Terrorism (Jersey)
Law 2002[1]
A LAW to replace the Prevention of
Terrorism (Jersey) Law 1996 and to make further provision about terrorism
Commencement
[see endnotes]
PART 1
INTERPRETATION[2]
1 General
interpretation[3]
(1) In
this Law –
“act of terrorism” means an act or threat of a kind
described in Article 2;
“association” includes an unincorporated body;
“customs officer” means the Agent of the Impôts
and any other officer of the Impôts appointed pursuant to Article 4
of the Customs and Excise (Jersey) Law 1999[4];
“designated customs officer” means an officer of the
Impôts who is designated under Article 26(2) or, if no such officer
is designated for the time being, the Agent of the Impôts;
“designated police officer” means an officer of the
Force who is designated under Article 26(1) or, if no such officer is
designated for the time being, the Chief Officer of the Force;
“explosive” means –
(a) an
article or substance manufactured for the purpose of producing a practical
effect by explosion, or intended for that purpose by a person possessing the
article or substance;
(b) materials
for making an article or substance within paragraph (a);
(c) anything
used or intended to be used for causing or assisting in causing an explosion;
(d) a
part of anything within sub-paragraph (a) or (c);
“financial institution” means a person carrying on any
business described in Schedule 2 to the Proceeds of Crime (Jersey)
Law 1999[5];
“financial services” has the meaning given by the
Terrorist Asset-Freezing (Jersey) Law 2011[6];
“firearm” includes a gun or an air pistol;
“Force” means the States of Jersey Police Force;
“Immigration Act 1971” means the Immigration
Act 1971 of the United Kingdom Parliament as it is extended to Jersey by
Order in Council;
“immigration officer” means a person appointed as an
immigration officer under paragraph 1 of Schedule 2 to the
Immigration Act 1971;
“Islands” means the Bailiwick of Guernsey and the Isle
of Man;
“legal representative” means an advocate, solicitor, or
any person who, not being an advocate or solicitor, is employed by a firm of
advocates or solicitors and notified by that employer to the Chief Officer of
the Force as a legal representative for the purposes of this Law;
“Minister” means the Minister for Home Affairs;
“organization” includes any association, group or
combination of persons;
“police officer” means an officer of the Force or a
member of the Honorary Police;
“premises” includes a place and in particular includes a
vehicle, installation, tent or moveable structure;
“property” means all property, whether movable or
immovable, or vested or contingent, and whether in Jersey or elsewhere,
including –
(a) any
legal document or instrument evidencing title to or interest in any such
property;
(b) any
interest in or power in respect of any such property;
(c) in
relation to movable property, any right, including a right to possession,
and for the avoidance of doubt, a reference in this Law to property
being obtained by a person includes a reference to any interest in that
property being obtained;
“proscribed organization” shall be construed in
accordance with Article 6;
“road” has the meaning given by Article 1 of the
Road Traffic (Jersey) Law 1956[7];
“terrorism” has the meaning given by Article 2;
“terrorist entity” has the meaning given by
Article 4;
“terrorist investigation” means an investigation of any
of the following –
(a) the
commission, preparation or instigation of an act of terrorism or of any offence
under this Law;
(b) action
facilitating the commission, preparation or instigation of such an act or
offence;
(c) property
which is or is alleged to be terrorist property; or
(d) action
which appears to have been taken for the purposes of terrorism;
“terrorist property” has the meaning given by
Article 3;
“vehicle”, except in Articles 44 to 48 and
Schedule 8, includes an aircraft, hovercraft, or vessel.[8]
(2) A
reference in this Law to an Act of the United Kingdom is a reference to that
enactment as amended from time to time.
(3) A reference
in this Law, without more, to action taken for the purposes of terrorism
includes a reference to action taken for the benefit or support (as defined by
Article 15(3)(c)) of a terrorist entity.[9]
2 Meaning
of “terrorism”[10]
(1) In
this Law, “terrorism” means –
(a) an
act which constitutes an offence under the laws of Jersey and is listed in
Schedule 10 to this Law; or
(b) an
act falling within paragraph (2), where the act or threat of such an act
is intended or may reasonably be regarded as intended –
(i) to influence,
coerce or compel the States of Jersey or the government of any other place or
country, or an international organization, to do or refrain from doing any act,
or
(ii) to intimidate the
public or a section of the public,
and the act is done or the threat is made for the purpose of
advancing a political, racial, religious or ideological cause.
(2) An
act falls within this paragraph if it is an act other than one referred to in
paragraph (1)(a) which –
(a) is
intended to cause the death of, or serious injury to, a person not taking an
active part in hostilities in a situation of armed conflict;
(b) creates
a serious risk to the health or safety of the public or a section of the
public;
(c) involves
serious damage to property;
(d) seriously
disrupts or seriously interferes with any electronic system or the provision of
any service directly relating to communications infrastructure, banking and
financial services, public utilities, transportation or other infrastructure;
(e) seriously
disrupts or seriously interferes with the provision of emergency police, fire
and rescue or medical services; or
(f) involves
prejudice to national security or national defence.
(3) An
act or the threat of an act falling within paragraph (2) which involves
the use of firearms or explosives is terrorism whether or not
sub-paragraph (i) or (ii) of paragraph (1)(b) is satisfied.
(4) For
the purposes of this Article –
(a) a
reference to an act includes an act carried out in a place or country other
than Jersey;
(b) a
reference to a person or to property is a reference to any person or to
property wherever situated;
(c) a
reference to the public includes reference to the public in a place or country
other than Jersey.
(5) The
Minister may by Order amend Schedule 10 to add or delete an offence for
the purposes of this Article.
3 Meaning
of “terrorist property”[11]
(1) In
this Law, “terrorist property” –
(a) means
property which is intended to be used or likely to be used, in whole or in
part, directly or indirectly, for the purposes of terrorism or for the support
of a terrorist entity; and
(b) includes,
but is not limited to, the resources of a terrorist entity.
(2) Reference
in paragraph (1)(b) to resources includes reference to any property which
is applied or made available, or is intended to be applied or made available,
for use by a terrorist entity.
4 Meaning
of “terrorist entity”[12]
(1) In
this Law, a “terrorist entity” is –
(a) any
entity which –
(i) commits, prepares
or instigates an act of terrorism, or
(ii) facilitates the
commission, preparation or instigation of an act of terrorism; and
(b) any
proscribed organization.[13]
(2) For the purposes of
paragraph (1) it does not matter –
(a) whether
a specific act of terrorism is committed or not; nor
(b) whether,
if an act of terrorism is in fact committed, it is committed by an entity
charged with an offence under this Law or any other enactment, or by a related
entity.
(3) In
this Article –
(a) “entity”
includes an organization (whether or not proscribed), and a legal or natural
person;
(b) one
entity is related to another where –
(i) one entity
directs or controls another,
(ii) one entity
participates as an accomplice in the acts of another, or
(iii) one entity contributes
to the commission of acts by the other intentionally and with the knowledge of
the intention of the other to commit such acts.
5 [14]
PART 2
PROSCRIBED ORGANIZATIONS
Procedure
6 Proscription
(1) For
the purposes of this Law an organization is proscribed if –
(a) it
is listed in Schedule 1;
(b) it
operates under the same name as an organization listed in that Schedule; or
(c) it
is proscribed by virtue of or under section 3 of the Terrorism
Act 2000 (c. 11) of the United Kingdom Parliament.[15]
(2) Paragraph (1)(b)
shall not apply in relation to an organization listed in Schedule 1 if its
entry is the subject of a note in that Schedule.
(3) The
Minister may by Order –
(a) add
an organization to Schedule 1;
(b) remove
an organization from that Schedule;
(c) amend
that Schedule in some other way.
(4) The
Minister may exercise the Minister’s power under paragraph (3)(a) in
respect of an organization only if the Minister believes that it is concerned
in terrorism.
(5) For
the purposes of paragraph (4) an organization is concerned in terrorism if
it –
(a) commits
or participates in acts of terrorism;
(b) prepares
for terrorism;
(c) promotes
or encourages terrorism; or
(d) is
otherwise concerned in terrorism.
7 Deproscription:
application
(1) An
application may be made to the Minister for the exercise of the
Minister’s power under Article 6(3)(b) to remove an organization
from Schedule 1.
(2) An
application may be made by –
(a) the
organization; or
(b) any
person affected by the organization’s proscription.
(3) The
Minister shall make an Order prescribing the procedure for applications under
this Article.
(4) An
Order under paragraph (3) shall, in particular –
(a) require
the Minister to determine an application within a specified period of time; and
(b) require
an application to state the grounds on which it is made.
8 Deproscription:
appeal
(1) There
shall be a commission, to be known as the Proscribed Organizations Appeal
Commission.
(2) Where
an application under Article 7 has been refused, the applicant may appeal
to the Commission.
(3) The
Commission shall allow an appeal against a refusal to deproscribe an
organization if it considers that the decision to refuse was flawed when
considered in the light of the principles applicable on an application for
judicial review.
(4) Where
the Commission allows an appeal under this Article by or in respect of an
organization, it may make an order under this paragraph.
(5) Where
an order is made under paragraph (4) the Minister shall as soon as is
reasonably practicable make an Order under Article 6(3)(b) removing the
organization from the list in Schedule 1.
(6) Schedule 2
shall have effect in respect of the constitution and procedures of the
Commission.
9 Further
appeal
(1) A
party to an appeal under Article 8 which the Commission has determined may
bring a further appeal on a question of law to the Court of Appeal.
(2) An
appeal under paragraph (1) may be brought only with the
permission –
(a) of
the Commission; or
(b) where
the Commission refuses permission, of the Court of Appeal.
(3) An
order under Article 8(4) shall not require the Minister to take any action
until the final determination or disposal of an appeal under this Article (including
any appeal to the Privy Council).
10 Appeal:
effect on conviction, etc.
(1) This
Article applies where –
(a) an
appeal under Article 8 has been allowed in respect of an organization;
(b) an
order has been made under Article 6(3)(b) in respect of the organization
in accordance with an order of the Commission under Article 8(4);
(c) a
person has been convicted of an offence in respect of the organization under
any of Articles 12 to 16, 20 and 52; and
(d) the
activity to which the charge referred took place on or after the date of the
refusal to deproscribe against which the appeal under Article 8 was
brought.[16]
(2) If
the person mentioned in paragraph (1)(c) was convicted by or before the
Royal Court –
(a) the
person may appeal against the conviction to the Court of Appeal; and
(b) the
Court of Appeal shall allow the appeal.
(3) A
person may appeal against a conviction by virtue of paragraph (2) whether
or not he or she has already appealed against the conviction.
(4) An
appeal by virtue of paragraph (2) –
(a) must
be brought within the period of 28 days beginning with the date on which
the order mentioned in paragraph (1)(b) comes into force; and
(b) shall
be treated as an appeal under Article 24 of the Court of Appeal (Jersey) Law 1961[17] (but does not require any
leave).
(5) If
the person mentioned in paragraph (1)(c) was convicted by the
Magistrate’s Court –
(a) the
person may appeal against the conviction to the Royal Court; and
(b) the
Royal Court shall allow the appeal.
(6) A
person may appeal against a conviction by virtue of paragraph (5) –
(a) whether
or not he or she pleaded guilty;
(b) whether
or not he or she has already appealed against the conviction; and
(c) whether
or not he or she has made an application in respect of the conviction under Article 24
of the Magistrate’s Court
(Miscellaneous Provisions) (Jersey) Law 1949[18].
(7) An
appeal by virtue of paragraph (5) –
(a) must
be brought within the period of 28 days beginning with the date on which
the order mentioned in paragraph (1)(b) comes into force; and
(b) shall
be treated as an appeal under Article 17(1)(b) of the Magistrate’s Court (Miscellaneous
Provisions) (Jersey) Law 1949.
11 Evidence:
inadmissibility
(1) The
following shall not be admissible as evidence in proceedings for an offence
under any of Articles 12 to 16, 20 and 52 –
(a) evidence
of anything done in relation to an application to the Minister under Article 7;
(b) evidence
of anything done in relation to proceedings before the Commission under Article 8;
(c) evidence
of anything done in relation to proceedings under Article 9; and
(d) any
document submitted for the purposes of proceedings mentioned in any of sub-paragraphs (a)
to (c).[19]
(2) But
paragraph (1) shall not prevent evidence from being adduced on behalf of
the accused.
Offences
12 Membership
(1) A
person commits an offence if he or she belongs or professes to belong to a
proscribed organization.
(2) It
is a defence for a person charged with an offence under paragraph (1) to
prove –
(a) that
the organization was not proscribed on the last (or only) occasion on which the
person became a member or began to profess to be a member; and
(b) that
the person has not taken part in the activities of the organization at any time
while it was proscribed.
(3) A
person guilty of an offence under this Article shall be liable to imprisonment
for a term not exceeding 10 years or to a fine, or both.
(4) In paragraph (2)
“proscribed” means proscribed for the purposes of this Law.
13 Support
(1) A
person commits an offence if –
(a) he
or she invites support for a proscribed organization; and
(b) the
support is not, or is not restricted to, the provision of property (within the
meaning of Article 15).[20]
(2) A
person commits an offence if he or she arranges, manages or assists in
arranging or managing a meeting which he or she knows is –
(a) to
support a proscribed organization;
(b) to
further the activities of a proscribed organization; or
(c) to
be addressed by a person who belongs or professes to belong to a proscribed
organization.
(3) A
person commits an offence if he or she addresses a meeting and the purpose of his
or her address is to encourage support for a proscribed organization or to
further its activities.
(4) Where
a person is charged with an offence under paragraph (2)(c) in respect of a
private meeting it is a defence for the person to prove that he or she had no
reasonable cause to believe that the address mentioned in paragraph (2)(c)
would support a proscribed organization or further its activities.
(5) In paragraph (2)
to (4) –
(a) “meeting”
means a meeting of 3 or more persons, whether or not the public are admitted;
and
(b) a
meeting is private if the public are not admitted.
(6) A
person guilty of an offence under this Article shall be liable to imprisonment
for a term not exceeding 10 years or to a fine, or both.
14 Uniform
(1) A person
in a public place commits an offence if he or she –
(a) wears
an item of clothing; or
(b) wears,
carries or displays an article,
in such a way or in such circumstances as to arouse reasonable
suspicion that the person is a member or supporter of a proscribed
organization.
(2) A
person guilty of an offence under this Article shall be liable to imprisonment
for a term of 6 months and to a fine.[21]
PART 3
offences relating to terrorist financing[22]
15 Use
and possession etc. of property for purposes of terrorism[23]
(1) It
is an offence for a person to use property for the purposes of terrorism (and
for the avoidance of doubt such purposes include the support of a terrorist
entity).[24]
(2) It
is an offence for a person –
(a) to
possess property;
(b) to
provide, or invite another to provide, property or a financial service; or
(c) to
collect or receive property,
intending that the property or service be used, or knowing,
suspecting, or having reasonable grounds to suspect that it may be used, for
the purposes of terrorism (and for the avoidance of doubt such purposes include
the support of a terrorist entity).[25]
(2A) Without
prejudice to the generality of paragraphs (1) and (2), it shall be an
offence for a person –
(a) to
provide, or to invite another to provide, property or a financial service; or
(b) to
collect or receive property,
intending that the property or service be used, or knowing,
suspecting or having reasonable grounds to suspect that it may be used (whether
in whole or in part) for the purpose of travel by an individual to a state or
territory other than his or her state or territory of residence for the
purposes of terrorism (including, for the avoidance of doubt, the purposes of
planning or preparation of acts of terrorism, providing or receiving training
in or for the purposes of terrorism, and support of a terrorist entity).[26]
(3) In
this Article –
(a) reference
to the use of property includes use in whole or in part, directly or
indirectly;
(b) reference
to the provision of property or a financial service is a reference to the
property or service being given, lent, or otherwise made available, whether or
not for consideration; and
(c) “support
of a terrorist entity” includes, but is not limited to, support by way of
providing or subsidizing educational or other day-to-day living expenses.
(4) A
person guilty of an offence under this Article shall be liable to imprisonment
for a term not exceeding 14 years or to a fine, or both.
16 Dealing
with terrorist property[27]
(1) It
is an offence for a person to do any act (including but not limited to an act
listed in paragraph (3)) which facilitates the retention or control of
terrorist property.
(2) It
is a defence for a person charged with an offence under paragraph (1) to
prove that the person did not know or suspect or had no reasonable grounds to
suspect that –
(a) the
purpose of the act was to facilitate the retention or control of terrorist
property; or
(b) the
property in question was terrorist property.
(3) The
following acts are those mentioned in paragraph (1) –
(a) concealing
or disguising the property;
(b) removing
the property from Jersey;
(c) transferring
the property to nominees.
(4) In
paragraph (1), reference to doing an act includes reference to omitting to
do something.
(5) In
paragraph (3)(a), reference to concealing or disguising property includes
concealing or disguising its nature, source, location, disposition, movement or
ownership or any rights with respect to it.
(6) A
person guilty of an offence under this Article shall be liable to imprisonment
for a term not exceeding 14 years or a fine, or both.
16A Insuring against
payments made in response to terrorist demands[28]
(1) It
is an offence for a person who is an insurer under an insurance contract to
make a payment under that contract, or purportedly under it, if –
(a) the
payment is made in respect of any property which has been, or is to be,
transferred to any person in response to a demand made wholly or partly for the
purposes of terrorism; and
(b) the
insurer or other person authorizing the payment on the insurer’s behalf
knows or has reasonable cause to suspect that the property has been, or is to
be, transferred in response to such a demand.
(2) In
paragraph (1), “insurance contract” means a contract under
which one party accepts significant insurance risk from another party (the
“policy holder”) by agreeing to compensate the policy holder if a
specified uncertain future event affects the policy holder.
(3) This
Article applies to any payment made by an insurer on or after the day on which
this Article comes into force, even if the payment is made –
(a) under,
or purportedly under, a contract entered into before that day; or
(b) in
respect of money or other property transferred within the period of 40 days
ending on that day.
(4) A
person guilty of an offence under this Article shall be liable to imprisonment
for a term not exceeding 14 years or to a fine, or both.
17 Articles 15,
16 and 16A: jurisdiction[29]
(1) A
person who does anything outside Jersey which, if it were done in Jersey, would
constitute an offence under Article 15, 16 or 16A, may be charged with
that offence and if found guilty shall be liable to the penalty provided for
that offence.[30]
(2) For
the purposes of this Article, Article 16(3)(b) shall be read as if for “Jersey”
there were substituted “a country or place outside Jersey”.
18 Offences
under Articles 15, 16 and 16A: co-operation with police[31]
(1) No
offence is committed under Article 15, 16 or 16A if a person acting with
the express consent of an officer of the Force or customs officer does anything
which would, apart from this paragraph, amount to the commission of an offence
under either of those Articles.[32]
(2) No
offence is committed under Article 15, 16 or 16A if a person involved in a
transaction or arrangement relating to property discloses, in accordance with
the conditions set out in paragraph (4) –
(a) a
suspicion or belief that the property is terrorist property; and
(b) the
information on which the suspicion or belief is based.[33]
(3) No
offence is committed under Article 15(2)(b) if a person involved in a
transaction or arrangement relating to the provision of a financial service
discloses, in accordance with the conditions set out in
paragraph (4) –
(a) a
suspicion or belief that the service is being or to be provided for the
purposes of terrorism or for the support of a terrorist entity; and
(b) the
information on which the suspicion or belief is based.
(4) The
conditions mentioned in paragraph (2) and (3) are that the disclosure is
made –
(a) after
the person became involved in the transaction or arrangement to which the
disclosure relates (“the relevant transaction”);
(b) to
an officer of the Force or a customs officer;
(c) in
good faith and on the person’s own initiative; and
(d) as
soon as reasonably practicable.
(5) The
defences provided by paragraphs (2) and (3) cease to apply if –
(a) an
officer of the Force or customs officer forbids the person to continue
involvement in the relevant transaction; but
(b) the
person continues to be involved.
(6) It
is a defence for a person charged with an offence under Article 15
or 16 to prove that the person –
(a) intended
to make a disclosure to which paragraph (2) or (3) applies; and
(b) has
reasonable excuse for failing to do so.
(7) Paragraph (8)
applies where –
(a) a
person is employed by any other person (“the employer”); and
(b) the
employer has established procedures for the making of disclosures to which
paragraph (2) or (3) would apply if such disclosure were made to an
officer of the Force or customs officer.
(8) Where
this paragraph applies, it is a defence for the employed person, if charged
with an offence under Article 15 or 16, to prove that a disclosure
was made by the person in good faith and in accordance with the employer’s
procedures.
19 General
duty of disclosure of information[34]
(1) This
Article applies, subject to paragraph (2), where –
(a) a
person (“A”) believes or suspects that another person has committed
an offence under Article 15, 16 or 16A; and
(b) the
basis for that belief or suspicion is information which comes to A’s
attention in the course of A’s trade, profession, business or employment.[35]
(2) This
Article does not apply where the information mentioned in paragraph (1)(b)
comes to A in the course of business of a financial institution (in which case
Article 21 shall apply).
(3) Where
this Article applies, A must disclose, in accordance with the conditions set
out in paragraph (4) –
(a) the
belief or suspicion mentioned in paragraph (1)(a); and
(b) the
information on which that belief or suspicion is based,
and if A does not make such a disclosure, A commits an offence.
(4) The
conditions mentioned in paragraph (3) are that the disclosure is
made –
(a) to
an officer of the Force or a customs officer;
(b) in
good faith; and
(c) as
soon as practicable after the information came to A’s attention.
(5) A
does not commit an offence under paragraph (3) if –
(a) A
has a reasonable excuse for not making a disclosure of information; or
(b) A
is a professional legal adviser and the information or other matter is an item
subject to legal privilege.[36]
(6) Where
A is a professional legal adviser, nothing in this Article requires A to
disclose an item subject to legal privilege or any belief or suspicion based on
information contained in an item subject to legal privilege.[37]
(7) [38]
(8) [39]
(9) Paragraph (10)
applies where –
(a) a
person is employed by any other person except a financial institution (“the
employer”); and
(b) the
employer has established procedures for the making of disclosures of the
matters specified in paragraph (3).
(10) Where
this paragraph applies, it is a defence for the employed person, if charged
with an offence under paragraph (3), to prove that a disclosure of matters
specified in that paragraph was made by the person in good faith and in
accordance with the employer’s procedures.
(11) A person
guilty of an offence under this Article shall be liable to imprisonment for a
term not exceeding 5 years or to a fine, or both.
20 Disclosure
of information: immunity[40]
(1) This
Article applies to a disclosure made in good faith to which either
paragraph (2) or paragraph (3) applies, and which is
made –
(a) to
an officer of the Force or a customs officer; or
(b) where
the person making the disclosure is employed by another person, in accordance
with any procedures established by the employer for the making of such
disclosures.
(2) This
paragraph applies to a disclosure made in the circumstances mentioned in
Article 19(1)(a) and (b).
(3) This
paragraph applies to a disclosure of –
(a) a
person’s suspicion or belief that any property is, or is derived from,
terrorist property; and
(b) any
matter on which that suspicion or belief is based.
(4) A
disclosure to which this Article applies shall not be treated as a breach of any
restriction on the disclosure of information imposed by any enactment or
contract or otherwise.
21[41] Failure to
disclose: financial institutions
(1) This
Article applies where the conditions in both paragraph (2) and
paragraph (3) are fulfilled.[42]
(2) The
first condition is that a person (“A”) knows, suspects or has
reasonable grounds for suspecting that –
(a) another
person has committed an offence under Article 15, 16 or 16A; or
(b) any
property is or may be terrorist property.[43]
(3) The
second condition is that the information or other matter on which A’s
knowledge or suspicion is based, or which gives reasonable grounds for such
suspicion, came to A in the course of business of a financial institution.[44]
(4) Where
this Article applies, A must disclose, in accordance with the conditions set
out in paragraph (4A) –
(a) the
knowledge, suspicion or grounds for suspicion mentioned in paragraph (2);
and
(b) the
information or other matter mentioned in paragraph (3),
and if A does not make such a disclosure, A commits an offence.[45]
(4A) The conditions
mentioned in paragraph (4) are that the disclosure is made –
(a) to
a designated police officer, a designated customs officer or a nominated
officer;
(b) in
good faith; and
(c) as
soon as is practicable after the information or other matter comes to A.[46]
(5) But
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;
(b) the
person is a professional legal adviser and the information or other matter is
an item subject to legal privilege.[47]
(5A) 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
institution;
(b) the
financial institution was required by an Order made under Article 37 of
the Proceeds of Crime (Jersey) Law 1999[48] 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 had committed
an offence under Article 15, 16 or 16A.[49]
(6) In
deciding whether a person has committed an offence under this Article, the
court –
(a) shall
take account of any relevant Code of Practice or guidance that applies to that
person or the business carried on by that person and is issued by the
supervisory body exercising supervisory functions in respect of that person; or
(b) if
no such Code of Practice or guidance applies, shall take into account any
relevant Code of Practice or guidance that is issued by another supervisory
body; or
(c) if
there is no such relevant Code of Practice or guidance, may take account of any
other relevant guidance issued by a body that is representative of that person
or any supervised business carried on by that person.[50]
(6A) For the
purposes of paragraph (6), “Code of Practice”;
“supervisory body”, “supervisory functions” and
“supervised business” have the same meaning as in the Proceeds of
Crime (Supervisory Bodies) (Jersey) Law 2008[51].[52]
(7) 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. [53]
(8) [54]
(9) [55]
(10) For the
purposes of paragraph (2), a person is to be taken to have committed an
offence there mentioned if –
(a) the
person has taken action or been in possession of a thing; and
(b) the
person would have committed the offence if he or she had been in Jersey at the
time when he or she took the action or was in possession of the thing.
(11) A person
guilty of an offence under this Article shall be liable to imprisonment for a
term not exceeding 5 years or to a fine, or both.
22[56] Protected
disclosures
(1) A
disclosure which satisfies the following 3 conditions is not to be taken
to breach any restriction on the disclosure of information (however imposed).
(2) The
first condition is that the information or other matter disclosed came to the
person making the disclosure in the course of the business of a financial
institution.[57]
(3) The
second condition is that the information or other matter –
(a) causes
the discloser to know or suspect; or
(b) gives
him or her reasonable grounds for knowing or suspecting,
that another person has committed an offence under Article 15, 16 or
16A.[58]
(4) The
third condition is that the disclosure is made to a designated police officer,
designated customs officer or nominated officer in good faith and as soon as is
practicable after the information or other matter comes to the discloser.[59]
(5) A
disclosure to a nominated officer is a disclosure which –
(a) is
made to a person nominated by the discloser’s employer 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.
23 Restrictions
on disclosure[60]
(1) Information
which is disclosed to an officer of the Force or customs officer as described
in any provision of Articles 18, 19, 20 or 22 shall not be disclosed
by that officer, or by any person who obtains the information directly or
indirectly from the officer, unless its disclosure is permitted under
Article 24 or 25.[61]
(2) A
person who contravenes paragraph (1) shall be guilty of an offence and
liable to imprisonment for a term of 6 months and to a fine.[62]
(3) It
is a defence for a person charged with an offence under this Article to prove
that the person took all reasonable steps and exercised due diligence to avoid committing
the offence.
24 Disclosure
for purposes within Jersey[63]
(1) Article 23
does not prohibit the disclosure of information to a person in Jersey for the
purposes of the investigation of crime in Jersey or of criminal proceedings in
Jersey.[64]
(2) Article 23
does not prohibit the disclosure of information, for other purposes in Jersey,
to –
(a) the
Attorney General;
(b) the
Jersey Financial Services Commission;
(c) an
officer of the Force or customs officer; or
(d) any
other person who is for the time being authorized in writing by the Attorney
General to obtain that information.[65]
(3) In
this Article, “Jersey Financial Services Commission” means the
Commission established under the Financial Services Commission (Jersey) Law 1998[66].[67]
25 Disclosure
for purposes outside Jersey[68]
(1) Article
23 does not prohibit the disclosure of information if –
(a) the
Attorney General has consented to the disclosure and has not withdrawn that
consent; and
(b) the
information is disclosed –
(i) for the purposes
of the investigation of crime outside Jersey or of criminal proceedings outside
Jersey, or
(ii) to an authority
outside Jersey which is a competent authority for the purposes of
Article 3(3) of the Investigation of Fraud (Jersey) Law 1991[69].[70]
(2) The
Attorney General may give consent –
(a) generally
or specifically; and
(b) unconditionally
or subject to such conditions as the Attorney General may stipulate.
(3) Without
prejudice to the generality of paragraph (2), the Attorney General’s
consent may be given in terms which permit the disclosure from time to time (as
the occasion requires) of such a class of information as is specified in the
consent to such a person or authority or class of persons or authorities as is
so specified.
(4) Without
prejudice to the generality of paragraph (2), a condition –
(a) may
be expressed generally or in respect of any specified information;
(b) may
provide that information may only be disclosed in specified circumstances or
for a specified purpose; or
(c) may
provide that any person or authority to whom information is disclosed shall not
disclose it to any other person or body without the prior consent of the
Attorney General.
26 Designated
police and customs officers[71]
(1) The
Chief Officer of the Force may by public notice designate one or more police
officers (whether by reference to the name of the officer or officers or post),
being members of that Force, for the purposes of Articles 21 and 22.[72]
(2) The
Agent of the Impôts may by public notice designate one or more officers
of the Impôts for the purposes of Articles 21 and 22.[73]
Forfeiture
27 Forfeiture
of property used for purposes of terrorism[74]
(1) The
court by or before which a person is convicted of an offence under Article 15,
16 or 16A may make a forfeiture order in accordance with the provisions of this
Article.[75]
(2) Where
the offence of which the person is convicted is an offence under
Article 15, the court may order the forfeiture of any property which, at
the time of the offence –
(a) was
possessed or controlled by that person; and
(b) was
intended to be used, or there is reasonable cause to suspect would be used, for
the purposes of terrorism or for the support of a terrorist entity.
(3) Where
the offence of which the person is convicted is an offence under
Article 16, the court may order the forfeiture of the terrorist property
in question.
(3A) Where the
offence of which the person is convicted is an offence under Article 16A,
the court may order the forfeiture of the amount paid under, or purportedly
under, the insurance contract.[76]
(4) Where
a person other than the convicted person claims to be the owner of or otherwise
interested in any property which may be forfeit by virtue of an order under
this Article, the court shall give that person an opportunity to be heard
before making such an order.
(5) Schedule 3
shall have effect to make further provision as to orders under this Article.
PART 4
TERRORIST INVESTIGATION
Cordons
28 Cordoned
areas
(1) An
area is a cordoned area for the purposes of the Law if it is designated under
this Article.
(2) A
designation may be made by an officer of the Force of at least the rank of
chief inspector and only if he or she considers it expedient for the purposes
of a terrorist investigation.
(3) If
a designation is made orally, the officer making it shall confirm it in writing
as soon as is reasonably practicable.
(4) The
officer making a designation shall arrange for the demarcation of the cordoned
area, so far as is reasonably practicable –
(a) by
means of tape marked with the word “police”; or
(b) in
such other manner as an officer of the Force considers appropriate.
(5) An
officer of the Force who is not of the rank required by paragraph (2) may
make a designation if he or she considers it necessary by reasons of urgency.
(6) Where
an officer of the Force makes a designation in reliance on paragraph (5) he
or she shall as soon as is reasonably practicable –
(a) make
a written record of the time at which the designation was made; and
(b) ensure
that an officer of the Force of at least the rank of chief inspector is
informed.
(7) An
officer who is informed of a designation in accordance with paragraph (6)(b) –
(a) shall
confirm the designation or cancel it with effect from such time as he or she
may direct; and
(b) shall,
if he or she cancels the designation, make a written record of the cancellation
and the reason for it.
29 Duration
(1) A
designation under Article 28 has effect, subject to paragraphs (2) to
(5), during the period –
(a) beginning
at the time when it is made; and
(b) ending
with a date or at a time specified in the designation.
(2) The
date or time specified under paragraph (1)(b) must not occur after the end
of the period of 14 days beginning with the day on which the designation
is made.
(3) The
period during which a designation has effect may be extended in writing from
time to time by –
(a) the
person who made it; or
(b) an
officer of the Force of at least the rank of chief inspector.
(4) An
extension shall specify the additional period during which the designation is
to have effect.
(5) A
designation shall not have effect after the end of the period of 28 days
beginning with the day on which it is made.
30 Police
powers
(1) A
police officer may –
(a) order
a person in a cordoned area to leave it immediately;
(b) order
a person immediately to leave premises which are wholly or partly in or
adjacent to a cordoned area;
(c) order
the driver or person in charge of a vehicle in a cordoned area to move it from
the area immediately;
(d) arrange
for the removal of a vehicle from a cordoned area;
(e) arrange
for the movement of a vehicle within a cordoned area;
(f) prohibit
or restrict access to a cordoned area by pedestrians or vehicles.
(2) A
police officer not in uniform shall, if requested by a person given an order or
affected by the exercise of any other power under paragraph (1), produce
proof of his or her authority.
(3) A
person commits an offence if the person fails to comply with an order,
prohibition or restriction imposed by virtue of paragraph (1).
(4) It
is a defence for a person charged with an offence under paragraph (3) to
prove that he or she had a reasonable excuse for his or her failure.
(5) A
person guilty of an offence under paragraph (3) shall be liable to
imprisonment for a term not exceeding 3 months or to a fine not exceeding
level 3 on the standard scale, or both.
Information and evidence
31 Powers
Schedule 5 shall have effect to confer powers required for the
purposes of a terrorist investigation.
32 Financial
information
Schedule 6 shall have effect to confer powers required to obtain
financial information.
33 Account
monitoring orders
Schedule 7 shall have effect to confer further powers to obtain
information regarding terrorist finance.
34 Information
about acts of terrorism
(1) This
Article applies where a person has information which he or she knows or
believes might be of material assistance –
(a) in
preventing the commission by another person of an act of terrorism;
(b) in
securing the apprehension, prosecution or conviction of another person, in Jersey,
for an offence involving the commission, preparation or instigation of an act
of terrorism.
(2) The
person commits an offence if he or she does not disclose the information as
soon as reasonably practicable in accordance with paragraph (3).
(3) Disclosure
is in accordance with this paragraph if it is made to an officer of the Force.
(4) It
is a defence for a person charged with an offence under paragraph (2) to
prove that he or she had a reasonable excuse for not making the disclosure.
(5) A
person guilty of an offence under this Article shall be liable to imprisonment
for a term not exceeding 5 years or to a fine, or both.
(6) Proceedings
for an offence under this Article may be taken, and the offence may for the
purposes of those proceedings be treated as having been committed, in any place
where the person charged is or has at any time been since he or she first knew
or believed that the information might be of material assistance as mentioned
in paragraph (1).
(7) Where –
(a) a
disclosure is made; and
(b) a
failure to have made it would have constituted an offence under this Article,
the disclosure is not to be taken to breach any restriction on the
disclosure of information (however imposed).
35 Tipping
off and interference with material[77]
(1) Paragraph (2)
applies where a person knows or suspects that the Attorney General or any
police officer is acting or proposing to act in connection with a terrorist
investigation or proposed terrorist investigation.
(2) It
is an offence for the person –
(a) to
disclose to another person any information relating to the investigation; or
(b) to
interfere with material which is likely to be relevant to the investigation.
(3) Paragraph (4)
applies where a person knows or suspects that a disclosure has been or will be
made under any of Articles 18, 19 or 21.
(4) It
is an offence for the person –
(a) to
disclose to another person –
(i) the fact that
such a disclosure has been or will be made, or
(ii) any information
otherwise relating to such a disclosure;
or
(b) to
interfere with material which is likely to be relevant to an investigation
resulting from such a disclosure.
(5) The
States may by Regulations specify cases in which a disclosure or interference
to which paragraph (2) or (4) would otherwise apply shall not amount to
the commission of an offence.
(6) Paragraphs
(2) and (4) do not apply to a disclosure which –
(a) is
made by a professional legal adviser –
(i) to a client, or
to the client’s representative, in connection with the provision of legal
advice to the client, or
(ii) to any person for
the purpose of actual or contemplated legal proceedings;
(b) is
made by a person who is the client of a professional legal adviser to that
adviser, for either of the purposes mentioned in sub-paragraph (a)(i) or
(ii); or
(c) is
made by a person who is the client of an accountant to that accountant for the
purpose of enabling him or her to provide any of the services listed in paragraph 2(1)
of Part B of Schedule 2 to the Proceeds of Crime (Jersey) Law 1999[78],
and is not made with a view to furthering a criminal purpose.[79]
(7) For
the purposes of paragraphs (2) and (4), interference with material
includes falsifying, concealing, destroying or disposing of the material or
part of it.
(8) A
person shall not be guilty of an offence under paragraph (2) or (4)
in respect of anything done by the person in the course of acting in connection
with the enforcement, or intended enforcement, of any provision of this Law or
of any other enactment relating to terrorism or the investigation of terrorism.
(9) 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 both.
(10) No
prosecution shall be instituted for an offence under this Article without the
consent of the Attorney General.
PART 5
COUNTER-TERRORIST POWERS
Suspected terrorists
36 Interpretation
of Part 5: “terrorist”
In this Part, “terrorist” means a person
who –
(a) has
committed an offence under any of Articles 12, 13, 15, 16, or 50 to 55;
(b) is
or has been concerned in the commission, preparation or instigation of an act
of terrorism; or
(c) is
or has been concerned in action facilitating the commission, preparation or
instigation of such an act.[80]
37 Arrest
and detention of suspected terrorists
(1) A police
officer may arrest a person whom he or she reasonably suspects to be a
terrorist.
(2) Where
a person is arrested under this Article the provisions of Schedule 9 shall
apply to regulate his or her detention.
(3) Subject
to paragraphs (4) to (7), a person detained under this Article shall
(unless detained under any other power) be released not later than the end of
the period of 48 hours beginning –
(a) with
the time of his or her arrest under this Article; or
(b) if the
person was being detained under Schedule 8 when he or she was arrested under
this Article, with the time when his or her examination under that Schedule
began.
(4) If
on a review of a person’s detention under Part 2 of Schedule 9
the review officer does not authorize continued detention, the person shall
(unless detained in accordance with paragraph (5) or (6) or under any
other power) be released.
(5) Where
a police officer intends to make an application for a warrant under paragraph 25
of Schedule 9 extending a person’s detention, the person may be
detained pending the making of the application.
(6) Where
an application has been made under paragraph 25 or 32 of Schedule 9
in respect of a person’s detention, he or she may be detained pending the
conclusion of proceedings on the application.
(7) Where
an application under paragraph 25 or 32 of Schedule 9 is granted in
respect of a person’s detention, he or she may be detained, subject to paragraph 33
of that Schedule, during the period specified in the warrant.
(8) The
refusal of an application in respect of a person’s detention under paragraph 25
or 32 of Schedule 9 shall not prevent his or her continued detention in
accordance with this Article.
38 Warrant
for search of premises for terrorist
(1) The
Bailiff may on the application of a police officer issue a warrant in relation
to specified premises if he or she is satisfied that there are reasonable
grounds for suspecting that a person whom the police officer reasonably
suspects to be a terrorist is to be found there.
(2) A
warrant under this Article shall authorize any police officer to enter and
search the specified premises for the purpose of arresting the person referred
to in paragraph (1) under Article 37.
39 Search
of suspected terrorist
(1) A
police officer may stop and search a person whom he or she reasonably suspects
to be a terrorist to discover whether the person has in his or her possession
anything which may constitute evidence that the person is a terrorist.
(2) A
police officer may search a person arrested under Article 37 to discover
whether the person has in his or her possession anything which may constitute
evidence that the person is a terrorist.
(3) A
search of a person under this Article must be carried out by someone of the
same sex.
(4) A
police officer may seize and retain anything which he or she discovers in the
course of a search of a person under paragraph (1) or (2) and which he or
she reasonably suspects may constitute evidence that the person is a terrorist.
Power to stop and search
40 Authorization
to stop and search to prevent acts of terrorism
(1) An
authorization under this paragraph authorizes an officer of the Force in
uniform to stop a vehicle in an area or at a place specified in the
authorization and to search –
(a) the
vehicle;
(b) the
driver of the vehicle;
(c) a
passenger in the vehicle;
(d) anything
in or on the vehicle or carried by the driver or a passenger.
(2) An
authorization under this paragraph authorizes any officer of the Force in
uniform to stop a pedestrian in an area or at a place specified in the
authorization and to search –
(a) the
pedestrian;
(b) anything
carried by him or her.
(3) An
authorization under paragraph (1) or (2) may be given only if the person
giving it considers it expedient for the prevention of acts of terrorism.
(4) An
authorization may be given by an officer of the Force of at least the rank of
chief inspector.
(5) If
an authorization is given orally, the person giving it shall confirm it in
writing as soon as is reasonably practicable.
41 Exercise
of power
(1) The
power conferred by an authorization under Article 40(1) or (2) –
(a) may
be exercised only for the purpose of searching for articles of a kind which
could be used in connection with terrorism; and
(b) may
be exercised whether or not the officer of the Force has grounds for suspecting
the presence of articles of that kind.
(2) An
officer of the Force may seize and retain an article which he or she discovers
in the course of a search by virtue of Article 40(1) or (2) and which he
or she reasonably suspects is intended to be used in connection with terrorism.
(3) An
officer of the Force exercising the power conferred by an authorization may not
require a person to remove any clothing in public except for headgear,
footwear, an outer coat, a jacket or gloves.
(4) A
search of a person under this Article must be carried out by someone of the
same sex.
(5) Where
an officer of the Force proposes to search a person or vehicle by virtue of Article 40(1)
or (2) he or she may detain the person or vehicle for such time as is
reasonably required to permit the search to be carried out at or near the place
where the person or vehicle is stopped.
(6) Where –
(a) a
vehicle or pedestrian is stopped by virtue of Article 40(1) or (2); and
(b) the
driver of the vehicle or the pedestrian applies for a written statement that
the vehicle was stopped, or that he or she was stopped, by virtue of Article 40(1)
or (2),
the written statement shall be provided.
(7) An
application under paragraph (6) must be made within the period of
12 months beginning with the date on which the vehicle or pedestrian was
stopped.
42 Duration
of authorization
(1) An
authorization under Article 40 has effect, subject to paragraphs (2)
to (7), during the period –
(a) beginning
at the time when the authorization is given; and
(b) ending
with a date or at a time specified in the authorization.
(2) The
date or time specified under paragraph (1)(b) must not occur after the end
of the period of 28 days beginning with the day on which the authorization
is given.
(3) The
officer who gives an authorization shall inform the Minister as soon as is
reasonably practicable.
(4) If
an authorization is not confirmed by the Minister before the end of the period
of 48 hours beginning with the time when it is given –
(a) it
shall cease to have effect at the end of that period; but
(b) its
ceasing to have effect shall not affect the lawfulness of anything done in
reliance on it before the end of that period.
(5) Where
the Minister confirms an authorization the Minister may substitute an earlier
date or time for the date or time specified under paragraph (1)(b).
(6) The
Minister may cancel an authorization with effect from a specified time.
(7) An
authorization may be renewed in writing by any officer of the Force of at least
the rank of chief inspector and paragraphs (1) to (6) shall apply as if a
new authorization were given on each occasion on which the authorization is
renewed.
43 Offences
(1) A
person commits an offence if he or she –
(a) fails
to stop a vehicle when required to do so by an officer of the Force in the
exercise of the power conferred by an authorization under Article 40(1);
(b) fails
to stop when required to do so by an officer of the Force in the exercise of
the power conferred by an authorization under Article 40(2);
(c) wilfully
obstructs an officer of the Force in the exercise of the power conferred by an
authorization under Article 40(1) or (2).
(2) A
person guilty of an offence under this Article shall be liable to imprisonment
for a term of 6 months and to a fine of level 3 on the standard scale.[81]
Parking
44 Interpretation
of Articles 45 to 48
In Articles 45 to 48 –
“disabled person’s badge” means such a badge
issued pursuant to an Order made under Article 60 of the Road Traffic (Jersey) Law 1956;[82]
“driver” means, in relation to a vehicle which has been
left on any road, the person who was driving it when it was left there;
“parking” means leaving a vehicle or permitting it to
remain at rest;
“parking place” means a place under the administration
of a public or parochial authority where vehicles may be parked;
“traffic sign” has the same meaning as in the Road Traffic (Jersey) Law 1956.
45 Authorization
to prohibit or restrict parking
(1) An
authorization under this Article authorizes a police officer to prohibit or
restrict the parking of vehicles on a road specified in the authorization.
(2) An
authorization may be given only if the officer giving it considers it expedient
for the prevention of acts of terrorism.
(3) An
authorization may be given by an officer of the Force of at least the rank of
chief inspector.
(4) If
an authorization is given orally, the person giving it shall confirm it in
writing as soon as is reasonably practicable.
46 Exercise
of powers
(1) The
power conferred by an authorization under Article 45 shall be exercised by
placing a traffic sign on the road concerned.
(2) A police officer
exercising the power conferred by an authorization under Article 45 may
suspend a parking place.
(3) Where
a parking place is suspended under paragraph (2), the suspension shall be
treated as a restriction imposed by Article 45 for the purposes of Article 56
of the Road Traffic (Jersey) Law 1956[83] and of any Order made under
it.
(4) A
police officer not in uniform shall, if requested by a person affected by the
exercise by him or her of the power conferred by an authorization under Article 45,
produce proof of his or her authority.
47 Duration
of authorization
(1) An
authorization under Article 45 has effect, subject to paragraphs (2)
and (3), during the period specified in the authorization.
(2) The
period specified shall not exceed 28 days.
(3) An
authorization may be renewed in writing by the person who gave it or by a
person who could have given it and paragraphs (1) and (2) shall apply as
if a new authorization were given on each occasion on which the authorization
is renewed.
48 Offences
(1) A
person commits an offence if he or she parks a vehicle in contravention of a
prohibition or restriction imposed by virtue of Article 45.
(2) A
person commits an offence if –
(a) he
or she is the driver or other person in charge of a vehicle which has been
permitted to remain at rest in contravention of any prohibition or restriction
imposed by virtue of Article 45; and
(b) he
or she fails to move the vehicle when ordered to do so by a police officer.
(3) It
is a defence for a person charged with an offence under this Article to prove
that he or she had a reasonable excuse for the act or omission in question.
(4) Possession
of a current disabled person’s badge shall not itself constitute a reasonable
excuse for the purposes of paragraph (3).
(5) A
person guilty of an offence under paragraph (1) shall be liable to a fine of
level 3 on the standard scale.[84]
(6) A
person guilty of an offence under paragraph (2) shall be liable to
imprisonment for a term not exceeding 3 months or to a fine not exceeding
level 3 on the standard scale, or both.
Port controls
49 Port
controls
(1) Schedule 8
shall have effect to confer powers exercisable at ports.
(2) The
States may by Regulations repeal paragraph 13 of Schedule 8.
(3) The
powers conferred by Schedule 8 shall be exercisable notwithstanding the
rights conferred by section 1 of the Immigration Act 1971.
PART 6
FURTHER TERRORIST OFFENCES
50 Weapons
training
(1) Subject
to paragraph (5), a person commits an offence if he or she provides
instruction or training in the making or use of –
(a) firearms;
(b) radioactive
material or weapons designed or adapted for the discharge of any radioactive
material;
(c) explosives;
or
(d) chemical,
biological or nuclear weapons.
(2) Subject
to paragraph (5), a person commits an offence if he or she receives
instruction or training in the making or use of –
(a) firearms;
(b) radioactive
material or weapons designed or adapted for the discharge of any radioactive
material;
(c) explosives;
or
(d) chemical,
biological or nuclear weapons.
(3) Subject
to paragraph (5), a person commits an offence if he or she invites another
to receive instruction or training and the receipt –
(a) would
constitute an offence under paragraph (2); or
(b) would
constitute an offence under paragraph (2) but for the fact that it is to
take place outside Jersey.
(4) For
the purpose of paragraphs (1) and (3) –
(a) a
reference to the provision of instruction includes a reference to making it
available either generally or to one or more specific persons; and
(b) an
invitation to receive instruction or training may be either general or
addressed to one or more specific persons.
(5) It
is a defence for a person charged with an offence under this Article in relation
to instruction or training to prove that his or her action or involvement was
wholly for a purpose other than assisting, preparing for or participating in
terrorism.
(6) A
person guilty of an offence under this Article shall be liable to imprisonment for
a term not exceeding 10 years or to a fine, or both.
(7) A
court by or before which a person is convicted of an offence under this Article
may order the forfeiture of anything which the court considers to have been in
the person’s possession for purposes connected with the offence.
(8) Before
making an order under paragraph (7) a court must give an opportunity to be
heard to any person, other than the convicted person, who claims to be the
owner of or otherwise interested in anything which can be forfeited under that paragraph.
(9) An
order under paragraph (7) shall not come into force until there is no
further possibility of it being varied, or set aside, on appeal (disregarding
any power of a court to grant leave to appeal out of time).
(10) In this Article –
“biological weapon” means anything to which section 1(1)(b)
of the Biological Weapons Act 1974 of
the United Kingdom, as it is extended to Jersey by Order in Council,[85] applies;
“chemical weapon” has the meaning given by section 1 of
the Chemical Weapons Act 1996 of the
United Kingdom as it is extended to Jersey by Order in Council;[86]
“nuclear weapon” means a weapon which contains nuclear
material within the meaning of Article 1(a) and (b) of the Convention on
the Physical Protection of Nuclear Material opened for signature at Vienna and
New York on 3rd March 1980;
“radioactive material” means radioactive material
capable of endangering life or causing harm to human health.
51 Directing
terrorist organization
(1) A
person commits an offence if he or she directs, at any level, the activities of
an organization which is concerned in the commission of acts of terrorism.
(2) A
person guilty of an offence under this Article is liable to imprisonment for
life.
52 Possession
for terrorist purposes
(1) A
person commits an offence if he or she possesses an article in circumstances
which give rise to a reasonable suspicion that his or her possession is for a
purpose connected with the commission, preparation or instigation of an act of
terrorism.
(2) It
is a defence for a person charged with an offence under this Article to prove
that his or her possession of the article was not for a purpose connected with
the commission, preparation or instigation of an act of terrorism.
(3) In
proceedings for an offence under this Article, if it is proved that an article –
(a) was
on any premises at the same time as the accused; or
(b) was
on premises of which the accused was the occupier or which he or she habitually
used otherwise than as a member of the public,
the court may assume that the accused possessed the article, unless the
accused proves that he or she did not know of its presence on the premises or
that the accused had no control over it.
(4) A person
guilty of an offence under this Article shall be liable to imprisonment for a
term not exceeding 10 years or to a fine, or both.
53 Collection
of information
(1) A person commits an
offence if –
(a) he
or she collects or makes a record of information of a kind likely to be useful
to a person committing or preparing an act of terrorism; or
(b) he
or she possesses a document or record containing information of that kind.
(2) In
this Article “record” includes a photographic or electronic record.
(3) It
is a defence for a person charged with an offence under this Article to prove
that he or she had a reasonable excuse for his or her action or possession.
(4) A
person guilty of an offence under this Article shall be liable to imprisonment
for term not exceeding 10 years or to a fine, or both.
(5) A
court by or before which a person is convicted of an offence under this Article
may order the forfeiture of any document or record containing information of
the kind mentioned in paragraph (1)(a).
(6) Before
making an order under paragraph (5) a court must give an opportunity to be
heard to any person, other than the convicted person, who claims to be the
owner of or otherwise interested in anything which can be forfeited under that paragraph.
(7) An
order under paragraph (5) shall not come into force until there is no
further possibility of it being varied, or set aside, on appeal (disregarding
any power of a court to grant leave to appeal out of time).
54 Inciting
terrorism overseas
(1) A
person commits an offence if –
(a) he
or she incites another person to commit an act of terrorism wholly or partly
outside Jersey; and
(b) the
act would, if committed in Jersey, constitute one of the offences listed in paragraph (2).
(2) Those
offences are –
(a) murder;
(b) grave
and criminal assault;
(c) malicious
damage to property.
(3) A
person guilty of an offence under this Article shall be liable to any penalty
to which he or she would be liable on conviction of the offence listed in paragraph (2)
which corresponds to the act which the person incites.
(4) For
the purposes of paragraph (1) it is immaterial whether or not the person
incited is in Jersey at the time of the incitement.
(5) Nothing
in this Article imposes criminal liability on any person acting on behalf of,
or holding office under, the Crown.
55 Terrorist
bombing: jurisdiction
(1) If –
(a) a
person does anything outside Jersey as an act of terrorism or for the purposes
of terrorism; and
(b) his
or her action would have constituted the commission of one of the offences
listed in paragraph (2) if it had been done in Jersey,
he or she shall be guilty of the offence.
(2) The
offences referred to in paragraph (1)(b) are –
(a) an
offence under Article 2 or 3 of the Loi
(1884) sur les matières explosives;[87]
(b) an
offence under section 1 of the Biological
Weapons Act 1974 of the United Kingdom, as it is extended to Jersey
by Order in Council;[88]
(c) an
offence under section 2 of the Chemical
Weapons Act 1996 of the United Kingdom, as it is extended to Jersey
by Order in Council.[89]
PART 7
GENERAL
56 Police
powers
(1) A
power conferred by virtue of this Law on a police officer –
(a) is
additional to powers which he or she has at customary law or by virtue of any
other enactment; and
(b) shall
not be taken to affect those powers.
(2) A
police officer may if necessary use reasonable force for the purpose of
exercising a power conferred on him or her by virtue of this Law (apart
from paragraph 2 of Schedule 8).
(3) Where
anything is seized by a police officer under a power conferred by virtue of
this Law, it may (unless the contrary intention appears) be retained only for
so long as is necessary in all the circumstances.
57 Exercise
of officers’ powers
An examining officer within the meaning of Schedule 8
may –
(a) enter
a vehicle for the purpose of exercising any functions conferred on him or her
by virtue of this Law; and
(b) use
reasonable force for the purpose of exercising a power conferred on him or her
by virtue of this Law (apart from paragraph 2 of Schedule 8).[90]
58 Powers
to stop and search
(1) A
power to search premises conferred by virtue of this Law shall be taken to
include power to search a container.
(2) A
power conferred by virtue of this Law to stop a person includes power to stop a
vehicle (other than an aircraft which is airborne).
(3) A
person commits an offence if he or she fails to stop a vehicle when requires to
do so by virtue of this Article.
(4) A
person guilty of an offence under paragraph (3) shall be liable to
imprisonment for a term of 6 months and to a fine.[91]
59 Defences
(1) Paragraph (2)
applies where in accordance with a provision mentioned in paragraph (5) it
is a defence for a person charged with an offence to prove a particular matter.
(2) If
the person adduces evidence which is sufficient to raise an issue with respect
to the matter the court or jury shall assume that the defence is satisfied
unless the prosecution proves beyond reasonable doubt that it is not.
(3) Paragraph (4)
applies where in accordance with a provision mentioned in paragraph (5) a
court –
(a) may
make an assumption in relation to a person charged with an offence unless a
particular matter is proved; or
(b) may
accept a fact as sufficient evidence unless a particular matter is proved.
(4) If
evidence is adduced which is sufficient to raise an issue with respect to the
matter mentioned in paragraph (3)(a) or (b) the court shall treat it as
proved unless the prosecution disproves it beyond reasonable doubt.
(5) The
provisions in respect of which paragraphs (2) and (4) apply are
Articles 13(4), 35(5)(a), 50, 52 and 53 of this Law.
60 Evidence
(1) A
document which purports to be a notice or direction given under this Law by and
signed on behalf of the Minister or by the Lieutenant Governor shall be
received in evidence and shall, unless the contrary is proved, be deemed to be
made or given by them.
(2) A
document bearing a certificate or purporting to be signed on behalf of the
Minister or by the Lieutenant Governor, stating that the document is a true
copy of such a notice or direction mentioned in paragraph (1) shall, in
any legal proceedings, be evidence of the notice or direction.
61 Crown
servants, regulators, etc.
(1) The
Minister may by Order provide for any of Articles 15 to 22, 27 and 35 to
apply to persons in the public service of the Crown.[92]
(2) The
Minister may by Order provide for either or both of Articles 19 and 34 not
to apply to persons who are in the Minister’s opinion performing or
connected with the performance of regulatory, supervisory, investigative or
registration functions of a public nature.[93]
(3) Orders
under this Article –
(a) may
make different provision for different purposes;
(b) may
make provision which is to apply only in specified circumstances; and
(c) may
make provision which applies only to particular persons or to persons of a
particular description.
62 [94]
63 Offences
by body corporate, etc.
(1) Where
an offence under this Law committed by a limited liability partnership,
separate limited 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, save as provided
in paragraph 8 of Schedule 6, liable in the same manner as the
partnership or body corporate to the penalty provided for that offence.[95]
(2) Where
the affairs of a body corporate are managed by its members, paragraph (1)
shall apply in relation to acts and defaults of a member in connection with his
or her functions of management as if the member were a director of the body
corporate.
64 Consent
to prosecution
Proceedings for an offence under this Law shall not be instituted
without the consent of the Attorney General.
65 Orders
and Rules
(1) The Minister may by
Order amend the definition “financial institution” in Article 1(1).
(2) The
Minister may by Order prescribe anything that shall or may be prescribed for
the purposes of this Law.
(3) The
Subordinate Legislation (Jersey)
Law 1960[96] shall apply to Orders and
Rules made under this Law.
66 [97]
67 [98]
68 Citation
This Law may be cited as the Terrorism (Jersey) Law 2002.[99]
SCHEDULE
1[100]
(Article 6)
PROSCRIBED ORGANIZATIONS
The Irish Republican Army.
Cumann na mBan.
Fianna na hEireann.
The Red Hand Commando.
Saor Eire.
The Ulster Freedom Fighters.
The Ulster Volunteer Force.
The Irish National Liberation Army.
The Irish People’s Liberation Organisation.
The Ulster Defence Association.
The Loyalist Volunteer Force.
The Continuity Army Council.
The Orange Volunteers.
The Red Hand Defenders.
Al-Qa’ida.
Egyptian Islamic Jihad.
Al-Gama’at al-Islamiya.
Armed Islamic Group (Groupe Islamique
Armée) (GIA).
Salafist Group for Call and Combat (Groupe
Salafiste pour la Prédication et le Combat) (GSPC).
Babbar Khalsa.
International Sikh Youth Federation.
Harakat Mujahideen.
Jaish e Mohammed.
Lashkar e Tayyaba (also known as Jama’at ud Da’wa).
Liberation Tigers of Tamil Eelam (LTTE).
The military wing of Hizballah, including the Jihad Council and all units
reporting to it (including the Hizballah External Security Organisation).
Hamas-Izz al-Din al-Qassem Brigades.
Palestinian Islamic Jihad - Shaqaqi.
Abu Nidal Organisation.
Islamic Army of Aden.
Kurdistan Workers’ Party (Partiya Karkeren Kurdistan) (PKK)
(also known as Kongra Gele Kurdistan and KADEK).
Revolutionary Peoples’ Liberation Party - Front (Devrimci
Halk Kurtulus Partisi-Cephesi) (DHKP-C).
Basque Homeland and Liberty (Euskadi ta Askatasuna) (ETA).
17 November Revolutionary Organisation (N17).
Abu Sayyaf Group.
Asbat Al-Ansar.
Islamic Movement of Uzbekistan.
Jemaah Islamiyah.
Al Ittihad Al Islamia.
Ansar Al Islam.
Ansar Al Sunna.
Groupe Islamique Combattant Marocain.
Harakat-ul-Jihad-ul-Islami.
Harakat-ul-Jihad-ul-Islami (Bangladesh).
Harakat-ul-Mujahideen/Alami.
Hezb-e Islami Gulbuddin.
Islamic Jihad Union.
Jamaat ul-Furquan.
Jundallah.
Khuddam ul-Islam.
Lashkar-e Jhangvi.
Libyan Islamic Fighting Group.
Sipah-e Sahaba Pakistan.
Al-Ghurabaa (also known as Al Muhajiroun, ALM, Call to Submission,
Islam4UK, Islamic Path, London School of Sharia and Muslims Against Crusades).
The Saved Sect (also known by the same names as Al-Ghurabaa).
Baluchistan Liberation Army.
Teyrebaz Azadiye Kurdistan.
Tehrik Nefaz-e Shari'at Muhammadi.
Jammat-ul Mujahideen Bangladesh.
Al Shabaab.
Tehrik-e Taliban Pakistan.
Indian Mujahideen.
Ansarul Muslimina Fi Biladis Sudan (Vanguard for the protection of
Muslims in Black Africa) (Ansaru).
Abdallah Azzam Brigades, including the Ziyad al-Jarrah Battalions.
Al Murabitun.
Al Nusrah Front for the People of the Levant.
Ansar al Sharia-Tunisia.
Ansar Bayt al-Maqdis.
Imarat Kavkaz (also known as Caucasus Emirate).
Jama’atu Ahli Sunna Lidda Awati Wal Jihad (also known as Boko Haram).
Islamic State of Iraq and the Levant (also known as Islamic State of
Iraq, Islamic State of Iraq and al-Sham, Islamic State of Iraq and Syria;
Dawlat al-‘Iraq al-Islamiyya; and Dawlat al Islamiya fi Iraq wa al Sham).
Kateeba al-Kawthar (also known as Ajnad al-sham and Junud ar-Rahman
al Muhajireen).
Minbar Ansar Deen (also known as Ansar Al-Sharia UK).
Popular Front for the Liberation of Palestine-General Command.
Turkiye Halk Kurtulus Partisi-Cephesi (also known as the Turkish
People’s Liberation Party, the Front of Turkey, THKP-C Acilciler, the
Hasty Ones and Mukavamet Suriye).
Ajnad Misr (Soldiers of Egypt).
Ansar al-Sharia-Benghazi (AAS-B) (which translates as the Partisans
of Islamic Law).
Jaysh al Khalifatu Islamiya (JKI) (which translates as the Army of
the Islamic Caliphate and as the Majahideen of the Caucasus and the Levant).
Jund al-Aqsa (JAA) (which translates as Soldiers of al-Aqsa).
Jund al Khalifa-Algeria (JaK-A) (which translates as Soldiers of the
Caliphate).
Haqqani Network (HQN).
Jamaat ul-Ahrar (JuA).
Note: The entry for The Orange Volunteers refers to the
organization which uses that name and in the name of which a statement
described as a press release was published on 14th October 1998.
Note: The entry for Jemaah Islamiyah refers to the organization
using that name that is based in south-east Asia, members of which were
arrested by the Singapore authorities in December 2001 in connection with a
plot to attack US and other Western targets in Singapore.
SCHEDULE
2[101]
(Article 8)
THE PROSCRIBED ORGANIZATIONS APPEAL
COMMISSION
1 Constitution
(1) The
Commission shall consist of members appointed by the Bailiff.
(2) The
Bailiff shall appoint one of the members as chairman.
(3) A
member shall hold and vacate office in accordance with the terms of his or her
appointment.
(4) A
member may resign at any time by notice in writing to the Bailiff.
2 Officers,
etc.
The Chief Minister may appoint officers and servants for the
Commission.
3 Expenses
The Minister for Treasury and Resources –
(a) may
pay sums by way of remuneration, allowances, pensions and gratuities to or in
respect of members, officers and servants;
(b) may
pay compensation to a person who ceases to be a member of the Commission if it
thinks it appropriate because of special circumstances; and
(c) may
pay sums in respect of expenses of the Commission.
4 Sittings
(1) The
Commission shall sit at such times and in such places as the Bailiff may
direct.
(2) At
each sitting of the Commission –
(a) 3
members shall attend;
(b) one
of the members shall be an ordinary judge of the Court of Appeal;
(c) the
chairman or another member nominated by him or her shall preside and report the
Commission’s decision.
5 Procedure
(1) The
Bailiff may make Rules –
(a) regulating
the exercise of the right of appeal to the Commission;
(b) prescribing
practice and procedure to be followed in relation to proceedings before the
Commission;
(c) providing
for proceedings before the Commission to be determined without an oral hearing
in specified circumstances;
(d) making
provision about evidence in proceedings before the Commission (including
provision about the burden of proof and admissibility of evidence);
(e) making
provision about proof of the Commission’s decisions.
(2) In
making Rules the Bailiff shall, in particular, have regard to the need to
secure –
(a) that
decisions which are the subject of appeals are properly reviewed; and
(b) that
information is not disclosed contrary to the public interest.
(3) The
Rules shall make provision permitting organizations to be legally represented
in proceedings before the Commission.
(4) The
Rules may, in particular –
(a) provide
for full particulars of the reasons for proscription or refusal to deproscribe
to be withheld from the organization or applicant concerned and from any person
representing it or him or her;
(b) enable
the Commission to exclude persons (including representatives) from all or part
of proceedings;
(c) enable
the Commission to provide a summary of evidence taken in the absence of a
person excluded by virtue of clause (b);
(d) permit
preliminary or incidental functions to be discharged by a single member;
(e) permit
proceedings for permission to appeal under Article 9 to be determined by a
single member;
(f) make
provision about the functions of persons appointed under paragraph 7;
(g) make
different provision for different parties or descriptions of party.
(5) In
this paragraph a reference to proceedings before the Commission includes a
reference to proceedings arising out of proceedings before the Commission.
6 Conduct
of proceedings
(1) This
paragraph applies to –
(a) proceedings
brought by an organization before the Commission; and
(b) proceedings
arising out of proceedings to which clause (a) applies.
(2) Proceedings
shall be conducted on behalf of the organization by a person designated by the
Commission (with such legal representation as he or she may choose to obtain).
(3) In
paragraph 5, a reference to an organization includes a reference to a person
designated under this paragraph.
7 Representation
of excluded person in proceedings
(1) The
Attorney General may appoint a person to represent the interests of an
organization or other applicant in proceedings in relation to which an order
has been made by virtue of paragraph 5(4)(b).
(2) A person
shall not be eligible for appointment under this paragraph unless he or she is
an advocate or solicitor of the Royal Court.
(3) A
representative appointed under this paragraph shall not be responsible to the
organization or other applicant whose interests he or she is appointed to
represent.
(4) In
paragraph 5, a reference to a representative does not include a reference to a
person appointed under this paragraph.
8
SCHEDULE
3[102]
(Article 27(5))
FORFEITURE ORDERS RELATING TO PROPERTY
1 Implementation
and enforcement
(1) Where
the Royal Court makes an order under Article 26 (in this Schedule referred
to as a “forfeiture order”) it may make an order –
(a) requiring
any property to which the forfeiture order applies to be paid or handed over to
the Viscount;
(b) directing
any such property other than money or immovable property to be sold or
otherwise disposed of in such manner as the Royal Court may direct and the
proceeds paid to the Viscount;
(c) directing
that any such property which is immovable property –
(i) shall vest in the
Viscount, subject to such conditions and exceptions as may be specified by the
Royal Court, and
(ii) shall be realized
by the Viscount in such manner as the Royal Court may further direct;
(d) directing
a specified part of any property which is money, or of the proceeds of sale,
disposal or realisation of any property to be paid by the Viscount to or for a
specified person falling within Article 26(7);
(e) making
such other provision as appears to the Royal Court to be necessary for giving
effect to the forfeiture order or to any order made by virtue of clause (a),
(b), (c) or (d).
(2) A
forfeiture order shall not come into force until (disregarding any power of a
court to grant leave to appeal out of time) there is no further possibility of
the order being set aside.
(3) The
balance of any sums in the hands of the Viscount by virtue of an order made
under sub-paragraph (1) shall, after making payment (where appropriate)
under sub-paragraph (1)(d), be paid into the Criminal Offences
Confiscations Fund established by Article 24 of the Proceeds of Crime
(Jersey) Law 1999[103].
(4) The
Viscount shall, on the application of Attorney General or the defendant in the
proceedings in which the forfeiture order was made, certify in writing the extent
(if any) to which, at the date of the certificate, effect has been given to the
order in respect of the property to which it applies.
(5) In
this paragraph references to the proceeds of sale, disposal or realisation of
property are references to the proceeds after deduction of the costs of sale,
disposal or realisation.
2 Liability
etc. of Viscount
(1) Where
the Viscount takes any action –
(a) in
relation to property which is not subject to forfeiture being action which he
or she would be entitled to take if it were such property;
(b) believing,
and having reasonable grounds for believing, that he or she is entitled to take
that action in relation to that property,
the Viscount shall not be liable to any person in respect of any
loss or damage resulting from his or her action unless he or she is shown to
have acted negligently or in bad faith.
(2) The
Viscount is entitled to be paid his or her remuneration and expenses out of the
proceeds of realisation of the property.
3 Restraint
orders
(1) The
Royal Court may, in accordance with this paragraph, by order (in this Schedule
referred to as a “restraint order”) prohibit any person, subject to
such conditions and exceptions as may be specified therein, from dealing with
any property liable to forfeiture, that is to say any property in respect of
which a forfeiture order has been made or could be made in any proceedings
mentioned in paragraph (3) or (4).
(2) A
restraint order may apply –
(a) to
all property in the possession of or under the control of a specified person,
whether the property is described or not;
(b) to
property coming into the possession of or under the control of a specified
person after the making of the order.
(3) A
restraint order may be made where –
(a) proceedings
have been instituted against a person for an offence under Article 15 or 16;
(b) the
proceedings have not been concluded; and
(c) either
a forfeiture order has been made or it appears to the Royal Court that a
forfeiture order may be made in the proceedings.
(4) A
restraint order may also be made where –
(a) a
criminal investigation has been started in Jersey with regard to an offence
under Article 15 or 16; and
(b) it
appears to the Royal Court that a forfeiture order may be made in any
proceedings for the offence.
(5) For
the purposes of this paragraph, dealing with property includes, without
prejudice to the generality of that expression –
(a) where
a debt is owed to the person concerned, making a payment to any person in
reduction of the amount of the debt; and
(b) removing
property from Jersey.
(6) In
exercising the powers conferred by this paragraph, the Royal Court shall not
take account of any obligations of any person having an interest in the
property subject to the restraint order which might frustrate the making of a
forfeiture order.
(7) In
this paragraph, “criminal investigation” means an investigation
which police officers or other persons have a duty to conduct with a view to it
being ascertained whether a person should be charged with an offence.
(8) For
the purposes of this paragraph proceedings for an offence are
instituted –
(a) when
the Bailiff issues a warrant in respect of the offence for the arrest of a
person who is out of Jersey;
(b) when
a person is arrested for and charged with the offence;
(c) when
a summons in respect of the offence is served on a person at the instance of
the Attorney General or in accordance with Article 9 of the Magistrate’s Court (Miscellaneous
Provisions) (Jersey) Law 1949,[104]
and where the application of this sub-paragraph would result in
there being more than one time for the institution of proceedings, they shall
be taken to be instituted at the earliest of those times.
(9) For
the purposes of this paragraph and paragraph 5(2) proceedings are
concluded –
(a) when
a forfeiture order has been made in those proceedings and effect has been given
to it in respect of all the property to which it applies; or
(b) when
(disregarding any power of a court to grant leave to appeal out of time) there
is no further possibility of a forfeiture order being made in the proceedings.
4 Procedure
for restraint order
A restraint order –
(a) may
be made only on an application by or on behalf of the Attorney General;
(b) may
be made on an ex parte application to the
Bailiff in chambers (and references in paragraphs 3, 6 and 7 to the Royal Court
shall be construed accordingly); and
(c) shall
provide for notice to be given to persons affected by the order.
5 Discharge
or variation of restraint order
(1) A
restraint order may be discharged or varied by the Royal Court on the
application of a person affected by it.
(2) A
restraint order made by virtue of paragraph 3(3) shall, in particular, be
discharged on an application under sub-paragraph (1) if the proceedings
for the offence have been concluded.
(3) A
restraint order made by virtue of paragraph 3(4) shall, in particular, be
discharged on an application under sub-paragraph (1) –
(a) if
no proceedings in respect of offences under Article 15 or 16 are instituted
within such time as the Royal Court considers reasonable; and
(b) if
all proceedings in respect of offences under Article 15 or 16 have
been concluded.
6 Effect
of restraint order
(1) Where
the Royal Court has made a restraint order, an officer of the Force may seize
any property subject to the order for the purpose of preventing it from being
removed from Jersey.
(2) Property
seized under this paragraph shall be dealt with in accordance with the Royal
Court’s directions.
7 Further
effect and registration of order affecting immovable property
(1) A
restraint order in respect of immovable property shall have effect as an
injunction restraining any person from disposing of or hypothecating the
property.
(2) Where
the Royal Court makes a restraint order affecting immovable property in Jersey
it shall direct the Judicial Greffier, in accordance with Rules of Court, to
place a copy of the order, until it is discharged, in a file which shall form
part of the Public Registry.
8 Compensation
(1) Where –
(a) a
restraint order is discharged under paragraph 5(3); or
(b) proceedings
are instituted against a person for an offence under Article 15 or 16
and either –
(i) the proceedings
do not result in his or her conviction for any such offence, or
(ii) where the person
is convicted of one or more such offences, the conviction or convictions are
quashed, or the person is pardoned by Her Majesty in respect of the conviction
or convictions concerned,
the Royal Court may, on application by a person who had an interest
in any property which was subject to a forfeiture or restraint order made in or
in relation to those proceedings, and subject to sub-paragraphs (2) and (3),
order compensation to be paid to the applicant if, having regard to all the
circumstances, it considers it appropriate to do so.
(2) The
Royal Court shall not order compensation to be paid in any case unless it is
satisfied that –
(a) there
is some serious default on the part of a person concerned in the investigation
or prosecution of the offence concerned; and
(b) the
applicant has suffered loss in consequence of anything done in relation to the
property by or in pursuance of a forfeiture order or restraint order.
(3) The
amount of compensation to be paid under this paragraph shall be such as the Royal
Court thinks just in all the circumstances of the case.
(4) Compensation
payable under this paragraph shall be paid out of the annual income of the
States.
9 Enforcement
of orders made elsewhere in the British Islands
In the following provisions of this Schedule –
“an English order” means –
(a) an
order made in England or Wales under section 23 of the 2000 Act (an
“English forfeiture order”);
(b) an
order made under paragraph 5 of Schedule 4 to the 2000 Act (an
“English restraint order”); or
(c) an
order made under any other provision of Part I of that Schedule in
relation to an English forfeiture or restraint order;
“a Scottish order” means –
(a) an
order made in Scotland under section 23 of the 2000 Act (a
“Scottish forfeiture order”);
(b) an
order made under paragraph 18 of Schedule 4 to the 2000 Act (a
“Scottish restraint order”); or
(c) an
order made under any other provision of Part II of that Schedule in
relation to a Scottish forfeiture or restraint order;
“a Northern Irish order” means –
(a) an
order made in Northern Ireland under section 23 of the 2000 Act (a
“Northern Irish forfeiture order”);
(b) an
order made under paragraph 30 of Schedule 4 to the 2000 Act (a
“Northern Irish restraint order”); or
(c) an
order made under any other provision of Part III of that Schedule in
relation to a Northern Irish forfeiture or restraint order;
“an Islands order” means –
(a) an
order made in any of the Islands under a provision of the written law of that
Island corresponding to Article 26 of this Law;
(b) a
restraint order made in any of the Islands under a provision of the written law
of that Island corresponding to paragraph 3 of this Schedule;
(c) an
order made in any of the Islands under a provision of the written law of that
corresponding to any of the other foregoing paragraphs of this Schedule.
10 Procedures and
enforcement for orders made elsewhere in the British Islands
(1) An
English, Scottish, Northern Irish or Islands order shall, subject to this paragraph,
have effect in the law of Jersey but shall be enforced in Jersey only in
accordance with this paragraph and any rules of court as to the manner in which
and the conditions subject to which such orders are to be enforced in Jersey.
(2) The
Royal Court shall on an application made to it in accordance with rules of
court for the registration of an English, Scottish, Northern Irish or Islands
order, direct that the order shall, in accordance with such rules, be
registered in the Royal Court.
(3) Rules
of court shall also make provision –
(a) for
cancelling or varying the registration of an English, Scottish, Northern Irish
or Islands forfeiture order when effect has been given to it (whether in Jersey
or elsewhere) in respect of all or, as the case may be, part of the property to
which the order applies;
(b) for
cancelling or varying the registration of an English, Scottish, Northern Irish
or Islands restraint order which has been discharged or varied by the court by
which it was made.
(4) If
an English, Scottish, Northern Irish or Islands forfeiture order is registered
under this paragraph, the Royal Court shall have in relation to that order, the
same powers as it has under paragraph 1(1) in relation to a forfeiture
order made by it (and paragraph 2 applies accordingly).
(5) The
balance of any sums received by the Viscount by virtue of an order made under sub-paragraph (4)
shall, after making payment (where appropriate) under paragraph 1(1)(d) or
2(2), be paid by him or her to the Treasurer of the States.
(6) Paragraphs
3(5), 6 and 7 apply to a registered English, Scottish, Northern Irish or
Islands restraint order as they apply to a restraint order, and the Royal Court
shall have the same power to make an order for or in relation to the arrest of
any property in relation to proceedings brought or likely to be brought for an
English, Scottish, Northern Irish or Islands restraint order as it would have
if those proceedings had been brought or were likely to be brought in the Royal
Court.
(7) Without
prejudice to the foregoing provisions, if an English, Scottish, Northern Irish
or Islands order is registered under this paragraph –
(a) the
Royal Court shall have in relation to its enforcement, the same power;
(b) proceedings
for or in respect of its enforcement may be taken; and
(c) proceedings
for or in respect of any contravention of it (whether before or after such
registration) may be taken,
as if the order had originally been made in the Royal Court.
(8) The
Royal Court may additionally, for the purpose of –
(a) assisting
the achievement in Jersey of the purposes of an English, Scottish, Northern
Irish or Islands order; or
(b) assisting
any receiver or other person directed by any such order to sell or otherwise
dispose of property,
make such orders or do otherwise as seems to it appropriate.
(9) A document
which purports to be a copy of an English, Scottish, Northern Irish or Islands
order and which purports to be certified as such by a proper officer of the
court by which it was made and a document which purports to be a certificate
for purposes corresponding to those of paragraph 1(4) and which purports
to be certified by a proper officer of the court concerned shall, in the Islands
be received in evidence without further proof.
(10) The
power to make rules of court under Article 13 of the Royal Court (Jersey) Law 1948[105] shall include power to make
rules for the purposes of this paragraph.
11 Enforcement of
external orders
(1) The
States may by Regulations make provision for the purpose of enabling the
enforcement in Jersey of external orders.
(2) An
“external order” means an order –
(a) which
is made in a country or territory outside Jersey; and
(b) which
makes relevant provision.
(3) “Relevant
provision” means –
(a) provision
for the forfeiture of terrorist property (“an external forfeiture
order”); or
(b) provision,
made in a country or territory outside Jersey, prohibiting dealing with
property –
(i) which is subject
to an external forfeiture order, or
(ii) in respect of
which such an order could be made in proceedings which have been or are to be
instituted in that country or territory (“an external restraint
order”).
(4) Regulations
under this paragraph may, in particular, include provision –
(a) which,
for the purpose of facilitating the enforcement of any external order that may
be made, has effect at times before there is an external order to be enforced;
(b) for
matters corresponding to those for which provision is made by, or can be made
under, paragraph 10(1) to (8) in relation to the orders to which that paragraph
applies;
(c) for
the proof of any matter relevant for the purposes of anything falling to be
done in pursuance of the Regulations.
(5) Regulations
under this paragraph may also make provision with respect to anything falling
to be done on behalf of Jersey in a country or territory outside Jersey in
relation to proceedings in that country or territory for or in connection with
the making of an external order.
(6) Regulations
under this paragraph may make different provision for different cases.
SCHEDULE
4[106]
SCHEDULE
5[107]
(Article 31)
TERRORIST INVESTIGATIONS: INFORMATION
Searches
1 Warrant
for search of premises
(1) An
officer of the Force may apply to the Bailiff for the issue of a warrant under
this paragraph for the purposes of a terrorist investigation.
(2) A
warrant under this paragraph shall authorize any officer of the
Force –
(a) to
enter the premises specified in the warrant;
(b) to
search the premises and any person found there; and
(c) to
seize and retain any relevant material which is found on a search under clause (b).
(3) For
the purpose of sub-paragraph (2)(c) material is relevant if the officer of
the Force has reasonable grounds for believing that –
(a) it
is likely to be of substantial value, whether by itself or together with other
material, to a terrorist investigation; and
(b) it
must be seized in order to prevent it from being concealed, lost, damaged,
altered or destroyed.
(4) A
warrant under this paragraph shall not authorize –
(a) the
seizure and retention of items subject to legal privilege; or
(b) an
officer of the Force to require a person to remove any clothing in public
except for headgear, footwear, an outer coat, a jacket or gloves.
(5) Subject
to paragraph 2, the Bailiff may grant an application under this paragraph
if satisfied –
(a) that
the warrant is sought for the purposes of a terrorist investigation;
(b) that
there are reasonable grounds for believing that there is material on premises
specified in the application which is likely to be of substantial value,
whether by itself or together with other material, to a terrorist investigation
and which does not consist of or include items subject to legal privilege; and
(c) that
the issue of a warrant is likely to be necessary in the circumstances of the
case.
2 Extended
power to issue warrant for search of non-residential premises
(1) This
paragraph applies where an application is made under paragraph 1
and –
(a) the
application is made by an officer of the Force of at least the rank of chief
inspector;
(b) the
application does not relate to residential premises; and
(c) the
Bailiff is not satisfied of the matter referred to in paragraph 1(5)(c).
(2) The
Bailiff may grant the application if satisfied of the matters referred to in paragraph 1(5)(a)
and (b).
(3) Where
a warrant under paragraph 1 is issued by virtue of this paragraph, the
powers under paragraph 1(2)(a) and (b) are exercisable only within the
period of 24 hours beginning with the time when the warrant is issued.
(4) For
the purpose of sub-paragraph (1), “residential premises” means
any premises which the officer making the application has reasonable grounds
for believing are used wholly or mainly as a dwelling.
3 Search
of premises within cordoned area
(1) Subject
to sub-paragraph (2), an officer of the Force of at least the rank of
chief inspector may by a written authority signed by him or her authorize a
search of specified premises which are wholly or partly within a cordoned area.
(2) An
officer of the Force who is not of the rank required by sub-paragraph (1)
may give an authorization under this paragraph if he or she considers it
necessary by reason of urgency.
(3) An
authorization under this paragraph shall authorize any officer of the
Force –
(a) to
enter the premises specified in the authority;
(b) to
search the premises and any person found there; and
(c) to
seize and retain any relevant material (within the meaning of paragraph 1(3))
which is found on a search under clause (b).
(4) The
powers under sub-paragraph (3)(a) and (b) may be exercised –
(a) on
one or more occasions; and
(b) at
any time during the period when the designation of the cordoned area under Article 28
has effect.
(5) An
authorization under this paragraph shall not authorize –
(a) the
seizure and retention of items subject to legal privilege;
(b) an
officer of the Force to require a person to remove any clothing in public
except for headgear, footwear, an outer coat, a jacket or gloves.
(6) A
person commits an offence if he or she wilfully obstructs a search under this paragraph.
(7) A
person guilty of an offence under sub-paragraph (6) shall be liable to
imprisonment for a term not exceeding 3 months or to a fine not exceeding
level 3 on the standard scale, or both.
4 Order
for production of material
(1) An
officer of the Force may, for the purposes of a terrorist investigation, apply
to the Bailiff for an order under sub-paragraph (2) in relation to
particular material or material of a particular description.
(2) If
on such an application the Bailiff is satisfied on information on oath that the
conditions referred to in sub-paragraph (3) are fulfilled, the Bailiff may
make an order that the person who appears to the Bailiff to have in his or her
possession, custody or power the material to which the application relates
shall –
(a) produce
it to an officer of the Force for the officer to take away; or
(b) give
an officer of the Force access to it, within such period as the order may
specify or, if the material is not in that person’s possession, custody
or power (and will not come into his or her possession, custody or power within
that period), that the person shall state to the best of his or her knowledge
and belief where it is.
(3) The
conditions referred to in sub-paragraph (2) are –
(a) that
a terrorist investigation is being carried out and that there are reasonable
grounds for believing that the material is likely to be of substantial value
(whether by itself or together with other material) to the investigation for
the purpose of which the application is made;
(b) that
there are reasonable grounds for believing that it is in the public interest,
having regard –
(i) to the benefit
likely to accrue to the investigation if the material is obtained, and
(ii) to the
circumstances under which the person in possession of the material holds it,
that the material should be produced or that access to it should be
given; and
(c) that
the material does not consist of or include items subject to legal privilege.
(4) An
order under sub-paragraph (2) may relate to material expected to come into
existence or to become available to the person concerned in the period of
28 days beginning with the date of the order; and in this case the order
shall require that person to notify a named officer of the Force as soon as possible
after the material comes into existence or becomes available to that person.
(5) The
period to be specified in an order under sub-paragraph (2) shall be
7 days from the date of the order or, in the case of an order made by
virtue of sub-paragraph (4), from the notification to the named officer of
the Force, unless it appears in either case to the Bailiff that a longer or
shorter period would be appropriate in all the circumstances.
(6) Where
the Bailiff makes an order under sub-paragraph (2)(b) in relation to
material on any premises, the Bailiff may, on the application of an officer of
the Force, order any person who appears to the Bailiff to be entitled to grant
entry to the premises to allow an officer of the Force to enter the premises to
obtain access to the material.
5 Rules
of court for orders under paragraph 4
(1) The
power to make rules of court under Article 13 of the Royal Court (Jersey) Law 1948[108] shall include a power to
make rules as to –
(a) the
discharge and variation of orders made under paragraph 4;
(b) proceedings
relating to such orders.
(2) Pending
the making of such rules –
(a) an
order under paragraph 4 may be discharged or varied by the Bailiff on a
written application made by any person subject to the order; and
(b) unless
the Bailiff otherwise directs on grounds of urgency, the applicant shall, not
less than 48 hours before making the application, send a copy of it and a
notice in writing of the time and place where it is to be made to the Attorney
General and to the officer of the Force on whose application the order to be
discharged or varied was made or to any other officer of the Force.
(3) Where
the material to which an application under paragraph 4 relates consists of
information contained in a computer –
(a) an
order under paragraph 4(2)(a) shall have effect as an order to produce the
material in a form in which it can be taken away and in which it is visible and
legible; and
(b) an
order under paragraph 4(2)(b) shall have effect as an order to give access
to the material in a form in which it is visible and legible.
(4) An
order under paragraph 4 –
(a) confers
no right to production of, or access to, items subject to legal privilege;
(b) has
effect notwithstanding any obligation as to secrecy or other restriction on the
disclosure of information imposed by any enactment or otherwise.
(5) An
order may be made under paragraph 4 in relation to material in the possession,
custody or control of any Minister and any such order (which shall be served as
if the proceedings were civil proceedings against the Minister concerned) may
require any officer of an administration of the States for which that Minister
is assigned responsibility, whether named in the order or not, who may for the
time being have in his or her possession, custody or control the material
concerned, to comply with the order.
5A Transitional
arrangement for variation or discharge of certain orders made by Royal Court
(1) This
paragraph applies to an order made by the Royal Court under paragraph 4
before 5th May 2006.
(2) The
Bailiff may vary or discharge an order to which this paragraph applies.
(3) Pending
the making of rules of court in accordance with paragraph 5(1) –
(a) an
order to which this paragraph applies may be discharged by the Bailiff on a
written application made by any person subject to the order; and
(b) unless
the Bailiff otherwise directs on grounds of urgency, the applicant shall, not
less than 48 hours before making the application, send a copy of it and a
notice in writing of the time and place where it is to be made to the Attorney
General and to the officer of the Force on whose application the order to be
discharged or varied was made or to any other officer of the Force.
6 Explanations
(1) An
officer of the Force may apply to the Bailiff for an order under this paragraph
requiring any person specified in the order to provide an explanation of any
material seized in pursuance of a warrant under paragraph 1 or produced or
made available to an officer of the Force under paragraph 4.
(2) An
order under this paragraph shall not require any person to disclose any
information which he or she would be entitled to refuse to disclose on grounds
of legal professional privilege.
(3) However,
a lawyer may be required to provide the name and address of his or her client.
(4) A
statement by a person in response to a requirement imposed by an order under
this paragraph –
(a) may
be made orally or in writing; and
(b) may
be used in evidence against him or her only on a prosecution for an offence
under paragraph 7.
7 Offence
(1) A
person commits an offence if, in purported compliance with an order under paragraph
6, he or she –
(a) makes
a statement which the person knows to be false or misleading in a material
particular; or
(b) recklessly
makes a statement which is false or misleading in a material particular.
(2) A
person guilty of an offence under sub-paragraph (1) shall be liable to
imprisonment for a term not exceeding 2 years or to a fine, or both.
8 Urgent
cases: authority for search
(1) An
officer of the Force of at least the rank of chief inspector may by a written
order signed by him or her give to any officer of the Force the authority which
may be given by a search warrant under paragraph 1.
(2) An
order shall not be made under this paragraph unless the officer has reasonable
grounds for believing –
(a) that
the case is one of great emergency; and
(b) that
immediate action is necessary.
(3) Where
an order is made under this paragraph, particulars of the case shall be
notified as soon as is reasonably practicable to the Minister, the Bailiff and
the Attorney General.
(4) A
person commits an offence if he or she wilfully obstructs a search under this paragraph.
(5) A
person guilty of an offence under sub-paragraph (4) shall be liable to imprisonment
for a term of 6 months and to a fine of level 3 on the standard scale.
9 Urgent
cases: explanations
(1) If
an officer of the Force of at least the rank of chief inspector has reasonable
grounds for believing that the case is one of great emergency the officer may
by a written notice signed by him or her require any person specified in the
notice to provide an explanation of any material seized in pursuance of an
order under paragraph 8.
(2) Paragraph 6(2)
to (4) and paragraph 7 shall apply to a notice under this paragraph as
they apply to an order under paragraph 6.
(3) A
person commits an offence if he or she fails to comply with a notice under this
paragraph.
(4) It
is a defence for a person charged with an offence under sub-paragraph (3)
to show that he or she had a reasonable excuse for his or her failure.
(5) A
person guilty of an offence under sub-paragraph (3) shall be liable to
imprisonment for a term of 6 months and to a fine.
10 Supplementary
(1) An
application may only be made under paragraph 1(1), 4 or 6 with the consent
of the Attorney General.
(2) An
officer of the Force may, if necessary, use reasonable force for the purpose of
exercising any power conferred on him or her by this Schedule.
(3) A
search of a person under this Schedule may only be carried out by a person of
the same sex.
11 Interpretation
(1)
(2)
(3) In
this Schedule, “dwelling” means a building or part of a building
used as a dwelling, and includes a vehicle which is habitually stationary and
is so used.
SCHEDULE
6[109]
(Article 32)
FINANCIAL INFORMATION
1 Order
to provide customer information
(1) Where
an order has been made under this paragraph in relation to a terrorist
investigation, an officer of the Force named in the order may require a
financial institution to which the order applies to provide customer
information for the purposes of the investigation.
(2) The
order may provide that it applies to –
(a) all
financial institutions;
(b) a
particular description, or particular descriptions, of financial institutions;
or
(c) a
particular financial institution or particular financial institutions.
(3) The
information shall be provided –
(a) in
such manner and within such time as the officer of the Force may specify; and
(b) notwithstanding
any restriction on the disclosure of information imposed by any enactment or
otherwise.
(4) An
institution which fails to comply with a requirement under this paragraph shall
be guilty of an offence.
(5) It
is a defence for an institution charged with an offence under sub-paragraph (4)
to prove –
(a) that
the information required was not in the institution’s possession; or
(b) that
it was not reasonably practicable for the institution to comply with the
requirement.
(6) An
institution guilty of an offence under sub-paragraph (4) shall be liable
to a fine.
2 Who
may apply for order
An order under paragraph 1 may be made on the application of an
officer of the Force of at least the rank of chief inspector.
3 Who
may make order
An order under paragraph 1 may be made only by the Bailiff.
4 Consent
required for application
An application for an order under paragraph 1 may only be made
with the consent of the Attorney General.
5 Rules
of court
The power to make rules of court under Article 13 of the Royal Court (Jersey) Law 1948[110] shall include power to make
provision about the procedure for an application under paragraph 1.
6 Criteria
for making order
The Bailiff may only make an order under paragraph 1 if satisfied
that –
(a) the
order is sought for the purposes of a terrorist investigation;
(b) the
tracing of terrorist property is desirable for the purposes of the
investigation; and
(c) the
order will enhance the effectiveness of the investigation.
7 Customer
information
(1) In
this Schedule “customer information” means (subject to sub-paragraph (3)) –
(a) information
whether a business relationship exists or existed between a financial
institution 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 institution and a
customer begins or ends;
(g) any
evidence of a customer’s identity obtained by a financial institution 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 Schedule “business relationship” means a
business, professional or commercial relationship between a financial institution
and a customer where that relationship is expected by the first person, at the
time when contact is established, to have an element of duration.
(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 Schedule; or
(b) extend
the meaning of the expression “business relationship” for the
purposes of this Schedule.
8 Offence
by body corporate, etc.
Where an individual is convicted of an offence under paragraph 1(4)
by virtue of this paragraph and Article 63, the individual shall be liable
to imprisonment for a term of 6 months and to a fine of level 3 on
the standard scale.
9 Self-incrimination
(1) Customer
information provided by a financial institution under this Schedule shall not
be admissible in evidence in criminal proceedings against the institution or
any of its officers or employees.
(2) Sub-paragraph (1)
shall not apply in relation to proceedings for an offence under paragraph 1(4)
(including proceedings brought by virtue of paragraph 8).
SCHEDULE
7[111]
(Article 33)
ACCOUNT MONITORING ORDERS
1 Account
monitoring orders
(1) The
Bailiff may, on an application made to him or her by an officer of the Force of
at least the rank of chief inspector, make an account monitoring order if he or
she is satisfied that –
(a) the
order is sought for the purposes of a terrorist investigation;
(b) the
tracing of terrorist property is desirable for the purposes of the
investigation; and
(c) the
order will enhance the effectiveness of the investigation.
(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 institution specified in the application in relation to
information which –
(a) relates
to an account or accounts held with the institution 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 that the person specified in the application for the order holds with
the financial institution 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 institution 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 an officer of the Force 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 officer who applied for the order or
another officer of the Force 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
officer who applied for the order or another officer of the Force of at least
the rank of chief inspector;
(b) any
person affected by the order.
(2) The
Bailiff may confirm, vary or discharge the order.
4 Rules
of court
The power to make rules of court under Article 13 of the Royal Court (Jersey) Law 1948[112] shall include power to make
provision as to the practice and procedure to be followed in connection with
proceedings relating to account monitoring orders.
5 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 Royal Court.
6 Statements
(1) A
statement made by a financial institution in response to an account monitoring
order may not be used in evidence against it in criminal proceedings.
(2) But
sub-paragraph (1) does not apply –
(a) in
the case of proceedings for contempt of court;
(b) in
the case of proceedings under Article 27 where the financial institution
has been convicted of an offence under Article 15 or 16;
(c) on
a prosecution for an offence where, in giving evidence, the financial
institution 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 institution unless –
(a) evidence
relating to it is adduced; or
(b) a
question relating to it is asked,
by or on behalf of the financial institution in the proceedings
arising out of the prosecution.
SCHEDULE
8[113]
(Article 49)
PORT CONTROLS
1 Interpretation
(1) In
this Schedule –
“captain” means master of a ship or commander of an
aircraft;
“examining officer” means any of the
following –
(a) a
police officer;
(b) an
immigration officer; or
(c) a
customs officer;
“port” includes an airport.
(2) A
place shall be treated as a port for the purposes of this Schedule in relation
to a person if an examining officer believes that the person –
(a) has
gone there for the purpose of embarking on a ship or aircraft; or
(b) has
arrived there on disembarking from a ship or aircraft.
2 Power
to question
(1) An
examining officer may question a person to whom this paragraph applies for the
purpose of determining whether he or she appears to be a person falling within Article 36(b)
or (c).
(2) This
paragraph applies to a person if –
(a) the
person is at a port; and
(b) the
examining officer believes that the person’s presence at the port or in
the area is connected with the person’s entering or leaving Jersey.
(3) This
paragraph also applies to a person on a ship or aircraft which has arrived in Jersey.
(4) An
examining officer may exercise his or her powers under this paragraph whether
or not he or she has grounds for suspecting that a person falls within Article 36(b)
or (c).
3 Requirement
to give information
A person who is questioned under paragraph 2 must –
(a) give
the examining officer any information in his or her possession which the
officer requests;
(b) give
the examining officer on request either a valid passport which includes a
photograph or another document which establishes the person’s identity;
(c) declare
whether the person has with him or her documents of a kind specified by the
examining officer;
(d) give
the examining officer on request any document which the person has with him or
her and which is of a kind specified by the officer.
4 Power
to stop and detain
(1) For
the purposes of exercising a power under paragraph 2 an examining officer
may –
(a) stop
a person or vehicle;
(b) detain
a person.
(2) For
the purpose of detaining a person under this paragraph, an examining officer may
authorize the person’s removal from a ship, aircraft or vehicle.
(3) Where
a person is detained under this paragraph the provisions of Part 1 of Schedule
9 shall apply.
(4) A
person detained under this paragraph shall (unless detained under any other power)
be released not later than the end of the period of 9 hours beginning with the
time when his or her examination begins.
5 Search
of ship or aircraft
For the purpose of satisfying himself or herself whether there are
any persons whom he or she may wish to question under paragraph 2 an
examining officer may –
(a) search
a ship or aircraft;
(b) search
anything on a ship or aircraft;
(c) search
anything which he or she reasonably believes has been, or is about to be, on a
ship or aircraft.
6 Search
of person
(1) An
examining officer who questions a person under paragraph 2 may, for the
purpose of determining whether he or she falls within Article 36(b) or (c)
–
(a) search
the person;
(b) search
anything which the person has with him or her, or which belongs to him or her,
and which is on a ship or aircraft;
(c) search
anything which the person has with him or her, or which belongs to him or her,
and which the examining officer reasonably believes has been, or is about to
be, on a ship or aircraft;
(d) search
a ship or aircraft for anything falling within clause (b);
(e) search
a vehicle;
(f) search
anything in or on a vehicle;
(g) search
anything which he or she reasonably believes has been, or is about to be, in or
on a vehicle.
(2) A
search of a person under this paragraph must be carried out by someone of the
same sex.
7 Power
to examine goods[114]
(1) An
examining officer may examine goods to which this paragraph applies for the
purpose of determining whether they have been used for the purposes of
terrorism.
(2) This
paragraph applies to goods which have arrived in or are about to leave the
Island on a ship or aircraft, and for the purposes of this
paragraph –
(a) goods
which are about to leave the Island on a ship include goods held at premises
operated by a sea cargo agent which are to be delivered to any place other than
those premises for carriage on a ship;
(b) goods
which are about to leave the Island on an aircraft include goods held at
premises operated by an air cargo agent which are to be delivered to any place
other than those premises for carriage on an aircraft; and
(c) “on
a ship” includes carriage within a vehicle carried on a ship.
(3) An
examination under this paragraph may be carried out only at –
(a) a
port;
(b) premises
operated by a sea cargo agent or an air cargo agent;
(c) a
location designated for that purpose by the Minister, under and in accordance
with sub-paragraph (4).
(4) The
Minister may designate a location for the purpose of examination under this
paragraph only if the Minister reasonably believes that it is necessary to
designate that location so that examining officers may exercise their functions
under this paragraph, and if the Minister does so he or she must maintain and
publish a list of designated locations.
(5) For
the purposes of determining whether to exercise his or her power under this
paragraph, an examining officer may –
(a) board
a ship or aircraft;
(b) enter
a vehicle;
(c) enter
premises operated by a sea cargo agent or an air cargo agent; and
(d) enter
a designated location.
(6) In
this paragraph –
“air cargo agent” has the meaning given by
section 21F(1) of the Aviation Security Act 1982 of the United
Kingdom as extended to Jersey by the Aviation Security (Jersey) Order 1993[115];
“goods” includes property of any description, and
containers;
“sea cargo agent” has the meaning given by
section 41(1) of the Aviation and Maritime Security Act 1990 of the
United Kingdom as extended to Jersey by The Maritime Security (Jersey)
Order 2014[116].
8 Person
authorized to carry out search etc.
(1) An
examining officer may authorize a person to carry out on his or her behalf a
search or examination under any of paragraphs 5 to 7.
(2) A
person authorized under this paragraph shall be treated as an examining officer
for the purposes of paragraphs 7(4) and 9 of this Schedule.
9 Detention
of property
(1) This
paragraph applies to anything which –
(a) is
given to an examining officer in accordance with paragraph 3(d);
(b) is
searched or found on a search under paragraph 6; or
(c) is
examined under paragraph 7.
(2) An
examining officer may detain the thing –
(a) for
the purpose of examination, for a period not exceeding 7 days beginning
with the day on which the detention commences;
(b) while
he or she believes that it may be needed for use as evidence in criminal
proceedings; or
(c) while
he or she believes that it may be needed in connection with a decision by the
Lieutenant Governor whether to make a deportation order under the Immigration
Act 1971.
10 Designated ports
(1) This
paragraph applies to any journey to or from Jersey.
(2) Where
a ship or aircraft is employed to carry passengers for reward on a journey to
which this paragraph applies the owners or agents of the ship or aircraft shall
not arrange for it to call at a port in Jersey for the purpose of disembarking
or embarking passengers unless –
(a) the
port is a designated port; or
(b) an officer
of the Force, customs officer or immigration officer approves the arrangement.
(3) Where
an aircraft is employed on a journey to which this paragraph applies otherwise
than to carry passengers for reward, the captain of the aircraft shall not
permit it to call at or leave a port in Jersey unless –
(a) the
port is a designated port; or
(b) the
captain gives at least 12 hours’ notice in writing to an officer of
the Force.
(4) A
designated port is a port which appears in the Table at the end of this Schedule.
(5) The
Minister may by Order –
(a) add
an entry to the Table;
(b) remove
an entry from the Table.
11 Designation of
control areas
(1) The
Minister, after consultation with the Lieutenant Governor, may by notice in
writing to the owners or agents of ships or aircraft –
(a) designate
control areas in any port in Jersey;
(b) specify
conditions for or restrictions on the embarkation or disembarkation of
passengers in a control area.
(2) Where
owners or agents of a ship or aircraft receive notice under sub-paragraph (1)
in relation to a port they shall take all reasonable steps to ensure, in
respect of the ship or aircraft –
(a) that
passengers do not embark or disembark at the port outside a control area; and
(b) that
any specified conditions are met and any specified restrictions are complied
with.
(3) The
Minister may by notice in writing to persons concerned with the management of a
port (“the port managers”) –
(a) designate
control areas in the port;
(b) require
the port managers to provide at their own expense specified facilities in a
control area for the purposes of the embarkation or disembarkation of
passengers or their examination under this Schedule;
(c) require
conditions to be met and restrictions to be complied with in relation to the
embarkation or disembarkation of passengers in a control area;
(d) require
the port managers to display, in specified locations in control areas, notices
containing specified information about the provisions of this Schedule in such
form as may be specified.
(4) Where
port managers receive notice under sub-paragraph (3) they shall take all
reasonable steps to comply with any requirements set out in the notice.
(5) The
Minister shall inform the Minister for Economic Development, Tourism, Sport and
Culture of any designations made and requirements imposed under this paragraph.
12 Duty of captain
on arrival and departure
(1) This
paragraph applies to a ship employed to carry passengers for reward, or an
aircraft, which –
(a) arrives
in Jersey;
(b) leaves
Jersey.
(2) The
captain shall ensure –
(a) that
passengers and members of the crew do not disembark at a port in Jersey unless
either they have been examined by an examining officer or they disembark in
accordance with arrangements approved by an examining officer;
(b) that
passengers and members of the crew do not embark at a port in Jersey except in
accordance with arrangements approved by an examining officer;
(c) where
a person is to be examined under this Schedule on board the ship or aircraft,
that he or she is presented for examination in an orderly manner.
(3) Where
paragraph 27 of Schedule 2 to the Immigration Act 1971 applies,
the requirements of sub-paragraph (2)(a) are in addition to the
requirements of paragraph 27 of that Schedule.
13 Carding
(1) The
Minister may by Order make provision requiring a person to whom this paragraph applies,
if required to do so by an examining officer, to complete and produce to the
officer a card containing such information in such form as the Order may
specify.
(2) An
Order under this paragraph may require the owners or agents of a ship or
aircraft employed to carry passengers for reward to supply their passengers
with cards in the form required by virtue of sub-paragraph (1).
(3) This
paragraph applies to a person –
(a) who
disembarks in Jersey from a ship or aircraft; or
(b) who
embarks in Jersey on a ship or aircraft.
14 Provision of
passenger information[117]
(1) This
paragraph applies to a ship or aircraft which arrives or is expected to arrive
in Jersey or leaves or is expected to leave Jersey.
(2) If
an examining officer gives the owners or agents of a ship or aircraft to which
this paragraph applies a written request to provide specified information, the
owners or agents shall comply with the request as soon as is reasonably
practicable.
(3) A
request to an owner or agent may relate –
(a) to
a particular ship or aircraft;
(b) to
all ships or aircraft of the owner or agent to which this paragraph applies; or
(c) to
specified ships or aircraft.
(4) Information
may be specified in a request only if it is of a kind which is prescribed by
Order of the Minister and which relates –
(a) to
passengers;
(b) to
crew; or
(c) to
vehicles belonging to passengers or crew.
(5) A
passenger or member of the crew on a ship or aircraft shall give the captain
any information required for the purpose of enabling the owners or agents to
comply with a request under this paragraph.
(6) Sub-paragraphs (2)
and (5) shall not require the provision of information which is required to be
provided under or by virtue of paragraph 27(2), 27B or 27BA of Schedule 2
to the Immigration Act 1971.
15 Offences
(1) A
person commits an offence if the person –
(a) wilfully
fails to comply with a duty imposed under or by virtue of this Schedule;
(b) wilfully
contravenes a prohibition imposed under or by virtue of this Schedule; or
(c) wilfully
obstructs, or seeks to frustrate, a search or examination under or by virtue of
this Schedule.
(2) A
person guilty of an offence under this paragraph shall be liable to
imprisonment for a term not exceeding 3 months or to a fine not exceeding
level 3 on the standard scale, or both.
TABLE
DESIGNATED PORTS
Seaports
St. Helier, harbours
|
Gorey harbour
|
Airports
SCHEDULE
9[118]
(Article 37 and Schedule 8)
DETENTION
PART I
TREATMENT OF PERSONS DETAINED UNDER ARTICLE
37 OR SCHEDULE 8
1 Place
of detention
(1) The
Minister shall designate places at which persons may be detained under Article 37
or Schedule 8.
(2) In
this Schedule a reference to a police station includes a reference to any place
which the Minister has designated under sub-paragraph (1) as a place where
a person may be detained under Article 37.
(3) Where
a person is detained under Schedule 8, the person may be taken in the
custody of an examining officer or of a person acting under an examining
officer’s authority to and from any place where his or her attendance is
required for the purpose of –
(a) his
or her examination under that Schedule;
(b) establishing
his or her nationality or citizenship; or
(c) making
arrangements for his or her admission to a country or territory outside Jersey.
(4) A
police officer who arrests a person under Article 37 shall take him or her
as soon as is reasonably practicable to the police station which the police
officer considers the most appropriate.
(5) In
this paragraph “examining officer” has the meaning given in Schedule 8.
2 Identification
(1) An
authorized person may take any steps which are reasonably necessary
for –
(a) photographing
the detained person;
(b) measuring
him or her; or
(c) identifying
him or her.
(2) In sub-paragraph (1)
“authorized person” means any of the following –
(a) a
police officer;
(b) a
prison officer;
(c) a
person authorized by the Minister; and
(d) in
the case of a person detained under Schedule 8, an examining officer
(within the meaning of that Schedule).
(3) This
paragraph does not confer the power to take fingerprints, non-intimate samples
or intimate samples (within the meaning given by paragraph 16).
3 Recording
of interviews
(1) The
Minister shall –
(a) issue
a code of practice about the audio recording of interviews to which this paragraph
applies; and
(b) make
an Order requiring the audio recording of interviews to which this paragraph
applies in accordance with any relevant code of practice under clause (a).
(2) The
Minister may make an Order requiring the video recording of interviews to which
this paragraph applies.
(3) An
Order under sub-paragraph (2) shall specify whether the video recording
which it requires is to be silent or with sound.
(4) Where
an Order is made under sub-paragraph (2) –
(a) the
Minister shall issue a code of practice about the video recording of interviews
to which the Order applies; and
(b) the
Order shall require the interviews to be video recorded in accordance with any
relevant code of practice under clause (a).
(5) Where
the Minister has made an Order under sub-paragraph (2) requiring certain
interviews to be video recorded with sound, the Minister need not, but may,
make an order under sub-paragraph (1)(b) in relation to those interviews.
(6) This
paragraph applies to any interview by an officer of the Force of a person
detained under Article 37 or Schedule 8 if the interview takes place
in a police station.
4 Code
of practice – supplementary
(1) When
the Minister proposes to bring into operation a code of practice, the Minister
shall prepare and publish a draft of that code, shall consider any
representations made to it about the draft and may modify the draft
accordingly.
(2) After
the Minister has complied with sub-paragraph (1), the Minister may bring
the code into operation by Order.
(3) The
Minister may revise a code and issue the revised code, and sub-paragraphs (1)
and (2) shall apply to a revised code as they apply to the first code brought
into operation.
(4) The
failure by an officer of the Force to observe a provision of a code shall not
of itself make him or her liable to criminal or civil proceedings.
(5) A
code shall be admissible in evidence in all criminal proceedings, and if any
provision of a code appears to the court or tribunal conducting the proceedings
to be relevant to any question arising in the proceedings, it shall be taken
into account in determining that question.
5 Status
A detained person shall be deemed to be in legal custody throughout
the period of his or her detention.
6 Right
to have someone informed when detained
(1) Subject
to paragraph 8, a person detained under Article 37 or Schedule 8
at a police station shall be entitled, if he or she so requests, to have one
named person informed as soon as is reasonably practicable that he or she is
being detained there.
(2) The
person named must be –
(a) a
friend of the detained person;
(b) a
relative; or
(c) a
person who is known to the detained person or who is likely to take an interest
in his or her welfare.
(3) Where
a detained person is transferred from one police station to another, he or she
shall be entitled to exercise the right under this paragraph in respect of the police
station to which he or she is transferred.
7 Access
to legal advice
(1) Subject
to paragraph 8, a person detained under Article 37 or Schedule 8
at a police station shall be afforded facilities, if he or she so requests, to
consult a legal representative in private at any time, by telephone, in writing
or in person.
(2) Where
a request is made under sub-paragraph (1), the request and the time at
which it was made shall be recorded.
8 Authority
to delay rights under paragraphs 6 and 7
(1) Subject
to sub-paragraph (2), an officer of the Force at least the rank of chief
inspector may authorize a delay –
(a) in
informing the person named by a detained person under paragraph 6;
(b) in
affording a detained person the facilities mentioned in paragraph 7(1).
(2) But
where a person is detained under Article 37 he or she must be permitted to
exercise his or her rights under paragraphs 6 and 7 before the end of the
period mentioned in paragraph (3) of that Article.
(3) Subject
to sub-paragraph (5), an officer may give an authorization under sub-paragraph (1)
only if he or she has reasonable grounds for believing –
(a) in
the case of an authorization under sub-paragraph (1)(a), that informing
the named person of the detained person’s detention will have any of the consequences
specified in sub-paragraph (4); or
(b) in
the case of an authorization under sub-paragraph (1)(b), that the exercise
of the right under paragraph 7 at the time when the detained person
desires to exercise it will have any of the consequences specified in sub-paragraph (4).
(4) Those
consequences are –
(a) interference
with or harm to evidence of a serious offence;
(b) interference
with or physical injury to any person;
(c) the
alerting of persons who are suspected of having committed a serious offence but
who have not been arrested for it;
(d) the
hindering of the recovery of property obtained as a result of a serious offence
or in respect of which a forfeiture order could be made under Article 26;
(e) interference
with the gathering of information about the commission, preparation or
instigation of acts of terrorism;
(f) the
alerting of a person and thereby making it more difficult to prevent an act of
terrorism; and
(g) the
alerting of a person and thereby making it more difficult to secure a person’s
apprehension, prosecution or conviction in connection with the commission,
preparation or instigation of an act of terrorism.
(5) An
officer may also give an authorization under sub-paragraph (1) if the
officer has reasonable grounds for believing that –
(a) the
detained person has committed an offence mentioned in Schedule 1 to the Proceeds of Crime (Jersey) Law 1999;[119]
(b) the
detained person has benefited from the offence within the meaning of that Law;
and
(c) by
informing the named person of the detained person’s detention (in the
case of an authorization under sub-paragraph (1)(a)), or by the exercise
of the right under paragraph 7 (in the case of an authorization under sub-paragraph (1)(b)),
the recovery of the value of that benefit will be hindered.
(6) If
an authorization under sub-paragraph (1) is given orally, the person
giving it shall confirm it in writing as soon as is reasonably practicable.
(7) Where
an authorization under sub-paragraph (1) is given –
(a) the
detained person shall be told the reason for the delay as soon as is reasonably
practicable; and
(b) the
reason shall be recorded as soon as is reasonably practicable.
(8) Where
the reason for authorizing delay ceases to subsist there may be no further
delay in permitting the exercise of the right in the absence of a further
authorization under sub-paragraph (1).
9 Meaning
of “serious offence”[120]
(1) This
paragraph has effect for determining whether an offence is a serious offence
for the purposes of paragraph 8.
(2) The
following offences are always serious –
(a) any
offence of –
(i) treason,
(ii) murder,
(iii) manslaughter,
(iv)
(v) kidnapping,
(vi)
(vii)
(viii) gross indecency,
(ix) indecent assault,
(x) publication of obscene
material,
whether under customary law or under any enactment;
(b) any
offence under –
(i) Articles 2
and 3 of the Loi (1884) sur les
matières explosives,[121]
(ii) Articles 5 to 7, 9
to 12, and 14 to 18 of the Sexual Offences (Jersey) Law 2018[122],
(iia) Articles 28, 29, 35 and 36 of
the Sexual Offences (Jersey) Law 2018, if the offence is against a child,
(iib) Article 40 of the Sexual
Offences (Jersey) Law 2018, if the relevant offence for the purpose of
that Article is an offence under a provision mentioned in sub-clause (ii) or (iia),
(iii) Articles 38 and 39
of the Firearms (Jersey) Law 2000,[123]
(iv) Section 1 of the Taking of Hostages Act 1982 of the United Kingdom as extended to Jersey
by Order in Council,[124]
(v) Section 1 of the Aviation Security Act 1982 of the United
Kingdom as extended to Jersey by Order in Council,[125]
(vi) Section 1 of the Aviation and Maritime Security Act 1990 of
the United Kingdom as extended to Jersey by Order in Council,
(vii) Articles 23 and 26 of
the Road Traffic (Jersey) Law 1956,[126]
(viii) Article 1 of the Torture (Jersey) Law 1990,[127]
(ix) Article 2 of the Protection of Children (Jersey) Law 1994,[128]
(x) the Official Secrets (Jersey) Law 1952;[129]
(c) any
of the offences mentioned in the definition “drug trafficking” in
Article 1(1) of the Misuse of Drugs (Jersey) Law 1978[130].
(3) Subject
to sub-paragraph (4), any other offence is serious only if its
commission –
(a) has
led to any of the consequences specified in sub-paragraph (5); or
(b) is
intended or is likely to lead to any of those consequences.
(4) An offence
which consists of making a threat is serious if carrying out the threat would
be likely to lead to any of the consequences specified in sub-paragraph (5).
(5) The
consequences mentioned in sub-paragraphs (3) and (4) are –
(a) serious
harm to the security of the British Islands or to public order;
(b) serious
interference with the administration of justice or with the investigation of
offences or of a particular offence;
(c) the
death of any person;
(d) serious
injury to any person;
(e) substantial
financial gain to any person;
(f) serious
financial loss to any person.
(6) Loss
is serious for the purposes of this paragraph if, having regard to all the
circumstances, it is serious for the person who suffers it.
(7) In
this paragraph “injury” includes any disease and any impairment of
a person’s physical or mental condition.
(8) Any
offence of conspiring or attempting to commit a serious offence or aiding,
abetting, counselling or procuring the commission of a serious offence is a
serious offence.
(9) The
States may, by Regulations, amend sub-paragraph (2)(a) and (b).
10 Direction
regarding access to legal advice
(1) A
direction under this paragraph may provide that a detained person who wishes to
exercise the right under paragraph 7 may only consult a legal
representative in the sight and hearing of a qualified officer.
(2) A
direction under this paragraph may be given by an officer of the Force of at
least the rank of chief inspector where the person is detained at a police
station.
(3) A
direction under this paragraph may be given only if the officer giving it has
reasonable grounds for believing that, unless the direction is given, the
exercise of the right by the detained person will have any of the consequences
specified in paragraph 8(4) or the consequence specified in paragraph 8(5)(c).
(4) In
this paragraph “a qualified officer” means an officer of the Force
who is of at least the rank of inspector and, in
the opinion of the officer giving the direction, has no connection with the detained
person’s case.
(5) A
direction under this paragraph shall cease to have effect once the reason for
giving it ceases to subsist.
11 Fingerprints and
samples
(1) Fingerprints
may be taken from the detained person only if they are taken by a police officer –
(a) with
the appropriate consent given in writing; or
(b) without
that consent, under sub-paragraph (3).
(2) A
non-intimate sample may be taken from the detained person only if it is taken
by a police officer –
(a) with
the appropriate consent given in writing; or
(b) without
that consent, under sub-paragraph (3).
(3) Fingerprints
or a non-intimate sample may be taken from the detained person without the
appropriate consent only if he or she is detained at a police station and an
officer of the Force of at least the rank of chief inspector authorizes the
fingerprints or sample to be taken.
(4) An
intimate sample may be taken from the detained person only if –
(a) he
or she is detained at a police station;
(b) the
appropriate consent is given in writing;
(c) an
officer of the Force of at least the rank of chief inspector authorizes the
sample to be taken; and
(d) subject
to paragraph 14(2) and (3), the sample is taken by a police officer.
(5) Subject
to sub-paragraph (6), an officer may give an authorization under sub-paragraph (3)
or (4)(c) only if –
(a) in
the case of a person detained under Article 37, the officer reasonably
suspects that the person has been involved in an offence under any of the
provisions mentioned in Article 36(1)(a), and the officer reasonably
believes that the fingerprints or sample will tend to confirm or disprove his
or her involvement; or
(b) in
any case, the officer is satisfied that the taking of the fingerprints or
sample from the person is necessary in order to assist in determining whether he
or she falls within Article 36(1)(b).
(6) An
officer may also give an authorization under sub-paragraph (3) for the
taking of fingerprints if –
(a) he
or she is satisfied that the fingerprints of the detained person will
facilitate the ascertainment of that person’s identity; and
(b) that
person has refused to identify himself or herself or the officer has reasonable
grounds for suspecting that that person is not who he or she claims to be.
(7) If
an authorization under sub-paragraph (3) or (4)(c) is given orally, the
person giving it shall confirm it in writing as soon as is reasonably
practicable.
(8) In
this paragraph, references to ascertaining a person’s identity include
references to showing that he or she is not a particular person.
12 Right to be
informed
(1) Before
fingerprints or a sample are taken from a person under paragraph 11, the person
shall be informed –
(a) that
the fingerprints or sample may be used for the purposes of paragraph 15(3),
or checked against any fingerprints or samples or the information derived from
samples taken and contained –
(i) in records held
by or on behalf of the Force,
(ii) in any similar
records held by a police force elsewhere in the British Islands or in Northern
Ireland, or
(iii) in any similar records
held by any other police force or authority, body or person specified pursuant
to sub-paragraph (4);
(b) where
the fingerprints or sample are to be taken under paragraph 11(1)(a), (2)(a)
or (4)(b), of the reason for taking the fingerprints or sample.
(2) Before
fingerprints or a sample are taken from a person upon an authorization given
under paragraph 11(3)or (4)(c), the person shall be informed –
(a) that
the authorization has been given;
(b) of
the grounds upon which it has been given; and
(c) where
relevant, of the nature of the offence in which it is suspected that he or she
has been involved.
(3) After
fingerprints or a sample are taken under paragraph 11, there shall be
recorded as soon as is reasonably practicable any of the following which
apply –
(a) the
fact that the person has been informed in accordance with sub-paragraphs (1)
and (2);
(b) the
reason referred to in sub-paragraph (1)(b);
(c) the
authorization given under paragraph 11(3) or (4)(c);
(d) the
grounds upon which that authorization has been given; and
(e) the
fact that the appropriate consent has been given.
(4) The
Minister may prescribe, for the purposes of sub-paragraph (1)(a)(iii) –
(a) any
police force of a country or territory outside the British Islands and Northern
Ireland;
(b) any
person or public authority in the British Islands or Northern Ireland having
functions which consist of or include the provision of criminal intelligence,
the prevention and detection of serious crime, the investigation of crimes and
the charging of offences;
(c) any
person or public authority of a country or territory outside the British
Islands and Northern Ireland whose functions correspond to those of a police
force or otherwise consist of or include the investigation of conduct contrary
to the law of that country or territory, or the apprehension of persons guilty
of such conduct;
(d) any
person with functions under any international agreement which consist of or
include –
(i) the investigation
of conduct which is unlawful under the law of one or more places, prohibited by
such an agreement or contrary to international law, or
(ii) the apprehension
of persons guilty of such conduct.
13 Intimate samples:
further provisions
(1) This
paragraph applies where –
(a) 2
or more non-intimate samples suitable for the same means of analysis have been
taken from a person under paragraph 11;
(b) those
samples have proved insufficient; and
(c) the
person has been released from detention.
(2) An
intimate sample may be taken from the person if –
(a) the
appropriate consent is given in writing;
(b) an
officer of the Force of at least the rank of chief inspector authorizes the
sample to be taken; and
(c) subject
to paragraph 14(2) and (3), the sample is taken by a police officer.
(3) Paragraphs
11(5) and (6) and 12 shall apply in relation to the taking of an intimate
sample under this paragraph and a reference to a person detained under Article 37
shall be taken as a reference to a person who was detained under Article 37
when the non-intimate samples mentioned in sub-paragraph (1)(a) were
taken.
14 Inference from
refusal of consent
(1) Where
appropriate written consent to the taking of an intimate sample from a person
under paragraph 11 or 13 is refused without good cause, in any proceedings
against that person for an offence –
(a) the
court, in determining whether to commit him or her for trial or whether there
is a case to answer, may draw such inferences from the refusal as appear
proper; and
(b) the
court or jury, in determining whether that person is guilty of the offence
charged, may draw such inferences from the refusal as appear proper.
(2) An
intimate sample other than a sample of urine or a dental impression may be
taken under paragraph 11 or 13 only by a person registered as a medical
practitioner under the Medical
Practitioners (Registration) (Jersey) Law 1960[131] acting on the authority of a
police officer.
(3) An
intimate sample which is a dental impression may be taken under paragraph 11
or 13 only by a person registered as a dentist under the Dentistry (Jersey)
Law 2015[132] acting on the authority of a
police officer.
(4) Where
a sample of hair other than pubic hair is to be taken under paragraph 11
the sample may be taken either by cutting hairs or by plucking hairs with their
roots so long as no more are plucked than the person taking the sample
reasonably considers to be necessary for a sufficient sample.
15 Use of
fingerprints or samples
(1) This
paragraph applies to –
(a) fingerprints
or samples taken under paragraph 11 or 13; and
(b) information
derived from those samples.
(2) The
fingerprints, samples or information may be used only for the purpose of a terrorist
investigation.
(3) The
fingerprints, samples or information may be checked, subject to sub-paragraph (2),
against –
(a) other
fingerprints or samples taken under paragraph 11 or 13 or information derived
from those samples;
(b) any
of the fingerprints, samples and information held by any police force,
authority, body or person mentioned in or specified for the purposes of paragraph
12(1)(a).
16 Interpretation of
paragraphs 11 to 15
In the application of paragraphs 11 to 15 –
“appropriate consent” means –
(i) in relation to a
person who has attained the age of 17 years, the consent of that
person,
(ii) in relation to a
person who has not attained that age but has attained the age of 14 years,
the consent of that person and his parent or guardian, and
(iii) in relation to a person
who has not attained the age of 14 years, the consent of his parent or
guardian;
“fingerprints” includes palm prints;
“insufficient” and “sufficient” in relation
to a sample, means sufficient or insufficient (in point of quantity or quality)
for the purpose of enabling information to be produced by the means of analysis
used or to be used in relation to the sample;
“intimate sample” means –
(i) a sample of
blood, semen or any other tissue fluid, urine or pubic hair,
(ii) a dental
impression,
(iii) a swab taken from a
person’s body orifice other than the mouth;
“non-intimate sample” means –
(i) a sample of hair
other than pubic hair,
(ii) a sample taken
from a nail or from under a nail,
(iii) a swab taken from any
part of a person’s body including the mouth but not any other body
orifice,
(iv) saliva,
(v) a footprint or a
similar impression of any part of a person’s body other than a part of his
hand.
PART
2
REVIEW OF DETENTION UNDER ARTICLE 37
17 Requirement for
review
(1) A
person’s detention shall be periodically reviewed by a review officer.
(2) The
first review shall be carried out as soon as is reasonably practicable after
the time of the person’s arrest.
(3) Subsequent
reviews shall, subject to paragraph 18, be carried out at intervals of not
more than 12 hours.
(4) No
review of a person’s detention shall be carried out after a warrant
extending his or her detention has been issued under Part 3 of this Schedule.
18 Postponement
(1) A
review may be postponed if at the latest time at which it may be carried out in
accordance with paragraph 17 –
(a) the
detained person is being questioned by a police officer and an officer is
satisfied that an interruption of the questioning to carry out the review would
prejudice the investigation in connection with which the person is being
detained;
(b) no
review officer is readily available; or
(c) it
is not practicable for any other reason to carry out the review.
(2) Where
a review is postponed it shall be carried out as soon as is reasonably
practicable.
(3) For
the purposes of ascertaining the time within which the next review is to be
carried out, a postponed review shall be deemed to have been carried out at the
latest time at which it could have been carried out in accordance with paragraph 17.
19 Grounds for
continued detention
(1) A
review officer may authorize a person’s continued detention only if
satisfied that it is necessary –
(a) to
obtain relevant evidence whether by questioning the person or otherwise;
(b) to
preserve relevant evidence;
(c) pending
a decision whether to apply to the Lieutenant Governor for a deportation notice
to be served on the detained person;
(d) pending
the making of an application to the Lieutenant Governor for a deportation
notice to be served on the detained person;
(e) pending
consideration by the Lieutenant Governor whether to serve a deportation notice
on the detained person; or
(f) pending
a decision whether the detained person should be charged with an offence.
(2) The
review officer shall not authorize continued detention by virtue of sub-paragraph (1)(a)
or (b) unless he or she is satisfied that the investigation in connection with
which the person is detained is being conducted diligently and expeditiously.
(3) The
review officer shall not authorize continued detention by virtue of sub-paragraph (1)(c)
to (f) unless he or she is satisfied that the process pending the completion of
which detention is necessary is being conducted diligently and expeditiously.
(4) In sub-paragraph (1)(a)
and (b) “relevant evidence” means evidence which –
(a) relates
to the commission by the detained person of an offence under any of the
provisions mentioned in Article 36(1)(a); or
(b) indicates
that the detained person falls within Article 36(1)(b).
(5) In sub-paragraph (1)
“deportation notice” means notice of a decision to make a
deportation order under the Immigration Act 1971.
20 Review officer
(1) The
review officer shall be an officer who has not been directly involved in the
investigation in connection with which the person is detained.
(2) In
the case of a review carried out within the period of 24 hours beginning
with the time of arrest, the review officer shall be an officer of the Force of
at least the rank of inspector.
(3) In
the case of any other review, the review officer shall be an officer of the
Force of at least the rank of chief inspector.
21 Directions by
officer of higher rank
(1) This
paragraph applies when –
(a) the
review officer is of a rank lower than chief inspector;
(b) an
officer of higher rank than the review officer gives directions relating to the
detained person; and
(c) those
directions are at variance with the performance by the review officer of a duty
imposed on him or her under this Schedule.
(2) The
review officer shall refer the matter at once to the Chief Officer of the
Force.
22 Representations
(1) Before
determining whether to authorize a person’s continued detention, a review
officer shall give either of the following persons an opportunity to make
representations about the detention –
(a) the
detained person; or
(b) any
legal representative representing him or her who is available at the time of
the review.
(2) Representations
may be oral or written.
(3) A
review officer may refuse to hear oral representations from the detained person
if the review officer considers that he or she is unfit to make representations
because of his or her condition or behaviour.
23 Rights
(1) Where
a review officer authorizes continued detention he or she shall inform the
detained person –
(a) of
any of his or her rights under paragraphs 6 and 7 which the detained person has
not yet exercised; and
(b) if
the exercise of any of his or her rights under either of those paragraphs is
being delayed in accordance with the provisions of paragraph 8 of the fact
that it is being so delayed.
(2) Where
a review of a person’s detention is being carried out at a time when his
or her exercise of a right under either of those paragraphs is being
delayed –
(a) the
review officer shall consider whether the reason or reasons for which the delay
was authorized continue to subsist; and
(b) if
in his or her opinion the reason or reasons have ceased to subsist, the review
officer shall inform the officer who authorized the delay of his or her opinion
(unless he or she was that officer).
24 Record of review
(1) A
review officer carrying out a review shall make a written record of the outcome
of the review and of any of the following which apply –
(a) the
grounds upon which continued detention is authorized;
(b) the
reasons for postponement of the review;
(c) the
fact that the detained person has been informed as required under paragraph 23(1);
(d) the
officer’s conclusions on the matter considered under paragraph 23(2)(a);
(e) the
fact that he or she has taken action under paragraph 23(2)(b); and
(f) the
fact that the detained person is being detained by virtue of Article 37(5)
or (6).
(2) The
review officer shall –
(a) make
the record in the presence of the detained person; and
(b) inform
him or her at that time whether the review officer is authorizing continued
detention, and if he or she is, of his or her grounds.
(3) Sub-paragraph (2)
shall not apply where, at the time when the record is made the detained person
is –
(a) incapable
of understanding what is said to him or her;
(b) violent
or likely to become violent; or
(c) in
urgent need of medical attention.
PART
3
EXTENSION OF DETENTION UNDER ARTICLE 37
25 Warrant of
further detention
(1) An
officer of the Force of at least the rank of chief inspector may apply to the
Bailiff for the issue of a warrant of further detention under this Part.
(2) A
warrant of further detention –
(a) shall
authorize the further detention under Article 37 of a specified person for
a specified period; and
(b) shall
state the time at which it is issued.
(3) The
specified period in relation to a person shall end not later than the end of
the period of 7 days beginning –
(a) with
the time of his or her arrest under Article 37; or
(b) if the
person was being detained under Schedule 8 when he or she was arrested
under Article 37, with the time when his or her examination under that Schedule
began.
26 Time limit for
application
(1) An
application for a warrant shall be made –
(a) during
the period mentioned in Article 37(3); or
(b) within
6 hours of the end of that period.
(2) The
Bailiff hearing an application made by virtue of sub-paragraph (1)(b)
shall dismiss the application if he or she considers that it would have been
reasonably practicable to make it during the period mentioned in Article 37(3).
(3) For
the purposes of this Schedule, an application for a warrant is made when
written or oral notice of an intention to make the application is given to the
Bailiff.
27 Notice of
application
An application for a warrant may not be heard unless the person to
whom it relates has been given a notice stating –
(a) that
the application has been made;
(b) the
time at which the application was made;
(c) the
time at which it is to be heard; and
(d) the
grounds upon which further detention is sought.
28 Grounds for
extension
(1) The
Bailiff may issue a warrant of further detention only if satisfied
that –
(a) there
are reasonable grounds for believing that the further detention of the person
to whom the application relates is necessary to obtain relevant evidence
whether by questioning him or her or otherwise or to preserve relevant
evidence; and
(b) the
investigation in connection with which the person is detained is being
conducted diligently and expeditiously.
(2) In sub-paragraph (1)
“relevant evidence” means, in relation to the person to whom the
application relates, evidence which –
(a) relates
to the person’s commission of an offence under any of the provisions
mentioned in Article 36(1)(a); or
(b) indicates
that he or she is a person falling within Article 36(1)(b).
29 Representation
(1) The
person to whom an application relates shall –
(a) be
given an opportunity to make oral or written representations to the Bailiff
about the application; and
(b) subject
to sub-paragraph (3), may be legally represented at the hearing.
(2) The
Bailiff shall adjourn the hearing of an application to enable the person to whom
the application relates to seek legal representation where –
(a) the
person is not legally represented; and
(b) he
or she wishes to be so represented.
(3) The
Bailiff may exclude any of the following persons from any part of the
hearing –
(a) the
person to whom the application relates;
(b) anyone
representing him or her.
(4) The
Bailiff may, after giving an opportunity for representations to be made by or
on behalf of the applicant and the person to whom the application relates,
direct –
(a) that
the hearing of the application must be conducted; and
(b) that
all representations by or on behalf of a person for the purposes of the hearing
must be made,
by such means (whether a live television link or other means)
falling within sub-paragraph (5) as may be specified in the direction and
not in the presence (apart from by those means) of the applicant, of the person
to whom the application relates or of any legal representative of that person.
(5) A
means of conducting the hearing and of making representations falls within this
sub-paragraph if it allows the person to whom the application relates and any
legal representative of his or hers (without being present at the hearing and
to the extent that they are not excluded from it under sub-paragraph (3)) –
(a) to
see and hear the Bailiff and the making of representations to him or her by
other persons; and
(b) to
be seen and heard by the Bailiff.
(6) If
the person to whom the application relates wishes to make representations about
whether a direction should be given under sub-paragraph (4), the person
must do so by using the facilities that will be used if the Bailiff decides to
give a direction under that sub-paragraph.
(7) Sub-paragraph (2)
applies to the hearing of representations about whether a direction should be
given under sub-paragraph (4) in the case of any application as it applies
to the hearing of the application.
(8) The
Bailiff shall not give a direction under sub-paragraph (4) unless he or
she has been informed that facilities are available at the place where the
person to whom the application relates is held for the Bailiff to conduct a
hearing by means falling within sub-paragraph (5).
(9) If
in a case where he or she has power to do so the Bailiff decides not to give a
direction under sub-paragraph (4), the Bailiff shall state his or her
reasons for not giving it.
30 Information
(1) The
officer who has made an application for a warrant may apply to the Bailiff for
an order that specified information upon which he or she intends to rely be
withheld from –
(a) the
person to whom the application relates; and
(b) anyone
representing him or her.
(2) Subject
to sub-paragraph (3), the Bailiff may make an order under sub-paragraph (1)
in relation to specified information only if satisfied that there are
reasonable grounds for believing that if the information were
disclosed –
(a) evidence
of an offence under any of the provisions mentioned in Article 36(1)(a)
would be interfered with or harmed;
(b) the
recovery of property obtained as a result of an offence under any of those
provisions would be hindered;
(c) the
recovery of property in respect of which a forfeiture order could be made under
Article 26 would be hindered;
(d) the
apprehension, prosecution or conviction of a person who is suspected of falling
within Article 36(1)(a) or (b) would be made more difficult as a result of
his or her being alerted;
(e) the
prevention of an act of terrorism would be made more difficult as a result of a
person being alerted;
(f) the
gathering of information about the commission, preparation or instigation of an
act of terrorism would be interfered with; or
(g) a
person would be interfered with or physically injured.
(3) The
Bailiff may also make an order under sub-paragraph (1) in relation to
specified information if satisfied that there are reasonable grounds for
believing that –
(a) the
detained person has committed an offence referred to in Schedule 1 to the Proceeds of Crime (Jersey) Law 1999;[133]
(b) the
detained person has benefited from the offence within the meaning of that Law;
and
(c) the
recovery of the value of that benefit would be hindered, if the information
were disclosed.
(4) The
Bailiff shall direct that the following be excluded from the hearing of the
application under this paragraph –
(a) the
person to whom the application for a warrant relates; and
(b) anyone
representing him or her.
31 Adjournments
(1) The
Bailiff may adjourn the hearing of an application for a warrant only if the
hearing is adjourned to a date before the expiry of the period mentioned in Article 37(3).
(2) This
paragraph shall not apply to an adjournment under paragraph 29(2).
32 Extensions of
warrant
(1) An
officer of the Force of at least the rank of chief inspector may apply to the
Bailiff for the extension or further extension of the period specified in a
warrant of further detention.
(2) Where
the period specified is extended, the warrant shall be endorsed with a note
stating the new specified period.
(3) The
specified period shall end not later than the end of the period of 7 days
beginning –
(a) with
the time of the person’s arrest under Article 37; or
(b) if the
person was being detained under Schedule 8 when he or she was arrested
under Article 37 with the time when the person’s examination under
that Schedule began.
(4) Paragraphs 26(3)
and 27 to 30 shall apply to an application under this paragraph as they apply
to an application for a warrant of further detention.
(5) The
Bailiff may adjourn the hearing of an application under sub-paragraph (1)
only if the hearing is adjourned to a date before the expiry of the period
specified in the warrant.
(6) Sub-paragraph (5)
shall not apply to an adjournment under paragraph 29(2).
33 Effect of warrant
or order
A warrant given or order made by the Bailiff under this Part of this
Schedule shall have effect as if it were an order of the Royal Court.
34 Detention -
conditions
A person detained by virtue of a warrant issued under this Part
shall (unless detained in accordance with Article 37(5) or (6) or under
any other power) be released immediately if the officer having custody of him
or her becomes aware that any of the grounds under paragraph 28(1)(a) and (b)
upon which the Bailiff authorized his or her further detention have ceased to
apply.
SCHEDULE 10[134]
(Article 2(1))
terrorism offences
1 Aviation
Security (Jersey) Order 1993
(a) An
offence under any of sections 1, 2, 3, 4 or 6 of the Aviation Security
Act 1982 as extended to Jersey by Article 2(1) of the Aviation
Security (Jersey) Order 1993[135].
(b) An
offence under section 1 of the Aviation and Maritime Security
Act 1990 as extended to Jersey by Article 2(2) of that Order.
2 Internationally
Protected Persons Act 1978 (Jersey) Order 1979
An offence under section 1 of the Internationally Protected
Persons Act 1978 as extended to Jersey by Article 3 of the
Internationally Protected Persons Act 1978 (Jersey) Order 1979[136].
3 Nuclear
Material (Offences) Act 1983 (Jersey) Order 1991
An offence under section 1 or 2 of the Nuclear Material
(Offences) Act 1983 as extended to Jersey by Article 2 of the Nuclear
Material (Offences) Act 1983 (Jersey) Order 1991[137].
4 Maritime
Security (Jersey) Order 1996
An offence under any of sections 9 to 14 of the Aviation and
Maritime Security Act 1990 as extended to Jersey by Article 2 of the
Maritime Security (Jersey) Order 1996[138].
5 Taking
of Hostages (Jersey) Order 1982
An offence under section 1 of the Taking of Hostages
Act 1982 as extended to Jersey by Article 3 of the Taking of Hostages
(Jersey) Order 1982[139].