The Asset Tracing And Recovery Review – 3rd Edition

This chapter originally featured in The Asset Tracing and Recovery Review - 3rd Edition.

I OVERVIEW

As a major offshore financial centre, the Island of Jersey has, unfortunately, all too often been one of the jurisdictions of choice for those seeking to hide assets that have been fraudulently obtained from others and to launder their ill-gotten gains. Encouragingly the Island's regulatory, legislative and judicial bodies have in recent years adopted a robust approach to nancial crime and to ensuring that, through the civil court process, victims of fraud are properly compensated for the wrong done to them.

Jersey has enacted legislation to specifically combat money-laundering offences relating to drug traficking and terrorist activity, in addition to its 'all crimes' money laundering legislation (see the Drug Tra cking (Jersey) Law 1988; the Terrorism (Jersey) Law 2002; and the Proceeds of Crime (Jersey) Law 1999, respectively). Furthermore, legislation such as the Investigation of Fraud (Jersey) Law 1991 (the 1991 Law), confers upon o cers, such as the Attorney General, far-reaching investigative powers. Under the 1991 Law, the Attorney General is permitted to seize documents that are believed to be relevant to an investigation and to interview any individual, including third parties, believed to possibly have information relevant to an investigation. Individuals who are interviewed pursuant to the 1991 Law may not refuse to answer questions put to them.

Such legislation is, of course, only as strong as the will to enforce it. Jersey has become well known for pursuing to their logical conclusion investigations that bear fruit. Over the past decade numerous civil and criminal asset recovery actions have come before the Royal Court, including Brazil v. Durant,2 Attorney General v. Michel,3 Attorney General v. Bhojwani4 and In Re the Representation of Lloyds TSB O shore Trust Company Limited.5

Asset recovery cases by their nature, at times, raise di cult legal concepts. Cases such as Lloyds v. Fragoso and Brazil v. Durant have shown that the courts of Jersey are prepared to depart from outmoded or overly formalistic approaches to such concepts and be innovative in order to ensure justice between the parties. In Brazil v. Durant, which is discussed at length below, the key concept dealt with was tracing.

II LEGAL RIGHTS AND REMEDIES

As outlined above, Jersey law recognises a number of rights and remedies that may be employed by the victims of...