Jersey R&O.77/2006
Lebanon and Syria
(United Nations Measures) (Channel Islands) Order 2006
Sanctioned by Order of Her Majesty in
Council 9th May 2006
In force date 31st
May 2006
Registered by the
Royal Court 14th
July 2006
The Security Council of the United Nations adopted resolution 1636
(2005) on 31st October 2005 under Article 41 of the Charter of the
United Nations. This resolution called upon Her Majesty's Government in the
United Kingdom and all other States to apply certain measures to give effect to
decisions of that Council in relation to Lebanon and Syria.
Her Majesty, in pursuance of section 1 of the United Nations
Act 1946, is pleased, by and with the advice of Her Privy Council, to
order as follows –
Citation,
commencement, extent and application
1
(1) This
Order may be cited as the Lebanon
and Syria (United Nations Measures) (Channel Islands) Order 2006
and shall come into force on 31st May 2006.
(2) This
Order shall extend to the Channel Islands so as to be
law, respectively, in the Bailiwick of Guernsey and the Bailiwick of Jersey.
(3) Articles 3,
4 and 6 shall apply to any person within the Bailiwick of Guernsey or the
Bailiwick of Jersey and to any person elsewhere who is –
(a) a British citizen, a British overseas territories citizen, a British Overseas
citizen, a British subject, a British National (Overseas) or a British
protected person and who is ordinarily resident in the Bailiwick of Guernsey or
the Bailiwick of Jersey;
(b) a
body incorporated or constituted under the law of any part of the Bailiwick of
Guernsey or the Bailiwick of Jersey.
Interpretation
2
In this Order –
“Attorney
General” means –
(a) in the application of
this Order to Guernsey, the Attorney General or the Solicitor General for Guernsey;
(b) in the application of
this Order to Jersey, the Attorney General for Jersey;
“designated
person” means any person for the time being designated under
paragraph 3(a) of the Security Council Resolution and registered by the
Committee of the Security Council established pursuant to paragraph 3(b)
that Resolution;
“document”
includes information recorded in any form and, in relation to information
recorded otherwise than in legible form, references to its production include
references to producing a copy of the information in legible form;
“economic
resources” means assets of every kind, whether tangible or intangible,
movable or immovable, which are not funds but can be used to obtain funds,
goods or services;
“funds” means
financial assets and benefits of every kind, including (but not limited
to) –
(a) cash, cheques, claims on
money, drafts, money orders and other payment instruments;
(b) deposits with relevant
institutions or other persons, balances on accounts, debts and debt obligations;
(c) publicly and privately
traded securities and debt instruments, including stocks and shares,
certificates representing securities, bonds, notes, warrants, debentures and
derivatives contracts;
(d) interest, dividends or
other income on or value accruing from or generated by assets;
(e) credit, right of
set-off, guarantees, performance bonds or other financial commitments;
(f) letters of credit, bills
of lading, bills of sale; and
(g) documents evidencing an
interest in funds or financial resources;
“Guernsey”
means the Bailiwick of Guernsey;
“Jersey” means
the Bailiwick of Jersey;
“officer”, in
relation to a body corporate, means a director, manager, secretary or other
similar officer of the body corporate or any person who has purported to act in
any such capacity;
“relevant
authority” means –
(a) in respect of Guernsey,
the Attorney General;
(b) in respect of Jersey,
the Chief Minister of the States of Jersey,
and reference to
“the Bailiwick” in relation to the relevant authority means the
Bailiwick in respect of which that authority operates;
“relevant
institution” means –
(a) in the application of
this Order to Guernsey, a financial services business within the meaning of
section 49 of and the Schedule to the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey)
Law 1999;
(b) in the application of
this Order to Jersey, a financial services business within the meaning of
Article 36(1) and the Second Schedule to the Proceeds of Crime (Jersey) Law 1999[2];
“the
Security Council Resolution” means resolution 1636 (2005) adopted by
the Security Council of the United Nations on 31st October 2005;
“the
standard scale” means –
(a) in the application of
this Order to Guernsey, the uniform scale of fines specified for the time being
in section 1 of the Uniform Scale of Fines
(Bailiwick of Guernsey) Law 1989, as amended;
(b) in the application of
this Order to Jersey, the standard scale of fines specified for the time being
in the Schedule to the Criminal Justice
(Standard Scale of Fines) (Jersey) Law 1993, as amended[3].
Freezing funds and economic resources
3
(1) A
person (including the designated person) must not deal with funds or economic
resources owned, held or controlled by a designated person unless he does so
under the authority of a licence granted under article 8.
(2) A
person who contravenes the prohibition in paragraph (1) is guilty of an
offence.
(3) In
proceedings for an offence under this article, it is a defence for a person to
show that he did not know and had no reasonable cause to suspect that he was
dealing with funds or economic resources owned, held or controlled by a
designated person.
(4) In
this article, “to deal with” means –
(a) in respect of
funds –
(i) to
use, alter, move, allow access to or transfer;
(ii) to
deal with in any other way that would result in any change in volume, amount,
location, ownership, possession, character or destination; or
(iii) to
make any other change that would enable use, including portfolio management;
(b) in respect of economic
resources, to use those resources in any way to obtain funds, goods or
services, including (but not limited to) selling, hiring or mortgaging the
resources.
Making funds and economic resources available
4
(1) A
person must not make funds or economic resources available, directly or indirectly,
to or for the benefit of a designated person unless he does so under the
authority of a licence granted under article 8.
(2) A
person who contravenes the prohibition in paragraph (1) is guilty of an
offence.
(3) In
proceedings for an offence under this article, it is a defence for a person to
show that he did not know and had no reasonable cause to suspect that he was
making funds or economic resources available, directly or indirectly, to or for
the benefit of a designated person.
Exceptions
5
(1) A
person is not guilty of an offence under article 3 or 4 if he credits a frozen
account with interest or other earnings on the account.
(2) A
relevant institution is not guilty of an offence under article 3 or 4 if the
institution credits a frozen account with funds transferred by a third party,
provided that the institution informs the relevant authority without delay.
(3) For
the avoidance of doubt, article 3 applies to any funds credited to a frozen
account in accordance with this article.
(4) In
this article –
“frozen
account” means an account of a designated person;
“third
party” means a person other than the account-holder or the relevant
institution with which the account is maintained.
Circumventing prohibitions etc.
6
A person is guilty of an offence if he participates, knowingly and
intentionally, in activities the object or effect of which is, directly or
indirectly, to –
(a) circumvent
a prohibition in article 3(1) or 4(1); or
(b) enable
or facilitate the commission of an offence under article 3 or 4.
Acting on behalf of a designated person etc.
7
(1) Where
the condition in paragraph (2) is satisfied, the relevant authority may
direct that articles 3 to 6 are to apply in respect of a person identified in
the direction as if he were a designated person.
(2) The
condition in this paragraph is that the relevant authority has reasonable
grounds for suspecting that the person identified in the direction is or may
be –
(a) owned
or controlled by a designated person; or
(b) acting
on behalf of or at the direction of a designated person.
(3) A
direction under paragraph (1) has effect –
(a) for
such period as the relevant authority may specify in the direction; or
(b) until
the direction is revoked or set aside.
(4) The
relevant authority may revoke a direction at any time.
(5) The
relevant authority, where it issues or revokes a direction, must –
(a) give
written notice of the direction or revocation to the person identified in the
direction; and
(b) make
information as to the direction or revocation publicly available.
(6) The
Royal Court may set aside a direction on the application of –
(a) the
person identified in the direction; or
(b) any
other person affected by the direction.
(7) A
person who makes an application under paragraph (6) must give a copy of
the application and any witness statement or affidavit in support to the
relevant authority not later than seven days before the date fixed for the
hearing of the application.
Licences
8
(1) The
relevant authority may grant a licence to exempt acts specified in the licence
from the prohibition in article 3(1) or 4(1).
(2) A
licence may relate to –
(a) basic
expenses, including payments for foodstuffs, rent or mortgage, medicines,
medical treatment, taxes, insurance premiums and public utility charges;
(b) payment
of reasonable professional fees and expenses associated with the provision of
legal services;
(c) payment
of fees or service charges for the routine holding or maintenance of frozen
funds or economic resources.
(3) A
licence may be –
(a) general
or granted to a particular person;
(b) absolute
or subject to conditions;
(c) of
indefinite duration or subject to an expiry date.
(4) The
relevant authority may vary or revoke a licence at any time.
(5) The
relevant authority, where it grants a licence, must –
(a) in
the case of a licence granted to a particular person, give a written copy of
the licence to that person;
(b) in
the case of a general licence, make information as to the licence publicly
available.
(6) The
relevant authority, where it varies or revokes a licence, must –
(a) in
the case of a licence granted to a particular person, give written notice of
the variation or revocation to that person; and
(b) in
the case of a general licence, make information as to the variation or
revocation publicly available.
(7) Any
person who, for the purpose of obtaining a licence, knowingly or recklessly
makes any statement or furnishes any document or information which is false in
a material particular is guilty of an offence.
(8) Any
person who has done any act under the authority of a licence and who fails to
comply with any conditions attaching to that licence is guilty of an offence.
Evidence and information
9
The Schedule (which
contains further provisions about evidence and information) shall have effect.
Penalties: Guernsey
10
(1) This
article applies to a person guilty of an offence in Guernsey.
(2) A
person guilty of an offence under article 3, 4 or 6 is liable –
(a) on
conviction on indictment, to imprisonment for a term not exceeding seven years
or to a fine or to both; or
(b) on
summary conviction, to imprisonment for a term not exceeding six months or to a
fine not exceeding level 5 on the standard scale or to both.
(3) A
person guilty of an offence under article 8(7) or (8) or under paragraph 4(b)
or (d) of the Schedule is liable –
(a) on
conviction on indictment, to imprisonment for a term not exceeding two years or
to a fine or to both; or
(b) on
summary conviction, to imprisonment for a term not exceeding six months or to a
fine not exceeding level 5 on the standard scale or to both.
(4) A
person guilty of an offence under paragraph 2(3) or 4(a) or (c) of the
Schedule is liable on summary conviction to imprisonment for a term not
exceeding six months or to a fine not exceeding level 5 on the standard
scale or to both.
Penalties: Jersey
11
(1) This
article applies to a person guilty of an offence in Jersey.
(2) A
person guilty of an offence under article 3, 4 or 6 is liable on conviction to
imprisonment for a term not exceeding seven years or to a fine or to both.
(3) A
person guilty of an offence under article 8(7) or (8) or under
paragraph 4(b) or (d) of the Schedule is liable on conviction to
imprisonment for a term not exceeding two years or to a fine or to both.
(4) A
person guilty of an offence under paragraph 2(3) or 4(a) or (c) of the
Schedule is liable on conviction to imprisonment for a term not exceeding six
months or to a fine not exceeding level 4 on the standard scale or to
both.
Penalties: supplementary
12
If an offence under this Order
committed by a body corporate is shown –
(a) to
have been committed with the consent or connivance of an officer of the body
corporate; or
(b) to
be attributable to any neglect on his part,
the officer as well as the body corporate is guilty of the offence
and is liable to be proceeded against and punished accordingly.
Proceedings
13
(1) No
proceedings for an offence may be instituted except by or with the consent of
the Attorney General.
(2) Irrespective
of whether such consent has been given, paragraph (1) does not
prevent –
(a) the arrest of any person
in respect of an offence under this Order; or
(b) the remand in custody or
on bail of any person charged with such an offence.
14
(1) This
article applies to proceedings in Guernsey.
(2) Summary
proceedings against any person for an offence under this Order may be taken
before the court having summary jurisdiction in the place where that person is
for the time being.
Notices
15
(1) This
article has effect in relation to any notice to be given to a person by the
relevant authority under article 7(5)(a) and to a copy of a licence to be given
to a person under article 8(5)(a).
(2) Any
such notice or copy may be given –
(a) by posting it to his
last known address; or
(b) where the person is a
body corporate, by posting it to the registered or principal office of the body
corporate in the Bailiwick.
(3) Where
the relevant authority does not have such an address for the person, they must make arrangements for the notice or copy to be given to him
at the first available opportunity.
Functions of the relevant authority
16
(1) The
relevant authority may, to such extent and subject to such restrictions and
conditions as it may think proper, delegate or authorise the delegation of any
of its functions under this Order to any person or class or description of
persons.
(2) References
in this Order to the relevant authority are to be construed accordingly.
Postponement etc. of the operation of the
Security Council Resolution
17
(1) If
the Security Council of the United Nations takes any decision which has the
effect of postponing, suspending or cancelling the operation of the Security
Council Resolution, in whole or in part, this Order shall cease to have effect
or its operation shall be postponed or suspended, in whole or in part as the
case may be, in accordance with that decision.
(2) The
relevant authority must make particulars of the decision publicly available.
A.K. Galloway
Clerk of the Privy Council
SCHEDULE
Article 9
Evidence
and information
1. The
relevant authority must take such steps as it considers appropriate to
cooperate with any international investigation relating to the funds, economic
resources or financial transactions of –
(a) a
designated person;
(b) a
person owned or controlled by a designated person; or
(c) a
person acting on behalf of or at the direction of a designated person.
2.(1) A relevant institution must as soon as
practicable inform the relevant authority if it knows or suspects that a
relevant person –
(a) is
a designated person;
(b) is
a person owned or controlled by a designated person;
(c) is
a person acting on behalf of or at the direction of a designated person; or
(d) has
committed an offence under article 3, 4, 6 or 8.
(2) A
relevant institution, where it informs the relevant authority under
sub-paragraph (1), must state –
(a) the
information or other matter on which the knowledge or suspicion is based;
(b) any
information it holds about the relevant person by which the person can be
identified; and
(c) the
nature and amount or quantity of any funds or economic resources held by the
relevant institution for the relevant person since this Order came into force.
(3) A
relevant institution that fails to comply with a requirement in paragraph (1)
or (2) is guilty of an offence.
(4) In
this article, “relevant person” means –
(a) a
customer of the institution;
(b) a
person who has been a customer of the institution since this Order came into
force; or
(c) a
person with whom the institution has had dealings in the
course of its business since then.
3.(1) The relevant authority may request any
person in or resident in the Bailiwick to give any information or to produce
any document in that person's possession or control which the relevant
authority may require for the purpose of –
(a) securing
compliance with or detecting evasion of this Order;
(b) obtaining
evidence of the commission of an offence under this Order;
(c) establishing
the nature and amount or quantity of any funds or economic resources owned,
held or controlled by –
(i) a
designated person; or
(ii) a
person who is the subject of a direction under article 7; or
(d) establishing
the nature of any financial transactions entered into
by any such person.
(2) This
includes power to –
(a) take
copies of or extracts from any document so produced;
(b) request
any person producing a document to give an explanation of
it; and
(c) where
that person is a body corporate, request any person who is a present or past
officer of, or employee of, the body corporate to give such an explanation.
(3) Any
person to whom a request is made must comply with it within such time and in
such manner as may be specified in the request.
(4) Nothing
in this paragraph shall be taken to require any person who has acted as a
professional legal advisor for any person to give or produce any privileged
information or document in his possession in that capacity.
4. A person is
guilty of an offence if he –
(a) without
reasonable excuse refuses or fails within the time and in the manner specified
(or, if no time has been specified, within a reasonable time) to comply with
any request made under paragraph 3;
(b) knowingly
or recklessly gives any information or produces any document which is false in
a material particular in response to such a request;
(c) otherwise
wilfully obstructs the relevant authority in the exercise of its powers under
this Schedule;
(d) with
intent to evade the provisions of this Schedule, destroys, mutilates, defaces,
conceals or removes any document.
5. Where a
person is convicted of an offence under paragraph 4(a), the court may make
an order requiring him, within such period as may be specified in the order, to
give the requested information or to produce the requested document.
6.(1) The relevant authority may only disclose
any information given or document produced under this Schedule (including any
copy or extract made of any such document) –
(a) to
any person holding or acting in any office under or in the service
of –
(i) the
Crown in respect of the Government of the United Kingdom;
(ii) the
Government of the Isle of Man;
(iii) the
States of Guernsey or Alderney or the Chief Pleas of Sark;
(iv) the
States of Jersey;
(v) any
British overseas territory;
(b) for
the purpose of giving assistance or cooperation, pursuant to the Security
Council Resolution, to –
(i) any
organ of the United Nations;
(ii) any
person in the service of the United Nations, the Council of the European Union,
the European Commission or the Government of any country;
(c) with
a view to instituting, or otherwise for the purposes of, any
proceedings –
(i) in
the Bailiwick in question, for an offence under this Order or, with respect to
any of the matters regulated by this Order, for an offence against any
enactment relating to customs; or
(ii) in
the other Bailiwick to which this Order applies, the United Kingdom, the Isle
of Man or any British overseas territory, for an offence under a similar
provision in any such jurisdiction;
(d) with
the consent of a person who, in his own right, is entitled to the information
or to the possession of the document, to any third party.
(2) In
this paragraph, “in his own right” means not merely in the capacity
as a servant or agent of another person.
7. In this
Schedule as it applies to Jersey, reference to the “relevant
authority” includes the Attorney General.
8. An action
done under this Schedule is not to be treated as a breach of any restriction
imposed by any enactment or otherwise.