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.​