Criminal Offences (Jersey) Law 2009 – out of sight but should not be out of mind.

The Criminal Offences (Jersey) Law 2009 [ www.jerseylaw.je/laws/current/l_24_2009 ]

• Is enacted to codify and reform the law relating to statutory offences. Although little is known of this law or highlighted in any director briefing, all corporate offences should be aware of its effect.
• Consolidates and modernises the statutory offences in Jersey.
• Covers (albeit not exhaustively) fraud, bribery, corruption, money laundering, insider dealing, market abuse, and environmental crimes.

Directors who fail to prevent or report these offences committed by their employees or agents are liable criminally. Penalties for violating the law include imprisonment, fines, confiscation of assets, and disqualification from holding office.

Original Comsure post = https://www.comsuregroup.com/news/jersey-criminal-offences-jersey-law-2009-out-of-sight-but-should-not-be-out-of-mind/

LONG READ

The Criminal Offences (Jersey) Law 2009 is a significant piece of legislation in Jersey, a British Crown Dependency, aimed at modernising and codifying aspects of the island's criminal law.

Enacted to clarify and reform the legal framework surrounding statutory offences, it addresses gaps and ambiguities in the existing customary and statutory law, particularly about inchoate offences (such as attempts, conspiracy, and incitement) and accomplice liability.

Below is a comprehensive overview based on available information and general legal principles applicable to such legislation:

Background and Purpose

Jersey’s legal system combines customary law (rooted in Norman-French traditions) with statute law influenced by English common law. Before the 2009 Law, certain aspects of criminal liability—especially for statutory offences—were unclear or inconsistent. The Criminal Offences (Jersey) Law 2009 was introduced to:

• Codify key principles: It provides a statutory basis for previously uncertain offences, particularly inchoate offences linked to statutory crimes.

• Modernise the law: This bill aligns Jersey’s criminal law with contemporary standards while preserving its unique legal identity.

• Resolve jurisdictional questions: It clarifies the extent of criminal liability for acts committed in Jersey related to offences outside the island.

• The law stemmed from a proposition (P.7/2007) debated by the States of Jersey, the island’s legislative assembly, and was enacted to ensure greater legal certainty and fairness.

Key Provisions

The Criminal Offences (Jersey) Law 2009 includes several important provisions that reshape how criminal offences are defined and prosecuted in Jersey. Here are the main elements:

1. Abolition of the Crime/Délit Distinction (Article 2):
   1. Historically, Jersey’s customary law distinguished between crimes (more serious offences) and délits (lesser offences). This distinction influenced sentencing and procedure but became outdated after the Criminal Procedure (Prescription of Offences) (Jersey) Law 1999 abolished time limits (prescription) for prosecuting offences.
   2. Article 2 of the 2009 Law merges délits into crimes for all legal purposes, eliminating the distinction. This simplifies the classification of offences and aligns Jersey’s approach with jurisdictions without such a binary categorisation.
2. Attempts to Commit Statutory Offences:
   1. At customary law, it was clear that attempting a customary law offence (e.g., murder) was itself an offence. However, the status of attempts to commit statutory offences (e.g., drug importation under statute) was less specific.
   2. The 2009 Law explicitly makes it an offence to attempt to commit any statutory offence, providing clarity and ensuring that preparatory acts are prosecutable. The seriousness of the attempt (whether it ranks as a crime or a lesser offence) is aligned with the underlying offence.
3. Conspiracy, Incitement, and Accomplice Liability:
   1. The law codifies liability for conspiracy (agreeing to commit an offence), incitement (encouraging another to commit an offence), and aiding, abetting, counselling, or procuring a statutory offence.
   2. Before the law, such "inchoate" or accomplice offences linked to statutory crimes often required a jury trial because they were treated as common law offences. The 2009 Law shifts many of these to be heard by jurors (lay judges in Jersey’s Royal Court) rather than juries, depending on the nature of the underlying offence.
4. Jurisdictional Reach (Article 11):
   1. Article 11 addresses extraterritorial aspects, clarifying when acts done in Jersey that contemplate an offence abroad can incur criminal liability. For example, planning a crime in Jersey executed elsewhere could now be prosecuted under more precise rules.
5. The draft law's explanatory note emphasises that this provision resolves prior doubts about prosecuting such preparatory acts.
6. Impact on Trial Procedure:
   1. A significant and debated aspect of the law is its effect on the right to a jury trial. Before 2009, many inchoate or accomplice offences tied to statutory crimes were tried by jury as common law offences. Post-2009, statutory offences and their related inchoate offences (e.g., importation of drugs) are typically heard by jurors alone, while common law offences (e.g., conspiracy to import drugs) retain jury trials.
   2. This shift sparked concerns during the legislative debate about limiting jury trials, a cornerstone of standard law systems. The Chief Minister at the time, Senator T.A. Le Sueur, explained that, for instance, a drug importation charge (statutory) would go to jurors. At the same time, conspiracy to import (common law) would still involve a jury.
7. Consequential Amendments (Articles 12 and 13):
   1. The law makes technical amendments to other legislation, such as the Privileges and Immunities (Diplomatic, Consular, etc.) (Jersey) Law 1998, to ensure consistency with its codification efforts.

Scope of Offences Covered

1. While the Criminal Offences (Jersey) Law 2009 does not list every specific offence (Jersey’s criminal law spans multiple statutes and customary principles), it applies broadly to statutory offences. Examples include:
   1. Fraud, bribery, and corruption (under various financial crime laws).
   2. Money laundering (e.g., Proceeds of Crime (Jersey) Law 1999).
   3. Drug-related offences (e.g., Misuse of Drugs (Jersey) Law 1978).
   4. Environmental crimes and market abuse.
2. It imposes liability on individuals, including corporate directors, who fail to prevent or report such offences committed by employees or agents, reflecting a push for accountability in corporate governance.

Penalties

1. Penalties under the law depend on the underlying offence but can include:
   1. Imprisonment: At the court's discretion, up to the maximum specified by the relevant statute or for common law offences.
   2. Fines: Either fixed or unlimited, depending on the offence.
   3. Confiscation of assets: Particularly for financial crimes.
   4. Disqualification: For directors or professionals convicted of related offences.
2. The shift to Jurat hearings for statutory offences does not inherently alter sentencing but changes the decision-making process, as Jurats (experienced lay judges) replace juries in these cases.
3. Significance and Reception
   1. Clarification: The law is seen as an "important step forward" in resolving ambiguities, particularly around attempts and conspiracy tied to statutory offences. It strengthens Jersey’s ability to prosecute complex crimes like financial misconduct or cross-border conspiracies.
   2. Controversy: The reduction in jury trials for certain offences drew scrutiny. Critics argued it eroded a fundamental right, though proponents noted that jurors, as trained adjudicators, ensure consistency and expertise in technical statutory cases.
   3. Corporate Impact: The law’s emphasis on director liability highlights Jersey’s role as an international finance centre, reinforcing its commitment to combating financial crime.
4. Practical Implications
   1. Legal Practice: Lawyers in Jersey must now distinguish between common law and statutory offences when advising on trial procedures and potential defences.
   2. Prosecution: The law empowers the Attorney General’s office to pursue cases more confidently, especially for preparatory acts or corporate wrongdoing.
   3. Public Awareness: Despite its importance, the law remains relatively under-discussed outside legal circles, prompting calls for greater awareness among businesses and the public.

Availability

1. The official consolidated version of the Criminal Offences (Jersey) Law 2009 is accessible on the Jersey Law website (www.jerseylaw.je), where updates and amendments are tracked.
1. https://www.jerseylaw.je/laws/current/l_24_2009
2. As of the last known update in December 2024, it remains a foundational statute in Jersey’s criminal justice system.

Conclusion

1. The Criminal Offences (Jersey) Law 2009 represents a pivotal reform, bridging customary and statutory law to create a more coherent and enforceable criminal framework. While it modernises Jersey’s approach to crime, its procedural shifts—particularly regarding jury trials—reflect a balancing act between efficiency and tradition. For anyone engaging with Jersey’s legal system, whether as a resident, business entity, or legal practitioner, understanding this law is essential to navigating its criminal landscape.