Copy of Financial Investigation Manual by ECCU (FOI)

​​​Request

The Update on the National Risk Assessment of Money Laundering states at 5.4.7: “Additionally, manuals of Guidance in relation to ML investigations have been published to the LOD by the AG, and both SoJP and ECCU have produced their own Financial Investigation Manual.”

Update on the National Risk Assessment of Money Laundering​​

Please provide a copy of the Financial Investigation Manual produced by ECCU (i.e. the Economic Crimes and Confiscation Unit).

​Response

The information requested is exempt under Article 27 of the Freedom of Information Jersey (Law) 2011

The Financial Investigation Manual (the “Document”) has been produced by legal advisers within ECCU. The Document being intended to advise its primary audience how best to investigate money laundering and financial crime.

Whilst ECCU is not noted within Article 26A of the FOI Law, it performs a similar function for Jersey to some of the criminal investigative agencies noted therein whose manuals of investigation and other information would be automatically exempt.

It is recognised that the more readily accessible to criminals one can make a detailed understanding of matters such as that covered by the Document, the more likely it is such criminals could use such knowledge to avoid successful investigations (in turn leading to a greater chance of damage and harm occurring to Jersey’s citizens and economy).

What constitutes “national security” is not specifically defined by Jersey, the UK or European law. However, in the English case of Norman Baker v the Information Commissioner and the Cabinet Office (EA/2006/0045 4 April 2007) the Information Tribunal was guided by a House of Lords case, Secretary of State for the Home Department v Rehman [2001] UKHL 47, concerning whether the risk posed by a foreign national provided grounds for his deportation. The Information Tribunal summarised the Lords’ observations as: 

• “national security” means the security of the United Kingdom and its people; 
• the interests of national security are not limited to actions by the individual which are targeted at the UK, its system of government or its people;
• the protection of democracy and the legal and constitutional systems of the state are part of national security as well as military defence;
• action against a foreign state may be capable indirectly of affecting the security of the UK; and,
• reciprocal cooperation between the UK and other states in combating international terrorism is capable of promoting the United Kingdom’s national security. 
• Given the similarities of the Freedom of Information regimes, it is likely that the above definition would be followed in Jersey so that “national security” means the security of the Jersey and its people etc. 

Likewise, ‘required’ (to safeguard national security) has been interpreted as meaning ‘reasonably necessary’. Such approach being informed by the approach taken in the European Court of Human Rights, where the interference of human rights can be justified where it is ‘necessary’ in a democratic society for safeguarding national security. ‘Necessary’ in this context being taken to mean something less than absolutely essential but more than simply being useful or desirable.

There is no requirement to show that disclosing the withheld information would lead to a direct threat, but there must be a real possibility of an adverse effect. (House of Lords case, Secretary of State for the Home Department v Rehman [2001] UKHL 47). 

Whilst there may be a difference between terrorism and organised crime, it is reasonable and reasonably necessary, to consider both, a threat to Jersey’s national security its people and constitutional systems. 

The Bailiwick of Jersey National Risk Assessment of Money Laundering noting:

“the JFCU-FIU’s intelligence database has been reviewed and relevant cases extracted. These cases suggest that the greatest threat to Jersey comes from non-residents seeking to hide the proceeds of corruption and white-collar crime in Jersey”

 Bodies such as the NCA (National Crime Agency) in the United Kingdom having also considered: 

 “The critical importance of the financial sector to the UK’s economy means that money laundering, particularly high-end money laundering…can threaten the UK’s national security and prosperity and undermine the integrity of the UK’s financial system and international reputation”

 Similarly, the UK has also recently announced that fraud will be reclassified as a national security threat, giving it the same status as terrorism. Please see the link below: 

Fraud to be Reclassified as a UK National Security Threat (complyadvantage.com)

Whilst Article 27 is an absolute exemption and not a qualified exemption it is also noted that maintenance of a degree of confidentiality in respect of the manner in which financial crime may be investigated, is clearly in the interests of the public and that this approach assists the protection of democracy and the legal and constitutional systems of the state.

It is also considered that the Document constitutes legal advice concerning the investigation of financial crime, the privilege in which was not waived when it was provided to the Government Department. 

It is not in the public interest for such legal advice to be available to potential suspects or defendants in financial crime cases, which would occur if the Document was published. Accordingly, the Document is exempt under Article 31 and absolutely exempt under Article 27.

Articles applied

Article 27 - National security 

(1) Information which does not fall within Article 26A(1) is absolutely exempt information if exemption from the obligation to disclose it under this Law is required to safeguard national security. 

(2) Except as provided by paragraph (3), a certificate signed by the Chief Minister certifying that the exemption is required to safeguard national security is conclusive evidence of that fact.

(3) A person aggrieved by the decision of the Chief Minister to issue a certificate under paragraph (2) may appeal to the Royal Court on the grounds that the Chief Minister did not have reasonable grounds for issuing the certificate.

(4) The decision of the Royal Court on the appeal shall be final.

Article 31 - Advice by the Bailiff, Deputy Bailiff or a Law Officer

Information is qualified exempt information if it is or relates to the provision of advice by the Bailiff, Deputy Bailiff or the Attorney General or the Solicitor General.

Public Interest Test 

With regard to the public interest arguments, HM Treasury v IC [2009] EWHC 1811 Blake J recognised that when engaged, the Convention will carry significant weight in the public interest test. The Convention has been considered by the Office of the Information Commissioner and was held to be part of Jersey law.

Whilst it is recognised that the strong public interest in protecting Law Officers’ advice may still be overridden in some cases if there are particularly strong factors in favour of disclosure, conversely, disclosing the advice or whether advice was or will be sought could inhibit the Law Officers from (1) giving frank advice (2) inhibit government bodies in taking advice for fear of its publication; and (3) inhibit the full disclosure to the Law Officers of all material relevant to the advice being sought and therefore real weight ought to be afforded to this aspect of the Law Officers’ Convention.

Disclosing either the legal advice or the fact of whether specific advice was sought to the public is not a greater consideration of public interest that requires disclosure of the advice or confirmation of what advice was given. It does not outweigh the three principles set out above which require the long-standing Law Officer Convention to be maintained. Therefore, the balance is in favour of maintaining the exemption and it is not considered the public interest in disclosure outweighs the preservation of the Convention on this occasion.