Jersey: Reform Of Civil Forfeiture Orders In Jersey

Last Updated: 17 July 2018
Article by Nicola Roberts and Leon Hurd

MONEYVAL's inspection of Jersey's AML regime in 2015 and its subsequent report issued in May 2016 has focussed the minds of Jersey legislators and regulators to actively prosecute more financial crime and in particular to introduce a non-conviction based confiscation regime to apply in parallel with the conviction based system. The Draft Forfeiture of Assets (Civil Proceedings) Jersey Law 201 (the Draft Law) is a paradigm shift in regulatory approach to achieve the objectives set by MONEYVAL. The Draft Law replaces and extends the current Proceeds of Crime (Cash Seizure) (Jersey) Law 2008 (the Cash Seizure Law) and applies to both cash and property held in bank accounts.

Overview of the Draft Law

The Draft Law broadly provides for three procedural tracks by which civil forfeiture might be sought by .

(i) preserving the existing procedure for tainted cash under the Cash Seizure Law;

(ii) creating a procedure for the forfeiture of property in bank accounts which have been subject to a 'No Consent' by the relevant police authority for 12 months.

(iii) creating a procedure for the forfeiture of property in bank accounts which is suspected to be proceeds of unlawful conduct or intended to be used for such conduct.

Running in parallel to the three procedural tracks is the introduction of the concept of a "civil forfeiture investigation" and the grant of investigative powers to the Attorney General or an authorised officer acting with the Attorney General's consent, for use in respect of such investigations. A civil forfeiture investigation extends to both proceedings under the Draft Law and also non-conviction based proceedings being brought (i) under legislation in force in any country or territory other than Jersey, (ii) relating to the forfeiture of property in Jersey, (iii) by a court of that country or territory. The investigation must be in relation to one or all of the following matters:

(i) the question of whether any property is tainted property;

(ii) the identity, or suspected unlawful conduct, of any person who holds property which is suspected of being tainted property, or to whom such property belongs; and

(iii) the extent or whereabouts of such property.

The investigative powers that may be sought in connection with a civil forfeiture investigation are wide and include production orders and disclosure orders.

Of particular note for Banks

Forfeiture

Banks should be alive to the newly introduced forfeiture of tainted property regime which provides the Attorney General with the ability to issue a notice upon the holder of an account held at a bank in Jersey. The procedure for the forfeiture of tainted property differs depending upon whether a consent request has been made in relation to the account in question and may give rise to orders either under (i) the summary forfeiture procedure; or (ii) a property restraint order:

Summary forfeiture procedure

  • If a consent request has been filed, then notice shall be served by the Attorney General and on the holder of the bank account in Jersey. If the account holder fails to attend the court hearing required by the notice, their property may be forfeited without the individual receiving any further notice.

Property restraint orders

  • If a consent request has not been filed but where the Attorney General has reasonable ground to believe that property held in any bank account is tainted property, the Attorney General may apply for a restraint order which prohibits the withdrawal, transfer or payment out of the bank account of the property or part of the property specified in the application.

Property which is specified property in a restraint order is to be vested in the Viscount from the date specified in the order and from then on the Viscount shall take possession of and, in accordance with directions from the Court, manage or deal with, that property

If it can be proven that any actions taken by the Viscount or the Attorney General in respect of property, the subject of a property restraint order, was taken in bad faith, the person to which the property belongs to may make an application to the Court for compensation.

Investigation

The Draft Law introduces the ability for the Attorney General or an authorised officer acting with the Attorney General's consent to obtain orders to require Banks to undertake account monitoring and provide customer information in the course of a civil forfeiture investigation.

The account monitoring orders that can be applied for under the Draft Law are broad in scope, with Article 23(6) of the Draft Law setting out that the specified bank must –

"... (a) for the period specified in the order;

(b) in the manner so specified; and

(c) at or by a time so specified and at a place so specified,

provide information of the specified description to a police officer named in the order."

Banks and their employees will also need to be vigilant of the consequences of failing to comply with an account monitoring order, Article 23(7) of the Draft Law clarifies that

"... A person failing to comply with a requirement imposed by an account monitoring order shall be guilty of an offence and liable to imprisonment for a term of 6 months and to a fine, but it shall be a defence for a person charged with an offence under this Article to prove that –

(a) the information sought was not in the person's possession; or

(b) it was not reasonably practicable for the person to comply with the order."

It is also likely that Banks will be impacted by the introduction of customer information orders under the Draft Law. "Customer information" is broadly defined and includes:

  • information as to whether a business relationship exists or has existed between a bank and a particular person;
  • a customer's –

(i) account number,

(ii) full name,

(iii) date of birth,

(iv) address or former address;

  • the date on which a business relationship between a bank and a customer begins or ends;
  • any evidence of a customer's identity obtained by a bank in pursuance of or for the purposes of any legislation relating to money laundering;
  • any evidence otherwise within the knowledge of a bank as to the source of any of a customer's funds held by that bank;
  • the identity of any person sharing an account with a customer.

Pursuant to a successfully obtained customer information order, the Bank is required to provide the customer information:

" (a) in such manner and within such time as the order may specify; and

(b) notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by any enactment or contract or otherwise."

In a similar vein to account monitoring orders, Banks and their employees must be vigilant of the consequences of failing to comply with an customer information order, Article 23(6) of the Draft Law states:

" A person failing to comply with a requirement imposed by a customer information order shall be guilty of an offence and liable to imprisonment for a term of 6 months and to a fine, but it shall be a defence for a person charged with an offence under this Article to prove that –

(a) the customer information was not in the person's possession; or

(b) it was not reasonably practicable for the person to comply with the order."

Conclusion

The Draft Law provides a broad and powerful tool to financial crime investigators and prosecutors in Jersey. Given the breadth of the investigatory tools and, of course, the scope for a summary forfeiture procedure, it is very likely that the upon its coming into force the Draft Law will be a regularly utilised piece of legislation. Banks should certainly take note of the direct impact that the Draft Law may have on their businesses and will need to start thinking about the introduction of relevant systems, policies and procedures in order to ensure that they can readily comply with any of the civil forfeiture investigation orders that may be made against them.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions