19th May, 2008
REPORT
Proceeds of Crime (Enforcement of Confiscation Orders) (Jersey) Regulations 200-
- In October and November of this year the Island’s framework to counter money laundering and terrorist financing is to be the subject of a review by the International Monetary Fund. Jersey will be assessed against the international standards set by the Financial Action Task Force on Money Laundering (“FATF”). In order to implement a number of criteria set out in the 40 Recommendations and 9 Special Recommendations of the FATF, against which Jersey will be assessed, a number of amendments were proposed and passed by the States of Jersey last year in respect of the Proceeds of Crime (Jersey) Law, 1999, (“POCL”) the Drug Trafficking Offences (Jersey) Law, 1988 (“DTOL”), the Terrorism (Jersey) Law, 2002 (“TL”) and the Criminal Justice (International Co-operation) (Jersey) Law, 2001 (“CJICL”). These amendments are now in force.
- One of the amendments passed in respect of each of the laws referred to above sought to implement Recommendation 38, which requires countries to have appropriate laws and procedures in place to provide an effective and timely response to mutual legal assistance. Mutual legal assistance is the formal way in which countries request and provide assistance in obtaining evidence located in one country to assist in criminal investigations or proceedings in another country.
- Prior to the amendment of the POCL, DTOL, TL and CJICL the provision of assistance to another jurisdiction to enable the enforcement of an external confiscation order under the POCL and DTOL, or an external restraint or forfeiture order under the TL, or the enforcement of an overseas forfeiture order under the CJICL was dependant on that jurisdiction being listed as a designated country or territory to whom assistance could be given. There was concern that Jersey would be criticised for not providing “effective” mutual legal assistance because the list of designated countries had not been kept up to date in recent years. Instead of updating the list of countries and territories (contained in Regulations issued under the various Laws), the better solution was considered to be that the list of countries and territories should be abandoned and that assistance should be offered on a case by case basis. This was the approach adopted in the amendments to the various Laws, which are now in force.
4. An “external confiscation order” was defined by Article 1 of the POCL, prior to amendment, as meaning an order made by a court in a designated country or territory –
(a) for the purpose of recovering property obtained as a result of or in connection with conduct corresponding to an offence specified in Schedule 1;
(b) for the purpose of recovering the value of the property so obtained; or
(c) for the purpose of depriving a person of a pecuniary advantage so obtained;
5. Article 39 POCL previously provided that on the application of the Attorney General, the Court may register an external confiscation order made in a designated country or territory if –
(a) the Court was satisfied that at the time of registration the order was in force and was not subject to appeal;
(b) it was satisfied, 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) it was of the opinion that enforcing the order in Jersey would not be contrary to the interests of justice.
6. The definition of external confiscation order in Article 1 of the POCL has now been amended so that it means an order made by a court in a country or territory outside Jersey –
a) for the purpose of recovering property obtained as a result of or in connection with conduct corresponding to an offence specified in Schedule 1;
(b) for the purpose of recovering the value of the property so obtained; or
(c) for the purpose of depriving a person of a pecuniary advantage so obtained;
7. Article 39 has also been amended to remove the reference to a designated country or territory.
- As explained, the amendments mean that external confiscation orders from any jurisdiction are now capable of being registered by the Royal Court and that the enforcement in Jersey of external confiscation orders under the POCL is no longer conditional on countries or territories being designated. However, the designated countries and territories remain listed in the Regulations made under the POCL. Instead of amending the existing Regulations, it has been decided, in the interests of clarity, that the current Regulations should be repealed and replaced.
- These draft Regulations would replace the current Proceeds of Crime (Designated Countries and Territories) (Jersey) Regulations 1999 with provisions which are substantially the same as those contained in the current Regulations except that (i) the references to designated countries and territories are removed; and (ii) references to any provisions which have been repealed or amended as a result of the changes to the primary legislation have been altered.
Financial/Manpower Implications -
These Regulations have no financial or manpower resource implications for the States.