REPORT
Crime (Trans-national Organised Crime)(Jersey) Law 200-
1. Introduction
Playing its full part in efforts to combat international organised crime, trafficking in persons and smuggling of migrants across borders is an extremely important element of the Island’s international profile.
The Government of Jersey has undertaken, as a matter of policy, to implement the so called “40 Recommendations”[1] of the Financial Action Task Force on Money Laundering. (“FATF”).
Recommendation 35 of the 40 Recommendations says that -
“35.1 Countries should sign and ratify, or otherwise become a party to, and fully implement, the Vienna Convention[2], the Palermo Convention and the 1999 United Nationals International Convention for the Suppression of the Financing of Terrorism[3]”.
The Palermo Convention is the United Nations Convention against Transnational Organised Crime, which was opened for signature in 2000 and came into force on 29th September 2003[4].
The UK ratified it in February 2006.
The Palermo Convention has 3 protocols; the Protocol to Prevent, Suppress and Punish Trafficking in Persons (in force December 2003); the Protocol against Smuggling of Migrants by Land, Sea or Air (in force January 2004); and the Protocol against Illicit Manufacturing and Trafficking in Small Arms (in force July 2005).
Although the FATF recommendation does not specifically mention any of the three Protocols as being included in the requirement for implementation, it is assumed that the first two are to be included; the third has been signed by the UK but not yet ratified and implementation is not a part of this exercise.
Article 34 of the Convention (implementation) provides -
“1. Each State Party shall take the necessary measures, including legislative and administrative measures . . . to ensure the implementation of its obligations under this Convention.
2. The offences established in accordance with Articles 5, 6, 8[5] and 23 of this Convention shall be established in the domestic law of each State party independently of the transnational nature or the involvement of an organised criminal group as described in article 3, paragraph 1, except to the extent that article 5 of this Convention would require the involvement of an organised criminal group.
3. Each State Party may adopt more strict or severe measures that those provided for by this Convention for preventing and combating transnational organised crime.”
Article 37 says, in part, -
“1. This Convention may be supplemented by one or more protocols.
2. In order to become a party to a protocol, a State . . . must also be a party to this Convention.”
The Palermo Convention is the main international measure against transnational organised crime. It is described by the United Nations Office on Drugs and Crime (UNODC) as -
“. . . a major step forward in the fight against transnational organised crime and signifies the recognition by Member States of the seriousness of the problems posed by it, as well as the need to foster and enhance international co-operation in order to tackle these problems.”
It is further stated by UNODC that -
“States that ratify this instrument commit themselves to taking a series of measures against transnational organised crime, including the creation of domestic criminal offences (participation on an organised criminal group, money laundering, corruption and obstruction of justice)”.
The UNODC describes the Protocol against trafficking in Persons as -
“the first global legally binding instrument with an agreed definition of trafficking in persons”
which has as its objective the -
“convergence in national approaches with regard to the establishment of domestics criminal offences that would support efficient international co-operation in investigating and prosecuting trafficking in persons cases”.
And of the second Protocol against smuggling of migrants UNODC says that it -
“deals with the growing problem of organised criminal groups who smuggle migrants, often at high risk to the migrants and at great profit to the offenders”.
It is the creation of these new offences, for the purpose of implementing the Convention and the first two Protocols which is the objective of this draft Law.
Other existing measures, such as the laws on corruption extradition, international co-operation and proceeds of crime will also contribute towards full implementation of the Palermo Convention, but there are some legislative requirements which are not yet met by legislation in Jersey and the objective is to fill in these gaps with new legislation.
2. Article 5 (of the Palermo Convention) Participation in organised Criminal group
This Article requires States Parties to criminalise participation in an organised criminal group.
There is currently no offence of this nature in Jersey Statutory law or, except where the facts would amount to a conspiracy, at customary law either.
It is therefore necessary, in order to implement this Article, to create a new offence which criminalises the participation of a person in the activities of such a group knowing the objective of the group is to commit crime and that this participation will contribute to the achievement of the objective. This will be done by Article 2 of the draft Law.
3. Article 23 of the Palermo Convention -Criminalisation of Obstruction of Justice
This Article of the Convention requires States Parties to establish as criminal offences the threat or use of force, intimidation or the offer of a reward or advantage to induce false testimony or interference with testimony in evidence in proceedings for an offence covered by the Convention (and the Protocols). It also requires criminalisation of the use of such methods in relation to judicial officials or police officers in connection with proceedings for an offences covered by the Convention.
There is no direct equivalent to this offence is statutory or customary law in Jersey, though some offences, such as conspiracy to pervert the course of justice, perjury or corruption may cover some, if not most of the factual situations that could arise in relation to such matters.
However, to ensure full implementation of the Convention, it is necessary to create a new statutory offence reflecting the terms of Article 23. This will be done by Article 7 of the draft law, which will apply in relation to obstruction of justice in relation to any offence under the draft Law.
4. Protocol to Prevent etc. Trafficking in Persons
Article 5 of the Protocol requires States Parties to criminalize conduct set forth in Article 3 of the Protocol which is described as follows -
“(a) Trafficking in persons shall mean the recruitment, transportation, harbouring or receipt of persons, by means of the threat or use of force or others forms of coercion, or abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in paragraph (a) of this article shall be irrelevant where any of the means set forth in paragraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered trafficking in persons even if this does not involve any of the means set forth in sub-paragraph (a) of this Article.”.
There is no offence in Jersey statutory or customary law which specifically criminalises such activities and therefore a new offence will be created by Article 4 of the draft Law.
5. Protocol Against Smuggling of Migrants
Article 6.1 of this Protocol requires States Parties to criminalise, when committed in order to obtain any financial or other benefit -
“(a) the smuggling of migrants;
(b) when committed for the purpose of enabling the smuggling of migrants
(i) producing fraudulent travel or identify documents;
(ii) procuring providing or possessing similar documentation.
(c) Enabling a person who is not a national or a permanent resident to remain in the State concerned without complying with the necessary requirements for legally remaining in the States by the means mentioned in subparagraph (b) or any other illegal means.” (This subparagraph deals with matters governed in Jersey by UK immigration Acts as extended to Jersey).
“Smuggling of migrants” is defined in Article 3 of the Protocol as -
“. . . the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident;”
and “illegal entry” is defined in the same Article as -
“. . . crossing borders without complying with the necessary requirements for legal entry into the receiving State;”.
Though existing provisions of the Immigration Act 1971 as extended to Jersey may cover some aspects of this - e.g. assisting illegal entry - as may the customary law offences of kidnapping and false imprisonment, and the offence of forgery may cover some elements of the offences of relating to fake travel or identity documents, to be certain of fully implementing this Article of the Protocol, new offences will need to be created. This will be done by Article 3 of the draft Law in relation to the smuggling of migrants and by Article 6 in relation to forgery etc. of the travel documents.
6. Aggravated forms of offences of Trafficking in People and Smuggling Migrants
The offences in Articles 3 and 4 of the draft Law will be supplemented by Article 5, which prescribes aggravating factors, such as whether anyone was killed or subjected to inhuman or degrading treatments in the course of commission of an offence against either Article, to which the Court will have regard in deciding the appropriate sentence for the offence. This provision, which is novel for Jersey, is adapted from a similar provision of the Crimes Act 1961 of New Zealand, and while not a specific requirement of the Protocol, would recognise and reflect the preamble to the Protocol on trafficking of persons which refers to the special prevalence of, and vulnerability to, trafficking of women and children (for forced labour and prostitution). It also reflects Article 4 of the Protocol, which refers particularly to the requirement of criminalisation of transnational and organised offences relating to trafficking in persons.
7. Article 6.1(b) (of the Smuggling of Migrants Protocol) and forgery of travel documents etc.
As mentioned above, this Article requires States Parties to criminalise, when committed in connection with smuggling of migrants (this is a minimum requirement and dos not preclude criminalising such matters apart from in such cases), producing, procuring or possessing fraudulent travel or identity documents.
It is quite possible that the customary law offences of forgery and uttering will cover some aspects of this, but to ensure complete compliance, Article 6 of the draft Law will create a new offence of forgery etc. of travel documents in connection with the offences of people trafficking and smuggling migrants.
8. Jurisdiction over offences - Extraterritorial effect
Article 15 of the Palermo Convention requires States’ Parties to adopt such measures as may be necessary to establish jurisdiction over offences covered by the Convention when committed on the territory of the State or on a ship registered in the State. The draft Law will do this for the new offences, in conjunction with the provisions of the Shipping (Jersey) Law 2002, in relation to Jersey ships. Article 15.2 of the Convention, in effect encourages States’ Parties to take wider powers to prosecute offences, especially when committed overseas by their own nationals. Article 8 of the draft Law goes much wider; for instance, it would give the Courts in Jersey jurisdiction over residents of Jersey who, and Jersey companies which commit offences against the Law overseas are offences committed abroad and where the victim of the offence is a resident of, or is found in, Jersey.
9. Further Explanation of the provisions of the draft Law
Further detailed descriptions of the provisions of the draft Law are given by the Law Draftsman’s explanatory note.
10. Financial and Manpower Implications
It is not possible to predict the resource implications of the proposed new Law with any accuracy, but a significant increase in resource requirements would seem unlikely. The situation will be monitored post implementation.
11. Human Rights
[1] It has also been decided to implement the 9 Special Recommendations of FATF Supplementing the 40 Recommendations but these are not relevant for present purposes.
[2] This is a UN Convention on Drugs and not relevant for present purposes
[3] This Convention will be implemented by virtue of the Terrorism (Jersey) Law 2002, but is not relevant for present purposes
[4] The text of the Convention and Protocols can be viewed at www.unodc.org/unode/en/crime_cicp_convention.html
[5] The offences established in Accordance with Article s 6 and 8 of the Convention are already offences in Jersey by virtue of existing measures against money laundering and corruption.
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