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Community Provisions (Restrictive Measures - Somalia) (Amendment No. 3) (Jersey) Order 2013

A formal published “Ministerial Decision” is required as a record of the decision of a Minister (or an Assistant Minister where they have delegated authority) as they exercise their responsibilities and powers.

Ministers are elected by the States Assembly and have legal responsibilities and powers as “corporation sole” under the States of Jersey Law 2005 by virtue of their office and in their areas of responsibility, including entering into agreements, and under any legislation conferring on them powers.

An accurate record of “Ministerial Decisions” is vital to effective governance, including:

  • demonstrating that good governance, and clear lines of accountability and authority, are in place around decisions-making – including the reasons and basis on which a decision is made, and the action required to implement a decision

  • providing a record of decisions and actions that will be available for examination by States Members, and Panels and Committees of the States Assembly; the public, organisations, and the media; and as a historical record and point of reference for the conduct of public affairs

Ministers are individually accountable to the States Assembly, including for the actions of the departments and agencies which discharge their responsibilities.

The Freedom of Information Law (Jersey) Law 2011 is used as a guide when determining what information is be published. While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.

A decision made 24 May 2013:

Decision Reference: MD-C-2013-0046

Decision Summary Title :

Sanctions - Somalia (Amendment No.3) 2013.05.21

Date of Decision Summary:

21 May 2013

Decision Summary Author:

 

International Relations

Decision Summary:

Public or Exempt?

(State clauses from Code of Practice booklet)

Public

Type of Report:

Oral or Written?

Written

Person Giving

Oral Report:

 N/A

Written Report

Title :

Community Provisions (Restrictive Measures - Somalia) (Amendment No.3) (Jersey) Order 2013

Date of Written Report:

21 May 2013

Written Report Author:

Law Draftsman

Written Report :

Public or Exempt?

(State clauses from Code of Practice booklet)

Public

Subject:  Community Provisions (Restrictive Measures - Somalia) (Amendment No.3) (Jersey) Order 2013

Decision(s):   The Chief Minister, in pursuance of Article 2 of the European Communities Legislation (Implementation) (Jersey) Law 1996 and having regard to Council Regulation (EU) No. 356/2010 of 26 April 2010, as amended up to 15 May 2013, concerning certain specific restrictive measures in view of the situation in Somalia, made the Community Provisions (Restrictive Measures - Somalia) (Amendment No.3) (Jersey) Order 2013.

Reason(s) for Decision:  The United Nations Security Council has imposed an arms embargo on all deliveries of weapons and military equipment to Somalia, SCR 733 (1992).  Subsequently UNSCR 1844 (2008) imposed travel and financial restrictions on persons who engage in or provide support for acts that threaten the peace, security or stability of Somalia, act in violation of the arms embargo imposed by UNSCR 733 (1992), or obstruct the delivery of humanitarian assistance, access to or distribution of humanitarian assistance in Somalia.

On 6 March 2013, the United Nations Security Council adopted Resolution 2093 (2013) updating the designation criteria applied by the Security Council Sanctions Committee. 

The  Community Provisions (Restrictive Measures - Somalia) (Amendment No.3) (Jersey) Order 2013 implements the UN Resolution by giving effect in Jersey to EU Council Regulation (EU) No 432/2013.

Resource Implications:  There are no manpower or resource implications arising from this Order.

Action required:   The Chief Minister’s Department shall –

(1) inform the Assistant Greffier of the States and the States Greffe Publications Editor immediately the Order is made.

(2) deliver the signed and sealed order to the Publications Editor.

 

Signature:

 

Position: 

 

Chief Minister

Date Signed:

 

 

Date of Decision (If different from Date Signed):

 

Hide report
Proceeds of Crime and Terrorism (Miscellaneous Provisions) (Jersey) Law 201-

 

CHIEF MINISTER

WRITTEN REPORT

Draft Proceeds of Crime and Terrorism (Miscellaneous Provisions) (Jersey) Law 201-

Introduction

  1. The draft law has four aims, namely to:

(a)    ensure that Jersey has one set of provisions that relate to the laundering of the proceeds of criminal conduct, including the restraint and confiscation of such proceeds. Currently Jersey has anti-money laundering provisions in each of the Proceeds of Crime (Jersey) Law 1999, the Terrorism (Jersey) Law 2002 and the Drug Trafficking Offences (Jersey) Law 1988. At present, drug money laundering is dealt with under the Drug Trafficking Offences (Jersey) Law 1988, the money laundering of terrorist property under the Terrorism (Jersey) Law 2002 and any other form of money laundering under the Proceeds of Crime (Jersey) Law 1999;

(b)    address outstanding technical issues identified in Jersey’s 2009 IMF Assessment Report;

(c)    address an identified gap against the revised Financial Action Task Force (“FATF”) standards, issued in February 2012. Jersey will be assessed against the revised standards when the next but one assessment of the Island takes place, probably in 2017 (the next assessment being due to take place in 2014 under the 2004 standards); and

(d)    align specific provisions with requirements of the United Nations Convention against Transnational Organized Crime (“Palermo Convention”) and Council of Europe Convention 141 on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (“Strasbourg Convention”), to allow for these Conventions to be extended to Jersey.

 

  1. The main thrust of the draft is to separate provisions dealing with proceeds of crime of all kinds, including the proceeds of crime relating to drug trafficking, and to have these all in one place (the Proceeds of Crime (Jersey) Law 1999) while retaining separate provision in the Terrorism (Jersey) Law 2002 and the Misuse of Drugs (Jersey) Law 1978, to deal with property used instrumentally in or in facilitating certain crimes. The Proceeds of Crime (Jersey) Law 1999 and the Terrorism (Jersey) Law 2002 are also being updated to reflect IMF recommendations.
  2. The draft contains provisions amending the Proceeds of Crime (Jersey) Law 1999 and the Terrorism (Jersey) Law 2002 which are each contained in separate Parts of the draft law.  Alongside this there is another Part of the draft law repealing the Drug Trafficking Offences (Jersey) Law 1988 and placing certain provisions of that law which remain to be preserved into the Misuse of Drugs (Jersey) Law 1978 (other provisions of the Drug Trafficking Offences (Jersey) Law 1988 are preserved by an extension of the scope of the Proceeds of Crime (Jersey) Law 1999). There is another Part dealing with transitional arrangements and the Schedule makes the necessary consequential amendments to other pieces of legislation.

 

One set of anti-money laundering provisions

  1. The key rationale for creating one set of anti-money laundering provisions is that under the existing provisions, the prosecuting authorities must establish at any early stage whether the Proceeds of Crime (Jersey) Law 1999, the Terrorism (Jersey) Law 2002 or the Drug Trafficking Offences (Jersey) Law 1988 provisions apply in respect of the proceeds of criminal conduct, in any given case. At the early stages of an investigation, there may not be sufficient evidence to establish whether the proceeds of criminal conduct in question relate to a drug trafficking offence or another form of criminal conduct. Currently, decisions have to be made as to which of the three laws powers are to be exercised under. In addition to the practical issues highlighted above, the money laundering offences vary in scope and material elements across the three laws. The prosecuting authorities are also of the view that the current money laundering offences are too numerous and specific. The opportunity has thus been taken to revise the existing money laundering offences in order to address the concerns raised above and produce a single statute which addresses the requirements of the jurisdiction more effectively.

 

IMF Recommendations

  1. The full text of the IMF Assessment is available at:

http://www.jerseyfsc.org/pdf/Jersey_IMF_Assessment_DAR_AML_CFT.pdf.

A summary table setting out the recommendations made by the IMF can be found in the IMF Action Plan, available at:

http://www.jerseyfsc.org/the_commission/international_co-operation/evaluations/jerseys_action_plan.asp

  1. Listed below are the amendments proposed in order to address particular technical issues identified by the IMF, with references to the relevant parts of the Assessment Report:
  2. Align what is currently Article 34 of the Proceeds of Crime (Jersey) Law 1999 with the purpose requirements in Article 6(1)(a) of the Palermo Convention [see para. 97 and recommendations at 2.1.2 of the IMF Report]. New Article 31 of the Proceeds of Crime (Jersey) Law 1999 will eliminate the purpose requirements for the acts of converting and transferring proceeds of criminal conduct (i.e. it will be an offence to convert and transfer proceeds no matter what your purpose) and will also eliminate the purpose requirement for the acts of concealing or disguising proceeds of criminal conduct;
  3. Limit the defence of payment of adequate consideration in what is currently Article 33(2) of the Proceeds of Crime (Jersey) Law 1999, as it is beyond the standard set out in Article 6(1)(b) of the Palermo Convention [para. 99 & recommendations at 2.1.2 of the IMF Report]. New Article 30 of the Proceeds of Crime (Jersey) Law 1999 will retain the defence of adequate consideration where property is acquired, used, possessed or controlled but will provide that this defence shall not be available where property or services provided to a person assist that person in criminal conduct, where a person providing property or services to another person knows, suspects or has reasonable grounds to suspect that the property or services will or may assist the other person in criminal conduct or where the value of the consideration is significantly less than the value of the property acquired or, as the case may be, the value of its use or possession. This is intended to ensure that where criminal conduct has actually been assisted or there is a risk that it may be so assisted, the defence of adequate consideration will not apply;
  4. Broaden the remit of Article 33 of the Proceeds of Crime (Jersey) Law 1999 to cover self-laundering - the acquisition, possession or use of the proceeds of criminal conduct by the launderer, as opposed to another person on behalf of the launderer [recommendations at 2.1.2 of the IMF Report]. New Article 29 of the of the Proceeds of Crime (Jersey) Law 1999 defines criminal property so that it is clear that where a person is guilty of acquiring, possessing or using property under new Article 30 of the Proceeds of Crime (Jersey) Law 1999 it does not matter whether the person who benefitted from the criminal conduct was the alleged offender or another person;
  5. Provide that property, or its equivalent value, is to be restrained from the beginning of an investigation. The present requirements for a saisie judiciaire (see Article 15 of the Proceeds of Crime (Jersey) Law 1999, for example) are only triggered if criminal proceedings have been, or are to be, issued [para. 208 and recommendations at 2.3.2 of the IMF Report]. Articles 15 and 16 of the Proceeds of Crime (Jersey) Law 1999 are extended to address this requirement;
  6. Amend all reporting requirements to limit protection for those reporting suspicious transactions to those acting in good faith [para. 544 and recommendations at 3.7.2 of the IMF Report]. All the reporting requirements in the Proceeds of Crime (Jersey) Law 1999 and the Terrorism (Jersey) Law 2002 are so amended by the draft law;
  7. Broaden the tipping-off provisions by removing the limitation referring to situations that might prejudice an investigation [para. 546 and recommendations at 3.7.2 of the IMF Report]. The tipping-off provisions at Article 35 of the Proceeds of Crime (Jersey) Law 1999 and Article 35 of the Terrorism (Jersey) Law 2002 are so amended and are brought into line with each other. The draft law provides that regulations may be made in due course setting out circumstances in which it shall not be an offence to disclose information (such as, for example, sharing information intra-group or with the JFSC). It is proposed that industry consultation will occur on the proposal for draft regulations in due course;
  8. Extend the restraint and confiscation provisions in the Terrorism (Jersey) Law 2002  so that they apply to property of an equivalent value [para. 177, 183 & recommendations at 2.3.2 of the IMF Report]. Proceeds of terrorism now fall within the scope of the Proceeds of Crime (Jersey) Law 1999 which applies to property of equivalent value (property is criminal property if it constitutes proceeds of criminal conduct or represents such proceeds, whether in whole or in part and whether directly or indirectly);

 

  1. Ensure the terrorist financing offences cover support to terrorists in the form of paying for education, living or similar expenses [para. 154 & 156 of the IMF Report]. New Article 15(3)(c) of the Terrorism (Jersey) Law 2002 specifically addresses this; and
  2. Amend the definition of “terrorism” in Article 2 of the Terrorism (Jersey) Law 2002 to make reference to the offences defined in the 9 Conventions and Protocols listed in the Annex to the International Convention for the Suppression of the Financing of Terrorism. Although all the offences defined therein have been criminalised in Jersey, the definition of “terrorism” in Article 2 further requires that the “use or threat” of action listed in subparagraph 2 be for the purposes set out in subparagraphs (1)(b) and (c). The commission of an offence listed in the Annex should, by itself, amount to an act of terrorism without the additional purposive requirements [para. 149 of the IMF Report]. The definition of terrorism in Article 2 of the Terrorism (Jersey) Law 2002 has been so amended.

 

Revised FATF Standards

  1. The revised standards require ancillary offences to include participation, conspiracies and attempts to commit money laundering offences, aspects not currently expressly mentioned in Article 42 of the Proceeds of Crime (Jersey) Law 1999. However, the requirements in the Criminal Offences (Jersey) Law 2009 are sufficiently broad to cover all aspects of the revised standards. Article 42 of the Proceeds of Crime (Jersey) Law 1999 is therefore repealed and reliance is placed on the provisions of the Criminal Offences (Jersey) Law 2009.

 

Palermo and Strasbourg Conventions

  1. No amendments other than those set out above are required to be made to the Proceeds of Crime (Jersey) Law 1999, the Terrorism (Jersey) Law 2002 or the Misuse of Drugs (Jersey) Law 1978 in connection with compliance with the Palermo and Strasbourg Conventions. Separately, an amendment to the Shipping (Jersey) Law 2002 is also being progressed in order to comply with the Conventions. It is anticipated this amendment will be lodged for debate by the States Assembly in the near future.

Financial and Manpower implications

 

  1. There are no financial or manpower implications for the States arising from these amendments.

 

 

Human Rights implications

 

  1. The Chief Minister has been provided with separate advice from the Law Officers’ Department and has been advised that it is appropriate for a statement to be made in accordance with the provisions of Article 16 of the Human Rights (Jersey) Law 2000 confirming that the Chief is of the view that the provisions of the Proceeds of Crime and Terrorism (Miscellaneous Provisions) (Jersey) Law 201- are compatible with the Convention Rights.

 

Officer, Finance Industry Development, Financial Services

3 December 2013

 

 

 

 

 

 

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