1.1 What authorities can prosecute business crimes, and are there different enforcement authorities at the national and regional levels?
Leaving aside the comparatively minor matters dealt with in the Magistrate’s Court, all prosecutions within Jersey are brought in the name of Her Majesty’s Attorney General for Jersey, and by dint of modern practice are, in the vast majority of cases, prosecuted by a Crown Advocate, who is an appointee of the Attorney General, approved by the Bailiff (the head of the judiciary of Jersey), assigned to the case either from within the Law Officer’s Department or from the private sector.
1.2 If there is more than one set of enforcement agencies, how are decisions made regarding the body which will investigate and prosecute a matter?
The States of Jersey Police are the principal investigative agency on the Island. While the majority of business-related crime is within the purview of the Joint Financial Crimes Unit (JFCU), it is increasingly the case that the Enforcement Division of the Jersey Financial Services Commission investigates regulatory offences, including breaches of the Companies Legislation. Resources and other considerations have led to these areas of investigation becoming the province of that Division.
The Intelligence Wing of the JFCU acts as the Island’s Financial Intelligence Unit (FIU), in order to comply with the Anti-Money Laundering (AML) and Counter Terrorist Financing (CFT) Recommendations issued by the Financial Actions Task Force (FATF), and serves as the centre for the receiving, analysis and dissemination of Suspicious Activity Reports (SARs). It is also the case that the Enforcement Division of the Jersey Financial Services Commission receives and shares intelligence through appropriate gateways.
The Operational Wing of the JFCU is responsible for carrying out criminal investigations into serious and complex fraud, sometimes but not always originating from the development of SARs. The majority of the Wing’s work is undertaken in conjunction with the Law Officer’s Department, and powers exercisable by the Attorney General within the Investigation of Fraud (Jersey) Law 1991. In practice, this means that the investigation of cases of substance takes place at the direction of senior lawyers appointed by the Attorney General to advise and prosecute.
1.3 Is there any civil or administrative enforcement against business crimes? If so, what agencies enforce the laws civilly and which crimes do they combat?
The Jersey Financial Services Commission is responsible for the regulation, supervision and development of the financial services industry on the Island.
Under each of the Regulatory Laws pertaining to Financial Services, Banking Business, Insurance Business and Collective Investment Funds, and the Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008, the Commission has powers in certain circumstances to issue directions, which could include directions as extreme as effectively closing down a regulated business and precluding the employment of named persons within the regulated sector. Lesser directions may be made, and all directions are attended by a public statement, which in itself is a regulatory sanction. Such a statement will form a regulatory sanction, or part of a sanction, by promulgating the findings of the Commission and any action it has taken in relation to a failure of a business or person to comply with a requirement of any relevant law or Code of Practice.
Since March 2015, the Jersey Financial Services Commission has had the power to impose civil financial penalties for breaches of the Codes of Practice and the AML/CFT Handbook by those registered under the Banking Business (Jersey) Law 1991, the Insurance Business (Jersey) Law 1996 and the Financial Services (Jersey) Law 1998 and, respectively, under the Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008. The Financial Services Commission (Amendment No. 6) (Jersey) Law 2015 is also important in this respect.
There is a right of appeal to the Royal Court on the grounds that the decision of the Commission was unreasonable having regard to all the circumstances of the case.
There are three levels of penalty, depending on the seriousness of the breach. Each is based on a percentage (respectively, 4%, 6% and 8%) of the transgressor’s relevant income, as defined, with a cap, in the most serious reaches, of £4,000,000.
In the first instance, the Commission may retain any sum of money it receives in respect of a penalty as part of its income, and apply it in reduction of fees otherwise chargeable to the generality of registered persons in the same class as those who have paid the penalty. However, there is a reserve power to order that surpluses must be paid to the States of Jersey in certain circumstances.