Guidance to Investigators and Prosecutors on Money Laundering (FOI)

Request

This request is submitted in relation to the Guidance to Investigators and Prosecutors on Money Laundering and Financial Crime (the "Guidance"), which is referred to in the Bailiwick of Jersey’s Update on the National Risk Assessment of Money Laundering, published in 2023 (see page 82).

Please provide a copy of the table of contents of the Guidance.

If there is no table of contents, please instead provide each chapter title, section title or similar in the Guidance.

If any of the requested information is deemed to be exempt, please withhold the minimum information necessary and provide the rest of the requested information, with an explanation in plain English as to why that information has been withheld.

Response

The information requested is exempt under Article ​31 of the Freedom of Information Jersey (Law) 2011.

This is a request for the table of contents (or should there be no such table of contents table the chapter / section titles) of a document that has been subject of a previous request.

The previous response to a request for this document as a whole is added below for reference:

Investigators and Prosecutors on Money Laundering guidance (FOI)​

The information requested on this occasion forms part of the whole document that was considered exempt. That view is still current, and this request is also exempt primarily as a result of Article 31 of the Freedom of Information (Jersey) Law 2011 although it is considered that Article 32 and 42 referenced below would also apply to the same.  

Articles applied

Article 31 – Advice by the Bailiff, Deputy Bailiff, or a Law Officer.

Information is qualified exempt information if it is or relates to the provision of advice by the Bailiff, Deputy Bailiff or the Attorney General or the Solicitor General

Article 32 - Legal professional privilege

Information is qualified exempt information if it is information in respect of which a claim to legal professional privilege could be maintained in legal proceedings.

Article 42 - Law enforcement

Information is qualified exempt information if its disclosure would, or would be likely to, prejudice –

(a) the prevention, detection or investigation of crime, whether in Jersey or elsewhere;

(b) the apprehension or prosecution of offenders, whether in respect of offences committed in Jersey or elsewhere;

(g) the proper supervision or regulation of financial services;

Articles 31 and 32 are each qualified exemptions, which means that a public interest test has to be undertaken to examine the circumstances of the case and decide whether, on balance, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.  

Article 42 is a prejudice based qualified exemptions which means that for this article to be engaged, there must be a likelihood that disclosure would cause prejudice to the interest that the exemption protects and in relation to the same a prejudice test has been considered in addition and prior to consideration of the public interest tests. 

Public Interest test – Articles 31 and 32 of the Freedom of Information (Jersey) Law 2011

Whilst accepted that there may be some public interest in disclosing the manner in which Jersey is seeking to combat money laundering there are many competing arguments which suggest that on balance there is greater public interest in keeping the contents page / chapter / section titles of such document confidential, the same clearly forming part of and relating to the legal advice provided in such document. 

HM Treasury v IC [2009] EWHC 1811 Blake J recognised that when engaged, the constitutional convention that law officers’ advice remains confidential will carry significant weight in the public interest test. 

The Convention has been considered by the Office of the Information Commissioner and was held to be part of Jersey law.

The purpose of such confidentiality being to protect fully informed decision-making by allowing government to seek legal advice in private, without fear of any adverse inferences being drawn from the content of the advice or the fact that it was sought - or the scope of the same.

Whilst it is recognised that the strong public interest in protecting Law Officers’ advice may still be overridden in some cases, if there are particularly strong factors in favour of disclosure, the disclosure of whether advice was or will be sought or, the disclosure of a high level summary of the scope of the content of such advice (by way of the release of a contents page or the chapter / section titles), could inhibit the manner in which Law Officers advice is taken and / or provided and real weight ought to be afforded to this aspect of the Law Officers’ Convention.

Further it is not considered appropriate or in the public interest to disclose in some (even if limited), headline detail the scope of the private advice which those investigating and or prosecuting financial crime may benefit from when undertaking the same.

Prejudice test – Article 42 Law enforcement

• Article 42(a) required consideration of the prejudice to the prevention, detection and investigation of crime;  
• Article 42(b) required consideration of the prejudice to the apprehension or prosecution of offenders  

As indicated by its title the Document is primarily aimed at those investigating and prosecuting money laundering and financial crime. 

The Document draws together into one cohesive and more digestible document various disparate sources of statute, case law, practice, and other third-party guidance on money laundering and financial crime, providing commentary, analysis and advice on the same with the overarching purpose of the Document clearly being intended to advise its primary audience how best to investigate and prosecute money laundering and financial crime. 

The aim of a contents page and/or chapter / section titles in any document is to provide an insight (potentially a brief high-level summary) of the matters more particularly discussed in each relevant part of a document, thereby making the scope of the overall work more accessible and understandable. In this particular case the requested details would run to several pages and provide a significant high-level insight / road map into the scope of the Document and matters which investigators and prosecutors might consider. It is considered this would be of interest to some criminals and would be likely to be prejudicial to the law enforcement elements referenced in the above Articles.

It is also not deemed appropriate or in the public interest to disclose in some (even if limited), headline detail the scope of the information which those investigating and or prosecuting financial crime may take into consideration when undertaking an investigation into financial crime and/or money laundering.

Public Interest Test 

Article 42 is a qualified exemption and as such a prejudice test has been conducted as required by law. We have assessed whether, in all the circumstances of the case, the public interest in supplying the information is outweighed by the prejudice that would likely result by doing so. 

Again, the fact there is a public interest in transparency and accountability to the general public by providing confirmation that necessary actions to combat money laundering and financial crime is recognised. However, this must be balanced against potential prejudice to any existing or future criminal investigations. 

On balance it has been concluded that the public interest supports the information being withheld rather than disclosed and that it is not deemed appropriate to make the requested information readily available to the wider public as this could enable criminals to have a better understanding of the scope of the information which those investigating and or prosecuting financial crime may take into consideration when undertaking such matters.