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Civil asset recovery

Parallel proceedings

Is there any restriction on civil proceedings progressing in parallel with, or in advance of, criminal proceedings concerning the same subject matter?

In Jersey, there is a maxim of customary law (le criminel tient le civil en état), which operates to give the court discretion to manage any civil proceedings so as not to prejudice any related criminal proceedings. Generally, this means that criminal proceedings take place first, but this is far from a rigid rule. Even where criminal proceedings are decided first, it is nevertheless possible to proceed with the interlocutory stages of related civil proceedings.

Forum

In which court should proceedings be brought?

Cases involving asset tracing will almost invariably be brought before the Royal Court, which is the island’s main court. The usual way of commencing proceedings is by Order of Justice, which can include a claim for injunctive relief.

The intermediate court of appeal is the Jersey Court of Appeal and the ultimate court of appeal is the Judicial Committee of the Privy Council, which sits in London.

Limitation

What are the time limits for starting civil court proceedings?

There is no general limitation statute. When deciding what time limit applies to a particular case, it is first necessary to identify the cause of action that is being pursued. The common law of Jersey (known as ‘customary law’) has developed different limitation periods for different causes of action. Identifying the relevant period in a particular case is not always straightforward, and local legal advice is invaluable. In general, the following limitation periods apply:

  • actions in contract: 10 years;
  • actions in tort and for breach of trust: three years;
  • actions to recover trust property from a trustee or actions against a fraudulent trustee: no limitation period applies;
  • actions for possession of immovable property: a year and a day;
  • actions relating to title of immovable property: 40 years;
  • actions relating to the recovery of movable property: 10 years;
  • in respect of claims for dishonest assistance in a breach of trust: three years (Nolan v Minerva [2014] JRC 078A); and
  • actions for breach of directors’ duties under Companies (Jersey) Law: considered to be 10 years by the English High Court (O’Keefe v Caner & Others [2017] EWHC 1105), which may be persuasive in Jersey, but is not binding.

It may be possible to argue that time has not run for the period when a claimant was impeded from bringing his or her claim, either as a matter of law, or as a matter of fact. In the latter case, it is important to consider not only what a claimant knew about the possibility of bringing a claim, but also what he or she could have found out on reasonable enquiry. It is also generally accepted in fraud cases that a time limit will be suspended for as long as the victim is ignorant of the fraud perpetrated against him or her. An action against a non-fraudulent trustee must be brought within 21 years.

Jurisdiction

In what circumstances does the civil court have jurisdiction? How can a defendant challenge jurisdiction?

The court will have jurisdiction if a defendant is physically in Jersey and can therefore be served with proceedings. If a defendant is outside the island, then leave of the Royal Court is required. In general, the claimant will have to satisfy the Court as follows:

  • that there is a good arguable basis on which service out of the jurisdiction should be allowed;
  • that the claim involves a serious issue to be tried; and
  • that Jersey is clearly the most appropriate forum to litigate the matter.

These requirements are set out in more detail in the Service of Process Rules 1994.

Generally, asset recovery actions in Jersey often include an international element. Defendants may challenge the jurisdiction of the Jersey court or seek a stay of the Jersey proceedings on the grounds of forum non conveniens on the basis that an action could be more suitably tried in an alternative available forum.

The test to be applied in respect of applications for a stay on the grounds of forum non conveniens is that set out by Lord Goff in the English case of Spiliada Maritime Corp v Cansulex Limited [1987] AC 460, such that the court will consider which forum ‘the case may be tried most suitably in the interests of all parties and the ends of justice’. In applying this test, the court will consider the following ‘connecting’ factors:

  • matters concerning convenience or expense (eg, location of witnesses and documents relative to the proposed forum);
  • the governing law of the transaction; and
  • the jurisdictions where the respective parties reside and carry on their business.

It is possible to make an application for a stay on the grounds of forum non conveniens at any stage of the proceedings, although it is safer to make the application as soon as possible.

Time frame

What is the usual time frame for a claim to reach trial?

The Royal Court Rules 2004 govern civil procedure. A recent practice direction requires a letter before a claim. The potential defendant has 14 days to acknowledge receipt of the letter, and any substantive response shall be provided as soon as reasonably practical - 14 days in a straightforward case and no more than three months for the most complex cases. Following exchange of communications, the parties are obliged to consider negotiation or some form of alternative dispute resolution, which is a continuing requirement.

Once an action has commenced, by service of a claim with the requisite notice, and has been placed on the Table (list of cases displayed in the Royal Court building), a defendant wishing to defend the claim, or contest the service, jurisdiction, or both, will ask for the action to be placed on the Pending List. Thereafter, the timetable is governed by the Royal Court Rules: filing of answers (21 days); disputing jurisdiction (21 days); and subsequent directions hearings. The number and timing of adjournments by consent are set out in practice directions.

An action may be dismissed if not completed within two years from the date it was placed on the Table, but the Royal Court generally expects actions to conclude within 12 months. An Order of Justice remains in force for one year, though may be renewed annually by the Bailiff (the chief judge) in chambers.

The Petty Debt Court Rules 2018 govern timings for claims with a value of less than £30,000.

Admissibility of evidence

What rules apply to the admissibility of evidence in civil proceedings?

The primary way for the court to receive evidence is through witness testimony and the production of documents by a witness. It has also become normal practice for the court to order evidence in chief to be given by witness statements made on affidavit.

The Civil Evidence (Jersey) Law 2003 permits the admissibility, with notice, of hearsay evidence in civil proceedings. If the court receives hearsay evidence it will assess the weight to be given to such evidence, which will include an assessment of its reliability.

Witnesses

What powers are available to compel witnesses to give evidence?

A witness may be summoned to give evidence, and where competent to give evidence in civil proceedings, they will generally be compellable to do so. There are some exceptions to this rule:

  • a spouse or civil partner shall not be compelled to disclose any communication made to him or her by their spouse or civil partner in civil or mixed cases;
  • witnesses giving evidence in response to a letter of request under the Service of Process and Taking of Evidence (Jersey) Law 1960 cannot be compelled where to do so would be prejudicial to state security. Nor can a witness be compelled to give evidence that they could not be compelled to give in the requesting country, if supported by a statement to that effect in the letter of request or conceded by the applicant;
  • the Jersey Comptroller of Income Tax is most likely non-compellable;
  • the Bankers Book Evidence (Jersey) Law 1986 gives an exemption from being compelled to produce a banker’s book or appear as a witness, where the bank is not a party to proceedings unless by order of the court; and
  • a witness may refuse to answer questions on recognised grounds of privilege, including self-incrimination, duty of confidentiality and legal professional privilege.

Publicly available information

What sources of information about assets are publicly available?

Publicly available sources of information about assets include the following:

  • the Public Registry Index and Document Enrolment database - this records interests in real property and charges against that property within the island;
  • the Companies Registry of the Jersey Financial Services Commission - this contains a register of limited companies. Information held on the register includes annual returns, articles of association and changes in registered office;
  • the Security Interests (Jersey) Law 2012 came into force on 2 January 2014 and established a searchable, online, public register of security interests; and
  • Article 8 of the Charities (Jersey) Law 2014 came into force on 1 May 2018 and established an online public register of charities with information about purposes, finance and public benefit.

A register of beneficial owners of companies and legal entities is maintained centrally by the Companies Registry, but is not accessible to the public at large.

Cooperation with law enforcement agencies

Can information and evidence be obtained from law enforcement and regulatory agencies for use in civil proceedings?

A party may have material that has come into his or her possession in the course of criminal proceedings. Such material can only be used in other proceedings with the leave of the court.

Often, a party will be aware of a criminal investigation relating to the subject matter of his or her case that has been carried out by the police or the Attorney General. Moreover, the police may be in possession of material provided by the Jersey Financial Services Commission, which has a statutory power to disclose information to the police with a view to investigation. In certain circumstances, it may be possible to obtain material through an informal approach to the investigating authority, particularly where the owner of the material consents to it being provided.

If an informal approach fails or is judged inappropriate, material may be obtained in some cases by serving a witness summons on the investigating authority requiring it to produce documentation. One would expect to encounter resistance to some degree from an authority holding material and a prospective claimant will need local advice as to the best way of overcoming any legal obstacles.

Third-party disclosure

How can information be obtained from third parties not suspected of wrongdoing?

The Royal Court recognises and applies the English Norwich Pharmacal principle, namely:

[T]hat if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he incurs no personal liability but he comes under a duty to assist the person who has been wronged by giving him the full information and disclosing the identity of the wrongdoers.

The standard of proof has recently been clarified (Riba Consultaria Empresarial v Pinnacle Trustees Ltd [2018] JRC033A as follows:

  • are we satisfied that there is a good arguable case that the plaintiff is the victim of wrongdoing?;
  • are we satisfied that there is a reasonable suspicion that the defendant has been mixed up in the wrongdoing?; and
  • as a matter of discretion, do we consider it to be in the interests of justice to order the defendant to make disclosure?

The court also recognises and applies the English Bankers Trust principle, namely that the court may order the disclosure of information about the location and value of assets against a bank or another third party where the plaintiff is seeking to trace funds that might be dissipated and there is strong evidence that the plaintiff has been fraudulently deprived of these funds. The court considers that the Norwich Pharmacal jurisdiction has, to a considerable extent, subsumed this equitable jurisdiction.

Interim relief

What interim relief is available pre-judgment to prevent the dissipation of assets by, and to obtain information from, those suspected of involvement in the fraud?

Interim interlocutory injunctions, including freezing (Mareva) orders, can be obtained ex parte in order to secure assets, preventing their dissipation, prior to the determination of substantive proceedings. These can apply to assets in Jersey and elsewhere.

Jersey allows an injunction to be granted in aid of foreign proceedings even if there are no other substantive proceedings in Jersey (Solvalub Ltd v Match Invs Ltd [1996] JLR 361). It further allows leave to serve out of the jurisdiction if the defendant is outside the territory and the only proposed Jersey proceedings are those for injunctive relief.

A caveat (opposition) is a Jersey-specific freezing injunction to prevent any dealing with Jersey real property. It is available to a creditor of the proprietor of the property, and is in effect a form of injunction to prevent the realisation of the immovable property asset and dissipation of the proceeds of sale.

Where civil asset recovery proceedings have been instituted, or are to be instituted, in another territory and there are reasonable grounds to believe an external civil asset recovery order may be made, the Attorney General may apply, on behalf of a government outside Jersey, for a property restraint order over recoverable property in Jersey (Civil asset recovery (International Co-operation) (Jersey) Law 2007). The restrained property vests in the Viscount, the executive officer of the Jersey court, until variation or discharge.

Non-compliance with court orders

How do courts punish failure to comply with court orders?

Faced with a party who has not complied with a court order, it will be open to the non-defaulting party to apply for an ‘unless order’. It requires compliance and imposes a sanction for non-compliance - usually, the striking out of an action, or an order debarring a defendant from defending an action.

Failure to comply with a court order can be treated as contempt of court and is punishable by way of fine or, in very serious cases, imprisonment. The Jersey court treats failure to comply with the terms of an injunction very seriously and substantial fines are often imposed.

Obtaining evidence from other jurisdictions

How can information be obtained through courts in other jurisdictions to assist in the civil proceedings?

An application can be made to the Royal Court for a letter of request to be issued to another jurisdiction. How such a letter of request is treated once it has been issued will depend upon the procedures in place in the foreign court.

Assisting courts in other jurisdictions

What assistance will the civil court give in connection with civil asset recovery proceedings in other jurisdictions?

This is provided for by the Service of Process and Taking of Evidence (Jersey) Law 1960. Incoming letters of request are addressed to the Jersey court and submitted via official channels, usually to the Attorney General. The court will grant assistance in respect of civil proceedings before a court in another jurisdiction that have either been instituted or are contemplated. The assistance that the court can provide includes the following:

  • examination of witnesses, either orally or in writing (such evidence is taken on oath by the Viscount);
  • production of documents;
  • inspection, photographing, preservation, custody or detention of any property; and
  • taking of samples of any property and the carrying out of any experiments on or with any property.

In appropriate cases, Norwich Pharmacal-type relief may be given in support of prospective proceedings abroad.

The Attorney General has powers under the Civil asset recovery (International Co-operation) (Jersey) Law 2007 to require, inter alia, the production of documents and the giving of evidence following a request for assistance from a responsible authority in relation to external civil asset recovery proceedings or investigations. The Attorney General will have to be satisfied that there are reasonable grounds to suspect the evidence relates to property that has been used or obtained in unlawful conduct.

Causes of action

What are the main causes of action in civil asset recovery cases, and do they include proprietary claims?

The main causes of action in civil asset recovery cases are breach of contract, civil fraud (referred to as dol), dishonest assistance and knowing receipt. Proprietary claims may also be made.

The law also provides for a personal claim in restitution on the basis of unjust enrichment. Such a claim can arise in cases where there is no fault or blameworthiness on the part of the party who has been unjustly enriched. The claim is subject to a change in position defence where the unjustly enriched party no longer holds the property.

Remedies

What remedies are available in a civil recovery action?

The principal remedies available in Jersey are as follows:

  • damages;
  • restitution;
  • giving of an account;
  • transfer of assets;
  • vesting of assets;
  • specific performance;
  • injunctions (whether interim or permanent); and
  • declarations.

Importantly, the law recognises a constructive trust as arising in favour of a defrauded beneficiary who is considered as having an equitable proprietary interest in the assets that are the subject of the trust. Consequently, tracing remedies are available in such a case.

In Lloyds v Fragoso [2013] JRC 211, the Royal Court held that a principal has a proprietary interest in a bribe or secret profit obtained by his or her agent.

Judgment without full trial

Can a victim obtain a judgment without the need for a full trial?

Under Royal Court Rule 6/6(6), judgment by default may be entered in favour of a plaintiff where the defendant fails to file an answer to the plaintiff’s statement of claim, an answer has been struck out without leave being given to file another answer or the time limit for filing another answer has expired. Judgment by default does not follow automatically, but the plaintiff must make an application to the court, which may be defeated if the defendant files an answer, even if late. If judgment by default is entered against the defendant, he or she may apply to set aside that judgment.

Under Part 7 of the Royal Court Rules, summary judgment may be given in favour of a plaintiff, or a defendant bringing a counterclaim, where the plaintiff has no real prospect of succeeding on the claim or issue, or the defendant has no real prospect of successfully defending the claim or issue and there is no other compelling reason why the case or issue should be disposed of at trial. Summary judgment may be ordered by the Royal Court of its own motion or made on application by either party. The Court applies the English principles derived from the Civil Procedure Rules as set out in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch): summary judgment offers a ‘realistic’ as opposed to a ‘fanciful’ prospect of success, without conducting a mini-trial.

Post-judgment relief

What post-judgment relief is available to successful claimants?

Freezing orders are available against an unsuccessful defendant, as are orders for the disclosure of documents or other information about the defendant’s assets. The Viscount has various powers, including the arrest, uplifting and selling of assets.

Enforcement

What methods of enforcement are available?

It is usual for a judgment to include an authority to realise or sell assets. Orders such as arrest of wages are also available where a defendant is in employment. A debt can also be secured over a defendant’s immovable property by obtaining a judicial hypothec, which is registered in the public registry.

As noted in question 18, the Viscount has various powers exercisable over a defendant’s property with a view to enforcing judgment. Foreign judgments are not automatically enforceable in Jersey. There is a statutory scheme for the enforcement of judgments obtained in England and Wales, Scotland, Northern Ireland, the Isle of Man and Guernsey. Enforcement of judgments from other jurisdictions generally has to proceed by way of commencement of fresh proceedings in Jersey, and where possible suing on the judgment debt.

Funding and costs

What funding arrangements are available to parties contemplating or involved in litigation and do the courts have any powers to manage the overall cost of that litigation?

The Jersey court has upheld third-party funding agreements as valid and enforceable. The court took the view that public policy strongly pointed towards litigation funding agreements being valid and enforceable. To that extent, this recent development opens the door for funding arrangements in Jersey. However, whether a particular agreement will be valid will depend on the circumstances of each case as well as the terms of the agreement. Conditional fee agreements are prohibited in Jersey. Recent practice directions are concerned with costs budgeting. Not later than seven days before the first directions hearing, unless the court otherwise orders, all parties must file and exchange budgets where the value of the claim, including any counterclaim, is less than £500,000. When making any costs order, the court will not permit a party to depart materially from such a costs budget, unless satisfied there is good reason to do so, and may take into account any such costs budget both in deciding what costs order to make and upon taxation.

Criminal asset recovery

Interim measures

Describe the legal framework in relation to interim measures in your jurisdiction.

The Jersey version of a restraint order is known as a saisie judiciaire (saisie) and is obtained on application by the Attorney General to the Bailiff. The effect of a saisie is that all of the subject’s realisable property in Jersey will vest in the Viscount. An application for a saisie can be made where there are instituted, or about to be instituted, proceedings in which there is reasonable cause to believe that a confiscation order will be made. The criteria and procedure for granting a saisie are contained in the Proceeds of Crime (Jersey) Law 1999 (the 1999 Law), which also provides for applications for variation or discharge.

Where a financial institution that holds funds makes a suspicious activity report in relation to those funds (which would happen where there is reason to suspect that the funds in question represent the proceeds of crime), the institution requires the consent of the police (invariably the Joint Financial Crimes Unit) to deal with those funds. Unlike the position in England and Wales, there is no time limit imposed on the police within which a decision on consent must be given. It is quite common for funds to be informally frozen for lengthy periods of time where police consent has not been forthcoming.

Proceeds of serious crime

Is an investigation to identify, trace and freeze proceeds automatically initiated when certain serious crimes are detected? If not, what triggers an investigation?

There is no automatic investigation. In practice, this will happen in the vast majority of cases involving fraud, corruption and other financial crimes. Under the 1999 Law, the court may confiscate assets following a request by the Attorney General or of its own motion. Over the past decade, Jersey has seen a large number of substantial confiscation orders imposed on defendants by the court.

Confiscation – legal framework

Describe the legal framework in relation to confiscation of the proceeds of crime, including how the benefit figure is calculated.

The 1999 Law is the principal statute. Along with the provisions for freezing assets, mentioned above, it gives the court power to make confiscation orders consequent upon conviction for any criminal offence for which a person is liable to imprisonment for one or more years. In relation to a course of criminal conduct, a confiscation order will relate to at least two qualifying offences in the proceedings or at least one qualifying offence in the previous six years. The Terrorism (Jersey) Law 2002 criminalises certain activity surrounding the funding of terrorism, and makes provision for forfeiture of property connected with such offences.

The benefit figure is the amount assessed by the court to be the value of the defendant’s benefit from the relevant criminal conduct. Where the court is considering a course of criminal conduct, it may, if it thinks fit, make three rebuttable assumptions as set out in the 1999 Law to determine whether the defendant has benefited from relevant criminal conduct, and assess the value of the benefit. These assumptions relate to the earliest time property was received by the defendant, expenditure and an assumption that the property is free of any other interests in it.

Where the amount that might be realised is less than the assessed value, the penalty will be the amount that appears to the court might be so realised.

Confiscation procedure

Describe how confiscation works in practice.

Confiscation should take place before an offender is sentenced, but invariably, with contested cases, the court will exercise its power to postpone the issue of confiscation until after sentencing.

In practice, the prosecution presents the court with its assessment of benefit. The defendant is then required to provide the court with a statement of available assets.

The Jersey court approaches confiscation proceedings in accordance with what was set out by the House of Lords’ decision in England in the case of May [2008] 1 AC 1028, namely:

  • has the defendant benefited from criminal conduct?;
  • if so, what is the value of the benefit that he or she has so obtained?; and
  • what sum is recoverable from the defendant?

These are treated as distinct questions.

Where any issue is contested, the court has the ability to hear evidence. Where the contest is as to the sum recoverable, in most cases, it will be for the defendant, who bears the burden of proof, to give evidence that his or her realisable assets are less than the amount of benefit.

Agencies

What agencies are responsible for tracing and confiscating the proceeds of crime in your jurisdiction?

In practice, the Joint Financial Crimes Unit of the States of Jersey Police and the Jersey Customs and Immigration Service carry out investigations to trace the proceeds of crime, under the direction of the Attorney General’s department. The Attorney General has the power to commence his or her own investigation in cases of serious fraud pursuant to the Investigation of Fraud (Jersey) Law 1991. In such cases, the investigation is likely to be led by the Attorney General’s department and is often multi-jurisdictional in nature.

As noted in question 22, it is the Attorney General who is responsible for applying to the court for a confiscation order.

Secondary proceeds

Is confiscation of secondary proceeds possible?

Yes. Because there is a clear distinction in the confiscation legislation between a defendant’s benefit from criminal conduct and his or her available assets, it is possible not only for secondary proceeds in the hands of a defendant to be confiscated, but also property that has a legitimate provenance.

Third-party ownership

Is it possible to confiscate property acquired by a third party or close relatives?

In the case of jointly owned property (eg, the matrimonial home), there will in most cases be a division in the property to take account of the portion owned by the spouse, which will not be confiscated. Usually, it will be necessary either for the matrimonial home to be sold in order to satisfy an offender’s confiscation order or for the offender’s spouse to raise the funds to buy the offender’s share in the property.

An important caveat is the provision relating to tainted gifts. Under the 1999 Law, any gift made by a defendant may be treated as available to him or her for the purposes of a confiscation order, even if it has been transferred to a third party at any time after the commission of the offence, and the court thinks it appropriate to take the gift into account. A transfer at an undervalue is treated as a gift.

Expenses

Can the costs of tracing and confiscating assets be recovered by a relevant state agency?

The costs of tracing and confiscating assets are not usually recovered from a defendant. Any sums confiscated are transferred to a criminal offences confiscation fund, established under the 1999 Law, which are then used for specified purposes such as crime prevention.

Value-based confiscation

Is value-based confiscation allowed? If yes, how is the value assessment made?

Yes, see question 24. It is for the defendant to show that his or her available assets are less than his or her benefit from the proceeds of crime.

Burden of proof

On whom is the burden of proof in a procedure to confiscate the proceeds of crime? Can the burden be reversed?

The prosecution has the initial burden of proving first that the defendant obtained assets, and second that those assets represent the proceeds of crime. On both issues, the standard of proof is the civil standard.

The prosecution may be assisted in showing the provenance of certain assets held by the defendant in the six years preceding the institution of proceedings against him or her, by certain statutory assumptions that any property held or transferred by him or her is the proceed of crime.

Once the court has arrived at a benefit figure, it is for the defendant to prove, also on the balance of probabilities, that he or she does not have sufficient funds available to satisfy a confiscation order in that sum.

Using confiscated property to settle claims

May confiscated property be used in satisfaction of civil claims for damages or compensation from a claim arising from the conviction?

It is possible for a sentencing court to order that the defendant compensate identifiable victims. A compensation order is distinct from a confiscation order. The court may make a compensation and a confiscation order against a defendant in the same proceedings. Where a defendant does not have the means to pay a compensation order in full the court may order that the shortfall be paid out of any sums confiscated.

While it is not possible to use funds confiscated in satisfaction of a civil claim for damages, where the court is satisfied that a victim of crime has taken or intends to take civil action, it may reduce the amount of a confiscation order to take account of this fact, in order to leave funds available to satisfy a civil judgment.

Confiscation of profits

Is it possible to recover the financial advantage or profit obtained through the commission of criminal offences?

Yes. This is part of the assessment of benefit from criminal conduct. It is likely that the court would follow the English Court of Appeal decision in R v Sale [2013] EWCA Crim 1306, which followed the Supreme Court decision in Petrodel Resources v Prest. Although the court would not hesitate in an appropriate case to lift the corporate veil of a company that had obtained profit following a corrupt procurement process so as to treat those profits as benefit of criminal conduct, it would also strive to achieve a confiscation order that was proportionate in all the circumstances of the case.

Non-conviction based forfeiture

Can the proceeds of crime be confiscated without a conviction? Describe how the system works and any legal challenges to in rem confiscation.

The Proceeds of Crime (Cash Seizures) (Jersey) Law 2008 allows the seizure of ‘tainted cash’, which is defined as cash 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.

Cash may be seized for a period of 48 hours by a police or customs officer. Thereafter, the Attorney General may apply to the Bailiff for an order that the cash be detained. The cash may then be forfeited by order of the Royal Court on the application of the Attorney General.

Anyone seeking to obtain the release of the cash has the burden of showing on the balance of probabilities that it is not tainted cash. Such proceedings are treated as civil and not criminal.

A victim of crime who lays claim to the seized cash may apply to the court for the release of the cash back to him or her.

A new law dealing with the seizure and forfeiture by way of civil proceedings of tainted cash and other assets will be in force in the near future.

Management of assets

After the seizure of the assets, how are they managed, and by whom? How does the managing authority deal with the hidden cost of management of the assets? Can the assets be utilised by the managing authority or a government agency as their own?

There is a statutory provision that allows the payment of the Viscount’s fees and expenses that arise in the course of seizing and managing assets that are subject to a saisie. In some cases, especially where immovable property is managed over a lengthy period, the management costs can be substantial. Where possible, these costs will be taken out of any liquidated assets held under the same saisie. Because the funds ultimately need to be made available to satisfy a future confiscation order, Jersey is not entitled to treat seized assets as its own. There is a provision in the 1999 Law for a party whose property has been the subject of a saisie to apply for compensation in the event of acquittal.

Making requests for foreign legal assistance

Describe your jurisdiction’s legal framework and procedure to request international legal assistance concerning provisional measures in relation to the recovery of assets.

If a Jersey investigation identifies the proceeds of criminal conduct committed in Jersey situated in another jurisdiction, the Attorney General will seek assistance of that other jurisdiction in effecting the freezing or seizure of the property identified. This will be done by the mutual legal assistance route. The timing of such a request depends on the particular investigation and the stage at which foreign assets are identified. In some cases, assistance will be sought to effect freezing or seizure of assets pre-conviction. In other cases, assistance will be sought in enforcing a Jersey confiscation order against property overseas.

Complying with requests for foreign legal assistance

Describe your jurisdiction’s legal framework and procedure to meet foreign requests for legal assistance concerning provisional measures in relation to the recovery of assets.

External confiscation orders in relation to foreign proceedings are governed by the Proceeds of Crime (Enforcement of Confiscation Orders)(Jersey)(Regulations) 2008, which modifies the 1999 Law. Under the 1999 Law, the court has the power to grant a saisie over property that features in an external confiscation order. The Attorney General can apply for a saisie on behalf of a foreign government as follows:

  • where an external confiscation order has been made in proceedings outside Jersey;
  • where there are reasonable grounds for believing that an external confiscation order may be made in such proceedings; or
  • where proceedings are to be instituted outside Jersey and there are reasonable grounds for believing that a confiscation order will be made in those proceedings.

If a saisie is granted, then the property vests in the Viscount in the same way as it does in respect of a domestic saisie.

Obtaining a saisie is a necessary first step in enforcing an external confiscation order. The court has the power to register an external confiscation order upon the Attorney General’s application. Once the order has been registered, any property subject to a saisie listed in the order can be realised by the Viscount and applied in satisfaction of the external confiscation order.

As mentioned in question 35, it is common for the Attorney General to enter into asset sharing agreements with foreign governments in respect of seized funds.

Treaties

To which international conventions with provisions on asset recovery is your state a signatory?

The following are conventions of relevance that have been extended to Jersey:

  • the Council of Europe Convention on Mutual Assistance in Criminal Matters (Strasbourg, 1959), extended to Jersey in 2008 (Spain and Italy entered declarations);
  • the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna, 1988), extended to Jersey in 1997;
  • the Organisation for Economic Co-operation and Development Convention on Combating of Bribery of Foreign Public Officials in International Business Transactions (Paris, 1997), extended to Jersey in 2010;
  • the International Convention for the Suppression of the Financing of Terrorism (New York, 1999), extended to Jersey in 2008;
  • the Council of Europe Criminal Law Convention on Corruption (Strasbourg, 1999), extended to Jersey on 13 June 2013; and
  • the United Nations Convention against Corruption (New York, 2003), extended to Jersey in 2009.

Private prosecutions

Can criminal asset recovery powers be used by private prosecutors?

No, all criminal proceedings within Jersey are brought by the Attorney General in his or her capacity as a public prosecutor.