Draft Criminal Justice (International Co-operation) (Amendment) (Jersey) Law 200-

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A decision made (20.09.07) to approve the draft Criminal Justice (International Co-operation) (Amendment) (Jersey) Law 200-.

Decision Reference:
Decision Summary Title	Criminal Justice (International Co-operation) (Amendment) (Jersey) Law 200-		Date of Decision Summary:	17th September, 2007
Decision Summary Author:	Caroline Dutôt - Assistant Legal Adviser		Decision Summary: Public or Exempt?	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	n/a
Written Report Title	Draft Criminal Justice (International Co-operation) (Amendment) (Jersey) Law 200- and accompanying Report.		Date of Written Report:	10th September, 2007
Written Report Author:	Caroline Dutôt - Assistant Legal Adviser		Written Report : Public or Exempt?	Public
Subject: Criminal Justice (International Co-operation) (Amendment) (Jersey) Law 200-
Decision(s): The Minister approved the draft Law and accompanying Report prepared by the Law Officers’ Department and instructed officers to lodge it au Greffe.
Reason(s) for Decision: The draft Law amends the Criminal Justice (International Co-operation) (Jersey) Law, 2001.The States Strategic Plan 2005-2010 includes in its strategic aims the giving of international co-operation. In furtherance of the Strategic Plan, the draft Law aims to strengthen Jersey’s legislative provisions in relation to mutual legal assistance. The draft Law seeks to do this in two ways. The first is by making it an offence for a person to fail to provide evidence in accordance with a notice issued by the Attorney General under Article 5 of the Law. The second way is by broadening Jersey’s ability to provide assistance to other jurisdictions. Currently the provision of assistance to another jurisdiction to enable the enforcement of an overseas forfeiture order is conditional on that jurisdiction being listed, currently in the Criminal Justice (International Co-operation) (Jersey) Regulations 2001, as a designated country or territory to whom assistance can be given. Under the draft Law, the enforcement in Jersey of external forfeiture orders arising from criminal proceedings will no longer be conditional on countries or territories being designated. The amendments are considered necessary in preparation for the International Monetary Fund Assessment in 2008.
Resource Implications: There are no financial or manpower implications arising from the draft Law.
Action required: Officers to lodge the draft Law and accompanying Report au Greffe by 24th September, 2007, in order for the draft Law to be debated on 6th November, 2007.
Signature:		Position: Senator Terry Le Sueur, Treasury and Resources Minister
Date Signed:		Date of Decision: 17th September 2007

Draft Criminal Justice (International Co-operation) (Amendment) (Jersey) Law 200-

REPOR T

Criminal Justice (International Co-operation) (Amendment) ( Jersey ) Law, 200-

1. The draft Law amends the Criminal Justice (International Co-operation) (Jersey) Law, 2001. The States Strategic Plan 2006-2011 includes in its strategic aims at paragraph 5.2 the continued enhancement of Jersey’s international reputation as a co-operative and generally well-regulated jurisdiction. In pursuance of that aim, the draft Law aims to strengthen Jersey’s legislative provisions in relation to mutual legal assistance. The draft Law seeks to do this in two ways.

2. The first is to make it an offence for a person to fail to provide evidence in accordance with a notice issued by the Attorney General under Article 5 of the Law. The Attorney General frequently receives requests for mutual legal assistance from other jurisdictions asking for assistance in obtaining evidence in Jersey, in connection with criminal proceedings that have been instituted, or a criminal investigation that is being carried on, in those jurisdictions. In order to give such assistance the Attorney General, if he thinks it fit to do so, may issue a notice in writing under the Law requiring a person (normally a financial services provider) to provide the evidence specified in the request. The existing provisions provide that the evidence received pursuant to such a request shall be received by the Court or Viscount. That evidence is then forwarded to the Law Officers’ Department. The Law Officers’ Department is then responsible for passing the evidence to the appropriate authority in the requesting jurisdiction.

3. The Attorney General has recently found that financial service providers are not complying with the terms of notices issued by him under the Law in a timely fashion. This is considered unsatisfactory. Jersey’s ability to respond to requests for mutual legal assistance is paramount to Jersey’s international reputation. Responding to such requests shows to the world that Jersey is committed to providing assistance to the international community in the global fight against crime. It is hoped that the introduction of a penalty for failing to respond, without reasonable excuse, to a notice issued by the Attorney General will ensure in the future that evidence requested is submitted to the Attorney General and done so within the time-limits set out in a notice. An equivalent provision is contained in Article 2(12) of the Investigation of Fraud (Jersey) Law, 1991, which creates an offence for failing to comply with a notice issued under that Law.

4. The amendments to Article 5 of the draft Law are principally to introduce this new offence and also to allow for documentary evidence to be sent directly to the Attorney General, instead of having to go through the intermediary of the Court or Viscount as is currently the case under the Law.

5. The new Articles 5A and 5B incorporate provisions that were previously in the Schedule to the Law. In order to introduce the offence for failing to comply with a notice issued by the Attorney General under the Law and to allow for documentary evidence to be sent directly to the Attorney General, it was necessary to move the provisions from the Schedule into the main body of the Law.

6. The second way the draft Law aims to strengthen Jersey’s legislative provisions dealing with mutual legal assistance is by broadening Jersey’s ability to provide assistance to other jurisdictions. Currently the provision of assistance to another jurisdiction to enable the enforcement of an overseas forfeiture order is conditional on that jurisdiction being listed, currently in the Criminal Justice (International Co-operation) (Jersey) Regulations 2001, as a designated country or territory to whom assistance can be given. The same is true in relation to the enforcement of external confiscation orders under the Proceeds of Crime (Jersey) Law, 1999 and the Drug Trafficking Offences (Jersey) Law, 1988 and the enforcement of external restraint or forfeiture orders under the Terrorism (Jersey) Law, 2002.

7. Under the draft Law, the enforcement in Jersey of external forfeiture orders arising from criminal proceedings will no longer be conditional on countries or territories being designated. The amendments enable external forfeiture orders from any jurisdiction to be capable of being registered by the Royal Court. Article 6 of the Criminal Justice (International Co-operation) (Jersey) Regulations 2001 sets out the conditions of which the Royal Court must be satisfied before it may register an external forfeiture order. Those conditions are that the court is satisfied that (a) at the time of registration the order is in force and is not subject to appeal; (b) where the person against whom the order is made did not appear in the proceedings, that the person received notice of the proceedings in sufficient time to enable the person to defend them; and (c) enforcing the order in Jersey would not be contrary to the interests of justice. Draft Regulations replacing those which already exist will soon be debated. The provisions contained in the Regulations will remain substantively the same. It is intended that the only changes to the Regulations which will be pursued are those necessary in order to remove any references currently made to designated countries or territories. Similar amendments are being made to the Proceeds of Crime (Jersey) Law, 1999, Drug Trafficking Offences (Jersey) Law, 1988 and the Terrorism (Jersey) Law, 2002 and the Regulations which stem from those Laws.

8. The amendments brought about by the draft Law are also necessary to ensure that Jersey is assessed as being fully compliant with Recommendation 38 of the Financial Action Task Force on Money Laundering during the International Monetary Fund Assessment in 2008.

9. Recommendation 38 of the Financial Action Task requires countries to have appropriate laws and procedures in place to provide an effective and timely response to mutual legal assistance.

10. The creation of an offence for failing to respond to a notice issued by the Attorney General under the Law will help to ensure that responses to requests for mutual legal assistance can be given in a timely manner. Whilst the notion of providing assistance to only designated countries or territories is thought unlikely to receive adverse comment by the International Monetary Fund, the list of designated countries has not been kept up to date in recent years and it is thought highly likely that Jersey will be criticised for not giving “effective” mutual legal assistance because of this. Whilst compliance with FATF Recommendation 38 in this regard could possibly be achieved by updating the list of designated countries or territories, it is considered that the better solution would be to abandon the list of countries and offer assistance to jurisdictions on a case by case basis. Indeed this is the approach that has been adopted in regards to the UK legislation, on which the relevant Jersey legislation was originally based.

11. Financial/manpower statement

This draft Law has no financial or manpower resource implications for the States.

12. European Convention on Human Rights

In the view of the Minister for Treasury and Resources the provisions of the Draft Criminal Justice (International Co-operation) (Amendment) (Jersey) Law 200- are compatible with the Convention Rights.