I. Criminal Asset Recovery
1. Tracing
Article 41(1) of the Proceeds of Crime (Jersey) Law, 1999 provides that a police officer may, in certain circumstances, for the purposes of an investigation into whether any person has benefited from any criminal conduct or into the extent or whereabouts of the proceeds of any criminal conduct, apply to the Bailiff for a warrant to enter and search specified premises.
Drug Trafficking Offences (Jersey) Law, 1988
Article 43(1) of the Drug Trafficking Offences (Jersey) Law, 1988 provides a police officer may, in certain circumstances, for the purpose of an investigation into drug trafficking, apply to the Bailiff for a warrant in relation to specified premises.
Terrorism (Jersey) Law, 2002
Paragraph 1 of Schedule 5 of the Terrorism (Jersey) Law, 2002 provides that a police officer may apply to the Bailiff for the issue of a warrant for the purposes of a terrorist investigation.
Article 6 of the Criminal Justice (International Co-operation) (Jersey) Law, 2001 provides that on an application by the Attorney General, the Bailiff may issue a warrant authorizing a police officer to enter, if need be by force, and search specified premises and seize any such evidence found there.
Article 16(1) of the Proceeds of Crime (Jersey) Law, 1999 provides that the Court may, subject to such conditions and exceptions as may be specified in it, make an order (referred to as a saisie judiciaire) on an application by the Attorney General. Article 16(4) provides that on the making of a saisie judiciaire -
- (a) all the realisable property held by the defendant in Jersey shall vest in the Viscount;
- (b) any specified person may be prohibited from dealing with any realisable property held by that person whether the property is described in the order or not;
- (c) any specified person may be prohibited from dealing with any realisable property transferred to the person after the making of the order.
By virtue of the Proceeds of Crime (Designated Countries and Territories) (Jersey) Regulations, 1999 (Schedule 2 - modification of the Proceeds of Crime (Jersey) Law, 1999 in respect of external confiscation orders) an application under Article 16(1) can be made by the Attorney General by or on behalf of a government of a designated country or territory outside Jersey. The designated countries and territories are set out in Schedule 1 of the Regulations. These Regulations will be replaced early in 2008 to remove the list of designated countries and territories to enable applications to be made on behalf of any government of a country or territory outside Jersey.
Drug Trafficking Offences (Jersey) Law, 1988
Article 16(1) of the Drug Trafficking Offences (Jersey), 1988 provides that the Court may, subject to such conditions and exceptions as may be specified in it, make an order (referred to as a saisie judiciaire) on an application by the Attorney General. Article 16(4) of that Law sets out the effect of a saisie judiciaire, which is in the same terms as Article 16(4) of the Proceeds of Crime (Jersey) Law, 1999 (as set out above).
By virtue of the Drug Trafficking (Designated Countries and Territories) (Jersey) Regulations, 1997 (Schedule 2 - modification of the Drug Trafficking Offences (Jersey) Law, 1988 in respect of external confiscation orders) an application under Article 16(1) can be made by the Attorney General by or on behalf of a government of a designated country or territory outside Jersey. The designated countries and territories are set out in Schedule 1 of the Regulations. These Regulations will be replaced early in 2008 to remove the list of designated countries and terriroties and to enable applications to be made on behalf of any government of a country or territory outside Jersey.
Criminal Justice (International Co-operation) (Jersey) Law, 2001
Regulation 4 of the Criminal Justice (International Co-operation) (Jersey) Regulations, 2001, issued under Article 7 of the Criminal Justice (International Co-operation) (Jersey) Law, 2001, provides that the Royal Court may by order (known as a restraint order) authorize the Viscount to seize or detain any property in respect of which an external forfeiture order has been made or in respect of which such an order could be made. According to Article 7 of the Criminal Justice (International Co-operation) (Jersey) Law, 2001, an external forfeiture order is an order that -
- (a) is made by a court in a country or territory outside Jersey designated for the purposes of this Article by the Regulations; and
- (b) is for the forfeiture and destruction, or the forfeiture and other disposal, of anything in respect of which an offence that would constitute a serious offence if the conduct constituting the offence had occurred in Jersey has been committed or that was used or intended for use in connection with the commission of such an offence.
These Regulations are also due to be replaced shortly so as to remove any references to designated countries and territories, meaning that it will be possible for the Attorney General to apply for a restraint order in respect of any country or territory outside of Jersey.
Terrorism (Jersey) Law, 2002
Paragraph 3 of Schedule 3 of the Terrorism Law, 2002 provides that the Royal Court may, by order (known as a "restraint order"), prohibit any person, subject to such conditions and exceptions as may be specified therein, from dealing with any property liable to forfeiture, that is to say any property in respect of which a forfeiture order has been made or could be made.
In accordance with Paragraph 11 of Schedule 3 of the Terrorism Law, 2002 and Regulation 7 of the Terrorism (Enforcement of External Orders) (Jersey) Regulations, 2002, the Attorney General can apply to the Royal Court on behalf of the government of a designated country to have an external restraint order registered.
Amendments to the Law and Regulations removing the list of designated countries and territories will mean that applications from early in 2008 will be able to be made on behalf of any country or territory.
In accordance with Article 3 and Schedule 1 of the Proceeds of Crime (Jersey) Law, 1999, where a defendant appears before the Court to be sentenced in respect of one or more offences which carry a term of imprisonment of one or more years, the Court may determine whether the person has benefited from any relevant criminal conduct, and if so, determine the amount to be recovered in the defendant's case and make a confiscation order, to the effect that the defendant must pay that amount.
Article 39 of the Proceeds of Crime (Jersey) Law, 1999 provides that on the application of the Attorney General, the Royal Court may register an external confiscation order made in a designated country or territory. Amendments to the Law will mean that from early in 2008 applications will be able to be made on behalf of any country or territory.
Drug Trafficking Offences (Jersey) Law, 1988
Article 3 of the Drug Trafficking Offences (Jersey) Law, 1988 provides that where there a defendant appears before the Court to be sentenced in respect of one or more drug trafficking offences, then the Court may determine whether the person has benefited from drug trafficking, and if so, order an amount to be recovered and paid by that person. In accordance with Article 8 of the Law, the amount to be recovered under the confiscation order shall be the amount the Court assesses to be the value of the defendant's proceeds of drug trafficking.
Article 39 of the Drug Trafficking Offences (Jersey) Law, 1988 provides that on the application of the Attorney General, the Court may register an external confiscation order made in a designated country or territory. Amendments to the Law will mean that from early in 2008, applications will be able to be made on behalf of any country or territory.
Terrorism (Jersey) Law, 2002
Article 26 of the Terrorism (Jersey) Law, 2002 provides that the Court by or before which a person is convicted of an offence under any of Articles 15 to 18 of the Law (terrorist fund-raising, use and possession of terrorist property, terrorist funding arrangement, money laundering) of the Law may make a forfeiture order.
In accordance with Paragraph 11 of Schedule 3 of the Terrorism (Jersey) Law, 2002 and Regulation 6 of the Terrorism (Enforcement of External Orders (Jersey) Regulations, 2002, the Attorney General can apply to the Royal Court on behalf of the government of a designated country to have an external forfeiture order registered.
Amendments to the Law and Regulations will mean that from early in 2008, applications will be able to be made on behalf of any country or territory.
Criminal Justice (International Co-operation) (Jersey) Law, 2001
Article 7 of the Criminal Justice (International Co-operation) (Jersey) Law 2001, together with the Criminal Justice (International Co-operation) (Jersey) Regulations, 2001, provide that on an application made on behalf of the Government of a designated country by the Attorney General, the Royal Court may register an external forfeiture order made there. An external forfeiture order is defined in Regulation 3 of the Regulations as an order made by a court in a designated country for the forfeiture and destruction or forfeiture and other disposal, of anything in respect of which a serious offence has been committed or which was used or intended for use in connection with the commission of such an offence.
Amendments to the Law and Regulations will mean that from early in 2008, applications will be able to be made on behalf of any country or territory.
Article 2 of the Criminal Justice (Forfeiture Orders) (Jersey) Law, 2001 provides that where an offender is convicted of an offence and the court is satisfied that any property which has been lawfully seized from the person or which was in the person's possession or under the person's control has
- (a) been used for the purpose of committing, or facilitating the commission of, any offence, or was intended by the person to be used for that purpose, or
- (b) consists of unlawful possessed property, the court may make an order depriving the offender of it.
Where the offender has been convicted of an offence which has resulted in a person suffering personal injury, loss or damage the court may also make an order that any proceeds which arise from the disposal of the property and which do not exceed a sum specified by the court shall be paid to that person.
4. Repatriation
The Attorney General has the ability under the Proceeds of Crime (Jersey) Law, 1999, the Drug Trafficking Offences (Jersey) Law, 1988, the Terrorism (Jersey) Law, 2002 and the Civil Asset Recovery (International Co-operation) (Jersey) Law, 2007 to enter into asset sharing agreements with governments of other countries or territories, to provide for the repatriation of assets. Jersey has in the past repatriated funds to a number of countries, including the United Kingdom, the Isle of Man, the United States of America and Nigeria.
Article 9 (with Article 12) of the Civil Asset Recovery (International Co-operation) (Jersey) Law, 2007 provides that on an application made by the Attorney General on behalf of the government of a country or territory outside Jersey, the Royal Court may register an external civil asset recovery order.
In accordance with Article 6 of the Civil Asset Recovery (International Co-operation) (Jersey) Law, 2007, an application for a property restraint order can be made by the Attorney General in respect of specified recoverable property. Recoverable property is defined under Article 1 of the Law as any property in respect of which an external civil asset recovery order has, or could be, made in external civil asset recovery proceedings. Definitions of "external civil asset recovery order" and "external civil asset recovery proceedings" can be found at Article 1 of the Law. Article 7(9) provides that if the Royal Court has made a property restraint order, a police officer may, for the purpose of preventing any recoverable property to which the property restraint order relates being removed from Jersey, seize the property.
Domestically, tainted cash can be searched for, seized, detained and forfeited under the Proceeds of Crime Cash (Seizure) (Jersey) Law, 200- (to be in force February/March 2008). Tainted cash is defined under that Law as cash (or cash converted into property) that is used in, or intended to be used in unlawful conduct or obtained in the course of, from the proceeds of, or in connection with unlawful conduct. Unlawful conduct means the commission of -
- (a) an offence against a law of Jersey; or
- (b) an offence against a law of a country or territory outside Jersey, that, if it had been committed in Jersey, would be an offence against a law of Jersey.
III. Civil Law Suits
Civil action to recover assets from Jersey is available to a victim or State pursuing proceeds of crime.
