Proceeds of Crime (Financial Intelligence) (Jersey) Regulations 2015

Made                                                                        10th March 2015

Coming into force                                                     11th March 2015

THE STATES, in pursuance of Articles 41B and 42A of the Proceeds of Crime (Jersey) Law 1999[1], have made the following Regulations –

1        Interpretation

In these Regulations –

FIU” means the body designated under Regulation 2 as the financial intelligence unit;

principal Law” means the Proceeds of Crime (Jersey) Law 1999[2];

relevant person” means –

(a)     a person carrying on a financial services business in or from within Jersey; or

(b)     either –

(i)      a Jersey body corporate, or

(ii)      other legal person registered in Jersey,

carrying on a financial services business in any part of the world;

suspicious activity report” has the same meaning as given by Regulation 1(1) of the Proceeds of Crime and Terrorism (Tipping Off – Exceptions) (Jersey) Regulations 2014[3].

2        Financial Intelligence Unit: designation and general purpose

(1)     The Joint Financial Crimes Unit of the States of Jersey police force shall be the financial intelligence unit (“FIU”) in Jersey and shall carry out the functions of such a unit as defined by Article 41B(1) of the principal Law.

(2)     In carrying out such functions –

(a)     the FIU must have regard to its general purpose of combating money laundering and the financing of terrorism;

(b)     the FIU must at all times act in accordance with the provisions of these Regulations and of the principal Law; and

(c)     in any case where there is a conflict between those provisions and the provisions of any other enactment, the provisions of these Regulations and of the principal Law shall prevail.

3        Gathering financial information

(1)     This Regulation applies where –

(a)     the FIU receives a report (including, but not limited to, a disclosure or suspicious activity report in accordance with a provision of the principal Law, the Terrorism (Jersey) Law 2002[4], or any enactment made under those Laws) from a person listed in paragraph (2) (a “reporter”); and

(b)     the FIU reasonably considers that, for the proper fulfilment of any of its functions, it is necessary or expedient to seek additional information from any relevant person (“T”) who is not the reporter but who –

(i)      is mentioned in or otherwise identifiable from the report, or

(ii)      to the reasonable knowledge or belief of the FIU, holds information that is relevant to analysis of the report.

(2)     The persons mentioned in paragraph (1)(a) are –

(a)     a relevant person;

(b)     the Commission;

(c)     a financial intelligence unit outside Jersey,

(d)     the Comptroller of Taxes within the meaning of Article 6 of the Income Tax (Jersey) Law 1961[5] or any officer appointed under Article 8 of that Law;

(e)     a police officer; and

(f)      an administrative or law enforcement agency (other than the States of Jersey Police Force) concerned with combating money laundering and the financing of terrorism.

(3)     Where this Regulation applies the FIU may make a request to T, in accordance with the criteria in Regulation 4, for the provision of additional information.

(4)     Upon receipt of a request duly made, T must provide the additional information in such form and by such date or within such reasonable period as the FIU may require.

4        Criteria for making request

(1)     A request is duly made for the purposes of Regulation 3 if –

(a)     it is made reasonably;

(b)     it relates to information falling within a category described in paragraph (2);

(c)     it specifies the nature of the information sought;

(d)     it specifies a reasonable date by which, or period within which, the information must be provided; and

(e)     it is made in writing.

(2)     The categories of information which may lawfully be sought are –

(a)     information which may be obtained as a result of the application of customer due diligence measures, as defined in Article 3 of the Money Laundering (Jersey) Order 2008[6], by a relevant person;

(b)     information in relation to which record-keeping requirements under Part 4 of the Money Laundering (Jersey) Order 2008, or reporting and disclosure requirements under Part 5 of that Order, are imposed on a relevant person;

(c)     any other information which is necessary to determine whether a person is a holder or beneficial owner of one or more accounts of whatever nature;

(d)     the particulars of specified accounts, or of operations which have been carried out during a specified period.

5        Offence and penalty etc.

(1)     A person failing to comply with the obligation imposed by Regulation 3(4) is guilty of an offence.

(2)     It is a defence for a person who is charged with an offence under sub-paragraph (1) to prove –

(a)     that the information requested was not within the person’s possession; or

(b)     that it was not reasonably practicable for the person to comply with the request.

(3)     A person guilty of an offence under sub-paragraph (1) shall be liable to a fine or if the person is a natural person, to imprisonment for a term not exceeding 2 years or a fine or to both.

(4)     Where an offence committed by an entity listed in paragraph (5) is proved to have been committed with the consent or connivance of any person specified in the case of that entity in paragraph (6), the person shall also be guilty of the offence and liable in the same manner as the entity to the penalty provided for that offence.

(5)     The entities mentioned in paragraph (4) are –

(a)     a limited liability partnership;

(b)     a separate limited partnership;

(c)     an incorporated limited partnership or other body corporate.

(6)     The persons to whom liability for an offence may attach in accordance with paragraph (4) are –

(a)     in the case of a limited liability partnership, a person who is a partner of the partnership;

(b)     in the case of a separate limited partnership or an incorporated limited partnership –

(i)      a general partner, or

(ii)      a limited partner who is participating in the management of the partnership;

(c)     in the case of a body corporate other than an incorporated limited partnership, a director, manager, secretary or other similar officer of the body corporate; or

(d)     any person purporting to act in any capacity described in sub-paragraphs (a) to (c).

(7)     Where the affairs of a body corporate are managed by its members, paragraphs (4) to (6) shall apply in relation to acts and defaults of a member in connection with the member’s functions of management as if the member were a director of the body corporate.

(8)     Information provided by T under these Regulations shall not be admissible in evidence in criminal proceedings against T or any of T’s employees, except in proceedings in relation to an offence under this Regulation.

6        Amendment of the Money Laundering (Jersey) Order 2008

(1)     In Article 1(1) of the Money Laundering (Jersey) Order 2008[7] (“MLO”), after the definition “FATF Recommendations” there shall be inserted the following definition –

“ ‘Financial Intelligence Unit’ has the meaning given by the Proceeds of Crime (Financial Intelligence) (Jersey) Regulations 2015[8];”.

(2)     In Article 19(4) of the MLO, for the words “Commission, police officer or customs officer” there shall be substituted the words “Commission, the Financial Intelligence Unit, a police officer or customs officer”.

(3)     In Article 21(2) of the MLO, for the words “to a designated police officer or designated customs officer” there shall be substituted the words “to the Financial Intelligence Unit, a designated police officer or a designated customs officer”.

(4)     In Article 23 of the MLO –

(a)     in paragraphs (1), (2), (5A) and (5B), for the words “to a designated police officer or designated customs officer” there shall be substituted the words “to the Financial Intelligence Unit, a designated police officer or a designated customs officer”;

(b)     in paragraph (5), for sub-paragraphs (a) and (b) there shall be substituted the following sub-paragraphs –

“(a)    the Financial Intelligence Unit;

(b)     a designated police officer or designated customs officer; and

(c)     the Commission.”;

(c)     in paragraph (5E), for sub-paragraph (b) there shall be substituted the following sub-paragraphs –

“(b)    the Financial Intelligence Unit; and

(c)     a designated police officer or designated customs officer.”.

7        Citation and commencement

These Regulations may be cited as the Proceeds of Crime (Financial Intelligence) (Jersey) Regulations 2015 and shall come into force on the day after the day on which they are adopted.

m.n. de la haye, o.b.e.

Greffier of the States

 


 



[1]                                    chapter 08.780

[2]                                    chapter 08.780

[3]                                    R&O.101/2014

[4]                                    chapter 17.860

[5]                                    chapter 24.750

[6]                                    chapter 08.780.30

[7]                                    chapter 08.780.30

[8]                                    R&O.28/2015


Page Last Updated: 14 Apr 2016