Draft Proceeds of Crime (Amendment No.2) (Jersey) Law 200- and Draft Drug Trafficking Offences (Amendment No.2) (Jersey) Law 200-

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A decision made (28.07.08) to lodge both the Draft Proceeds of Crime (Amendment No.2) (Jersey) Law 200- and the Draft Drug Trafficking Offences (Amendment No.2) (Jersey) Law 200-

Decision Reference: MD-TR-2008-0084
Decision Summary Title:	Draft Proceeds of Crime (Amendment No. 2) (Jersey) Law 200- and Draft Drug Trafficking Offences (Amendment No. 2) (Jersey) Law 200-		Date of Decision Summary:	25 July 2008
Decision Summary Author:	Caroline Dutôt, Assistant Legal Adviser, Law Officers’ Department		Decision Summary: Public or Exempt?	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:
Written Report Title:	Proposals to amend the Proceeds of Crime (Jersey) Law, 1999 and the Drug Trafficking Offences (Jersey) Law, 1988		Date of Written Report:	24 July 2008
Written Report Author:	Caroline Dutôt, Assistant Legal Adviser, Law Officers’ Department		Written Report : Public or Exempt?	Public
Subject: Amendments to the Proceeds of Crime (Jersey) Law, 1999 (“POCL”) and the Drug Trafficking Offences (Jersey) Law, 1988 (“DTOL”).
Decision(s): The Minister agreed to lodge both the Draft Proceeds of Crime (Amendment No. 2) (Jersey) Law 200- and the Draft Drug Trafficking Offences (Amendment No. 2) (Jersey) Law 200- and instructed officers to make the necessary arrangements for the Regulations to be lodged au Greffe at the earliest opportunity with a request for debate on 8 September 2008.
Reason(s) for Decision: To provide for a ‘second wave’ of amendments to the POCL and DTOL in preparation for the assessment by the International Monetary Fund in October of this year. The amendments fall into five categories (described more amply in the accompanying reports): 1. Designating Officers. 2. Provision for Codes and guidance to be issued under the Supervisory Bodies Law. 3. Tipping off when a disclosure will be made. 4. Definition of business relationship. 5. Person carrying on a financial services business.
Resource Implications: None.
Action required: Attached proposition and report to be sent to the Publications Editor of the Greffe by a Treasury officer - with a request that it be lodged at the earliest opportunity in time for a debate on 8 September 2008.
Signature:		Position: Senator T A Le Sueur, Minister for Treasury and Resources
Date Signed:		Date of Decision:

Draft Proceeds of Crime (Amendment No.2) (Jersey) Law 200- and Draft Drug Trafficking Offences (Amendment No.2) (Jersey) Law 200-

Proceeds of Crime (Amendment No. 2) (Jersey) Law 200-

Report

Explanatory Note

This draft Law amends the Proceeds of Crime (Jersey) Law 1999 (the “principal Law”).

Article 1 defines the principal Law.

Article 2 amends the Interpretation Article in the principal Law to insert the definitions “designated police officer” and “designated customs officer” to mean an officer designated under Article 34E.

Article 3 amends Article 29 of the principal Law to reflect the new references in that Part to “designated police officer” and “designated customs officer”.

Article 4 amends Article 34D of the principal Law to restrict the persons to whom financial institutions must report suspicion of money laundering to a designated police officer or a designated customs officer. The existing provision allows disclosure to be made to any police officer or customs officer. The amendment also allows the Royal Court to take into account Codes of Practice issued by supervisory bodies under the Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008 for the purpose of determining whether a person has committed an offence under Article 34D.

Article 5 inserts a new Article 34E to give the Chief Officer of the States of Jersey Police Force and the Agent of the Impôts power to designate one or more officers for the purpose of Article 34D.

Article 6 amends Article 35 of the principal Law to broaden the circumstances in which one of the offences relating to tipping-off may be committed to include suspicion that disclosure will be made to a police officer about suspicion of money laundering, not just where such disclosure has been made.

Article 7 amends various references to “financial services business” in Schedule 3 to the principal Law so that its provisions relate to the person carrying on a financial services business rather than to the business itself. The Article also amends the definition of “business relationship” to reflect the definition in the Money Laundering (Jersey) Order 2008.

Article 8 provides for the title of the draft Law and that it shall come into force 7 days after registration.

Proceeds of Crime (Amendment No. 2) (Jersey) Law 200-

Arrangement

Article

1 Interpretation. 5

2 Article 1 amended. 5

3 Article 29 amended. 5

4 Article 34D amended. 6

5 Article 34E inserted. 6

6 Article 35 amended. 7

7 Schedule 3 amended. 7

8 Citation and commencement 8

Proceeds of Crime (Amendment No. 2) (Jersey) Law 200-

A LAW to amend further the Proceeds of Crime (Jersey) Law 1999.

Adopted by the States [date to be inserted]

Sanctioned by Order of Her Majesty in Council [date to be inserted]

Registered by the Royal Court [date to be inserted]

THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law –

1 Interpretation

In this Law “principal Law” means the Proceeds of Crime (Jersey) Law 1999.

2 Article 1 amended

In Article 1(1) of the principal Law there shall be inserted the following definitions in the appropriate places –

“ ‘designated police officer’ means a police officer who is designated under Article 34E (1) or, if no one is for the time being designated, the Chief Officer of the States of Jersey Police Force;”;

“ ‘designated customs officer’ means an officer of the Impôts who is designated under Article 34E (2) or, if no one is for the time being designated, the Agent of the Impôts.”.

3 Article 29 amended

For Article 29(1) of the principal Law there shall be substituted the following paragraph –

“(1) Information that is disclosed –

(a) to a police officer under –

(i) any of Articles 32, 33 or 34A, or

(ii) any Order made under Article 37; or

(b) to a designated police officer or designated customs officer,

shall not be disclosed by that officer or by any person who obtains information directly or indirectly from that officer, unless its disclosure is permitted under Article 30 or 31.”.

4 Article 34D amended

In Article 34D of the principal Law –

(a) in the heading and in paragraphs (4) and (9) for the words “police officer or to a” there shall be substituted the words “designated police officer, designated customs officer or”;

(b) for paragraph (7) there shall be substituted the following paragraphs –

“(7) In deciding whether a person has committed an offence under this Article, the court –

(a) shall take account of any relevant Code of Practice or guidance that applies to that person or the business carried on by that person and is issued by the supervisory body exercising supervisory functions in respect of that person; or

(b) if no such Code of Practice or guidance applies, shall take into account any relevant Code of Practice or guidance that is issued by another supervisory body; or

(c) if there is no such relevant Code of Practice or guidance, may take account of any other relevant guidance issued by a body that is representative of that person or any supervised business carried on by that person.

(7A) For the purposes of paragraph (7), ‘Code of Practice’, ‘supervised business’, ‘supervisory body’ and ‘supervisory functions’ have the same meaning as in the Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008.”.

5 Article 34E inserted

After Article 34D of the principal Law there shall be inserted the following Article –

“34E Designated police and customs officers

(1) The Chief Officer of the States of Jersey Police Force may by public notice designate one or more police officers (whether by reference to the name of the officer or officers or post), being members of that Force, for the purposes of Article 34D.

(2) The Agent of the Impôts may by public notice designate one or more officers of the Impôts for the purposes of Article 34D.”.

6 Article 35 amended

In Article 35(2)(a) and (3)(a) of the principal Law after the words “has been” there shall be inserted the words “or will be”.

7 Schedule 3 amended

In Schedule 3 to the principal Law –

(a) in Part 1 paragraph 1(1) for the words “a financial services business to which” there shall be substituted the words “ a person carrying on a financial services business to whom”;

(b) for Part 1 paragraph 1(2) there shall be substituted the following sub-paragraph –

“(2) An order under this Part of this Schedule may provide that it applies to –

(a) all persons carrying on a financial services business;

(b) a particular description, or particular descriptions, of persons carrying on a financial services business; or

(c) in Part 1 paragraph 1(4) for the words “A financial services business that” there shall be substituted the words “ A person carrying on a financial services business who”;

(d) for Part 1 paragraph 1(5) there shall be substituted the following sub-paragraph –

“(5) It is a defence for a person carrying on a financial services business who is charged with an offence under sub-paragraph (4) to prove –

(a) that the information required was not in the possession of the person carrying on the financial services business; or

(b) that it was not reasonably practicable for the person carrying on the financial services business to comply with the requirement.”;

(e) in Part 1 paragraph 1(6) for the words “a financial services business that” there shall be substituted the words “A person carrying on a financial services business who”;

(f) for Part 1 paragraph 6(2) there shall be substituted the following sub-paragraph –

“(2) For the purposes of this Part of this Schedule ‘business relationship’ means a business, professional or commercial relationship between a person carrying on a financial services business and a customer where that relationship is expected by the first person, at the time when contact is established, to have an element of duration.”;

(g) for Part 2 paragraph 1(3) there shall be substituted the following sub-paragraph –

“(3) The application for an account monitoring order must state that the order is sought against the person specified in the application carrying on a financial services business in relation to information which –

(a) relates to an account or accounts held with the person carrying on a financial services business by the person specified in the application (whether solely or jointly with another); and

(b) is of the description so specified.”;

(h) for Part 2 paragraph 1(4)(a) there shall be substituted the following clause –

“(a) all accounts that the person specified in the application for the order holds with the other person specified in the application carrying on the financial services business;”;

(i) in Part 2 paragraph 1(5) for the words “the financial services business specified in the application for the order” there shall be substituted the words “the person specified in the application for the order carrying on a financial services business”;

(j) for Part 2 paragraph 5(1) there shall be substituted the following sub-paragraph –

“(1) A statement made by a person carrying on a financial services business in response to an account monitoring order may not be used in evidence against that person in criminal proceedings.”;

(k) in the following provisions there shall be inserted before the words “financial services business” each place they occur the words “person carrying on a” –

(i) Part 1 paragraphs 6(1)(a) and 7(1), and

(ii) Part 2, paragraphs 1(1), 5(2) and (3).

8 Citation and commencement

(1) This Law may be cited as the Proceeds of Crime (Amendment No. 2) (Jersey) Law 200-.

(2) This Law shall come into force 7 days after it is registered.

Drug Trafficking Offences (Amendment No. 2) (Jersey) Law 200-

Report

Explanatory Note

This draft Law amends the Drug Trafficking Offences (Jersey) Law 1988 (the “principal Law”).

Article 1 defines the principal Law.

Article 3 amends Article 40A of the principal Law to restrict the persons to whom financial institutions must report suspicion of drug money laundering to a designated police officer or a designated customs officer. The existing provision allows disclosure to be made to any police officer or customs officer. The amendment also allows the Royal Court to take into account Codes of Practice issued by supervisory bodies under the Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008 for the purpose of determining whether an offence has been committed under Article 40A.

Article 4 inserts a new Article 40AA into the principal Law to give the Chief Officer of the States of Jersey Police Force and the Agent of the Impôts power to designate one or more officers for the purposes of Article 40A.

Article 5 amends Article 40B of the principal Law to reflect the new references in that Part to “designated police officer” and “designated customs officer”.

Article 6 amends Article 41 of the principal Law to broaden the circumstances in which one of the offences relating to tipping-off may be committed to include suspicion that disclosure will be made to a police officer about suspicion of drug money laundering, not just where such disclosure has been made.

Article 7 amends various references to “financial services business” in Schedule 2 to the principal Law so that its provisions relate to the person carrying a financial services business rather than to the business itself. The Article also amends the definition of “business relationship” to reflect the definition in the Money Laundering (Jersey) Order 2008.

Article 8 provides for the title of the draft Law and that it shall come into force 7 days after registration.

Drug Trafficking Offences (Amendment No. 2) (Jersey) Law 200-

Arrangement

Article

1 Interpretation. 5

2 Article 1 amended. 5

3 Article 40A amended. 5

4 Article 40AA inserted. 6

5 Article 40B amended. 6

6 Article 41 amended. 7

7 Schedule 2 amended. 7

8 Citation and commencement 8

Drug Trafficking Offences (Amendment No. 2) (Jersey) Law 200-

A LAW to amend further the Drug Trafficking Offences (Jersey) Law 1988.

Adopted by the States [date to be inserted]

Sanctioned by Order of Her Majesty in Council [date to be inserted]

Registered by the Royal Court [date to be inserted]

THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law –

1 Interpretation

In this Law “principal Law” means the Drug Trafficking Offences (Jersey) Law 1988.

2 Article 1 amended

In Article 1(1) of the principal Law there shall be inserted the following definitions in the appropriate places –

“ ‘designated police officer’ means a police officer who is designated under Article 40AA(1) or, if no one is for the time being designated, the Chief Officer of the States of Jersey Police Force;”;

“ ‘designated customs officer’ means an officer of the Impôts who is designated under Article 40AA(2) or, if no one is for the time being designated, the Agent of the Impôts.”.

3 Article 40A amended

In Article 40A of the principal Law –

(a) in the heading and in paragraphs (4) and (9) for the words “police officer or to a” there shall be substituted the words “designated police officer, designated customs officer or”;

(b) for paragraph (7) there shall be substituted the following paragraphs –

“(7) In deciding whether a person has committed an offence under this Article, the court –

(b) if no such Code of Practice or guidance applies, shall take into account any relevant Code of Practice or guidance that is issued by another supervisory body; or

4 Article 40AA inserted

After Article 40A of the principal Law there shall be inserted the following Article –

“40AA Designated police and customs officers

(2) The Agent of the Impôts may by public notice designate one or more officers of the Impôts for the purposes of Article 40A.”.

5 Article 40B amended

For Article 40B(1) of the principal Law there shall be substituted the following paragraph –

“(1) Information that is disclosed –

(a) to a police officer under any of Articles 37, 38 and 40; or

(b) to a designated police officer or designated customs officer,

shall not be disclosed by that officer or by any person who obtains information directly or indirectly from that officer, unless its disclosure is permitted under Article 40C or 40D.”.

6 Article 41 amended

In Article 41(2)(a) and (3)(a) of the principal Law after the words “has been” there shall be inserted the words “or will be”.

7 Schedule 2 amended

In Schedule 2 to the principal Law –

(a) in Part 1 paragraph 1(1) for the words “a financial services business to which” there shall be substituted the words “a person carrying on a financial services business to whom”;

(b) for Part 1 paragraph 1(2) there shall be substituted the following sub-paragraph –

“(2) An order under this Part of this Schedule may provide that it applies to –

(a) all persons carrying on a financial services business;

(b) a particular description, or particular descriptions, of persons carrying on a financial services business; or

(c) in Part 1 paragraph 1(4) for the words “A financial services business that” there shall be substituted the words “A person carrying on a financial services business who”;

(d) for Part 1 paragraph 1(5) there shall be substituted the following sub-paragraph –

“(5) It is a defence for a person carrying on a financial services business who is charged with an offence under sub-paragraph (4) to prove –

(a) that the information required was not in the possession of the person carrying on the financial services business; or

(b) that it was not reasonably practicable for the person carrying on the financial services business to comply with the requirement.”;

(e) in Part 1 paragraph 1(6) for the words “A financial services business” there shall be substituted the words “A person carrying on a financial services business who is”;

(f) for Part 1 paragraph 6(2) there shall be substituted the following sub-paragraph –

(g) for Part 2 paragraph 1(3) there shall be substituted the following sub-paragraph –

(a) relates to an account or accounts held with the person carrying on a financial services business by the person specified in the application (whether solely or jointly with another); and

(b) is of the description so specified.”;

(h) for Part 2 paragraph 1(4)(a) there shall be substituted the following clause –

“(a) all accounts that the person specified in the application for the order holds with the other person specified in the application carrying on the financial services business;”;

(j) for Part 2 paragraph 5(1) there shall be substituted the following sub-paragraph –

“(1) A statement made by a person carrying on a financial services business in response to an account monitoring order may not be used in evidence against that person in criminal proceedings.”;

(k) in the following provisions there shall be inserted before the words “financial services business” each place they occur the words “person carrying on a” –

(i) Part 1 paragraphs 6(1)(a) and 7(1), and

(ii) Part 2 paragraphs 1(1), 5(2) and (3).

8 Citation and commencement

(1) This Law may be cited as the Drug Trafficking Offences (Amendment No. 2) (Jersey) Law 200-.

(2) This Law shall come into force 7 days after it is registered.

Draft Proceeds of Crime (Amendment No.2) (Jersey) Law 200- and Draft Drug Trafficking Offences (Amendment No.2) (Jersey) Law 200-

Information about the publication of Ministerial Decisions

A decision made (28.07.08) to lodge both the Draft Proceeds of Crime (Amendment No.2) (Jersey) Law 200- and the Draft Drug Trafficking Offences (Amendment No.2) (Jersey) Law 200-

3. Tipping off when a disclosure will be made.

4. Definition of business relationship.

5. Person carrying on a financial services business.