Investigators and Prosecutors on Money Laundering guidance (FOI)

​Original Request

Please provide a copy of the 'Guidance to Investigators and Prosecutors on Money Laundering and Financial Crime' referenced in the Update on National Risk Assessment of Money Laundering: 

National Risk Assessment: Money Laundering (2023) (gov.je)​

Original Response

The information requested is being withheld as it is considered exempt under Article 42(a) (b) and (g) of the Freedom of Information (Jersey) Law 2011. 

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; 

(c) the administration of justice, whether in Jersey or elsewhere; 

(d) the assessment or collection of a tax or duty or of an imposition of a similar nature; 

(e) the operation of immigration controls, whether in Jersey or elsewhere; 

(f) the maintenance of security and good order in prisons or in other institutions where persons are lawfully detained; 

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

(h) the exercise, by the Jersey Financial Services Commission, of any function imposed on it by any enactment. 

Public Interest Test 

Article 42 is a qualified exemption, which means that consideration must be given to both the reasons for releasing the information, balanced against the reasons for withholding it.  

Factors that support releasing the information  

• disclosure of the information would support transparency 
• disclosure would promote accountability to the general public 
• disclosure would provide confirmation that necessary actions are taking place.  

On balance, it is considered that the withheld information is exempt from disclosure under Article 42(a), (b) and (g) of the Freedom of Information (Jersey) Law 2011, which states that information is exempt from publication if its disclosure would, or would be likely to, prejudice the prevention, detection or investigation of crime, whether in Jersey or elsewhere; the apprehension or prosecution of offenders, whether in respect of offences committed in Jersey or elsewhere; and the proper supervision or regulation of financial services within the island. 

An assessment has been made as to whether, in all the circumstances, the public interest in supplying the information is outweighed by the public interest in not doing so. It is recognised that there is a public interest in providing information about the work of the Financial Services directorate in a transparent manner, however, this must be balanced against the need to keep certain correspondence and information confidential to avoid potential prejudice the release could cause. 

It has been concluded that the public interest in disclosing the withheld information is outweighed by the potential prejudice that such disclosure would or is likely to do to the work of the directorate in this instance. The Jersey Office of the Information Commissioner has published guidance on its approach to the public interest provision.1  The approach is to weigh: 

• The public interest in transparent administration;  
• The public interest in confidentiality when it arises. 

 ¹Found at https//jerseyoic.org/resource-room/the-public-interest-test/

Internal Review Request

I am writing to request an internal review of FOI Response 554747628 (the Response).

The FOI Request was for a copy of the `Guidance to Investigators and Prosecutors on Money Laundering and Financial Crime’ (the Guidance) referenced in the Update on National Risk Assessment of Money Laundering 2023 (the 2023 Update).

The information requested was withheld on the basis that it is considered exempt under Article 42(a) (b) and (g) of the Freedom of Information (Jersey) Law 2011 (the 2011 Law).

A review is requested on the basis that the information was incorrectly withheld.

Article 42 is a prejudice-based exemption. This means that the Scheduled Public Authority (SPA) must demonstrate that disclosing the information could be harmful.

It is also subject to a public interest test.

Each of these requirements is considered further below.

Prejudice Test

Article 42 is a prejudice-based exemption. This means that a SPA can only rely on it where disclosing the information could cause harm. To demonstrate the harm, the SPA must satisfy a prejudice test.

The Jersey Office of the Information Commissioner (JOIC) has issued detailed a detailed guidance on the prejudice test. See: 

joic-19a-the-prejudice-test_2.pdf (jerseyoic.org)

In that guidance, is noted that the JOIC considers that consideration of the prejudice test should involve the following three steps:

(a) Identify the “applicable interests” within the relevant exemption.

(b) Identify the “nature of the prejudice”. This means: (i) show that the prejudice claimed is “real, actual or of substance”; (ii) show that there is a “casual link” between the disclosure and the prejudice claimed.

(c) Decide on the “likelihood of the occurrence of prejudice”.

The Response simply refers to:

“the potential prejudice that such disclosure would or is likely to do to the work of the [Financial Services] directorate in this instance.”

The Response does not:

(a) identify the applicable interests;

(b) identify the nature of the prejudice; or

(c) decide on the likelihood of the occurrence of prejudice.

As JOIC’s guidance notes, in respect of step 2:

“there must be more than a mere assertion or belief that disclosure would lead to prejudice. There must be a logical connection between the disclosure and the prejudice in order to engage the exemption”.

The JOIC’s guidance further states:

“If a SPA is withholding information under a prejudice-based exemption, it should always make a choice between would or would be likely to and state this in its refusal notice.”

The Response fails to state, however, whether it means would or would be likely to. This gives rise to concerns that the SPA has not properly understood and/or applied the prejudice test.

It is noted that in England and Wales, the Crown Prosecution Service (CPS) publishes its prosecution guidance online:

prosecution guidance (cps.gov.uk) 

This includes the CPS’s guidance on money laundering offences: 

money laundering offences (cps.gov.uk)

The UK’s College of Policing also publishes its advice for investigators on how to conduct a money laundering investigation:

money laundering (criminal property offences) (college.police.uk) 

The UK’s Serious Fraud Office also publishes numerous pieces of guidance to prosecutors. See:

codes and protocols (sfo.gov.uk) 

Given that UK guidance is freely, it is unclear why the situation is different such that the SPA believes that publication of the Guidance would (or would be likely to) cause harm.

Public Interest Test

Even if the SPA establishes that the exemption is engaged because the test of prejudice is met, the next stage is to consider whether the public interest in maintaining the exemption, and hence in withholding the information, outweighs the public interest in disclosure.

The JOIC has also published guidance on the public interest test. See: 

the public interest test.pdf (jerseyoic.org)

As the JOIC notes, the SPA must bear in mind that the principle behind the 2011 Law is to release information unless there is good reason not to.

There is a strong public interest in publication of the Guidance. As well as the general public interest in transparency, which is always an argument for disclosure, there is also a legitimate public interest in the subject the information relates to.

As the 2023 Update states, “Tackling ML is one of the highest priorities for Jersey and is clearly and consistently stated in its national strategies.” The strong public interest is apparent from the substantial resources that the Government of Jesey has devoted to publicising its work in this area.  See, for example, the Government of Jerseys’ numerous webpages related to this topic – such as

National Risk Assessment: Money Laundering (2023) (gov.je) - and the 2023 Update itself.

The 2023 Update states (on page 89):

“In 2023, the AG issued Guidance to Investigators and Prosecutors on Money Laundering and Financial Crime. This is a foundational guidance document for all investigators and prosecutors involved in financial crime (including criminal asset recovery) and deals specifically with “Asset Restraint, Forfeiture, and Confiscation”, providing detailed protocols as well as analysis of the relevant law and Jersey cases (including relevant UK decisions).”

There can be no doubt that it is the public interest for such a “foundational” document to made available to the public. It appears from the 2023 Update that this document has been issued, at least in part, to address:

“Recommended action 12: Introduce national-level training to Law Enforcement Agencies (“LEAs), prosecutors and judiciary to enhance their understanding of the local AML regime and the ability to prosecute ML offences in full.”

Page 37 of the 2023 Update states, in relation to recommended action 12:

“manuals of Guidance in relation to ML investigations have been published to the LOD by the AG, and both SoJP and ECCU have produced their own Financial Investigation Manual.”

Given that the Government of Jersey is publicly relying on the existence of the guidance, as evidence of its efforts to address the recommendations set out in the 2023 Update, there is a clear interest in the public having the opportunity to scrutinise that guidance.

The Response seems to have given only cursory consideration to the public interest in disclosure and seems to have given no consideration to the specific public interest in the guidance (as opposed to the general public interest in transparency.) The balancing exercise to be carried out must take into account the specific public interest in this particular guidance and the related topic.

If the exemption applies, was it correct to apply it to the whole of the guidance in a blanket fashion?

The SPA does not seem to have given any consideration as to whether the guidance could be disclosed in redacted form, rather than simply withheld in full. It is doubtful that a blanket application of the Article 42 exemption is valid. It is considered likely that there would be o (or minimal) prejudice in disclosing large parts of the guidance (for example, analysis of relevant law). If there are particularly sensitive parts, which it is determined can be properly withheld in reliance on the exemption cited, then the SPA could have redacted such parts, rather than withhold the guidance in full.

To the extent that the exemption relied on is not engaged in respect of any part of the guidance, that part should properly be disclosed.

Conclusion

The SPA is requested to carefully review the Response, in light of the above and the requirements of the FOI Law, and promptly provide any information that has been wrongly withheld.

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 was reviewed and assessed to identify whether the application of the exemption to exclude the provision of a copy of the `Guidance to Investigators and Prosecutors on Money Laundering and Financial Crime’ (the “Document”) was reasonable and had been applied correctly and whether it was appropriate to withhold the Document.

The internal review panel (the “Panel”) noted that where the prejudice test and/or public interest test is applicable, it is appropriate to ensure an FOI response explains the same in sufficient detail as to enable an applicant to be aware why a particular exemption decision had been made, (albeit there is no obligation on a scheduled public authority to publish the full details of the tests). 

The Panel concluded the scope of the original response was insufficient and recommended some procedural changes be made to the response process including as regards the better documentation of the prejudice test. 

Given the above, the Panel went on to re-consider the exemptions in the Law and whether it was appropriate to withhold the Document (in full or in part). 

It was determined that this was the case and that a number of exemptions in the Freedom of Information (Jersey) Law 2011 potentially applied.

​Article 16 - A scheduled public authority may refuse to supply information if cost excessive

(1) A scheduled public authority that has been requested to supply information may refuse to supply the information if it estimates that the cost of doing so would exceed an amount determined in the manner prescribed by Regulations. [12.5 hours] 

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 34 - The economy

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

(a) the economic interests of Jersey; or

(b) the financial interests of the States of Jersey.

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 mean 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.  

Articles 42 and 34 are prejudice based qualified exemptions which means that for these 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 prejudice tests have to be considered in addition and prior to consideration of the public interest tests.  

The Panel noted the internal review request details and the other circumstances surrounding this request including:

That the Attorney General is not a scheduled public authority, but when the Attorney General considers he can do so, he publishes guidance on his website.

That the Document:

• exceeded 150 pages in length (unlike the relatively brief UK documents referred to by the applicant)
• had not been published (or intended for general publication)
• was intended to provide direction and advice as to the manner in which investigations and prosecutions were best carried out; and
  
• had only been provided to a restricted number of persons, with one copy having been provided to an individual in Government, to hold on a confidential basis for a restricted purpose (so the Document could be provided to MoneyVal), albeit that the Document had also then been referred to as part of some Money Laundering updates by those responsible for the Government’s anti-money laundering and financial crime strategy.

That in such circumstances the difference, if any between “advice” and “guidance” was limited and article 31 and 32 applied to the Document.

The Panel went on to consider the comments made by the applicant in their request for an internal review.

Prejudice Tests – Law Enforcement and the Economy 

The Panel considered the potential prejudice which may be caused by the publication of the Document and noted that: 

• 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  
• Article 34 required prejudice to the economic interests of Jersey. 

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.

That the more readily accessible one can make a detailed understanding of such matters to criminals, the more likely it is they could use such knowledge to avoid successful investigations and/or prosecutions (in turn leading to a greater chance of damage and harm occurring to Jersey’s economy).  

That as the applicant had highlighted, tackling money laundering and financial crime is “one of the highest priorities for Jersey” and there was good reason for this, the Bailiwick of Jersey National Risk Assessment of Money Laundering noting:

“the JFCU-FIU’s intelligence database has been reviewed and relevant cases extracted. These cases suggest that the greatest threat to Jersey comes from non-residents seeking to hide the proceeds of corruption and white-collar crime in Jersey”

The threat and harm which could be done to any jurisdiction by money laundering/ financial crime was universally recognised. Other bodies such as the NCA (National Crime Agency) in the United Kingdom Money laundering and illicit finance considered: 

• “The critical importance of the financial sector to the UK’s economy means that money laundering, particularly high-end money laundering…can threaten the UK’s national security and prosperity and undermine the integrity of the UK’s financial system and international reputation”
• “Virtually all high-end money laundering schemes and several cash-based ones, are facilitated by the abuse of legitimate processes and services”.

Money laundering and illicit finance (nationalcrimeagency.gov.uk)

That the financial services sector in Jersey and the extent to which Jersey’s reputation is bound to other’s perception of its financial system is, if anything, of greater importance to Jersey (and its economy) than is the case in the UK.  

Given the potential significance of any adverse consequences, it was therefore prudent to be cautious about the Document’s release. 

Overall, it was considered that releasing the Document would be likely to prejudice the investigation and prosecution of money laundering and financial crime and were that to occur, the knock-on effect of the same could be detrimental to Jersey’s economy.   

The Panel considered the public interest tests for each Article.  

Public Interest tests – Articles 31, 32, 34 and 42 of the Freedom of Information (Jersey) Law 2011  

The factors previously noted as being in favour of release of the Document were re-considered, together with the additional matters raised by the applicant. 

It was considered that whilst the manner in which Jersey was seeking to combat money laundering and financial crime was in the public interest in general terms (and a lot of such information was, as the applicant had alluded to, already available to the public in this respect) it was not necessarily in the public interest for the public to know all intricate details  of the way in which investigations and prosecutions of money laundering and financial crime occur.  

Care had to be taken as to over-sharing of information via legitimate processes as there was   a real risk that such information could then be abused.  

A part of the purpose of the MoneyVal examination was to evaluate (and subsequently report on) the effectiveness and compliance of Jersey’s anti money laundering and terrorist financing regime and there may not be huge additional value gained by way of additional public scrutiny of this Document over and above that independent, expert review.

Article 31 and Article 32

It was noted that the public interest in disclosing the Document when these articles are being applied must weigh particularly heavily in favour of disclosure, in order to outweigh the inherent right to the constitutional Law Officer privilege and legal professional privilege and it is generally only anticipated that such privilege will be waived in the most exceptional of cases to avoid undermining confidence in legal professional and Law Officer privilege respectively.

That in this case the Document had been shared with a limited part of Government on the express basis that it remained the property of the Law Officer’s Department and was not to be copied or disseminated. 

That to the extent a litigant in person determined disclosure of the Document of importance to them, a request for the same could be made via the usual court supervised process.

That having considered all such matters these articles applied, and it would not be in the public interest for the Document to be shared.    

Article 42

It was noted that (although the first response had also considered matters such as Article 31 and 32) the original decision not to publish the Document was made on the basis that it might inform money launderers how investigations might be conducted and what aspects the prosecution might be particularly interested in.

It was noted that there were elements of the Guidance which were uncontroversial, such as descriptions of what a company, trust or bank is. That whilst an argument might be made that these could, in the interests of transparency therefore be published, relatively little weight could be attached to the public interest in this information, given it was already available elsewhere.   

That similarly the provisions of the statute, case law and other institutions guidance, together with some commentary on the same, were generally also otherwise publicly available. That on balance it was not in the public interest for the amalgamation of all such sources together with the Attorney General’s views in respect of the same to be made public, and the original decision that the same may have some prejudicial effect on law enforcement investigations and prosecutions was correct. 

Consideration was also given to whether extracts of the Document could be provided as requested by the applicant.

​Ultimately it was determined that given the size of the Document (in excess of 150 pages) and the relative complexity which would accomplish any review and extraction of any uncontroversial elements of the same, that Article 16 applied and accordingly the publication of the Document is exempt.