Legal basis for establishment of ECCU (FOI)

​​​​​​​​Request

It has been widely publicised that in 2017 there was a new specialist investigative body was established in Jersey; the Economic Crime and Confiscation Unit (ECCU) to investigate and prosecute financial crime and asset recovery cases.

In a recent Memorandum of Understanding, it is stated that:

“The primary focus of ECCU is upon the investigation, prosecution, and recovery of the proceeds of money laundering, terrorist financing, fraud and sanctions evasion, especially those cases involving foreign predicate offences. ECCU has adopted the “Roskill Model” of investigation which involves lawyers and investigators working together from the start of a case.”  See link below:

​FC MOU.pdf (gov.je)

The so-called “Roskill Model” has its basis in the ‘Roskill Report’ (Fraud Trials Committee Report), which was published in the UK in 1986. As explained on the website of the UK’s Serious Fraud Office (SFO):

​“Its main recommendation was to set up a new organisation responsible for the detection, investigation and prosecution of serious fraud cases. The organisational structure it proposed, in which investigators and prosecutors work together from the start of a case, is called the Roskill model and is the structure adopted for the SFO.”  See link below:

​SFO historical background and powers - Serious Fraud Office (sfo.gov.uk)

As the SFO’s website goes on to explain:

“The Criminal Justice Act 1987 (CJA) gave effect to the recommendations in the Fraud Trials Committee report. It created the Serious Fraud Office and its primary investigative tools, often referred to as “Section 2 powers."

Section 1(1) of the UK’s Criminal Justice Act 1987 states: “A Serious Fraud Office shall be constituted for England and Wales and Northern Ireland.” That UK Act goes on to set out, amongst other things, the investigation powers of the Director of the SFO.

The Requester has not been able to locate any similar legislation in Jersey, authorising the creation of the ECCU or granting it legal responsibility for, and powers to carry out, criminal investigations. 

Please provide copies of any documents setting out the legal basis for the establishment of the ECCU and for vesting in the ECCU legal jurisdiction for carrying out criminal investigations, which is otherwise the responsibility of the States of Jersey Police (SOJP).

It is thought likely that: (a) the Department for the Economy; (b) Justice and Home Affairs; and (c) the States of Jersey Police, should have relevant information.

There is a clear public interest in such information being released, not least because of the considerable amount of public funds spent on (and by) the ECCU. Such documentation is provided 

Response

The requested information is exempt under Articles 31 and 27 of the Freedom of Information (Jersey) Law 2011.  Disclosure of such information, which was provided based on legal advice, is covered by Attorney General privilege.

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. 

(2) Except as provided by paragraph (3), a certificate signed by the Chief Minister certifying that the exemption is required to safeguard national security is conclusive evidence of that fact.

(3) A person aggrieved by the decision of the Chief Minister to issue a certificate under paragraph (2) may appeal to the Royal Court on the grounds that the Chief Minister did not have reasonable grounds for issuing the certificate.

(4) The decision of the Royal Court on the appeal shall be final.

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 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 document confidential, the same clearly forming part of and relating to the legal advice provided in such document.

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 nor 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.

​Internal Review Request

This is a complaint about the response (the “Response”) of the Scheduled Public Authority (the “SPA”) to the Request (referenced above) and a request that an internal review of the Response be carried out, without delay.

The Complainant requests that the internal review is carried out 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 and that a copy of this request is provided to the Internal Review Panel.

The Request sought “copies of any documents setting out the legal basis for the establishment of the ECCU and for vesting in the ECCU legal jurisdiction for carrying out criminal investigations, which is otherwise the responsibility of the States of Jersey Police (SOJP).”

The SPA has refused to provide the requested information on the basis that it is exempt under Article 27 (National security) and Article 31 (Advice by the Bailiff, Deputy Bailiff or a Law Office) of the Freedom of Information (Jersey) Law 2011 (the “FOI Law”). It is not apparent from the Response whether all of the requested information is said to be fully exempt under both exemptions cited, or whether some of the information is said to be exempt under Article 27 and/or Article 31 only.

It has been confirmed to the Complainant that the SPA was the Department for the Economy, although it is understood that the response also covered Justice and Home Affairs and the States of Jersey Police.

If searches for relevant information held by Justice and Home Affairs and the States of Jersey Police were not in fact carried out, the Internal Review Panel should now require such searches to be undertaken and any relevant information located should be considered for disclosure.

Before considering the specific exemptions cited to withheld information, the Complainant invites the Internal Review Panel to take a step back and consider what the Request relates to. This will also be relevant for consideration of the public interest test, to the extent applicable.

The Request seeks information about the legal basis for the establishment of the Economic Crime and Confiscation Unit (“ECCU”) and for vesting in the ECCU legal jurisdiction for carrying out criminal investigations.

In broad terms, the Complainant seeks to understand the legal basis for the existence and operation of the ECCU.

One would have thought that this would be relatively uncontroversial information to provide. Indeed, it is surprising that this information has not already been made available to the public.

In the UK, for example, the Serious Fraud Office (SFO) explains on its website the legal basis for its existence and powers.

In Jersey, however, it appears that the legal basis for the ECCU’s existence has never been explained to the public.

This is clearly a matter of public interest.

The ECCU consumes a significant (and growing) amount of public resources.

The Law Officers’ Department Business Plan 2024 indicates that the ECCU has at least 20 dedicated staff members, consisting of: 2 Senior Legal Advisers; 7 Legal Advisers; 1 Principal Economic Crime Investigator; 1 Senior Crimes Investigator; 6 Civilian Investigators; 1 ECCU Accountant; 1 Analyst; and 1 Paralegal.

The same business plan also refers to “[f]urther expansion of the ECCU team”.

The information in the business plan is striking for at least a couple of reasons.

First, it is evident that the ECCU is now bigger than the entire Criminal Courts team, which has 18 members in contrast to ECCU’s 20. The Law Officers’ Department as a whole is stated as consisting of 100 individuals, so the ECCU (with its 20 individuals) now consists of 20% of the entire Law Officers’ Department, with that number seemingly set to grow further in the coming years.

Second, in contrast to the other parts of the Law Officers’ Department, it is clear that the ECCU is considered with investigating crime, not only providing advice and acting as the Island’s independent prosecution service. The business plan refers to: “Further expansion of the ECCU team in order to provide such advice and carry out investigations” (emphasis added). At least 8 members of the ECCU are described as “Investigators”.

All of this comes at a time when the budget of the States of Jersey Police (the “SOJP”) – the public authority legally tasked with investigating crime – is under significant pressure. Certainly, the budget of the SOJP has not grown at the pace of that of the ECCU.

In the circumstances, it hardly seems unreasonable for the public to be informed what is the legal basis for the ECCU and its jurisdiction for carrying out investigations.

This is particularly so given the prominence of the ECCU in MONEYVAL’s Fifth Round Mutual Evaluation Report of Jersey (the “MONEYVAL Report”). There are 152 references to “ECCU” in the MONEYVAL REPORT, which notes that the ECCU is “responsible for conducting complex financial crime investigations, especially those cases with an international aspect” (emphasis added).

Notably on many occasions in the MONEYVAL Report the ECCU is mentioned as separate from the LOD (i.e. the Law Officers’ Department), which suggests that MONEYVAL may have been under the impression that ECCU was a separate “investigative agency” (a phrase used on numerous occasions in the report to refer to ECCU).

To further confuse matters, in at least one place in the MONEYVAL Report there is a reference to “ECCU (police)”.

It is stated in the Law Officers’ Department Business Plan, however, that ECCU is part of the Law Officers’ Department, and elsewhere the MONEYVAL Report notes that the “ECCU sits within the Law Officers Department (LOD) Criminal Division under the oversight of the AG”.

Providing the requested information should help to clarify matters.

Significantly, despite its prominence in the MONEYVAL Report, that report does not contain any information about the legal basis for ECCU’s establishment and investigations.

The requested information should help to fill this obvious lacuna.

The ECCU is said to be “under the oversight of the [Attorney General]”, Jersey’s Chief Prosecutor, but it also contains police investigators. The public might rightly wonder therefore whether ECCU is also legally accountable to the Chief Officer of the SOJP and what, if any, legal safeguards exist to maintain separation between investigative and prosecutorial functions.

The Complainant is not aware that any legislation has been passed to authorise the establishment of the ECCU (unlike the UK’s SFO). The establishment of the ECCU does not seem to have been debated in the States Assembly.

Considering all of the above, the SPA’s decision to cite exemptions to withhold the requested information may be considered somewhat unsettling.

In a country committed to the rule of law, one would expect the legal basis for investigative agencies to be clearly set out and accessible to members of the public. At present, it is simply not clear to the public what is the legal basis for the ECCU.

The SPA evidently has information that would assist with illuminating such matters – otherwise it would not have cited exemptions to withhold this information - but it has instead elected to keep the public in the dark.

As noted further below, the Internal Review Panel will need to consider whether this is really in the public interest.

Article 27 (National security)

The Response states that the information is exempt under Article 27 of the FOI Law. However, there is no attempt to explain why this is the case.

If there is a credible explanation, why has this not been provided? Even if certain details may be sensitive, it would be reasonable to expect at least a gist of the reasoning to be provided.

The obvious inference to be drawn from the complete lack of explanation is that there is in fact no credible basis for the assertion that withholding information about the legal basis for the establishment of the ECCU and for vesting in the ECCU legal jurisdiction for carrying out criminal investigations is required to safeguard national security.

This is a high bar, and mere assertion is not sufficient.

Quite rightly, the existence of the ECCU is not a secret. Indeed, as is clear from the above, existence of the ECCU has been widely publicised by the Government of Jersey. The ECCU’s detailed operating protocol has also been released to the public:

JFCU Operating Protocol - Redacted.pdf (gov.je)

It would be a surprising state of affairs if withholding the ECCU’s “operating protocol” is not required to safeguard national security (as is evidently the case, given that it has been published), but withholding information about the legal basis for the existence of that “investigative agency” is so required.

Notably, the decision to withhold information about the legal basis for ECCU appears to be unique.

The UK’s SFO sets out on its website the legal basis for its existence.

Even the Secret Intelligence Service (SIS, commonly known as MI6), sets out on its website details of the legislation that governs what it does and the oversight of its operations:

SIS - About Us

The same is the case for the Security Service (MI5):

​​Law, oversight and ethics | MI5 - The Security Service​

This leads to the obvious question: why is the ECCU so different? If the SFO, MI6 and MI5 can all provide clear information about the legal basis for their establishment and powers, why is withholding similar information relating to the ECCU required for national security?

The Internal Review Panel is invited to address this question in its response, if it determines to continue to withhold the information on the basis of Article 27.

At present, the decision to withhold the information on the basis of Article 27 may lead to an inference that there is in fact no proper legal basis for the establishment of ECCU and/or for it carrying out criminal investigations; the perceived “threat” to national security being the revelation of this fact.

If this is not the case, it is clearly in the interests of Jersey’s national security for the matter to be clarified, by disclosure of the requested information.

If the SPA is relying on a certificate signed by the Chief Minister certifying that the exemption is required to safeguard national security as conclusive evidence of that fact, the Internal Review Panel should make this clear.

Article 27(3) of the FOI Law provides that a person aggrieved by the decision of the Chief Minister to issue such a certificate may appeal to the Royal Court on the grounds that the Chief Minister did not have reasonable grounds for issuing the certificate.

Accordingly, if such a certificate is relied on, the Response should state this in order that the decision may then be challenged.

Article 31

Article 31 is strictly limited to 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).

Even if some of withheld information does constitute such “advice” by the Attorney General (or one of the other officials expressly named in Article 31), the Attorney General is permitted to waive such privilege.

The Internal Review Panel should enquire with the Attorney General whether he is willing to do so.

It may be considered a matter of concern if the Attorney General was not prepared to waive his privilege (to the extent it applies) in order to allow the public to understand the legal basis for the ECCU’s existence.

In any event, even if the Attorney General declines to waive any applicable privilege, the public interest must still be considered and can nevertheless require disclosure.

If the legislature had intended Article 31 to be an absolute exemption, it would have provided for this in the FOI Law; instead, Article 31 is a qualified exemption only. There is no presumption, accordingly, in favour of withholding information under Article 31; on the contrary, as the Commissioner has previously noted, the principle behind the FOI Law is to release information unless there is good reason not to.

Factors favouring disclosure include the general public interest in accountability and transparency, as well as any specific public interest.

In the present case, for the reasons explained above, there is clear specific public interest in the requested information being disclosed. It is inimical to the public interest for an “investigative agency” to exist and operate in Jersey, whilst the legal basis for it doing so has not been explained to the public.

This is even more so given that the Attorney General has been stated to have “oversight” of the ECCU.

The result of the SPA citing Article 31 to withhold the requested information is that the Attorney General’s “privilege” is effectively being used to withhold information that is necessary to hold the Attorney General publicly accountable. This is self-evidently not in the public interest.

In the case of both of the exemptions cited by the SPA (i.e. Articles 27 and 31), the Internal Review Panel should also consider whether such exemptions justify withholding all of the requested information, or only part of that information. It is not correct to apply exemptions in a “blanket fashion”. It may be, for example, that some documents could be disclosed, with specific parts redacted.

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 the application of the exemption had been applied correctly and whether it was appropriate to withhold information.

The Review Panel, having reviewed and discussed the identified information which is the subject of the internal review are content, in line with the initial response that:

i) The information is absolutely exempt under Article 27 of the Freedom of Information (Jersey) Law 2011, and 

ii) The information is qualified exempt under Article 31 of the Freedom of Information (Jersey) Law 2011, and

iii) It would not be appropriate nor in the public interest to disclose some or any of the information.​