Guidance to Investigators and Prosecutors on Money Laundering (FOI)

​​Original 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.

Original 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. 

​Internal Review Request

I am writing to formally complain about the response (the “Response”) of the Scheduled Public Authority (the “SPA”) to the Request (referenced above) and to request that an internal review of the Response be carried out, without delay.  

As you are aware, in accordance with the Office of the Information Commissioner - Code of Practice on the discharge of Scheduled Public Authorities’ functions under the Freedom of Information (Jersey) Law 2011, issued in accordance with Article 44 of the Law (the "Code of Practice"), amongst other things, the review: 

• must be a fair, thorough and independent review of the process adopted and decisions taken by the SPA pursuant to the Freedom of Information (Jersey) Law 2011 (the "Law"); 
• should enable a fresh decision to be taken on reconsideration of all the factors relevant to the request; 
•  must be undertaken by someone senior to the original decision maker where this is reasonably practicable; and 
• should take into account any further matters raised during the investigation of the complaint. 

I should be grateful if these submissions could please be presented to the members of the Internal Review Panel appointed, in order that the matters set out herein may be given full and careful consideration as part of the Internal Review Panel's independent review of the Response. 

I should also be grateful if, once the Internal Review Panel has been constituted, I could be informed of the constitution of the Internal Review Panel, in the interests of transparency. 

Introduction

The Request relates to the Guidance to Investigators and Prosecutors on Money Laundering and Financial Crime (the "Guidance). The Government of Jersey has a copy of the Guidance, since it is referred to in the Update on the National Risk Assessment of Money Laundering, published in July 2023. 

The Request did not seek a copy of the whole Guidance. Rather, the Request sought a copy of the table of contents of the Guidance or alternatively, if there is no table of contents page, each chapter title, section title or similar in the Guidance. 

The SPA accepts that it has the information sought by the Request. 

The SPA, however, has refused to provide a copy of the requested information on the basis that this information is exempt under: primarily (i) Article 31 (Advice by the Bailiff, Deputy Bailiff or a Law Officer) of the Law; and additionally (ii) Article 32 (Legal professional privilege) and (iii) Article 42 (Law enforcement). 

The central issue for the Internal Review Panel to determine is whether the SPA was right to withhold the requested information on the basis of the specified exemptions. For the reasons expanded on below, it is submitted that the requested information should not have been withheld. 

Article 31 

The Response states that the information is exempt “primarily” as a result of Article 31 of the Law. i.e. Article 31 is being cited as the main reason for withholding the requested information. 

It is notable that, in contrast, when responding to a previous freedom of information request seeking the whole of the Guidance, the SPA did not initially rely on Article 31 at all. It was only after conducting an internal review of that request that the SPA stated that Article 31 “potentially applied” (emphasis added). 

It is submitted that the SPA’s initial conclusion, when responding to the previous freedom of information requested – i.e. that Article 31 was not applicable – was the correct one.

The SPA’s attempt to now apply Article 31 to withhold the requested information is incorrect for the following reasons:

1. The Guidance does not constitute advice provided by the Bailiff, Deputy Bailiff, the Attorney General or the Solicitor General, which falls within the scope of Article 31 because:

a. it was not provided by the Bailiff, Deputy Bailiff, the Attorney General or the Solicitor General; and/or

b. the Guidance constitutes guidance, not “advice”; and/or

c. the Guidance was provided to investigators and prosecutors, not Ministers.

2. To the extent the Law Officers’ Convention did apply (which is not accepted), it has been waived.

3. The public interest favours disclosure of the requested information.

Each of these reasons is addressed in more detailed below. 

1. Guidance does not constitute advice provided by the Bailiff, Deputy Bailiff, the Attorney General or the Solicitor General

a. Guidance was not provided by the Bailiff, Deputy Bailiff, the Attorney General or the Solicitor General

Article 31 is strictly limited to advice that “is or relates to the provision of advice by the Bailiff, Deputy Bailiff or the Attorney General or the Solicitor General”; it does not apply to advice from other government lawyers. 

The submission that Article 31 relates only to advice by the Bailiff, Deputy Bailiff or the Attorney General or the Solicitor General, and not other government lawyers, is consistent with the UK ICO’s Guidance in relation to Section 35(1)(c) of the UK’s Freedom of Information Act 2000 (the “UK FOI Act"), which is the equivalent provision to Article 31 of the FOI Law.

Section 35(1)(c) of the UK FOI Act encompasses the provision of advice by any of the “Law Officers”, which are defined as “the Attorney General, the Solicitor General, the Advocate General for Scotland, the Lord Advocate, the Solicitor General for Scotland, the Counsel General to the Welsh Government, and the Attorney General for Northern Ireland”. The UK ICO’s Guidance notes that, “This does not include all government lawyers. For example, advice from the Government Legal Department, the Government Legal Profession, the Director of Public Prosecutions (DPP), the Crown Prosecution Service (CPS), or the Office of the Parliamentary Counsel is not covered” (emphasis added).​

Section 35 - Government policy | ICO

As the UK ICO’s Guidance notes, advice from government lawyers other than the specified “Law Officers” may be exempt from disclosure on the basis of other exemptions, but cannot be withheld on the basis of Section 35(1)(c).

The position in Jersey under the FOI Law is similar; if the information is, or relates to, advice from lawyers other than the Attorney General or Solicitor General (or Bailiff or Deputy Bailiff), then it may potentially be exempt under Article 32 (Legal professional privilege) of the FOI Law; however, it cannot be withheld on the basis of Article 31, which is limited to advice provided by the officer holders specified in Article 31.

The SPA does not appear to be suggesting that the Guidance was advice provided by the Bailiff, Deputy Bailiff or the Solicitor General.

The Guidance has previously been referred to as being issued by the Attorney General. 

The Update on the National Risk Assessment of Money Laundering, published in July 2023, states: “In 2023, the AG [i.e. the Attorney General] issued Guidance to Investigators and Prosecutors on Money Laundering and Financial Crime.” 

However, there is reason to question whether the Guidance was in fact advice provided by the Attorney General.

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, refers to the Guidance in a section entitled “Law Officers’ Department policies and manuals” (emphasis added).

In that section, it is stated as follows: “LOD Money Laundering Investigation and Prosecution Manual completed and issued 18 November 2022; revised and reissued 24 February 2023 and 18 April 2023.” 

It is to be assumed that “LOD” stands for “Law Officers’ Department”.

Accordingly, based on the Action Plan Progress Update, it seems that the Guidance may in fact have been prepared by lawyers in the Law Officers’ Department other than the Attorney General (or the Solicitor General). 

If the Guidance was prepared by government lawyers other than the Attorney General or the Solicitor General, the SPA was wrong to conclude that information could be exempted on the basis of Article 31, as the Guidance does not constitute advice provided by the Attorney General or the Solicitor General (or the Bailiff or Deputy Bailiff). 

Furthermore, it is stated in the Response that the Guidance contains, at least in part, “third-party guidance on money laundering and financial crime”.  Such “third-party guidance” cannot be legitimately withheld on the basis of Article 31, as it does not constitute advice provided by the Attorney General or the Solicitor General (or the Bailiff or Deputy Bailiff). 

b. Guidance constitutes “guidance”, not “advice” 

Article 31 can only be applied (subject to a public interest test) to withhold information that “is or relates to the provision of advice by the Bailiff, Deputy Bailiff or the Attorney General or the Solicitor General” (emphasis added). 

There is a fundamental difference between “advice” (which Article 31 covers) and “guidance” (which is not covered by Article 31). The SPA erred in considering the terms interchangeable. 

Whereas the Attorney General, as a general rule, does not publish his advice, the Attorney General’s guidance is frequently published. The Government of Jersey’s website lists (and provides full copies of) almost 40 pieces of guidance issued by the Attorney General. ​

Attorney General's guidelines and directives (gov.je)

An article authored by Robert MacRae, The Role of Attorney General as Titular Head of Jersey’s Honorary Police, published in The Jersey and Guernsey Law Review, also lists numerous pieces of guidance issued by the Attorney General in the past. 

​The Role Of Attorney General As Titular Head Of Jersey’s Honorary Police (jerseylaw.je)​

The request information forms part of similar “guidance” (the information is expressly labelled “Guidance to Investigators and Prosecutors”), not “advice”.

As noted above, the Guidance is referenced in 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 in a section entitled “Law Officers’ Department policies and manuals” (emphasis added); i.e. it was considered to be a policy and/or manual (not “advice”). 

As the Response notes, Article 31 is intended to protect the Law Officers’ Convention. Erskine May explains that, in the UK, that convention is as follows: 

“By long-standing convention, observed by successive Governments, the fact of, and substance of advice from, the law officers of the Crown is not disclosed outside government. This convention is referred to in paragraph 2.13 of the Ministerial Code. The purpose of this convention is to enable the Government to obtain frank and full legal advice in confidence. Therefore, the opinions of the law officers of the Crown, being confidential, are not usually laid before Parliament, cited in debate or provided in evidence before a select committee, and their production has frequently been refused; but if a Minister deems it expedient that such opinions should be made known for the information of the House, the Speaker has ruled that the rules of the House are in no way involved.” 

​​​Law officers' opinions - Erskine May - UK Parliament

If, as the SPA has been contended, Article 31 applies to “guidance”, then the inevitable conclusion is that there over 40 examples in Jersey in recent years where the Attorney General has elected to waive the Law Officers’ Convention, by publishing his guidance. 

This would be extraordinary. In the English case of HM Treasury v The Information Commissioner & Anor [2009] EWHC 1811 (Admin) (21 July 2009) there was uncontested evidence that there were only five occasions in the 40 years before 2008 when the UK government of the day decided that the public interest favoured disclosure of such advice given by the UK’s Law Officers – see paragraph 9,

HM Treasury v The Information Commissioner & Anor [2009] EWHC 1811 (Admin) (21 July 2009) (bailii.org)

The better view is that the Attorney General in Jersey has been content to publish such guidance, because the Law Officers’ Convention does not apply to such guidance (as it is not “advice”) and, therefore, publication does not involve a waiver of the Law Officers’ Convention. 

Since the requested information similarly forms part of “guidance”, not “advice”, Article 31 cannot be relied on to withhold the requested information. 

c. Guidance was provided to investigators and prosecutors, not Ministers 

As is clear from the title of the Guidance, the Guidance is not guidance that was prepared for Ministers (or other Members of the States). Rather, it is guidance prepared for “Investigators and Prosecutors”. Article 31 does not apply in such circumstances, as the Attorney General’s role is not to provide advice to “investigators and prosecutors” and therefore the Law Officers’ Convention cannot be considered to apply in such circumstances. 

2. To the extent the Law Officers’ Convention did apply (which is not accepted), it has been waived.

If, contrary to the submissions above, the Law Officers’ Convention did apply, it has been waived and therefore no longer applies. The SPA has previously conceded that the Guidance has been shared outside government, including to MoneyVAL, with the consent of the Attorney General. The Attorney General has therefore waived the Law Officers’ Convention in respect of the Guidance and Article 31 does not apply. 

Furthermore, the Government of Jersey has previously publicly referred to both the existence of the Guidance and its content, with the consent of the Attorney General. 

The Update on the National Risk Assessment of Money Laundering, published in July 2023, states: “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.” The same Update goes on to explain: “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).” 

In its response to a previous freedom of Information request the SPA confirmed the existence of the Guidance and provided information about its content, including the fact that the Guidance “exceeded 150 pages in length” and “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”.

​Investigators and Prosecutors on Money Laundering guidance (FOI)

​Such references to the content of the Guidance also amount to a waiver of the Law Officers’ Convention in respect of the Guidance, with the result that Article 31 cannot be used to withhold the requested information. 

3. The public interest favours disclosure of the requested information. 

If, contrary to the submissions above, the requested information is covered by Article 31, that does not mean the requested information should automatically be withheld. Article 31 is a qualified exemption and therefore the public interest test must be considered.

Whilst it is recognised that there is generally a strong public interest in protecting the Attorney General’s advice, this may still be overridden if there are factors in favour of disclosure. If this was not the case, Article 31 would have been an absolute exemption, not a qualified one.

In CAS-01542, at paragraphs 20-22, the Commissioner noted that the UK ICO’s Guidance in relation to Section 35 of the UK FOI Act was constructive in helping with his consideration of the public interest test. The relevant part of the UK ICO’s Guidance referred to states that “The key public interest argument for this exemption will relate to protecting the Law Officers’ convention of confidentiality”. The Owen case cited refers to evidence that, in the UK, the long-standing Law Officers’ Convention was that "neither the fact that the Law Officers have (or have not) advised nor the content of their advice may be disclosed outside government without their consent”.

In the present case, the existence of the Guidance has already been disclosed outside government. Indeed, as noted above, the existence of the Guidance has been pro-actively published by the Government of Jersey, which referred to the Guidance in a number of public-facing documents. The existence of the Guidance was also acknowledged in the response to the Request. 

The fact that “disclosure of whether advice was or will be sought” has already occurred has two implications for the public interest test. First, it means that the standard concerns that providing the requested information might “inhibit the manner in which Law Officers [sic] advice is taken” are not applicable in the present case, to the extent those concerns arise from disclosure of whether advice was sought, since such disclosure had already happened. Second, given that it has already been determined by the Attorney General to disclose the existence of the Guidance, it can be inferred that it was also determined by the Attorney General that such disclosure was in the public interest, notwithstanding the existence of the Law Officers’ Convention; if it had not been determined that such disclosure was in the public interest, such disclosure would not have been made. 

Furthermore, as noted above, information about the content of the Guidance has already been published. Such disclosure is inconsistent with an argument that disclosing the requested information would undermine the Law Officers’ Convention, as it is clear that it is already been determined that it was in the public interest to disclose information about the content of the Guidance. 

It is submitted that in an unusual instance such as the present case where the existence of the “advice” has already been disclosed, as well as information relating to its content, it cannot reasonably be said that withholding the requested information is in the public interest in order to protect the Law Officers’ Convention. 

Furthermore, if the Law Officer’s Convention does apply to such guidance, the fact that the Attorney General has elected to waive the Law Officers’ Convention on so many occasions in respect of other guidance (as noted above) suggests that there are in fact many similar instances where it has been determined that the public interest favours disclosure of guidance from the Attorney General. 

In respect of the requested information, there is undoubtedly a strong and specific public interest in the information being disclosed, in addition to the general public interest in upholding the important principle of transparency and accountability. 

It is consistent with the rule of law, and therefore strongly in the public interest, for any investigation or prosecution of crime in Jersey to be conducted in a manner consistent with applicable law. Alleged crime in Jersey cannot be legitimately investigated or prosecuted in such a way that is contrary to the law of Jersey. Accordingly, it is in the public interest for any member of the public, whether they are potential suspects or defendants in criminal investigations or prosecutions or otherwise, to have access to information about a document which provides guidance about the applicable law in Jersey. The criminal justice system in Jersey does not work in such a way that information deemed helpful to defendants can be withheld; on the contrary, it is recognised that it is fair and proportionate for defendants to e[sic] provided with material which might reasonably be considered capable of undermining the prosecution case, or of assisting the case for a defendant. 

If there is a concern that there are aspects of the law in Jersey that might assist alleged criminals in their defence, then it is not in the public interest for this to be hidden from public scrutiny; on the contrary, it should be disclosed to the public in order that consideration may be given to amending the law, in order that potential criminals cannot exploit any such weaknesses. 

As has been noted previously, the Government of Jersey has described the Guidance as “a foundational guidance document”. Providing the table of contents of this Guidance will provide the public with a helpful overview of this “foundational” document, without disclosing details that may be considered more sensitive. Providing members of the public with such an overview will enable them to scrutinise (at a high leve)l[sic] the Guidance and, should particular sections appear to be of specific interest to the public, to consider making further targeted requests for such sections. To the extent that any defects are identified as a result if such public scrutiny, this will be beneficial for Jersey (and therefore in the public interest) as it will enable improvements to be made.

In contrast, withholding the information denies the public the opportunity to scrutinise this Guidance by, amongst other things, inhibiting the public from making targeted information requests. Such lack of scrutiny is not in the public interest. It also serves no purpose since, as noted above, the information would in any event be made available to defendants in a criminal case through the disclosure process.

Article 32 

The Response also states that the requested information is exempt on the basis of Article 32, although it is noticed that this not the primary basis for withholding the information. 

It is submitted that Article 32 was incorrectly applied as the requested information is not information in respect of which a claim to legal professional privilege could be maintained in legal proceedings. 

It cannot be reasonably maintained that litigation privilege would apply to the Guidance. Accordingly, it is assumed that the relevant legal professional privilege that the SPA considers applies is legal advice privilege. 

Legal advice privilege covers confidential communications between lawyers (acting in their professional capacity) and clients for the dominant purpose of giving or obtaining legal advice. The Response does not identify who is the relevant client, for the purposes of the legal professional privilege that it is said could be maintained. Unless there is such a client, legal professional privilege could not be maintained and therefore Article 32 does not apply. The Response’s failure to identify any “client” suggests that the SPA did not properly consider the circumstances in which legal advice privilege applies; if the SPA had, it would have identified the client. 

Alternatively, to the extent that legal professional privilege did attach to the requested information, it is submitted that privilege has been waived as a result of the information being disclosed to third parties (as noted above). 

Further, and in the alternative, the privilege has also been waived as a result of intentional public disclosure of the content of the Guidance. By confirming, amongst other things, that the Guidance “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)” and that it “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”, any privilege that attached to the Guidance has been waived. 

In circumstances where legal professional privilege has been waived, it cannot be maintained in legal proceedings and, accordingly, Article 32 cannot be relied on to withhold the requested information. 

If, contrary to the submissions above, a claim to legal professional privilege could be maintained, the public interest nevertheless favours disclosure of the requested information. It is not in the public interest to permit an SPA to cherry-pick which parts of privileged information it discloses. Given that it has already been determined to disclose certain information about the content of the Guidance, and the SPA has chosen to publicly rely on the Guidance as evidence of its attempts to tackle financial crime, it is the public interest for the public to have an opportunity to be provided with the table of the contents of the Guidance to, amongst other things (a) verify that the summary already publicly provided is accurate, and (b) scrutinise, at least at a high level, the contents of the Guidance, for example by comparing the list of contents with similar guidance published in other jurisdictions. 

Article 42

In the Response, it is also indicated that the requested information has been withheld on the basis of Articles 42(a) and 42(b) of the Law. Pursuant to those Articles, information is qualified exempt its disclosure would, or would be likely to, prejudice: the prevention, detection or investigation of crime, whether in Jersey or elsewhere (Article 42(a)); or the apprehension or prosecution of offenders, whether in respect of offences committed in Jersey or elsewhere (Article 42(b)). 

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

The Commissioner has previously issued a detailed guidance on the prejudice test.

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

In the Commissioner’s guidance, it is noted 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 Commissioner’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”.

It is submitted that is not credible to assert that disclosure of the table of contents of the Guidance would be likely to prejudice either: (a) the prevention, detection or investigation of crime, whether in Jersey or elsewhere; or (b) the apprehension or prosecution of offenders, whether in respect of offences committed in Jersey or elsewhere. 

Indeed, by setting out in more detail the essence of what the SPA is asserting (which, notably, the SPA fails to do), the far-fetched nature of the assertion is amply demonstrated. It is worth repeating that the Request sought merely the table of contents of the Guidance, not the Guidance as a whole. Accordingly, the Request was not seeking the detailed information contained in the Guidance; rather it was seeking the table of contents page which would provide a broad overview of the contents of the Manual, without revealing the detailed information contained therein. 

Nevertheless, the SPA appears to be suggesting that even if merely the table of contents of the Guidance is disclosed, there is still a real possibility that: (a) criminals will read the table of contents; (b) by reading the table of contents, criminals will be able to acquire knowledge that will enable them to successfully avoid investigations and/or prosecutions in Jersey; and (c) criminals will use the knowledge obtained by reading the table of contents successfully avoid investigations in Jersey. 

As was previously noted in a previous request, in England and Wales, the Crown Prosecution Service (CPS) has published its prosecution guidance online.

Prosecution guidance | The Crown Prosecution Service (cps.gov.uk)

This published guidance includes the CPS’s guidance on money laundering offences. ​

Money Laundering Offences | The Crown Prosecution Service (cps.gov.uk)​

The UK’s College of Policing also publishes online its guidance for investigators on how to conduct a money laundering

investigation. 

Money laundering (criminal property offences) | College of Policing ​

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

Codes and protocol​s - Serious Fraud Office (sfo.gov.uk)

The fact such UK guidance is freely available gives rise to the question (which is, so far, unanswered) as why the SPA considers the situation in Jersey so different to the UK, such that publication of the mere table of contents of Guidance would be likely to cause the harm claimed.

The reality is that, if prospective criminals are going to the searching out the table of contents of the Guidance, before deciding whether to conduct money laundering in Jersey, then their level of sophistication is likely to be such that is implausible to believe that by reading merely the table of contents of the Guidance this would make a material difference to their ability to avoid successful investigation and/or prosecution in Jersey.

Furthermore, if the Guidance does contain information that would be helpful to someone accused of money laundering, then the Guidance would nevertheless be required to be disclosed to defendants as part of the disclosure process. Therefore, the information would be available anyway to such defendants and the claim that releasing such information to the general public would help such persons avoid a successful prosecution is unsustainable. 

Indeed, if the requested information is published, rather than prejudicing the prevention, detection or investigation of crime, this is in fact more likely to assist with the prevention of crime in Jersey. Publicly demonstrating that Jersey has robust guidance for investigating money laundering and financial crime is likely to act as a deterrent effect for sophisticated criminals, thereby in fact preventing crime occurring in Jersey, rather than prejudicing its prevention.

In determining whether Article 42 has been properly applied to the information withheld, the correct approach for the Internal Review Panel to take is to consider whether the constituent pieces of information contained within the table of contents of the Guidance, rather than to consider the table of contents as one single piece of information. As the Tribunal explained in the case of Channel 4 v the Information Commissioner EA/2010/0134, (22 February 2011), “…there is a clear distinction between a document and the information in it … a document may well contain many pieces of information some of which must be disclosed under the Act and others which need not be disclosed”.

Whilst that case was concerned with a different exemption, under the UK’s Freedom of Information Act, it submitted that a similar approach should be taken in Jersey. Accordingly, to the extent that it is determined that the title of a specific chapter or section is so sensitive that it would be likely to prejudice either (a) the prevention, detection or investigation of crime, whether in Jersey or elsewhere or (b) the apprehension or prosecution of offenders, whether in respect of offences committed in Jersey or elsewhere, and therefore it can be properly withheld on the basis of Article 42, then that information could be redacted, with the rest of the table of contents disclosed. 

It is noted that in a response to a previous request for the whole Guidance, the SPA “noted that there were elements of the Guidance which were uncontroversial, such as descriptions of what a company, trust or bank is.” Accordingly, it seems likely that (as a minimum) disclosure of certain parts of the table of contents would not be sufficiently prejudicial to engage Article 42.

If (contrary to the submissions above) it is determined that Article 42 potentially applies, 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 SPA must bear in mind that the principle behind the Law is to information unless there is good reason not to. For all the reasons set out above, it is submitted that the public interest favours disclosure.

It is further noted that numerous other jurisdictions (including the UK) have determined that the public interest favours publication of similar guidance. Whilst this is not necessarily determinative of what is in the public interest in Jersey, this nevertheless provides additional support for the submissions that the public interest favours disclosure.

Conclusion

For the reasons set out above, it is submitted that the requested information should not have been withheld on the basis of Article 31, 32 or 44. Alternatively, only part (and not the whole) of the information should have been withheld. Accordingly, the Internal Review Panel is requested to disclose the requested information in whole or, alternatively (if the Internal Review Panel determines that the exemptions properly apply to some of the requested information) in part.

Internal Review Response

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

After extensive discussion, the Panel concluded:

• Articles 31, 32 and 42 should apply to table of contents page (noting that privilege was not waived).
• given the nature of the document and supporting evidence gathered to compile case information to support prosecution, there remained concerns around National Security and Money Laundering activities in revealing the subject headings of the document.

The Panel considered the public interest test in the original response together with prejudice test in respect of Article 42 and the Applicant’s comments requesting the information and the internal review. and 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 on this occasion for the reasons previously referenced.  

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. 

However, the level of insight into matters which those investigating might have regard to and/or the extent to which they operate with others in relation to Money Laundering and combatting of financial crime when considered on mosaic effect basis (i.e.  when account is taken of any harm likely to arise if  someone pieced together the requested information with other information whether 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 granted) has the potential (would be likely) to be prejudicial to law enforcement and as such 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 prosecutorial policy 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 the same 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.