Mutual Legal Assistance Policies and Procedurals Manual (FOI)

​​​​Original request

Please provide a copy of the Mutual Legal Assistance Policies and Procedurals Manual completed 25 May 2022, referred to on page 14 of The Government of Jersey’s Action Plan Progress Update on the National Strategy for Combatting Money Laundering, the Financing of Terrorism and the Financing of Proliferation of Weapons of Mass Destruction, published in September 2023. 

National Strategy for Combatting Money Laundering, the Financing of Terrorism and the Financing of Proliferation of Weapons of Mass Destruction (gov.je)

It is noted that the Council of Europe and the United Nations Office on Drugs and Crime, amongst others, have published their manuals. 

Mutual Legal Assistance Manual (rm.coe.int)

Manual on Mutual Legal Assistance and Extradition (unodc.org)​

​Original response

The requested information is exempt under articles 27(1), 31 and 41 of the Freedom of Information (Jersey) Law 2011. The Mutual legal assistance Policies and Procedures Manual is intended to advise its primary audience how best to investigate money laundering and financial crime. The more readily accessible such documentation becomes the more likely it is that criminals could use the knowledge to avoid detection and prosecution for relevant offences.

The manuals published by the Council of Europe and the United Nations Office on Drugs and Crime are manuals published by supra-national organisations as “how-to guides” to develop capacity in jurisdictions on how to conduct Mutual Legal Assistance. They do not represent similar documents to jurisdictional Mutual Legal Assistance Policies and Procedurals Manual. 

Articles applied

Article 27 - National security 

(1) Information which does not fall within Article 26A(1) is absolutely exempt information if exemption from the obligation to disclose it under this Law is required to safeguard national security. 

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.

Public Interest Test  

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, conversely, disclosing the advice or whether advice was or will be sought could inhibit the Law Officers from (1) giving frank advice (2) inhibit government bodies in taking advice for fear of its publication; and (3) inhibit the full disclosure to the Law Officers of all material relevant to the advice being sought and therefore real weight ought to be afforded to this aspect of the Law Officers’ Convention.

Disclosing either the legal advice or the fact of whether specific advice was sought to the public is not a greater consideration of public interest that requires disclosure of the advice or confirmation of what advice was given. It does not outweigh the three principles set out above which require the long-standing Law Officer Convention to be maintained. Therefore, the balance is in favour of maintaining the exemption and it is not considered the public interest in disclosure outweighs the preservation of the Convention on this occasion.

Article 41 - International relations 

(1) Information is qualified exempt information if its disclosure would, or would be likely to, prejudice relations between Jersey and –

(a) the United Kingdom;

(b) a State other than Jersey;

(c) an international organization; or

(d) an international court.

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

(a) any Jersey interests abroad; or

(b) the promotion or protection by Jersey of any such interest.

(3) Information is also qualified exempt information if it is confidential information obtained from –

(a) a State other than Jersey;

(b) an international organization; or

(c) an international court.

(4) In this Article, information obtained from a State, organization or court is confidential while –

(a) the terms on which it was obtained require it to be held in confidence; or

(b) the circumstances in which it was obtained make it reasonable for the State, organization or court to expect that it will be so held.

(5) In this Article – 

“international court” means an international court that is not an international organization and that was established – 

(a) by a resolution of an international organization of which the United Kingdom is a member; or

(b) by an international agreement to which the United Kingdom was a party; 

“international organization” means an international organization whose members include any two or more States, or any organ of such an organization; 

“State” includes the government of a State and any organ of its government, and references to a State other than Jersey include references to a territory for whose external relations the United Kingdom is formally responsible.

Public Interest Test

The public interest in respect of Article 41 is weighted in favour of maintaining the exemption unless equally strong countervailing public interest arguments favour the disclosure of the information. It is recognised that there is a public interest in providing transparency about the island's network of international agreements. However, having considered the public interest, the Scheduled Public Authority concluded that the public interest in disclosing this information at this time is outweighed by the public interest considerations in withholding the information, in support of the Island's interests and to avoid any potential prejudice to the Island's relationship with the United Kingdom and other jurisdictions.​

Internal Review request

I am writing to request an internal review of the above referenced FOI request.

I am concerned that exemptions have been incorrectly applied and that, at a minimum, at least some parts of the Manual should have been disclosed.

Further comments on the exemptions applied by the SPA are as follows.

Article 27

It is hard to see how it could be reasonably maintained that withholding the Manual in itsentirety is required in order to safeguard national security.

“Required” means “reasonably necessary” and that there must be “a real possibility of anadverse effect”.

The response merely states: “The more readily accessible such documentation becomes the more likely it is that criminals could use the knowledge to avoid detection and prosecution for relevant offences.”

“[M]ore likely” does not mean that it is likely, and it is notable that the response says nothing about how likely it is that criminals would actually use the knowledge to avoid detection and prosecution.

I have serious doubts whether the high threshold for engaging an absolute exemption such as Article 27 is met. 

"National security" is not a term to be lightly applied.

It is hard to square the bald assertion that withholding the Manual is necessary to safeguard national security with the numerous references both to the existence of the Manual and its content in MoneyVAL's Fifth Round Evaluation Report on Jersey, as well as the information provided in that report about the MLA team and its work.

I also have concerns that Article 27 has been inappropriately applied in a “blanket” fashion to the whole of the Manual.

When considering whether Article 27 was engaged, the SPA should have considered the constituent pieces of information within the Manual; not the Manual as a whole.

If there are particularly sensitive parts of the Manual that meet the threshold for engaging Article 27, then only those parts of the Manual should have been withheld on the basis of Article 27 and (unless other exemptions properly apply to other parts) the remainder of the Manual should have been disclosed.

Article 31

It appears that Article 31 has been wrongly applied as the Manual is not the provision of advice by the Attorney General or the Solicitor General. 

The Manual is described as being “Policies and Procedurals”.

Article 31 does not apply to documents prepared by other members of the Law Officers’ Department.

As with Article 27, I also have concerns that Article 31 has been inappropriately applied in a “blanket” fashion to the whole of the Manual.

When considering whether Article 31 was engaged, the SPA should have considered the constituent pieces of information within the Manual; not the Manual as a whole.

If Article 31 properly applies to parts of the Manual, then only those parts of the Manual should have been withheld on the basis of Article 31 (subject to the public interest) and (unless other exemptions properly apply to other parts) the remainder of the Manual should have been disclosed.

To the extent Article 31 is properly engaged in respect of any part of the Manual, there are strong factors favouring disclosure.

At least seven individuals are employed in the MLA team, according to the Law Officers' Department 2024 Business Plan, including 4 Legal Advisers and 2 Legal Advisers. It is evident, therefore, that the MLA team consumes a significant amount of public resources, especially considering that it appears to also use various external consultants (per the MoneyVAL report).  Disclosure of the Manual will provide the public with greater transparency about the MLA and its work, without providing case specific information that cannot properly be disclosed to the general public.

Importantly, as the SPA will be well aware, the existence of the Manual has already been disclosed to the public, along with significant detail about the contents of the Manual, in MoneyVAL's Fifth Round Evaluation Report. Having chosen to voluntarily disclose its existence, as well as provide selected information about its content, it is in the public interest that the Manual is disclosed so that it can be subject to proper scrutiny (rather than leaving the public to rely on "cherry-picked" parts only).

The SPA has provided a generic response stating “disclosing the advice or whether advice was or will be sought could inhibit the Law Officers from (1) giving frank advice (2) inhibit government bodies in taking advice for fear of its publication; and (3) inhibit the full disclosure to the Law Officers of all material relevant to the advice being sought and therefore real weight ought to be afforded to this aspect of the Law Officers’ Convention.”

This ignores the fact that the existence of the Manual has already been disclosed. The three supposed inhibitions seem particularly inapt in the present case.These inhibitions also do not seem to have prevented a number of references to the content of the Manual in the MoneyVAL report. If there was genuine concern that disclosing the contents of the Manual would lead to these inhibitions, why was consent given for the MONEYVAL report to reference both the Manual and its contents? 

Article 41

The response does not specify which part of Article 41 is said to be engaged and is therefore defective.

The response also does not adequately identify the prejudice or state whether it “would” or “would be likely to” occur.

“Potential” prejudice is not sufficient.

It is difficult to see how disclosing the Manual would prejudice relations between the UK and Jersey, considering (amongst other things) the strong and longstanding relations between the UK and Jersey. 

As with Articles 27 and 31, I also have concerns that Article 41 has been inappropriately applied in a “blanket” fashion to the whole of the Manual.

When considering whether Article 41 was engaged, the SPA should have considered the constituent pieces of information within the Manual; not the Manual as a whole.

If Article 41 properly applies to parts of the Manual, then only those parts of the Manual should have been withheld on the basis of Article 41 (subject to the public interest) and (unless other exemptions properly apply to other parts) the remainder of the Manual should have been disclosed.

In respect of the public interest test, the response wrongly states that the “public interest in respect of Article 41 is weighted in favour of maintaining the exemption unless equally strong countervailing public interest arguments favour the disclosure of the information.”

This is not the correct approach. Article 41 is a qualified (not absolute) exemption and there is no presumption that the information should be withheld; on the contrary, to the extent there is a presumption it is that information should be disclosed, since this is consistent with the purpose of the freedom of information legislation.

The response refers to "international agreements". Since such agreements will be public, it cannot reasonably be said that is in the public interest to withhold detail about such agreements.

Conclusion

For the reasons set out above, the requested information should not have been withheld. In the alternative, only part (and not the whole) of the information should have been withheld. 

The Panel is requested to disclose the requested information. In the alternative that the Panel determines that the exemptions properly apply to some of the requested information, the Panel should withhold only that information and disclose the remainder of the Manual.

If the Panel decides to continue to withhold the entirety of the information, I should be grateful if it could please explain in its response for each exemption whether that exemption has been applied to the whole Manual, or parts of the Manual only. At the moment, this is unclear from the response.

I am grateful for the Panel's attention to this matter and look forward to hearing further in due course.

I should also be grateful if you could please confirm receipt of this internal review request.

Internal Review response 

This review has been completed by two senior staff members of the Government of Jersey, independent of the original decision-making process.

The original response has been reviewed and assessed to identify whether exemptions had been applied correctly and whether it was appropriate to withhold information.

An internal review was conducted by two senior members of staff independent to the original decision process. 

After extensive discussion, the Panel concluded:

• Articles 27, 31 and 41(a) (b) and (c) should apply to the document (noting that privilege in respect of Article 31 was not waived).
• given the nature of the document there remained concerns that revealing the subject headings of the document may have an effect on National Security and would be likely to adversely impact money laundering / financial crime investigation.
• It being important to not only ensure Jersey can co-operate effectively with other jurisdictions in matters requiring mutual legal assistance but also that it does not take actions which others might perceive as potentially contrary to the same

The Panel considered the public interest test in the original response together with the Applicant comments and the prejudice test (in respect of Article 41 (a),(b) and (c)).  The Panel concluded they similarly considered the balance of public interest was in favour of maintaining the exemptions and not in favour of disclosure of the requested information.  

It was noted that the public has a legitimate interest in understanding (at least broadly) what the Government is doing in relation to Money Laundering and combatting of financial crime. 

It was noted that in this respect the Government has already published some information about mutual legal assistance and various memorandums of understanding it has with certain countries, on its website. 

It was noted that the scope of the manual included certain specific information regarding   different jurisdictions and certain tactical elements to this topic which may need to be considered. That a disclosure of the scope of the same, even if only by way of the release of the manual’s contents, had the potential to be prejudicial to Jersey’s national interests, its interactions with different jurisdictions (i.e. State’s other than Jersey) and/or   to law enforcement aspects covered in Article 41(a), (b) and (c). That this may particularly be the case when the same is considered in the context of other information already in the public domain or which might thereafter be requested to be made public and which may be more difficult to refuse were this request to be granted.

That accordingly, on balance the disclosure of same was not in the public interest. 

The Government also having a public duty to deny criminals who may seek to abuse the systems, and to ensure law enforcement - the prevention, detection, investigation, prosecution of crime and criminal offenders - is as effective as possible.

The Panel further understands that the Law Officers’ Department is of the view that it would not be appropriate for any scheduled public authority to claim or hold proprietary rights over a document of this nature and that a cogent case can be made under Article 3(a) of the Freedom of Information Law 2011 (“the 2011 Law”) that the Withheld Information is not information held by the Department for the Economy and accordingly this information does not fall within the remit of the 2011 Law. 

The Panel considers that even if it were ultimately determined the Withheld Information was “held” by the Department for the Economy, the Withheld Information would be wholly exempt from disclosure as a result of the Articles previously referred to and relied upon and accordingly is not minded to explore such arguments further at present.  

The Panel understands that were the Applicant to request further review of this matter, the Department for the Economy may subsequently argue the scope of Article 3 of the 2011 Law means the Department for the Economy does not hold the Withheld Information for the purposes of the 2011 Law.