Police Procedures and Criminal Evidence (Jersey) Regulations

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A decision made (31/07/2008) regarding: Police Procedures and Criminal Evidence (Jersey) Regulations - Amendment.

Decision Reference: MD-HA-2008-0055
Decision Summary Title :	PPCE Schedule 1 amendment		Date of Decision Summary:	Wednesday, 30 July 2008
Decision Summary Author:	Heidi Sydor Executive Officer		Decision Summary: Public or Exempt?	Public
Type of Report: Oral or Written?	written		Person Giving Oral Report:
Written Report Title :	Report PPCE Schedule 1 amendment		Date of Written Report:	Wednesday, 30 July 2008
Written Report Author:	Caroline Dutot Legal Assistant		Written Report : Public or Exempt?	Public
Subject: PPCE (Amendment of Schedule 1)(No.1) (Jersey) Regulations
Decision(s): The Minister approved the amendment of Schedule 1, No 1, of the Police Procedures and Criminal Evidence (Jersey) Regulations and asked that it be lodged ‘au Greffe’ for debate on the 11th September.
Reason(s) for Decision: The Regulations list ‘serious’ offences, and this amendment adds specific offences under the Proceeds of Crime (Jersey) Law 19999 and the Terrorism (Jersey) Law 2002, which were not previously listed.
Resource Implications: There are no additional financial or manpower implications to the Home Affairs Department arising from this amendment to Regulations
Action required: The Executive Officer, Home Affairs, to request the Greffier of the States to lodge ‘for debate on 11th September
Signature:		Position: Minister for Home Affairs
Date Signed:		Date of Decision (If different from Date Signed):

Police Procedures and Criminal Evidence (Jersey) Regulations - Amendment.

Report

Police Procedures and Criminal Evidence (Amendment of Schedule 1) (No. 1) (Jersey) Regulations 200-

These draft Regulations seek to add to the definition of “serious offence” in the Police Procedures and Criminal Evidence (Jersey) Law, 2003 ("PPCE"). At present, Article 3(2)(c) of the PPCE provides that drug trafficking offences, as defined in Article 1(1) of the Drug Trafficking Offences (Jersey) Law, 1988 (“DTOL”), are “serious offences” for the purpose of the Law. That definition covers the offences set out in Articles 30, 37, 38 and 46 of the DTOL. The PPCE currently omits offences committed under Articles 40, 40A and 41 of the DTOL and offences committed under the Proceeds of Crime (Jersey) Law, 1999 (“POCL”) and the Terrorism (Jersey) Law, 2002 (“TL”) from Schedule 1. These amendments are designed to correct that anomaly.

The overall purpose of the amendments is to enhance police investigatory powers in respect of the existing offences listed in the explanatory note to the draft Regulations (“existing offences”) and, in doing so, satisfy Recommendation 28 of the Financial Action Task Force, against which Jersey will be assessed by the IMF in October of this year.

Recommendation 28 of the Financial Action Task Force requires that:

“28.1 Competent authorities responsible for conducting investigations of ML, FT and other underlying predicate offences should have the powers to be able to:

a) Compel production of,

b) Search persons or premises of,

c) Seize and obtain,

transaction records, identification data obtained through the CDD process, account files, business correspondence, and other records, documents or information, held or maintained by financial institutions and other businesses or persons. Such powers should be exercised through lawful process (for example, subpoenas, summonses, search and seizure warrants, or court orders) and be available for use in investigations and prosecutions of ML, FT, and other underlying predicate offences, or in related actions e.g. actions to freeze and confiscate the proceeds of crime.”

The States of Jersey Police have, on occasion, encountered difficulties in obtaining production orders and search warrants under the present provisions because the existing offences are not listed under the Schedule to the PPCE as a "serious offence" and may not, on their facts, meet the criteria for a "serious offence" listed in Article 3(4) and (6) of the PPCE.

Article 3(4) of the PPCE provides that any other offence, other than the offences listed in Schedule 1, is serious only if its commission:

(a) has led to any of the consequences specified in paragraph (6); or

(b) is intended or is likely to lead to any of those consequences.

Article 3(6) of the PPCE provides that the consequences listed in Article 3(4) are:

(a) serious harm to the security of Jersey or to public order;

(b) serious interference with the administration of justice or with the

investigation of offences or of a particular offence;

(d) serious injury to any person;

(e) substantial financial gain to any person;

(f) serious financial loss to any person.

It is not always the case that one of these criteria is met in respect of the commission of an existing offence. This is particularly the case in relation to the failing to report offences, tipping off offences and breaches of the Money Laundering Order, 2008.

The POCL, DTOL and TL also include provisions that enable the police to obtain production orders and search premises. Problems also arise in the current operation of those powers. To take the POCL as an example, a condition to be satisfied in order to obtain a production order or a search warrant under Articles 40 and 41 of the POCL is that “there are reasonable grounds for suspecting that a specified person has benefited from any criminal conduct”. This requirement will not always be met, for example in respect of a tipping off offence, and therefore an application for a search warrant or production order will not get off the ground. Similar problems are encountered with the DTOL and TL.

Overall this means that, depending on the factual circumstances of a case, the police may not have the power to obtain production orders or search premises with a view to the investigation of offences under the POCL, DTOL and TL. Without the use of such powers to obtain evidence, it is difficult for successful investigations and prosecutions to ensue. The offences themselves have already been enacted by the States of Jersey and these amendments are designed to ensure that all the offences listed in the draft Regulations, whatever the factual circumstances, can be properly investigated.

The amendment proposed by the draft Regulation is also in furtherance of the States Strategic Plan 2005-2010 which recognises the need to support those concerned with the investigation of crime in order to enhance Jersey’s international reputation.

Resource Implications:

There are no additional financial or manpower implications to the Home Affairs Department arising from this amendment to Regulations