Proceeds of Crime (Amendment) (Jersey) Law 2008

A LAW to amend further the Proceeds of Crime (Jersey) Law 1999.

Adopted by the States                                            7th November 2007

Sanctioned by Order of Her Majesty in Council       12th March 2008

Registered by the Royal Court                                  28th March 2008

THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law –

Part 1

Interpretation

1        Interpretation

In this Law, “principal Law” means the Proceeds of Crime (Jersey) Law 1999[1].

Part 2

failure to disclose knowledge or suspicion of money laundering

2        Article 1 amended

In Article 1(1) of the principal Law, in the definition “items subject to legal privilege” –

(a)     the words “in Articles 40 and 41” shall be deleted;

(b)     after the words “not items subject to legal privilege” there shall be inserted the words “; and ‘legal privilege’ has a corresponding meaning”.

3        Article 29 amended

In Article 29(1) of the principal Law, for sub-paragraphs (a) and (b) there shall be substituted the following sub-paragraph –

“(a)    under any of Articles 32, 33, 34A and 34D; or”.

4        Articles 34A to 34D inserted

After Article 34 of the principal Law there shall be inserted the following Articles –

“34A Failure to disclose knowledge or suspicion of money laundering

(1)     A person shall be guilty of an offence if –

(a)     the person knows or suspects that another person is engaged in money laundering;

(b)     the information, or other matter, on which that knowledge or suspicion is based comes to the person’s attention in the course of his or her trade, profession, business or employment; and

(c)     the person does not disclose the information or other matter to a police officer as soon as is reasonably practicable after it comes to his or her attention.

(2)     It is not an offence under this Article for a professional legal adviser to fail to disclose any information or other matter that comes to him or her in circumstances of legal privilege.

(3)     Where a person discloses to a police officer –

(a)     the person’s suspicion or belief that another person is engaged in money laundering; or

(b)     any information or other matter on which that suspicion or belief is based,

the disclosure shall not be treated as a breach of any restriction imposed by statute, contract or otherwise.

(4)     A person who is guilty of an offence under this Article is liable to imprisonment for a term not exceeding 5 years or to a fine or to both.

34B   Statutory defences

(1)     It is a defence to a charge of committing an offence under Article 34A that the person charged had a reasonable excuse for not disclosing the information or other matter in question.

(2)     In the case of a person who was in employment at the relevant time, it is a defence to a charge of committing an offence under Article 34A that the person disclosed the information or other matter in question to the appropriate person in accordance with the procedure established by the person’s employer for the making of such disclosures.

(3)     A disclosure to which paragraph (2) applies shall not be treated as a breach of any restriction imposed by statute, contract or otherwise.

34C   Cases to which Article 34A does not apply

(1)     Article 34A does not apply to information or other matter that comes to a person, as an employer or employee, in the course of the carrying on of a financial services business.

(2)     Article 34A does not apply –

(a)     to any person designated by Regulations made by the States for the purposes of this Article; or

(b)     in such circumstances as may be specified, to any person who falls within such category of person as may be specified in Regulations made by the States for the purposes of this Article.

(3)     Regulations made for the purposes of this Article may designate any person appearing to the States to be performing regulatory, supervisory, investigative or registration functions.

(4)     The categories of person specified in Regulations made for the purposes of this Article shall be such categories of person connected with the performance by any designated person of regulatory, supervisory, investigative or registration functions.

34D   Failure in a financial institution to report to police officer or nominated officer

(1)     A person commits an offence if each of the following 3 conditions is satisfied.

(2)     The first condition is that the person –

(a)     knows or suspects; or

(b)     has reasonable grounds for knowing or suspecting,

that another person is engaged in money laundering.

(3)     The second condition is that the information or other matter –

(a)     on which the person’s knowledge or suspicion is based; or

(b)     that gives reasonable grounds for such knowledge or suspicion,

comes to him or her in the course of the carrying on of a financial services business.

(4)     The third condition is that the person does not disclose the information or other matter to a police officer or to a nominated officer as soon as is practicable after it comes to him or her.

(5)     A person does not commit an offence under this Article if –

(a)     the person has a reasonable excuse for not disclosing the information or other matter; or

(b)     the person is a professional legal adviser and the information or other matter comes to him or her in circumstances of legal privilege.

(6)     A person does not commit an offence under this Article by failing to disclose any information or other matter that has come to his or her attention, if –

(a)     it comes to the person in the course of his or her employment in the financial services business;

(b)     the person carrying on the financial services business was required by an Order made under Article 37 to provide the employee with training, but had not done so;

(c)     the training, if it had been given, would have been material; and

(d)     the employee does not know or suspect that the other person concerned is engaged in money laundering.

(7)     In deciding whether a person has committed an offence under this Article the court must consider whether he or she has followed any relevant guidance which was at the time concerned –

(a)     issued by the Commission; and

(b)     published in a manner approved by the Commission as appropriate in its opinion to bring the guidance to the attention of persons likely to be affected by it.

(8)     A disclosure to a nominated officer is a disclosure which –

(a)     is made to a person nominated by the employer of the person making the disclosure to receive disclosures under this Article; and

(b)     is made in the course of the discloser’s employment and in accordance with the procedure established by the employer for the purpose.

(9)     Where a person to whom paragraph (1) refers discloses to a police officer or a nominated officer –

(a)     the person’s suspicion or belief that another person is engaged in money laundering; or

(b)     any information or other matter on which that suspicion or belief is based,

the disclosure shall not be treated as a breach of any restriction imposed by statute, contract or otherwise.

(10)    A person who is guilty of an offence under this Article is liable to imprisonment for a term not exceeding 5 years or to a fine or to both.”.

5        Article 41A inserted

After Article 41 of the principal Law there shall be inserted the following Article –

“41A Financial information and monitoring

(1)     Part 1 of Schedule 3 shall have effect in respect of the obtaining of financial information.

(2)     Part 2 of Schedule 3 shall have effect in respect of account monitoring orders.”.

6        Article 44 amended

In Article 44 of the principal Law, for the words “and 40(11)” there shall be substituted the words “, 40(11) and 41A and Schedule 3”.

7        Schedule 3 added

After Schedule 2 to the principal Law there shall be added the following Schedule –

“SCHEDULE 3

(Article 41A)

FINANCIAL INFORMATION AND MONITORING ORDERS

PART 1

(Article 41A(1))

ORDERS FOR PROVISION OF FINANCIAL INFORMATION

1        Order to provide customer information

(1)     Where an order is made under this Part of this Schedule in relation to an investigation into money laundering a police officer named in the order may require a financial services business to which the order applies to provide customer information for the purposes of the investigation.

(2)     An order under this Part of this Schedule may provide that it applies to –

(a)     all financial services businesses;

(b)     a particular description, or particular descriptions, of financial services businesses; or

(c)     a particular financial services business or particular financial services businesses.

(3)     The information shall be provided –

(a)     in such manner and within such time as the police officer may specify; and

(b)     notwithstanding any restriction on the disclosure of information imposed by any statute or contract or otherwise.

(4)     A financial services business that fails to comply with a requirement under this paragraph is guilty of an offence.

(5)     It is a defence for a financial services business that is charged with an offence under sub-paragraph (4) to prove –

(a)     that the information required was not in the possession of the financial services business; or

(b)     that it was not reasonably practicable for the financial services business to comply with the requirement.

(6)     a financial services business that is guilty of an offence under sub-paragraph (4) shall be liable to a fine not exceeding level 4 on the standard scale.

(7)     Where an individual is convicted of an offence under paragraph 1(4) by virtue of Article 42, the individual shall be liable to imprisonment for a term not exceeding 6 months or to a fine not exceeding level 4 on the standard scale or to both.

2        Who may apply for order

An order under this Part of this Schedule may be made on the application of a police officer of at least the rank of chief inspector.

3        Who may make order

An order under this Part of this Schedule may be made by the Bailiff.

4        Consent required for application

An application for an order under this Part of this Schedule may only be made with the consent of the Attorney General.

5        Criteria for making order

The Bailiff may only make an order under this Part of this Schedule if satisfied that –

(a)     the order is sought for the purposes of an investigation into money laundering;

(b)     there are reasonable grounds for suspecting that the person specified in the application for the order has committed a money laundering offence;

(c)     there are reasonable grounds for believing that customer information that may be provided in compliance with the order is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the order is sought; and

(d)     there are reasonable grounds for believing that it is in the public interest for the customer information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained, and to the circumstances under which the person in possession of the information holds it.

6        Customer information

(1)     In this Part of this Schedule ‘customer information’ means (subject to sub-paragraph (3)) –

(a)     information whether a business relationship exists or existed between a financial services business and a particular person (‘a customer’);

(b)     a customer’s account number;

(c)     a customer’s full name;

(d)     a customer’s date of birth;

(e)     a customer’s address or former address;

(f)      the date on which a business relationship between a financial services business and a customer begins or ends;

(g)     any evidence of a customer’s identity obtained by a financial services business in pursuance of or for the purposes of any legislation relating to money laundering; and

(h)     the identity of a person sharing an account with a customer.

(2)     For the purposes of this Part of this Schedule there is a business relationship between a financial services business and a person if (and only if) –

(a)     there is an arrangement between them designed to facilitate the carrying out of frequent or regular transactions between them; and

(b)     the total amount of payments to be made in the course of the arrangement is neither known nor capable of being ascertained when the arrangement is made.

(3)     The States may by Regulations –

(a)     provide for a class of information to be customer information, or to cease to be customer information, for the purposes of this Part of this Schedule; or

(b)     extend the meaning of the expression ‘business relationship’ for the purposes of this Part of this Schedule.

7        Self-incrimination

(1)     Customer information provided by a financial services business under this Schedule shall not be admissible in evidence in criminal proceedings against the financial services business or any of its employees.

(2)     Sub-paragraph (1) shall not apply in relation to proceedings for an offence under paragraph 1(4).

PART 2

(Article 41A(2))

ACCOUNT MONITORING ORDERS

1        Account monitoring orders

(1)     The Bailiff may, on an application made to him or her by a police officer of at least the rank of chief inspector, make an account monitoring order against a financial services business if the Bailiff is satisfied that –

(a)     the order is sought for the purposes of an investigation into money laundering;

(b)     there are reasonable grounds for suspecting that the person specified in the application for the order has committed a money laundering offence;

(c)     there are reasonable grounds for believing that account information that may be provided in compliance with the order is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the order is sought; and

(d)     there are reasonable grounds for believing that it is in the public interest for the account information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained, and to the circumstances under which the person in possession of the information holds it.

(2)     An application for an order under sub-paragraph (1) may only be made with the consent of the Attorney General.

(3)     The application for an account monitoring order must state that the order is sought against the financial services business specified in the application in relation to information which –

(a)     relates to an account or accounts held at the financial services business by the person specified in the application (whether solely or jointly with another); and

(b)     is of the description so specified.

(4)     The application for an account monitoring order may specify information relating to –

(a)     all accounts held by the person specified in the application for the order at the financial services business so specified;

(b)     a particular description, or particular descriptions, of accounts so held; or

(c)     a particular account, or particular accounts, so held.

(5)     An account monitoring order is an order that the financial services business specified in the application for the order must –

(a)     for the period specified in the order;

(b)     in the manner so specified;

(c)     at or by the time or times so specified; and

(d)     at the place or places so specified,

provide information of the description specified in the application to a police officer named in the order.

(6)     The period stated in an account monitoring order must not exceed the period of 90 days beginning with the day on which the order is made.

2        Applications

(1)     An application for an account monitoring order may be made ex parte to the Bailiff in chambers.

(2)     The description of information specified in an application for an account monitoring order may be varied by the police officer who applied for the order or another police officer of at least the rank of chief inspector.

3        Discharge or variation

(1)     An application to discharge or vary an account monitoring order may be made to the Bailiff by –

(a)     the police officer who applied for the order or another police officer of at least the rank of chief inspector; or

(b)     any person affected by the order.

(2)     The Bailiff may confirm, vary or discharge the order.

4        Effect of orders

(1)     An account monitoring order has effect in spite of any restriction on the disclosure of information (however imposed).

(2)     An account monitoring order has effect as if it were an order of the Court.

5        Statements

(1)     A statement made by a financial services business in response to an account monitoring order may not be used in evidence against it in criminal proceedings.

(2)     However, sub-paragraph (1) does not apply –

(a)     in the case of proceedings for contempt of court;

(b)     in the case of proceedings for or in respect of a confiscation order; or

(c)     on a prosecution for an offence where, in giving evidence, the financial services business makes a statement inconsistent with the statement mentioned in sub-paragraph (1).

(3)     A statement may not be used by virtue of sub-paragraph (2)(c) against a financial services business unless –

(a)     evidence relating to it is adduced; or

(b)     a question relating to it is asked,

by or on behalf of the financial services business in the proceedings arising out of the prosecution.”.

Part 3

Enforcement of External confiscation orders

8        Article 1 amended

In Article 1(1) of the principal Law in the definition “external confiscation order”, for the words “a designated country or territory” there shall be substituted the word “a country or territory outside Jersey”.

9        Article 28A inserted

After Article 28 of the principal Law there shall be inserted the following Article –

“28A Enforcement of confiscation orders in a country or territory outside Jersey

(1)     The States may by Regulations –

(a)     make such provision in connection with the taking of action in a country or territory outside Jersey with a view to satisfying a confiscation order as appears to the States to be necessary or expedient;

(b)     without prejudice to the generality of sub-paragraph (a), direct that, in such circumstances as may be specified in the Regulations, proceeds which arise out of action taken in a country or territory outside Jersey with a view to satisfying a confiscation order and which are retained there shall nevertheless be treated as reducing the amount payable under the order to such extent as may be specified in the Regulations.

(2)     Without prejudice to the generality of paragraph (1), Regulations made under it may make –

(a)     such provision as to the evidence or proof of any matter for the purposes of such Regulations; and

(b)     such incidental, consequential and transitional provision,

as appears to the States to be necessary or expedient.”.

10      Article 38 substituted

For Article 38 of the principal Law there shall be substituted the following Article –

“38    Recognition of external confiscation orders

(1)     The States may by Regulations direct that, subject to such modifications as may be specified in the Regulations, this Law shall apply to –

(a)     external confiscation orders; and

(b)     proceedings which have been or are to be instituted in a country or territory outside Jersey and may result in an external confiscation order being made there.

(2)     Without prejudice to the generality of paragraph (1), Regulations made under it may make –

(a)     such provision as to the evidence or proof of any matter for the purposes of such Regulations and Article 39; and

(b)     such incidental, consequential and transitional provision,

as appears to the States to be necessary or expedient.”.

11      Article 39 amended

In Article 39(1) of the principal Law, the words “made in a designated country or territory” shall be deleted.

12      Saving for Regulations

(1)     Regulations made under Article 38 of the principal Law which are in force immediately before this Law comes into force shall, to the extent that they make provision regarding the taking of action with a view to satisfying a confiscation order, remain in force until revoked by further Regulations made under Article 28A as inserted by this Law.

(2)     Regulations made under Article 38 of the principal Law which are in force immediately before this Law comes into force shall, to the extent that they make provision for the application of the principal Law to external confiscation orders, remain in force until revoked by further Regulations made under Article 38 as substituted by this Law.

Part 4

miscellaneous and closing

13      Long title amended

In the long title of the principal Law, for the words “forestall and prevent” there shall be substituted the words “forestall, prevent and detect”.

14      Article 24 amended

(1)     In Article 24 of the principal Law –

(a)     in paragraph (2)(b),for the words “assets-sharing arrangement” there shall be substituted the words “asset sharing agreement”;

(b)     in paragraph (4)(b), for the words “assets-sharing arrangements” there shall be substituted the words “asset sharing agreements”;

(c)     in paragraph (8),for the words “assets-sharing arrangement” there shall be substituted the words “asset sharing agreement”.

(2)     In Article 24 of the principal Law, after paragraph (3) there shall be inserted the following paragraph –

“(3A) The Fund shall be a special fund for the purposes of the Public Finances (Jersey) Law 2005[2].”.

(3)     For Article 24(8) of the principal Law, there shall be substituted the following paragraph –

“(8)    In this Article, ‘asset sharing agreement’ means any agreement or arrangement made by or on behalf of Jersey with a country or territory outside Jersey for the sharing of the proceeds of criminal conduct that, as a result of mutual assistance, have been confiscated or forfeited either in Jersey or elsewhere.”.

15      Article 37 amended

(1)     In the heading to Article 37 of the principal Law, for the words “forestall and prevent” there shall be substituted the words “prevent and detect”.

(2)     For Article 37(1) to (3) of the principal Law there shall be substituted the following paragraphs –

“(1)    The Minister shall, by Order, prescribe measures to be taken (including measures not to be taken) by persons who carry on financial services business, for the purposes of preventing and detecting money laundering.

(1A)   Without prejudice to the generality of paragraph (1), such measures may include –

(a)     identification procedures;

(b)     record keeping procedures;

(c)     internal reporting procedures; and

(d)     training procedures,

to be maintained by persons who carry on financial services business.

(2)     An Order made under this Article –

(a)     may specify supervisory authorities for the purposes of the Order;

(b)     may authorize or require any person who acquires information in the course of the application of any procedure under any such Order, or in the course of carrying out any function under any such Order, or under any other enactment to which the Order refers, to disclose that information to a police officer, the Commission or any person or institution with whom that person shares common ownership, management or compliance control; and

(c)     may make such other provision as is reasonably necessary or incidental to the purposes of the Order.

(3)     No disclosure in accordance with an Order made under this Article to any person mentioned in paragraph (2)(b) shall be treated as a breach of any restriction on disclosure imposed by any enactment or contract or otherwise or involve the person making it in liability of any kind.”.

16      Citation and commencement

This Law may be cited as the Proceeds of Crime (Amendment) (Jersey) Law 2008 and shall come into force 7 days after it is registered.

a.h. harris

Deputy Greffier of the States

 


 



[1]                                    chapter 08.780

[2]                                    chapter 24.900


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