the case of Guernsey, the Attorney General of Guernsey; and
(b) in
the case of Jersey, the Policy and Resources Committee of the States of Jersey;
“police officer”
means –
(a) in
relation to Guernsey, Herm and Jethou a member of the
salaried police force of the Island of Guernsey, and, within the limits of his
jurisdiction, a member of the special constabulary of the Island of Guernsey;
(b) in
relation to Alderney, a member of the said police force and a member of any
police force which may be established by the States of Alderney;
(c) in
relation to Sark, the constable, the Vingtenier and a
member of the said police force of the Island of Guernsey; and
(d) in
relation to Jersey, a member of the Honorary Police or a member of the States
of Jersey Police Force;
“relevant institution”
means –
(a) in
the application of this Order to Guernsey, a financial services business within
the meaning of section 49 of and the Schedule to the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey)
Law 1999;
(b) in
the application of this Order to Jersey, a financial services business within
the meaning of Article 36(1) and the Second Schedule to the Proceeds of Crime (Jersey) Law 1999[2];
“the standard scale”
means –
(a) in
the application of this Order to Guernsey, the uniform scale of fines specified
for the time being in section 1 of the Uniform Scale of
Fines (Bailiwick of Guernsey) Law 1989, as
amended, and
(b) in
the application of this Order to Jersey, the standard scale of fines specified
for the time being in the Schedule to the Criminal Justice
(Standard Scale of Fines) (Jersey) Law 1993,
as amended[3];
(2) For
the purposes of identifying a “designated person” referred to in
paragraph (1) of this article, the licensing authority shall ensure that a
list containing the names and other particulars of such designated persons be
maintained and circulated in Guernsey or as the case may be
Jersey as necessary from time to time.
(3) Ay
reference to an Act of Parliament of the United Kingdom shall, in the case of a
provision which has been extended to the Channel Islands or otherwise applies
to the Channel Islands, be construed as a reference to that provision as it has
effect there.
making funds available and freezing of
funds
3 Making
funds, other financial assets or economic resources available to any designated
person
Any person who, except under the authority of
a licence granted by the licensing authority under this article, makes any
funds, other financial assets or economic resources available to or for the
benefit of any designated person shall be guilty of an offence.
4 Freezing
of funds, other financial assets or economic resources
(1) Where
the licensing authority has reasonable grounds for suspecting that the person
by, for or on behalf of whom any funds, other financial assets or economic
resources are held is or may be a designated person, the licensing authority
may by notice direct that those funds, other financial assets or economic
resources are not to be made available to any person or entity except under the
authority of a licence granted by the licensing authority under article 3.
(2) A
notice given under paragraph (1) shall specify either –
(a) the
period for which it is to have effect; or
(b) that
the direction is to have effect until it is revoked by notice under paragraph (3).
(3) The
licensing authority may by notice revoke a notice given under paragraph (1)
at any time.
(4) The
expiry or revocation of a direction shall not affect the application of
article 3 in respect of the funds, other financial assets or economic
resources in question.
(5) A
notice under paragraph (1) or (3) shall be given in writing to the person
holding the funds, other financial assets or economic resources in question
(“the recipient”), and shall require the recipient to send a copy
of the notice without delay to the person whose funds they are, or on whose
behalf they are held (“the owner”).
(6) A
recipient shall be treated as complying with the requirement under
paragraph 5 if, without delay, he sends a copy of the notice to the owner
at his last-known address or, if he does not have an address for the owner, he makes arrangements for a copy of the notice to be supplied
to the owner at the first available opportunity.
(7) Where
a notice has been given under paragraph (1), any person by, for or on
behalf of whom those funds, other financial assets or economic resources are
held may apply to the Royal Court for the notice to be set aside; and on such
application the court may set aside the direction.
(8) A
person who makes an application under paragraph (7) shall give a copy of
the application and any witness statement or affidavit in support to the
licensing authority (and to any other person by, for or on behalf of whom those
funds, other financial assets or economic resources are held), not later than
seven days before the date fixed for the hearing of the application.
(9) Any
person who contravenes a direction under paragraph (1) is guilty of an
offence.
(10) A
recipient who fails to comply with such a requirement as is mentioned in
paragraph (5) is guilty of an offence.
5 Facilitation
of activities prohibited under article 3 or 4(9)
Any person who
knowingly and intentionally engages in any activities the object or effect of
which is to enable or facilitate the commission (by that person or another) of
an offence under article 3 or 4(9) is guilty of an offence.
6 Failure
to disclose knowledge or suspicion of measures
(1) A relevant institution is guilty of an offence if –
(a) it
knows or suspects that a person who is, or has been at any time since the
coming into force of this Order, a customer of the institution, or is a person
with whom the institution has had dealings in the course of
its business since that time –
(i) is
a designated person; or
(ii) has
committed an offence under article 3, 4(9), 5 or 7(2); and
(b) it
does not disclose to the licensing authority the information or other matter on
which the knowledge or suspicion is based as soon as is reasonably practicable
after that information or other matter comes to its attention.
(2) Where
a relevant institution discloses to the licensing authority –
(a) its knowledge or
suspicion that a person is a designated person or a person who has committed an
offence under article 3, 4(9), 5 or 7(2), or
(b) any information or other matter on which
that knowledge or suspicion is based,
the disclosure shall not
be treated as a breach of any restriction imposed by statute or otherwise.
GENERAL
7 Offences
in connection with applications for licences, conditions attaching to licences,
etc.
(1) If
for the purposes of obtaining any licence under this Order any person makes any
statement, or furnishes any document or information
which to his knowledge is false in a material particular, or recklessly makes
any statement or furnishes any document or information which is false in a
material particular, he shall be guilty of an offence.
(2) Any
person who has done any act under the authority of a licence granted by the
licensing authority under this Order and who fails to comply with any
conditions attaching to that licence shall be guilty of an offence:
Provided that no person shall be guilty of an offence under this
paragraph where he proves that the condition with which he failed to comply was
modified, otherwise than with his consent, by the licensing authority after the
doing of the act authorised by the licence.
8 Obtaining of evidence
and information
The provisions of part 2 of the
Schedule to this Order shall have effect in
order to facilitate the obtaining, by or on
behalf of the Attorney General, the licensing authority or, in the case of
Jersey, a States Revenue Officer –
(a) of
the evidence and information for the purpose of securing compliance with or
detecting evasion of –
(i) this
Order in the Bailiwick in question; or
(ii) any
law making provision with respect to any of the
matters regulated by this Order that is in force in the other Bailiwick to
which this Order applies, the United Kingdom, the Isle of Man or any territory
listed in part 1 of the Schedule to this Order; and
(b) of
evidence of the commission of –
(i) in the Bailiwick in question, an
offence under this Order or, with respect to any of the matters regulated by
this Order, an offence relating to customs; or
(ii) with respect to any of
those matters, an offence under the law of the other Bailiwick to which this
Order applies, the United Kingdom, the Isle of Man or any territory listed in
part 1 of Schedule to this Order.
9 Penalties and
Proceedings
(1) Any
person guilty of an offence under article 3, 4(9), or 5 shall be liable in
Guernsey –
(a) on
conviction on indictment to imprisonment for a term not exceeding seven years
or to a fine or to both; or
(b) on
summary conviction to imprisonment for a term not exceeding six months or to a
fine not exceeding level 5 on the standard scale or to both.
and in Jersey, on conviction to imprisonment for a term not
exceeding seven years, or to a fine, or to both.
(2) Any
person guilty of an offence under paragraph 5(b) or (d) in part 2 of the
Schedule to this Order shall be liable in Guernsey –
(a) on conviction on
indictment to imprisonment for a term not exceeding two years or to a fine or
to both; or
(b) on summary conviction
to imprisonment for a term not exceeding six months or to a fine not exceeding
level 5 on the standard scale or to both.
and in Jersey, on conviction to imprisonment for a term not
exceeding two years or to a fine or both.
(3) Any
person guilty of an offence under article 7(1) or (2) shall be liable in Guernsey –
(a) on conviction on
indictment to imprisonment for a term not exceeding two years or to a fine or
to both;
(b) on summary conviction
to a fine not exceeding level 5 on the standard scale;
and in Jersey, on conviction to imprisonment for a term not
exceeding two years or to a fine or to both.
(4) Any
person guilty of an offence under articles 4(10) or 6(1) or paragraph 5(a)
or (c) in part 2 of the Schedule to this Order shall be liable –
(a) in Guernsey on summary
conviction to imprisonment for a term not exceeding six months or to a fine not
exceeding level 5 on the standard scale or to both;
(b) in Jersey, on
conviction to imprisonment for a term not exceeding 6 months or to a fine
not exceeding level 4 on the standard scale.
(5) Where
any body corporate is guilty of an offence under this
Order, and that offence is proved to have been committed with the consent or
connivance of, or to be attributable to any neglect on the part of, any
director, manager, secretary or other similar officer of the body corporate or
any person who was purporting to act in any such capacity, he, as well as the
body corporate, shall be guilty of that offence, and shall be liable to be
proceeded against and punished accordingly.
(6) Summary
proceedings for an offence under this Order in its application to Guernsey may
be taken before the appropriate court in the Bailiwick having jurisdiction in
the place where that person is for the time being.
(7) No
proceedings for an offence under this Order shall be instituted except by or
with the consent of the Attorney General:
Provided that this paragraph shall not prevent the arrest, or the
issue or execution of a warrant for the arrest, of any person in respect of
such an offence, or the remand in custody or on bail of any person charged with
such an offence, notwithstanding that the necessary consent to the institution
of proceedings for the offence has not been obtained.
10 Exercise of powers of the licensing
authority
(1) The
licensing authority may, to such extent and subject to such restrictions and
conditions as he or it may think proper, delegate or authorise the delegation
of any of his or its powers under this Order (other than the power to give
authority under part 2 of the Schedule to this Order to apply for a search warrant)
to any person, or class or description of persons, approved by him, and
references in this Order to the licensing authority shall be construed
accordingly.
(2) Any
licences granted under this Order shall be in writing and may be either general
or special, may be subject to or without conditions, may be limited so as to expire on a specified date unless renewed and may
be varied or revoked by the authority that granted them.
A.K. Galloway
Clerk of the Privy Council.
SCHEDULE
(Article 8)
OBTAINING
EVIDENCE AND INFORMATION
PART
1
disclosure
of information – listed territories
Anguilla
Bermuda
British Antarctic
Territory
British Indian Ocean
Territory
Cayman Islands
Falkland Islands
Gibraltar
Montserrat
Pitcairn, Henderson,
Ducie and Oeno Islands
St. Helena and
Dependencies
South
Georgia and the South Sandwich Islands
The Sovereign Base Areas of Akrotiri and
Dhekelia in the Island of Cyprus
Turks and Caicos Islands
Virgin Islands
PART
2
evidence
and information
1
(1) Without
any prejudice to any other provision of this Order, or any provision of any
other law,
(a) the
Attorney General, or
(b) in the case of Jersey, the licensing authority or a States Revenue
Officer
may request any person in
or resident in Guernsey or, as the case may be, Jersey to furnish any
information in his possession or control, or to produce to him any document in
his possession or control, which he may require for the purpose of securing
compliance with or detecting evasion of this Order; and any person to whom such
a request is made shall comply with it within such time and in such manner as
may be specified in the request.
(2) Nothing
in sub-paragraph (1) shall be taken to require any person who has acted as
professional legal advisor for any person to furnish or produce any privileged
information or document in his possession in that capacity.
(3) Where
a person is convicted of failing to furnish information or produce a document
when requested so to do under this paragraph, the court may make an order
requiring him, within such period as may be specified in the order, to furnish
the information or produce the document.
(4) The
power conferred by this paragraph to request any person to produce documents
shall include power to take copies of or extracts from any document so produced
and to request that person, or, where that person is a body corporate, any
other person who is a present or past officer of, or is employed by, the body
corporate, to provide an explanation of any of them.
(5) The
furnishing of any information or the production of any document under this
paragraph shall not be treated as a breach of any restriction imposed by
statute or otherwise.
2
(1) If
the Bailiff is satisfied by information on oath –
(a) that there is reasonable
ground for suspecting that an offence under this Order has been or is being
committed and that evidence of the commission of the offence is to be found on
any premises specified in the information, or in any vehicle, ship or aircraft
so specified; or
(b) that any documents which ought to have been
produced under paragraph 1 and have not been produced are to be found on any
such premises or in any such vehicle, ship or aircraft,
he may grant a search
warrant authorising any police officer or any States Revenue Officer together
with any other persons named in the warrant and any other police officers, to
enter the premises specified in the information or, as the case may be, any
premises upon which the vehicle, ship or aircraft so specified may be, at any
time within one month from the date of the warrant and to search the premises,
or, as the case may be, the vehicle, ship or aircraft.
(2) A
police officer or other person who has entered any premises or any vehicle,
ship or aircraft in accordance with sub-paragraph (1) may do any or all of the following things –
(a) inspect and search those premises or the
vehicle, ship or aircraft for any material which he has reasonable grounds to
believe may be evidence in relation to an offence referred to in this paragraph;
(b) seize anything on the premises or on the
vehicle, ship or aircraft which he has reasonable grounds for believing is
evidence in relation to an offence referred to in this paragraph;
(c) seize anything on the premises or on the
vehicle, ship or aircraft which he has reasonable grounds to believe are
required to be produced in accordance with paragraph 1; or
(d) seize anything that is necessary to be
seized in order to prevent it being concealed, lost,
damaged, altered or destroyed.
(3) Any
information required in accordance with sub-paragraph (2) which is
contained in a computer and is accessible from the premises or from any
vehicle, ship or aircraft must be produced in a form in which it can be taken
away and in which it is visible and legible.
(4) A
police officer or any States Revenue Officer lawfully on the premises or on the
vehicle, ship or aircraft by virtue of a warrant issued under sub-paragraph (1)
may:
(a) search any person whom he has reasonable
grounds to believe may be in the act of committing an offence referred to in
this paragraph; and
(b) seize anything he finds in a search referred
to in paragraph (a) if he has reasonable grounds for believing that it is
evidence of an offence referred to in this paragraph:
Provided that no person
shall be searched in pursuance of this sub-paragraph except by a person of the
same sex.
(5) Where,
by virtue of this paragraph, a person is empowered to enter any premises,
vehicle, ship or aircraft he may use such force as is reasonably necessary for
that purpose.
(6) Any
documents or articles of which possession is taken under this paragraph may be
retained for a period of three months or, if within that period there are
commenced any proceedings for such an offence as aforesaid to which they are
relevant, until the conclusion of those proceedings.
(7) In
the application of this paragraph to the Islands of Alderney and Sark, any
reference to the Bailiff includes a reference, in the case of Alderney to the
Chairman of the Court of Alderney, and in the case of Sark, to the Seneschal.
3
A person
authorised –
(a) in
Guernsey by the licensing authority; or
(b) in
Jersey by the Agent of the Impôts,
to exercise any power for the purposes of this part of this
Schedule shall, if requested so to do, produce evidence of his authority before
exercising that power.
4
No information furnished or document produced (including any copy
of an extract made of any document produced) by any person in pursuance of a
request made under this part of this Schedule and no document seized under
paragraph 2(2) shall be disclosed except –
(a) with
the consent of the person by whom the information was furnished or the document
was produced or the person from whom the document was seized:
Provided that a person who
has obtained information or is in possession of a document only in his capacity
as a servant or agent of another person may not give consent for the purposes
of this sub-paragraph but such consent may instead be
given by any person who is entitled to that information or to the possession of
that document in his own right; or
(b) to
any person who would have been empowered under this part of this Schedule to
request that it be furnished or produced or to any person holding or acting in
any office under or in the service of –
(i) the
Crown in respect of the Government of the United Kingdom;
(ii) the Government of the Isle of Man;
(iii) the States of Guernsey or Alderney or the
Chief Pleas of Sark;
(iv) the States of Jersey; or
(v) the Government of any territory listed in
part 1 of this Schedule;
(c) on
the authority of the Attorney-General, to any organ of the United Nations or to
any person in the service of the United Nations or of the Government of any
other country for the purpose of assisting the United Nations or that
Government in securing compliance with or detecting evasion of measures in
relation to the Democratic Republic of the Congo decided upon by the Security
Council of the United Nations; or
(d) with
a view to the institution of, or otherwise for the purposes of, any
proceedings –
(i) in
the Bailiwick in question, for an offence under this Order or, with respect to
any of the matters regulated by this Order, for an offence against any
enactment relating to customs; or
(ii) for any offence under the law
making provision with respect to such matters that is in force in the
other Bailiwick to which this Order applies, the United Kingdom, the Isle of
Man or any territory listed in part 1 of this Schedule.
5
Any person
who –
(a) without
reasonable excuse, refuses or fails within the time and in the manner specified
(or, if no time has been specified, within a reasonable time) to comply with
any request made under this Schedule by any person who is empowered to make it;
or
(b) furnishes
any information or produces any document which to his knowledge is false in a material particular, or recklessly furnishes any document or
information which is false in a material particular to such a person in
response to such a request; or
(c) otherwise
wilfully obstructs any person in the exercise of his powers under this
Schedule; or
(d) with
intent to evade the provisions of this part of this Schedule, destroys,
mutilates, defaces, secretes or removes any document, shall be guilty of an
offence.