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Drug Trafficking (Bailiwick of Guernsey) (Amendment) Law, 2007

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PROJET DE LOI
ENTITLED
 
The Drug Trafficking (Bailiwick of Guernsey) (Amendment) Law, 2007
 
THE STATES, in pursuance of their Resolutions of the 27th July, 2006[a] and the 30th May, 2007[b], have approved the following provisions which, subject to the Sanction of Her Most Excellent Majesty in Council, shall have force of law in the Bailiwick of Guernsey.
 
Amendment of Drug Trafficking Law.
1.      The Drug Trafficking (Bailiwick of Guernsey) Law, 2000, as amended[c] ("the Drug Trafficking Law"), is further amended as follows.
 
2.      In section 2(3) of the Drug Trafficking Law after "another person" insert "and if he has derived a pecuniary advantage as a result of or in con­nection with criminal conduct, he is to be treated as if he had obtained instead a sum of money equal to the value of the pecuniary advantage".
 
3.      In section 2(7) of the Drug Trafficking Law after "civil proceedings" insert "(that is to say, a balance of probabilities)".
 
4.      After section 4(7) of the Drug Trafficking Law insert the following subsections -
 
"(8)      For the purposes of subsection (4)(a) a required assumption is not shown to be incorrect in the defendant's case in relation to any property or expenditure by reason of it being shown that -
 
(a)      the property was received by him as a result of or in connection with criminal conduct carried on by him or another person or, as the case may be,
 
(b)      the expenditure was met out of payments received by him as a result of or in connection with criminal conduct carried on by him or another person.
 
(9)      In this section "criminal conduct" has the meaning it has in section 1(1) of the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law, 1999.".
 
5.      After section 29(8) of the Drug Trafficking Law insert the following subsection -
 
"(9)      The powers of the Court under this section may be exercised by the Bailiff in chambers sitting unaccompanied by the Jurats (and references to "the Court" shall be construed accordingly); and an application under this section may be made on an ex parte basis.".
 
6.      In section 30(1)(c) of the Drug Trafficking Law after "the defendant" insert "or the recipient of a gift caught by this Law".
 
7.      In section 35(1)(a) of the Drug Trafficking Law for the text preceding subparagraph (i) substitute the following -
 
"(a)      direct, in relation to any country or territory within the British Islands, or in relation to any other country or territory -
 
-      designated by an Order in Council of Her Majesty under section 39 of the Drug Trafficking Act 1994[d] (and any such designation shall continue to have effect for the purposes of this Law, notwithstanding any repeal of section 39, until amended or revoked by Ordinance of the States), or
 
-      designated by Ordinance of the States,
 
(any country or territory so designated being referred to in this Law as a "designated country") that, subject to such modifications as may be specified, the relevant provisions of this Law shall apply - ".
 
8.      In section 53(3) of the Drug Trafficking Law after "civil proceedings" insert "(that is to say, a balance of probabilities)".
 
9.      In section 58(3)(b)(i) of the Drug Trafficking Law after "the officer of police" insert "(and in this case the person doing the act shall incur no liability of any kind to any person by reason of such act)".
 
10.      In section 59(5)(b)(i) of the Drug Trafficking Law after "the officer of police" insert "(and in this case the person doing the act shall incur no liability of any kind to any person by reason of such act)".
 
11.      In section 62(2)(a) of the Drug Trafficking Law for "12 months" substitute "6 months".
 
12.      After section 62 of the Drug Trafficking Law, insert the following sections -
 
"Restrictions on disclosure under this Part.
62A.      (1)      Subject to sections 62B and 62C, information which is disclosed to an officer of police -
 
(a)      under section 58,
 
(b)      under section 59,
 
shall not be disclosed by that officer of police or by any person who obtains the information directly or indirectly from him.
 
(2)      A person who contravenes subsection (1) is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding 6 months, a fine not exceeding level 5 on the uniform scale, or both.
 
(3)      In proceedings against a person for an offence under this section, it is a defence for him to show that he took all reasonable steps and exercised all due diligence to avoid committing the offence.
 
Disclosure for purposes within the Bailiwick.
62B.      (1)      Section 62A does not prohibit the disclosure of information to a person in the Bailiwick for the purposes of the investigation of crime in the Bailiwick or for the purposes of criminal proceedings in the Bailiwick.
 
(2)      Section 62A does not prohibit the disclosure of information, for other purposes in the Bailiwick, to -
 
(a)      Her Majesty's Procureur,
 
(b)      the Guernsey Financial Services Commission,
 
(c)      an officer of police, or
 
(d)      any other person who is for the time being authorised in writing by Her Majesty's Procureur to obtain that information.
 
Disclosure for purposes outside the Bailiwick.
62C.      (1)      Section 62A does not prohibit the disclosure of information if the information is disclosed -
 
(a)      for the purposes of the investigation of crime outside the Bailiwick or for the purposes of criminal proceedings outside the Bailiwick, or
 
(b)      to a competent authority outside the Bailiwick,
 
and the expression "competent authority" means any person or body, or any class or description of person or body, prescribed for the purposes of this section by regulations of the Policy Council.
 
(2)      In this section "investigation", in relation to a crime, includes the prevention of crime and also includes the detection of crime.".
 
13.      For section 63(1) of the Drug Trafficking Law substitute -
 
"(1)      An officer of police may, having first obtained the consent of Her Majesty's Procureur, for the purpose of an investigation into-
 
(a)      whether any person has carried on or has benefited from drug trafficking,
 
(b)      the extent or whereabouts of the proceeds of drug trafficking, or
 
(c)      drug money laundering,
 
apply on oath to the Bailiff for an order under subsection (2) in relation to particular material or material of a particular description.".
 
14.      In section 63(5) of the Drug Trafficking Law after "an officer of police" insert "who has first obtained the consent of Her Majesty's Procureur".
 
15.      For section 64(1) of the Drug Trafficking Law substitute -.            
"(1)      An officer of police may, having first obtained the consent of Her Majesty's Procureur, for the purpose of an investigation into-
 
(a)      whether any person has carried on or has benefited from drug trafficking,
 
(b)      the extent or whereabouts of the proceeds of drug trafficking, or
 
(c)      drug money laundering,
 
apply on oath to the Bailiff for a warrant under this section in relation to specified premises.".
 
16.      In section 66(1) of the Drug Trafficking Law for "an investigation into drug trafficking" substitute "an investigation described in section 63(1) or 64(1)".
 
17.      After section 67 of the Drug Trafficking Law insert the following sections -
 
"Customer information orders
 
Customer information orders.
67A.      (1)      The Bailiff may, on an application made by Her Majesty's Procureur or by an officer of police, make a customer information order if he is satisfied that each of the requirements for the making of the order is fulfilled.
 
(2)      The application for a customer information order must state that a person specified in the application is subject to an investigation into -
 
(a)      whether he has carried on or has benefited from drug trafficking,
 
(b)      the extent or whereabouts of the proceeds of drug trafficking, or
 
(c)      drug money laundering.
 
(3)      The application must also state that -
 
(a)      the order is sought for the purposes of the investigation,
 
(b)      the order is sought against the financial services business specified in the application.
 
(4)      An application for a customer information order may specify -
 
(a)      all financial services businesses,
 
(b)      a particular description of financial services business, or
 
(c)      a particular financial services business.
 
(5)      A customer information order is an order that a financial services business covered by the application for the order must, on being required to do so by notice in writing given by Her Majesty's Procureur or by an officer of police, provide any such customer information as it has relating to the person specified in the application.
 
(6)      A financial services business required to provide information under a customer information order must provide the information to Her Majesty's Procureur or an officer of police in such manner, and at or by such time, as they may require.
 
(7)      If a financial services business on which a requirement is imposed by a notice given under a customer information order requires the production of evidence of authority to give the notice, it is not bound to comply with the requirement unless evidence of authority is produced to it.
 
(8)      A customer information order -
 
(a)      may be made ex parte and in chambers,
 
(b)      may be made notwithstanding that notice of the application for it has not been given to any other person, and
 
(c)      may be made subject to such terms and conditions as the Bailiff thinks fit.
 
Meaning of customer information.
67B.      (1)      "Customer information", in relation to a person and a financial services business, is information as to whether the person holds, or has held, an account or safe deposit box at the financial services business (whether solely or jointly with another) and (if so) information as to -
 
(a)      the matters specified in subsection (2) if the person is an individual,
 
(b)      the matters specified in subsection (3) if the person is a body corporate.
 
(2)      The matters referred to in subsection (1)(a) are -
 
(a)      the account number or the number of any safe deposit box,
 
(b)      the person's full name,
 
(c)      his date of birth,
 
(d)      his most recent home and business address and any previous such address,
 
(e)      in the case of an account, the date on which he began to hold the account and, if he has ceased to hold the account, the date on which he did so,
 
(f)      in the case of a safe deposit box, the date on which the box was made available to him and, if the box has ceased to be available to him, the date on which it so ceased,
 
(g)      such evidence of his identity as was obtained by the financial services business under or for the purposes of any legislation relating to money laundering,
 
(h)      the full name, date of birth and most recent home and business address, and any previous such address, of any person -
 
(i)      who is or has been a signatory to the account, or
 
(ii)      who holds or has held an account at the financial services business jointly with him,
 
(i)      the account number of any other account held at the financial services business to which he is a signatory and details of the person holding the other account,
 
(j)      the current balance of each account identified, and
 
(k)      the dates on which the last three transactions (or such other number of transactions as may be specified in the customer information order) concerning each of the accounts identified took place.
 
(3)      The matters referred to in subsection (1)(b) are -
 
(a)      the account number or the number of any safe deposit box,
 
(b)      the person's full name,
 
(c)      a description of any business which the person carries on,
 
(d)      the country or territory in which it is incorporated or otherwise established and any number allocated to it,
 
(e)      its registered office and any previous registered office, or anything similar under the legislation of the country or territory of incorporation or establishment,
 
(f)      any address from which it conducts or has conducted business,
 
(g)      in the case of an account, the date on which it began to hold the account and, if it has ceased to hold the account, the date on which it did so,
 
(h)      in the case of a safe deposit box, the date on which the box was made available to it and, if the box has ceased to be available to it, the date on which it so ceased,
 
(i)      such evidence of its identity as was obtained by the financial services business under or for the purposes of any legislation relating to money laundering,
 
(j)      the full name, date of birth and most recent home and business address and any previous such address of any person who is or has been a signatory to the account,
 
(k)      the current balance of each account identified, and
 
(l)      the dates on which the last three transactions (or such other number of transactions as may be specified in the customer information order) concerning each of the accounts identified took place.
 
(4)      In this section "money laundering" has the meaning given by section 49(6) of the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law, 1999[e].
 
(5)      In this Law a "safe deposit box" includes any procedure under which a financial services business provides a facility to hold items for safe keeping on behalf of another person.
 
(6)      The Home Department may by regulations provide for information of a class or description specified in the regulations -
 
(a)      to be customer information, or
 
(b)      no longer to be customer information.
 
Requirements for making of customer information order.
67C.      (1)      These are the requirements for the making of a customer information order.
 
(2)      In the case of an investigation into whether a person has carried on or has benefited from drug trafficking or the extent or whereabouts of the proceeds of drug trafficking, there must be reasonable grounds for suspecting that the person specified in the application for the order has carried on or has benefited from drug trafficking.
 
(3)      In the case of an investigation into drug money laundering, there must be reasonable grounds for suspecting that the person specified in the application for the order has committed an offence under section 57, 58 or 59.
 
(4)      In the case of any investigation, there must be reasonable grounds for believing that the customer information which may be provided in compliance with the order is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the order is sought.
 
(5)      In the case of any investigation, there must be reasonable grounds for believing that it is in the public interest for the customer information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.
 
Offences in relation to customer information orders.
67D.      (1)      A financial services business commits an offence if without reasonable excuse it fails to comply with a requirement imposed on it by or under a customer information order.
 
(2)      A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding 6 months, or to a fine not exceeding level 5 on the uniform scale, or to both.
 
(3)      A financial services business commits an offence if, in purported compliance with a customer information order, it -
 
(a)      makes a statement which it knows to be false or misleading in a material particular, or
 
(b)      recklessly makes a statement which is false or misleading in a material particular.
 
(4)      A person guilty of an offence under subsection (3) is liable-
 
(a)      on summary conviction, to imprisonment for a term not exceeding 6 months, or to a fine not exceeding level 5 on the uniform scale, or to both, or
 
(b)      on conviction on indictment, to imprisonment for a term not exceeding 2 years, or to a fine, or to both.
 
Statements.
67E.      (1)      A statement made by a financial services business in response to a customer information order may not, subject to subsection (2), be used in evidence against it in criminal proceedings.
 
(2)      Subsection (1) does not apply-
 
(a)      in the case of proceedings under Part I,
 
(b)      on a prosecution for an offence under section 67D(1) or (3), or
 
(c)      on a prosecution for some other offence where, in giving evidence, the financial services business makes a statement inconsistent with the statement mentioned in subsection (1).
 
(3)      A statement may not be used by virtue of subsection (2)(c) against a financial services business unless -
 
(a)      evidence relating to it is adduced, or
 
(b)      a question relating to it is asked,
 
by or on behalf of the financial services business in the proceedings arising out of the prosecution.
 
Disclosure of information.
67F.      A customer information order has effect notwithstanding any obligation as to confidentiality or other restriction on the disclosure of information imposed by statute, contract or otherwise; and accordingly the obligation or restriction is not contravened by the making of a disclosure pursuant to such an order.
 
Supplementary.
67G.      (1)      The Court may make rules in respect of the practice and procedure to be followed in connection with proceedings relating to customer information orders.
 
(2)      An application to discharge or vary a customer information order may be made to the Court by -
 
(a)      Her Majesty's Procureur,
 
(b)      any person affected by the order.
 
(3)      The Court may, subject to such terms and conditions as it thinks fit -
 
(a)      discharge the order,
 
(b)      vary the order.
 
(4)      The powers of the Court under this section to discharge or vary a customer information order may be exercised by the Bailiff in chambers sitting unaccompanied by the Jurats; and references to "the Court" shall be construed accordingly.
 
(5)      An officer of police may not make an application for a customer information order unless he is authorised to do so by Her Majesty’s Procureur.
 
Account monitoring orders
 
Account monitoring orders.
67H.      (1)      The Bailiff may, on an application made by Her Majesty's Procureur or by an officer of police, make an account monitoring order if he is satisfied that each of the requirements for the making of the order is fulfilled.
 
(2)      The application for an account monitoring order must state that a person specified in the application is subject to an investigation into -
 
(a)      whether he has carried on or has benefited from drug trafficking,
 
(b)      the extent or whereabouts of the proceeds of drug trafficking, or
 
(c)      drug money laundering.
 
(3)      The application must also state that-
 
(a)      the order is sought for the purposes of the investigation,
 
(b)      the order is sought against the financial services business specified in the application in relation to account information of the description so specified.
 
(4)      "Account information" is information relating to an account held at the financial services business specified in the application by the person so specified (whether solely or jointly with another).
 
(5)      The application for an account monitoring order may specify information relating to -
 
(a)      all accounts held by the person specified in the application for the order at the financial services business so specified,
 
(b)      a particular description of accounts so held, or
 
(c)      a particular account so held.
 
(6)      An account monitoring order is an order that the financial services business specified in the application for the order must, for the period stated in the order, provide account information of the description specified in the order to an officer of police in the manner, and at or by the time, stated in the order.
 
(7)      The period stated in an account monitoring order must not exceed a period of 90 days beginning on the day on which the order is made.
 
(8)      An account monitoring order -
 
(a)      may be made ex parte and in chambers,
 
(b)      may be made notwithstanding that notice of the application for it has not been given to any other person, and
 
(c)      may be made subject to such terms and conditions as the Bailiff thinks fit.
 
Requirements for making of account monitoring order.
67I.        (1)      These are the requirements for the making of an account monitoring order.
 
(2)      In the case of an investigation into whether a person has carried on or has benefited from drug trafficking or the extent or whereabouts of the proceeds of drug trafficking, there must be reasonable grounds for suspecting that the person specified in the application for the order has carried on or has benefited from drug trafficking.
 
(3)      In the case of an investigation into drug money laundering, there must be reasonable grounds for suspecting that the person specified in the application for the order has committed an offence under section 57, 58 or 59.
 
(4)      In the case of any investigation, there must be reasonable grounds for believing that the account information which may be provided in compliance with the order is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the order is sought.
 
(5)      In the case of any investigation, there must be reasonable grounds for believing that it is in the public interest for the account information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.
 
Offences in relation to account monitoring orders.
67J.        (1)      A financial services business commits an offence if without reasonable excuse it fails to comply with a requirement imposed on it by or under an account monitoring order.
 
(2)      A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding 6 months, or to a fine not exceeding level 5 on the uniform scale, or to both.
 
(3)      A financial services business commits an offence if, in purported compliance with an account monitoring order, it -
 
(a)      makes a statement which it knows to be false or misleading in a material particular, or
 
(b)      recklessly makes a statement which is false or misleading in a material particular.
 
(4)      A person guilty of an offence under subsection (3) is liable -
 
(a)      on summary conviction, to imprisonment for a term not exceeding 6 months, or to a fine not exceeding level 5 on the uniform scale, or to both, or
 
(b)      on conviction on indictment, to imprisonment for a term not exceeding 2 years, or to a fine, or to both.
 
Statements.
67K.      (1)      A statement made by a financial services business in response to an account monitoring order may not, subject to subsection (2), be used in evidence against it in criminal proceedings.
 
(2)      Subsection (1) does not apply -
 
(a)      in the case of proceedings under Part I,
 
(b)      on a prosecution for an offence under section 67J(1) or (3), or
 
(c)      on a prosecution for some other offence where, in giving evidence, the financial services business makes a statement inconsistent with the statement mentioned in subsection (1).
 
(3)      A statement may not be used by virtue of subsection (2)(c) against a financial services business unless-
 
(a)      evidence relating to it is adduced, or
 
(b)      a question relating to it is asked,
 
by or on behalf of the financial services business in the proceedings arising out of the prosecution.
 
Disclosure of information.
67L.       An account monitoring order has effect notwithstanding any obligation as to confidentiality or other restriction on the disclosure of information imposed by statute, contract or otherwise; and accordingly the obligation or restriction is not contravened by the making of a disclosure pursuant to such an order.
 
Supplementary.
67M.      (1)      The Court may make rules in respect of the practice and procedure to be followed in connection with proceedings relating to account monitoring orders.
 
(2)      An application to discharge or vary an account monitoring order may be made to the Court by -
 
(a)      Her Majesty's Procureur,
 
(b)      any person affected by the order.
 
(3)      The Court may, subject to such terms and conditions as it thinks fit -
 
(a)      discharge the order,
 
(b)      vary the order.
 
(4)      The powers of the Court under this section to discharge or vary an account monitoring order may be exercised by the Bailiff in chambers sitting unaccompanied by the Jurats; and references to "the Court" shall be construed accordingly.
 
(5)      An officer of police may not make an application for an account monitoring order unless he is authorised to do so by Her Majesty’s Procureur.
 
Code of practice
 
Code of practice for Part V.
67N.      (1)      The Home Department may issue a code of practice in connection with the exercise by officers of police of their functions under this Part.
 
(2)      The code shall come into force on the date specified therein.
 
(3)      The code shall be laid before a meeting of the States as soon as possible after being issued; and, if at that or the next meeting the States resolve to annul the code, then it shall cease to have effect, but without prejudice to anything done under it or to the issuing of a new code.
 
(4)      The Home Department may revise the whole or any part of the code and issue the code as revised; and subsections (2) and (3) apply (with appropriate modifications) to the revised code as they apply to the original code.
 
(5)      A failure by an officer of police to comply with a provision of the code does not of itself make him liable to criminal or civil proceedings.
 
(6)      The code is admissible in evidence in criminal and civil proceedings and is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.
 
Corporate offences
 
Offences by bodies corporate and partnerships, etc.
67O.      (1)      Where an offence under this Law, or any Ordinance, regulation or rule made under it, is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and may be proceeded against and punished accordingly.
 
(2)      Where the affairs of a body corporate are managed by its members, subsection (1) applies to a member in connection with his functions of management as if he were a director.
 
(3)      Where any such offence is committed by an unincorporated body and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of -
 
(a)      in the case of a partnership, any partner,
 
(b)      in the case of any other unincorporated body, any officer of that body who is bound to fulfil any duty whereof the offence is a breach or, if there is no such officer, any member of the committee or other similar governing body, or
 
(c)      any person purporting to act in any capacity described in paragraph (a) or (b),
 
he as well as the unincorporated body is guilty of the offence and may be proceeded against and punished accordingly.
 
(4)      Where any such offence is alleged to have been committed by an unincorporated body, proceedings for the offence shall be brought in the name of the body and not in the name of any of its members.
 
(5)      A fine imposed on an unincorporated body on its conviction of any such offence shall be paid from the funds of the body.
 
References to financial services businesses and relevant businesses.
67P.      References in this Law to a financial services business (however expressed) include references to a person carrying on such a business.".
 
18.      In section 69(1) of the Drug Trafficking Law insert the following definitions at the appropriate places -
 
"drug money laundering" has the meaning given by section 60(7),
 
"financial services business" means a business of a class or description for the time being specified in Schedule 1 to the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law, 1999[f],
 
"uniform scale" means the uniform scale of fines for the time being in force under the Uniform Scale of Fines (Bailiwick of Guernsey) Law, 1989[g].
 
19.      In section 70 of the Drug Trafficking Law insert the following entries at the appropriate places -
 
"account information" (section 67H(4)),
 
"customer information" (section 67B(1),
 
"drug money laundering" (section 60(7)),
 
"financial services business" (sections 67P and 69(1)),
 
"safe deposit box" (section 67B(5)),
 
"uniform scale" (section 69(1)).
 
20.      Immediately before section 72 of the Drug Trafficking Law insert the following section -
 
"Power to amend Law by Ordinance.
71A.      (1)      The States may by Ordinance amend this Law.
 
(2)      The provisions of subsection (1) are without prejudice to any other provision of this Law conferring power to enact Ordinances, regulations or rules (and vice versa).".
 
Citation.
21.      This Law may be cited as the Drug Trafficking (Bailiwick of Guernsey) (Amendment) Law, 2007.
 
 
 
 
 

[a]

Article XXIII of Billet d’État No. XIII of 2006.

[b]

Article XVIII of Billet d’État No. XIV of 2007.

[c]

Order in Council No. VII of 2000; No. II of 2005; and Ordinance No. XXXIII of 2003.

[d]

An Act of Parliament (1994 c. 37).

[e]

Order in Council No. VIII of 1999; amended by Order in Council No. II of 2005 and by the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) (Amendment) Law, 2007; also amended by Ordinance XXVIII of 1999; Ordinance XII of 2002; Ordinance XXXIII of 2003; G.S.I. No. 27 of 2002; and certain sections of the Law are modified in their application to external confiscation orders by Ordinance XXXIII of 1999.

[f]

Order in Council No. VIII of 1999; amended by Order in Council No. II of 2005 and by the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) (Amendment) Law, 2007; also amended by Ordinance XXVIII of 1999; Ordinance XII of 2002; Ordinance XXXIII of 2003; G.S.I. No. 27 of 2002; and certain sections of the Law are modified in their application to external confiscation orders by Ordinance XXXIII of 1999.

[g]

Ordres en Conseil Vol. XXXI, p. 279; the scale of fines was amended by Ordinance No. XXIX of 2006.