The Democratic Republic of the Congo (United Nations Sanctions) (Channel Islands) Order 2005

INTRODUCTORY

Citation, commencement, extent and application

1.—(1) This Order may be cited as the Democratic Republic of the Congo (United Nations Measures) (Channel Islands) Order 2005 and shall come into force on 9th June 2005.

(2) If the Security Council of the United Nations takes any decision which has the effect of cancelling, extending, or suspending the operation of resolution 1596 (2005) adopted by it on 18th April 2005, in whole or in part, this Order shall cease to have effect or its operation shall be suspended, in whole or in part, as the case may be, in accordance with that decision; and particulars of that decision shall be published by the Secretary of State in a notice in the London, Edinburgh and Belfast Gazettes.

(3) This Order shall extend to the Channel Islands so as to be law, respectively in Guernsey and Jersey.

(4) Articles 3, 4 and 5 apply to any person within Guernsey or, as the case may be, Jersey and to any person elsewhere who—

(a) is a British citizen, a British Dependent Territories citizen, a British Overseas citizen, a British National (Overseas), a British subject or a British protected person and is ordinarily resident in Guernsey or, as the case may be, Jersey; or

(b) is a body incorporated or constituted under the law of any part of Guernsey or, as the case may be, Jersey.

Interpretation

2.—(1) In this Order unless the context otherwise requires —

“Attorney General” means—

(a)

in the application of this Order to Guernsey, the Attorney General or the Solicitor General for Guernsey; and

(b)

in the application of this Order to Jersey, the Attorney General for Jersey;

“States Revenue Officer”, in the application of this Order to Guernsey, has the meaning it bears in the Customs and Excise (General Provisions) (Bailiwick of Guernsey) Law 1972, as amended; and “States Revenue Officer” in the application of this Order to Jersey, means the Agent of the Impôts and any officer of the Impôts (and any person authorised by the Agent of the Impôts);

“designated person” means an individual designated by the Committee established by paragraph 3(a) of resolution 1533 (2004) adopted by the Security Council of the United Nations on 12th March 2004;

“direction” means a direction under article 4(1);

“document” includes information recorded in any form, and in relation to information recorded otherwise than in legible form, references to its production include references to producing a copy of the information in legible form;

“funds, other financial assets or economic resources” means financial assets and economic benefits of any kind, including (but not limited to) gold coin, gold bullion, cash, cheques, claims on money, drafts, money orders and other payment instruments; deposits with financial institutions or other entities, balances on accounts, debts and debt obligations; securities and debt instruments (including stocks and shares, certificates representing securities, bonds, notes, warrants, debentures, debenture stock and derivatives contracts); interest, dividends or other income on or value accruing from or generated by assets; credit, rights of set-off, guarantees, performance bonds or other financial commitments; letters of credit, bills of lading, bills of sale; documents evidencing an interest in funds or financial resources, and any other instrument of export financing;

“Guernsey” means the Bailiwick of Guernsey;

“Jersey” means the Bailiwick of Jersey; and

“licensing authority” means—

(a)

in the case of Guernsey, the Attorney General of Guernsey; and

(b)

in the case of Jersey, the Policy and Resources Committee of the States of Jersey;

“police officer” means—

(a)

in relation to Guernsey, Herm and Jethou a member of the salaried police force of the Island of Guernsey, and, within the limits of his jurisdiction, a member of the special constabulary of the Island of Guernsey;

(b)

in relation to Alderney, a member of the said police force and a member of any police force which may be established by the States of Alderney;

(c)

in relation to Sark, the constable, the Vingtenier and a member of the said police force of the Island of Guernsey; and

(d)

in relation to Jersey, a member of the Honorary Police or a member of the States of Jersey Police Force;

“relevant institution” means—

(a)

in the application of this Order to Guernsey, a financial services business within the meaning of section 49 of and the Schedule to the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law 1999;

(b)

in the application of this Order to Jersey, a financial services business within the meaning of Article 36(1) and the Second Schedule to the Proceeds of Crime (Jersey) Law 1999;

“the standard scale” means—

(a)

in the application of this Order to Guernsey, the uniform scale of fines specified for the time being in section 1 of the Uniform Scale of Fines (Bailiwick of Guernsey) Law 1989, as amended, and

(b)

in the application of this Order to Jersey, the standard scale of fines specified for the time being in the Schedule to the Criminal Justice (Standard Scale of Fines) (Jersey) Law 1993, as amended;

(2) For the purposes of identifying a “designated person” referred to in paragraph (1) of this article, the licensing authority shall ensure that a list containing the names and other particulars of such designated persons be maintained and circulated in Guernsey or as the case may be Jersey as necessary from time to time.

(3) Any reference to an Act of Parliament of the United Kingdom shall, in the case of a provision which has been extended to the Channel Islands or otherwise applies to the Channel Islands, be construed as a reference to that provision as it has effect there.

MAKING FUNDS AVAILABLE AND FREEZING OF FUNDS

Making funds, other financial assets or economic resources available to any designated person

3.  Any person who, except under the authority of a licence granted by the licensing authority under this article, makes any funds, other financial assets or economic resources available to or for the benefit of any designated person shall be guilty of an offence.

Freezing of funds, other financial assets or economic resources

4.—(1) Where the licensing authority has reasonable grounds for suspecting that the person by, for or on behalf of whom any funds, other financial assets or economic resources are held is or may be a designated person, the licensing authority may by notice direct that those funds, other financial assets or economic resources are not to be made available to any person or entity except under the authority of a licence granted by the licensing authority under article 3.

(2) A notice given under paragraph (1) shall specify either—

(a) the period for which it is to have effect; or

(b) that the direction is to have effect until it is revoked by notice under paragraph (3).

(3) The licensing authority may by notice revoke a notice given under paragraph (1) at any time.

(4) The expiry or revocation of a direction shall not affect the application of article 3 in respect of the funds, other financial assets or economic resources in question.

(5) A notice under paragraph (1) or (3) shall be given in writing to the person holding the funds, other financial assets or economic resources in question (“the recipient”), and shall require the recipient to send a copy of the notice without delay to the person whose funds they are, or on whose behalf they are held (“the owner”).

(6) A recipient shall be treated as complying with the requirement under paragraph 5 if, without delay, he sends a copy of the notice to the owner at his last-known address or, if he does not have an address for the owner, he makes arrangements for a copy of the notice to be supplied to the owner at the first available opportunity.

(7) Where a notice has been given under paragraph (1), any person by, for or on behalf of whom those funds, other financial assets or economic resources are held may apply to the Royal Court for the notice to be set aside; and on such application the court may set aside the direction.

(8) A person who makes an application under paragraph (7) shall give a copy of the application and any witness statement or affidavit in support to the licensing authority (and to any other person by, for or on behalf of whom those funds, other financial assets or economic resources are held), not later than seven days before the date fixed for the hearing of the application.

(9) Any person who contravenes a direction under paragraph (1) is guilty of an offence.

(10) A recipient who fails to comply with such a requirement as is mentioned in paragraph (5) is guilty of an offence.

Facilitation of activities prohibited under article 3 or 4(9)

5.  Any person who knowingly and intentionally engages in any activities the object or effect of which is to enable or facilitate the commission (by that person or another) of an offence under article 3 or 4(9) is guilty of an offence.

Failure to disclose knowledge or suspicion of measures

6.—(1) A relevant institution is guilty of an offence if—

(a) it knows or suspects that a person who is, or has been at any time since the coming into force of this Order, a customer of the institution, or is a person with whom the institution has had dealings in the course of its business since that time—

(i) is a designated person; or

(ii) has committed an offence under article 3, 4(9), 5 or 7(2); and

(b) it does not disclose to the licensing authority the information or other matter on which the knowledge or suspicion is based as soon as is reasonably practicable after that information or other matter comes to its attention.

(2) Where a relevant institution discloses to the licensing authority—

(a) its knowledge or suspicion that a person is a designated person or a person who has committed an offence under article 3, 4(9), 5 or 7(2), or

(b) any information or other matter on which that knowledge or suspicion is based,

the disclosure shall not be treated as a breach of any restriction imposed by statute or otherwise.

GENERAL

Offences in connection with applications for licences, conditions attaching to licences, etc

7.—(1) If for the purposes of obtaining any licence under this Order any person makes any statement, or furnishes any document or information which to his knowledge is false in a material particular, or recklessly makes any statement or furnishes any document or information which is false in a material particular, he shall be guilty of an offence.

(2) Any person who has done any act under the authority of a licence granted by the licensing authority under this Order and who fails to comply with any conditions attaching to that licence shall be guilty of an offence:

Provided that no person shall be guilty of an offence under this paragraph where he proves that the condition with which he failed to comply was modified, otherwise than with his consent, by the licensing authority after the doing of the act authorised by the licence.

Obtaining of evidence and information

8.  The provisions of part 2 of the Schedule to this Order shall have effect in order to facilitate the obtaining, by or on behalf of the Attorney General, the licensing authority or, in the case of Jersey, a States Revenue Officer —

(a) of the evidence and information for the purpose of securing compliance with or detecting evasion of—

(i) this Order in the Bailiwick in question; or

(ii) any law making provision with respect to any of the matters regulated by this Order that is in force in the other Bailiwick to which this Order applies, the United Kingdom, the Isle of Man or any territory listed in part 1 of the Schedule to this Order; and

(b) of evidence of the commission of—

(i) in the Bailiwick in question, an offence under this Order or, with respect to any of the matters regulated by this Order, an offence relating to customs; or

(ii) with respect to any of those matters, an offence under the law of the other Bailiwick to which this Order applies, the United Kingdom, the Isle of Man or any territory listed in part 1 of Schedule to this Order.

Penalties and Proceedings

9.—(1) Any person guilty of an offence under article 3, 4(9), or 5 shall be liable in Guernsey—

(a) on conviction on indictment to imprisonment for a term not exceeding seven years or to a fine or to both; or

(b) on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.

and in Jersey, on conviction to imprisonment for a term not exceeding seven years, or to a fine, or to both.

(2) Any person guilty of an offence under paragraph 5(b) or (d) in part 2 of the Schedule to this Order shall be liable in Guernsey —

(a) on conviction on indictment to imprisonment for a term not exceeding two years or to a fine or to both; or

(b) on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.

and in Jersey, on conviction to imprisonment for a term not exceeding two years or to a fine or both.

(3) Any person guilty of an offence under article 7(1) or (2) shall be liable in Guernsey—

(a) on conviction on indictment to imprisonment for a term not exceeding two years or to a fine or to both;

(b) on summary conviction to a fine not exceeding level 5 on the standard scale;

and in Jersey, on conviction to imprisonment for a term not exceeding two years or to a fine or to both.

(4) Any person guilty of an offence under articles 4(10) or 6(1) or paragraph 5(a) or (c) in part 2 of the Schedule to this Order shall be liable—

(a) in Guernsey on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both;

(b) in Jersey, on conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding level 4 on the standard scale.

(5) Where any body corporate is guilty of an offence under this Order, and that offence 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 who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence, and shall be liable to be proceeded against and punished accordingly.

(6) Summary proceedings for an offence under this Order in its application to Guernsey may be taken before the appropriate court in the Bailiwick having jurisdiction in the place where that person is for the time being.

(7) No proceedings for an offence under this Order shall be instituted except by or with the consent of the Attorney General:

Provided that this paragraph shall not prevent the arrest, or the issue or execution of a warrant for the arrest, of any person in respect of such an offence, or the remand in custody or on bail of any person charged with such an offence, notwithstanding that the necessary consent to the institution of proceedings for the offence has not been obtained.

Exercise of powers of the licensing authority

10.—(1) The licensing authority may, to such extent and subject to such restrictions and conditions as he or it may think proper, delegate or authorise the delegation of any of his or its powers under this Order (other than the power to give authority under part 2 of the Schedule to this Order to apply for a search warrant) to any person, or class or description of persons, approved by him, and references in this Order to the licensing authority shall be construed accordingly.

(2) Any licences granted under this Order shall be in writing and may be either general or special, may be subject to or without conditions, may be limited so as to expire on a specified date unless renewed and may be varied or revoked by the authority that granted them.

A.K. Galloway

Clerk of the Privy Council