WRITTEN REPORT
Draft Terrorism (Amendment No.4) (Jersey) Law 201- (the “Draft Law”)
Overview
The draft Law makes amendments to the Terrorism (Jersey) Law 2002 (the “T(J)L”) in furtherance to Jersey’s on-site evaluation by MONEYVAL regarding compliance with the FATF Recommendations on anti-money laundering and countering the financing of terrorism. The amendments specifically deal with FATF Special Recommendation II (criminalisation the financing of terrorism and associated money laundering).
During the on-site visit, in addition to positive comments made by the assessors as to amendments recently made to T(J)L by virtue of the Proceeds of Crime and Terrorism (Miscellaneous Provisions) (Jersey) Law 2014 comments were made as to the definition of “property” under T(J)L and the definition of “legal professional privilege”. The draft Law seeks to address those comments.
It should be noted that equivalent amendments are being made by virtue of another Proposition to the Proceeds of Crime (Jersey) Law 1999 to deal with these issues in the circumstances of money laundering.
Definition of “Property”
The definition of “property” is relevant to confiscation of property under the T(J)L. The evaluators commented that whilst the definition of “property” in the T(J)L was broad, in their opinion, the international standards in this regard were not comprehensively transposed into domestic legislation. The evaluators considered that the language of the conventions (and the FATF definitions) clearly covering legal documents or instruments evidencing title to or interest in such assets should be adopted to avoid legal uncertainty. They further commented that the UK Proceeds of Crime Act 2002 contained extended definitions of property which could also be relevant in the context of money laundering in Jersey. The evaluators urged the insular authorities to reconsider the relevance of these terms in the local context.
The Chief Minister’s Department along with the Law Officers’ department and with specific consultation with the Solicitor General have considered both s.340 of the UK Proceeds of Crime Act 2002, the FATF definitions and the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of Proceeds of Crime and on the Financing of Terrorism (“the Warsaw Convention”) and are of the view that the revised definition contained in draft Law should therefore meet the evaluators concerns.
Definition of Legal Professional Privilege
The evaluators commented that they considered that the definition of legal professional privilege in T(J)L is wider than the customary law definition. They went on to recommend that the definition in the T(J)L should be removed. The Chief Minister’s Department along with the Law Officers’ department and with specific consultation with the Solicitor General have considered the matter and have concluded that is therefore advisable to remove the definition of legal professional privilege in T(J)L. The provisions in the draft Law should therefore meet the evaluators concerns.
By removing references in the T(J)L to information coming to a professional legal adviser in “privileged circumstances” and instead referring to “items subject to legal privilege” any references to legal privilege in that Law shall have the meaning as acquired by the customary law of Jersey. In Bene Ltd v VAR Hanson & Partners [1997] JLR N10a, the Royal Court comprehensively described direct communications between a lawyer and his client (or via third party agents) to be subject to legal privilege if they are confidential and for the dominant purpose of seeking or giving legal advice on the client’s legal position or rights (“legal advice privilege”). Also privileged are confidential communications between a lawyer and his client, non-professional agent or third party, made after litigation has been commenced or contemplated and for the sole or dominant purpose of advising in relation to, or seeking evidence or information for, such litigation (“litigation privilege”).
Financial and Manpower Implications
There are no financial or manpower implications as a result of the States adopting the draft Regulations.
Human Rights implications
The Deputy Chief Minister has been provided with separate advice from the Law Officers’ Department and has been advised that it is appropriate for a statement to be made in accordance with the provisions of Article 16 of the Human Rights (Jersey) Law 2000 confirming that the Deputy Chief Minister is of the view that the provisions of the draft Terrorism (Amendment No.4) (Jersey) Law 201- are compatible with the Convention Rights.
Recommendation
It is recommended that the Deputy Chief Minister request that the Greffier of the States arrange for the draft Law to be lodged and that they are debated by the States at the earliest opportunity.
LEGISLATIVE AND POLICY DEVELOPMENT
FINANCIAL SERVICES
CHIEF MINISTER’S DEPARTMENT
23 FEBRUARY 2015