Business Crime in Jersey: Overview

Corporate manslaughter

Regulatory provisions and authorities

1. What is the main legislation relevant to corporate manslaughter?

There is no legislation in Jersey dealing with corporate manslaughter. Except for limited statutory exceptions (for example, road traffic offences and drugs offences) Jersey criminal law is not codified. Jersey is a customary law jurisdiction and many of the criminal offences in Jersey (including murder, manslaughter and sexual offences) are customary law offences. This means that most criminal offences, and the Jersey court’s treatment of them, have developed by reference to previous cases and adaptation to suit the prevailing customs of the present day. However, there are no reported cases of corporate manslaughter in Jersey.

In the absence of any previous cases of corporate manslaughter in Jersey and any statutory offence, it is likely that Jersey would look to the law of England and Wales for guidance by way of comparative law for the offence of corporate manslaughter. Due to its customary law nature, however, the Jersey courts are likely to find the common law position in England and Wales prior to the enactment of Corporate Manslaughter and Corporate Homicide Act 2007 of higher persuasive authority than subsequent cases, which have interpreted a statute that does not exist in Jersey.

This means that corporate manslaughter in Jersey is likely to be established by reference to principles such as vicarious liability or identification theory, where a senior individual (usually a director or manager) is said to embody the company in their actions and decisions and the state of mind of certain key individuals within a company is equated with the state of mind of the company itself. The starting position in Jersey is therefore likely to be the large body of case law in England and Wales that relies on identifying and attributing “the directing mind and will of the company”.

Offences

2. What is the specific offence that can be used to prosecute corporate manslaughter?

There is no specific statutory offence or any reported cases of corporate manslaughter in Jersey (see Question 1). The offence could therefore best be described as the customary law offence of manslaughter adapted to align with the approach of the Jersey courts to attributing corporate liability.

Defences

3. What defences or exemptions are available and who can qualify?

There is no specific statutory offence or even customary law offence of corporate manslaughter in Jersey (see Question 1 and Question 2).

It is likely that any defence would focus on the elements of the offence itself. Whether the breach of the relevant duty of care owed by the organisation to the deceased is considered a “gross” breach or not is likely to be a key consideration.

Enforcement

4. Which authorities have the powers of prosecution, investigation and enforcement in cases of corporate manslaughter? What are the authorities’ powers of prosecution, investigation and enforcement, and what are the consequences of non-compliance?

Prosecution authorities

The principal investigative agency is the States of Jersey Police.

Criminal prosecutions are brought in the name of Her Majesty’s Attorney General for Jersey.

Prosecution powers

All the normal investigatory powers are available as a matter investigated by the States of Jersey Police.

Powers of interview

The States of Jersey Police have the power to interview (paragraphs 10 and 11, Police Procedures and Criminal Evidence (Codes of Practice) (Jersey) Order 2004). Interviews are normally conducted under caution. The interviewee has the right to have a legal adviser present. The interviewee has the right to refuse to answer questions or provide information, and no adverse inference can be drawn from their silence (paragraph 10.D, Police Procedures and Criminal Evidence (Codes of Practice) (Jersey) Order 2004).

Powers of search/to compel disclosure

The States of Jersey Police have a wide range of entry, search and seizure powers (Parts 2 and 3, Police Procedures and Criminal Evidence (Jersey) Law 2003).

Powers to obtain evidence

The States of Jersey Police have wide powers to obtain evidence under the Police Procedures and Criminal Evidence (Jersey) Law 2003, including from third parties.

The States of Jersey Police must not seize material that is legally privileged.

The Attorney General has the power to obtain evidence from overseas by letter of request (Article 4, Criminal Justice (International Co-operation) (Jersey) Law 2001).

Power of arrest

The police have the power of arrest. Both the States of Jersey Police and the court have the power to grant bail, which may be unconditional or conditional. The Honorary Police of each Parish also have limited powers to grant bail.

The implementation of the Police Procedure (Bail) (Jersey) Law 2017 has introduced a right to bail for defendants, subject to a number of statutory exceptions set out at Schedule 1 of that Law.

Court orders or injunctions

The court has the power to make:

• Compensation orders.
• Forfeiture orders.
• Costs orders including wasted costs orders and costs against third parties.

5. Which authority makes the decision to charge and on what basis is that decision made? Are there any alternative methods of disposal and what are the conditions of such disposal?

The decision to charge is taken by a centenier of the Parish of Jersey in which the alleged offence was committed. A centenier is an officer of the Honorary Police that operates in each parish.

The decision to charge must be taken in accordance with a Code of Practice issued by the Attorney General. The decision whether to charge involves a two-stage test:

• The evidential test. The Centenier must consider first whether there is sufficient evidence to provide a realistic prospect of conviction (the evidential test).
• The public interest test. Where there is sufficient evidence, it must be determined whether the prosecution is necessary in the public

The Attorney General retains a power to overrule a centenier’s decision whether to charge or not. There is no ability to enter into a deferred prosecution or a non-prosecution agreement in Jersey.

Conviction and sanctions

6. What are the penalties for corporate manslaughter?

As there are no reported cases of corporate manslaughter in Jersey, it is difficult to determine what sentence a Jersey court might impose. In theory, customary law offences in Jersey leave the court with discretion to impose any sentence it wishes, including an unlimited fine or imprisonment of any length. Jersey traditionally looks to England and Wales for guidance in respect of sentencing, and case law there is likely to be viewed as persuasive, albeit not binding.

Safeguards

7. Are there any measures in place to safeguard the conduct of investigations? Is there a process of appeal? Is there a process of judicial review?

Specific safeguards include:

• A suspect’s right to legal advice in private on arrest (Article 54, Police Procedures and Criminal Evidence (Jersey) Law 2003). A notice advertising the right to be afforded facilities to consult a legal representative in private must be prominently displayed in the charging area of every police station (Code C, Police Procedures and Criminal Evidence (Codes of Practice) (Jersey) Order 2004).
• The requirement for a warrant authorising a police officer to enter and search premises (Article 15, Police Procedures and Criminal Evidence (Jersey) Law 2003). A warrant is obtained by application made by a police officer to the Bailiff (the Chief Justice of Jersey and President of the Royal Court) (or his delegate) or a jurat (a lay judge). The police officer must demonstrate reasonable grounds for his
• The exclusion of certain material, including legally privileged material, from seizure and use as evidence (Part 3, Police Procedures and Criminal Evidence (Jersey) Law 2003).
• The duty of the prosecution to disclose all unused prosecution evidence that can reasonably be considered capable of undermining the case for the prosecution, or of assisting the case of the defendant.
• The ability of the defence to apply, or for the court of its own motion, to exclude evidence at trial, including where the prejudicial effect of the evidence outweighs its probative value (Article 76, Police Procedures and Criminal Evidence (Jersey) Law 2003; Glover v Attorney General [2008 JLR Note 30] applying R v Fulcher [1995 2 Cr App R 251]).

As public authorities, both the court and the police must exercise their functions in a way which is compatible with the rights and fundamental freedoms of the Convention for the Protection of Human Rights and Fundamental Freedoms (Article 7, Human Rights (Jersey) Law 2000).

A defendant has the right of appeal against conviction and against sentence.

Judicial review is not available in respect of the Attorney General’s decision to prosecute. (The discretion whether to bring proceedings and on what charge, lies solely with the Attorney General. To allow this decision to be judicially reviewed would transfer to the court the responsibility of determining the propriety of the proceedings and the charge (AG v Rouillé 1995 JLR 315; AG v Young 1998 JLR 22)).

Health and safety offences

Regulatory provisions and authorities

8. What are the main regulatory provisions and legislation relevant to health and safety offences?

The main legislation relevant to health and safety offences in Jersey is the Health and Safety at Work (Jersey) Law 1989 (Health and Safety at Work Law).

The Health and Safety at Work Law is supplemented by various regulations (delegated legislation) covering different activities undertaken at work. The regulations have mandatory status and the consequences for non-compliance vary depending on the regulation in question.

The Health and Safety at Work Law and regulations made pursuant to it are further supplemented by a number of approved codes of practice and guidance issued by the Health and Safety Inspectorate. These have voluntary status. A failure to observe the provisions of an approved code of practice does not automatically render a person liable to any civil or criminal proceedings but will be admissible in evidence in any such proceedings.

The Minister for Social Security has responsibility for health and safety.

Offences

9. What are the specific offences relating to health and safety?

Under Article 21 of the Health and Safety at Work Law, it is an offence for any person to fail to discharge a duty to which that person is subject under the Health and Safety at Work Law. Employers owe a general duty to ensure the health, safety and welfare at work of employees in the workplace. This general duty encompasses a number of specific duties including:

• Identifying risks to health and safety.
• Maintaining safe systems of work.
• Providing information and training.

Additionally, employers owe duties to persons other than their employees, including the duty to ensure that third parties are not exposed to risks to their health and safety as a result of the employer’s undertaking or business. Employees are also subject to a general duty to take reasonable care at work.

A number of other offences are created by Article 21 of the Health and Safety at Work Law, including contravention of any of the health and safety regulations (which may also make provision for further offences) and various offences relating to the interference with an investigation or obstruction of an inspector in the performance of their powers or duties.

Offences under the Health and Safety at Work Law can be committed by a body corporate (Article 23, Health and Safety at Work Law). Where the offence is committed with the consent or connivance, or is attributable to any neglect on the part of any director, manager, secretary or other similar officer, or a person purporting to act in such capacity, the person as well as the body corporate are guilty of the offence and liable to be prosecuted and punished on conviction. This also applies where the affairs of the body corporate are managed by its members.

Defences

10. What defences or exemptions are available and who can qualify?

A defendant must prove that they exercised all due diligence to comply with the relevant statutory provisions and that the offence was due to an act or default of another party, without the knowledge of the defendant (Article 22, Health and Safety at Work Law).

The duties set out in the Health and Safety at Work Law are expressed in terms of the reasonable practicability for an employer to meet their requirements (for example, the duty under Article 3(1) to ensure, so far as is reasonably practicable, the health, safety and welfare at work of employees). What is reasonably practicable is a question of fact for the court. Delegation of the duty is not a defence as this has not been expressly provided for by the Health and Safety at Work Law (Attorney General V States Employment Board (2010 JLR Note 47)).

Several of the regulations made supplemental to the Health and Safety at Work Law make provision for the Minister for Social Security to issue written certificates of exemption, which can exempt certain persons, activities or products from the application of the regulations in question.

Enforcement

11. Which authorities have the powers of prosecution, investigation and enforcement in cases of health and safety offences? What are the authorities powers of prosecution, investigation and enforcement, and what are the consequences of non-compliance?

Prosecution authorities

The Health and Safety Inspectorate (the Inspectorate) has responsibility to ensure that health and safety legislation is properly enforced. The Inspectorate falls within the remit of the Department for Social Security.

Prosecutions are brought by the Attorney General of Jersey (see Question 4).

Prosecution powers

Investigations are conducted by the Inspectorate (Article 18, Health and Safety at Work Law). Where the investigation relates to a work-related death, it will be carried out in conjunction with the States of Jersey Police and/or Honorary Police.

Where the powers of the Inspectorate are exercised for the purpose of investigating a matter which is the subject of a police inquiry, they can only be exercised in conjunction with the police officer conducting the inquiry.

Powers of interview

The Inspectorate can require any person to answer questions and sign a declaration of the truth of the answers. The person cannot be required to answer any question or give any evidence that would tend to incriminate them.

Investigations may be conducted in conjunction with the States of Jersey Police who have their own powers of interview (see Question 4).

Powers of search/to compel disclosure

The Inspectorate has the power to enter any premises where it has reasons to believe it is necessary for the purposes of an investigation.

The Inspectorate can require the production of, and take copies of, any books or documents. The requirement to produce material does not apply to documents subject to legal privilege.

Investigations may be conducted in conjunction with the States of Jersey Police who have their own powers of search and disclosure (see Question 4).

Powers to obtain evidence

The Inspectorate is empowered to take measurements, photographs and samples of any articles or substances on the premises subject to investigation.

When a prosecution is brought, the Attorney General can exercise their power to obtain evidence from overseas by letter of request (see Question 4).

Power of arrest

The Inspectorate does not have the power of arrest which is reserved to the States of Jersey Police and Honorary Police. A suspect may be granted bail (see Question 4).

Court orders or injunctions

Where the offence relates to the acquisition, possession or use of explosives, the court has the power to order their forfeiture or destruction, subject to the right of the owner or any interested person to be heard as to why such an order should not be made.

12. Which authority makes the decision to charge and on what basis is that decision made? Are there any alternative methods of disposal and what are the conditions of such disposal?

Where the Inspectorate has investigated a breach, it may then refer that breach to the Attorney General if the requirements of its enforcement policy are met. The factors considered include:

• Where the breach was significant and/or is seen to have been conscious and deliberate.
• Where it is in the public interest for the breach to be prosecuted.
• Where the breach suggests a persistent failure to meet the requirements of the law.
• Where there is a trend of similar breaches which calls for prosecution as a warning or example.

The enforcement policy also lists those circumstances where it is not appropriate to refer a breach.

The Inspectorate will recommend the prosecution of individuals if the requirements of its enforcement policy are met, and it considers such a prosecution to be warranted. The Inspectorate will consider the management chain and the role played by individual directors and managers. Action will be taken against such individuals where the investigation has revealed that the offence was committed with their consent or connivance, or was attributable to neglect on their part.

Where the Inspectorate finds that a person is in contravention of the Health and Safety at Work Law (and/or regulations), it has the power to issue an improvement notice to require the person to remedy the contravention within a certain period.

Where the Inspectorate is of the opinion that there is a risk of serious personal injury resulting from a contravention of the Health and Safety at Work Law (and/or regulations), it can serve a prohibition notice directing that specified activities cannot be carried out until the contravention is remedied.

In addition to the power to authorise an investigation, the Minister for Social Security also has power to direct that there be an inquiry into any matter. The inquiry procedure is governed by the Health and Safety at Work (Inquiries Procedure) (Jersey) Regulations 1990. An inquiry can be conducted in private or in public. A number of persons are entitled to appear at an inquiry including the Minister, an inspector, any employers’ association or trade union, any person who was injured or suffered damage as a result of the incident, and the owner or occupier of any premises connected with the incident. The inquiry has the power to require the attendance of witnesses, the production of documents and to inspect the premises in question. At the close of proceedings, the inquiry issues a written report to the Minister which sets out its findings of fact and recommendations.

Conviction and sanctions

13. What are the sanctions for health and safety offences?

The Health and Safety at Work Law provides the maximum penalties that can be imposed.

The majority of offences under the 1989 Law carry the penalty of a fine, the amount of which is determined by the court.

Certain offences, including those relating to obstruction of investigations and the exercise of inspector’s powers, also carry the penalty of a fine but to a statutory limit of GBP10,000 (the current amount of a level 3 fine on the standard scale of fines in Jersey).

Other offences, including breach of prohibition notice and breach of licence condition carry a penalty of a fine and a term of imprisonment not exceeding two years, or both.

There is no tariff for fines for health and safety offences and each case depends on its individual circumstances. The court aims to sentence consistently and will pass sentence with reference to previous cases of a similar nature.

In determining the level of fine to be imposed the court must firstly consider the gravity of the offence, this requires a weighing of any aggravating factors (including placing employee lives at risk, failure to heed warnings and deliberate risk taking for financial benefit) against any mitigating factors (including the taking of steps to remedy deficiencies, a good safety record and a timely guilty plea). Secondly, the court must consider the amount the defendant could reasonably be ordered to pay. Where the defendant is a body corporate, financial information demonstrating its ability to meet a fine should be supplied to the court. If no such information is provided, the court may conclude that the body corporate is able to meet any fine. The court has expressed its view that fines against corporate defendants should be large enough to emphasise to officers and shareholders the need to ensure a safe working environment and as a salutary lesson to encourage other employers to meet their obligations.

Where a person has been convicted of an offence, in addition to or instead of any punishment, the court may order that the person remedy the consequences of the offence. Alternatively, the court may order that the Minister for Social Security take any action necessary under the Health and Safety at Work Law (at the expense of the offender) and that until such action is taken, the premises in question may not be used or may only be used in the manner specified by the court.

Where a company and/or its directors has been found to be in breach of the Health and Safety at Work Law, those directors may be subject to a disqualification order, if such an order is expedient in the public interest (Article 78, Companies (Jersey) Law 1991). The maximum period of disqualification is 15 years.

Safeguards

14. Are there any measures in place to safeguard the conduct of investigations? Is there a process of appeal? Is there a process of judicial review?

Where investigations are conducted in conjunction with the States of Jersey Police, the usual protections will apply (see Question 7).

The Inspectorate must not compel the disclosure of any material that is subject to legal professional privilege.

Where the Attorney General determines that criminal proceedings are to be issued, the trial will take place in the usual manner; with the defence being able to apply to exclude evidence (see Question 7).

A defendant has the right of appeal against conviction and against sentence in the usual manner (see Question 7).

Any challenge to the validity of a decision made by a public body, including the police, the Minister and certain decisions of the Attorney General, must be brought through an application for judicial review. Judicial review will not be granted if an equally effective alternative remedy is available (whether statutory or otherwise). Judicial review proceedings are civil proceedings regardless of the subject matter of the decision under review (including where the decision is taken in the context of criminal proceedings). The procedure for making an application for judicial review is governed by Part 16 of the Royal Court Rules 2004.

The imposition of an improvement notice or prohibition notice may be subject to appeal to the Health and Safety Appeal Tribunal. The Tribunal may cancel, affirm, or affirm and modify any notice, as they think fit in the circumstances. The regulations governing the tribunal do not allow for a further appeal to the Royal Court. It would be open to the applicant to issue an administrative appeal in respect of the Tribunal’s decision. The procedure for bringing an administrative appeal is set out in Part 15 of the Royal Court Rules 2004.

Environmental offences

Regulatory provisions and authorities

15. What are the main regulatory provisions and authorities responsible for investigating environmental offences?

Jersey has entered into a number of international treaties related to the environment. Not all of these conventions have been translated into domestic legislation. However, with the implementation of “Pathway 2050: An Energy Plan for Jersey“, it is anticipated that new legislation will be enacted in the near future which operates to protect the environment, particularly as regards emissions.

In relation to environmental offences, two key pieces of domestic legislation are:

• Water Pollution (Jersey) Law 2000 (implementing the Convention for the Protection of the Marine Environment of the North-East Atlantic).
• Waste Management (Jersey) Law 2005 (implementing the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal).

These laws (and the regulations, orders and codes of practice made supplemental to them – including the recently introduced Water Pollution (Water Management) (Jersey) Order 2020 and the Water Pollution (Water Quality) (Jersey) Order 2020) provide the civil and criminal regime for environmental regulation in two specific areas. Other areas are subject to their own laws, for example the:

• Water Resources (Jersey) Law 2007, which protects water sources.
• Protection of Agricultural Land (Jersey) Law 1964, which provides a regime to prevent spoliation of agricultural land.
• Statutory Nuisances (Jersey) Law 1999, which covers domestic and commercial nuisances including fumes, noise and other emissions which are prejudicial to public health, and specific reference, should be made to them.

The Minister for the Environment is responsible for safeguarding Jersey’s environment. The Minister for Health and Social Services and the Minister for Infrastructure are responsible for environmental issues which fall within their remits.

Offences

16. What are the specific offences relating to the environment?

There is no one statute that creates environmental offences. As a general rule, contravention of statutory provisions that create specific offences relating to the environment will render a person guilty of an offence and liable to a penalty on conviction.

Specific offences relating to the environment include the following:

• To cause or knowingly permit the pollution of any controlled waters.
• To contravene a water management order by which the Minister for the Environment may place restrictions and requirements on business activities within a designated area, to prevent, control, reduce or eliminate pollution or the risk of pollution.
• To deposit, keep, treat, dispose or recover controlled waste without a waste management licence issued by the Minister or in a manner likely to cause pollution.
• To cause or knowingly permit hazardous waste to be moved by an unregistered carrier or without ministerial consent.

A body corporate may be liable in respect of each of the specific offences highlighted above. Additionally, where the offence is committed with the consent, connivance or is attributable to any neglect on the part of an officer of the body corporate, or a person purporting to act in such capacity, that officer will also be guilty of an offence and liable on conviction. This not only true of the offences highlighted above but also applies to any statutory offence committed by a body corporate or limited liability partnership.

Any person who aids, abets, counsels or procures the commission of the above offences is also guilty of the offence and liable in the same manner as the principal offender to the penalty provided for that offence.

Defences

17. What defences or exemptions are available and who can qualify?

Whether a defence is available depends on the specific environmental offence in question.

There are several statutory defences to the offence of causing or knowingly permitting the pollution of controlled waters. The defences include where the person is able to prove that they:

• Took all reasonable precautions and exercised due diligence to avoid commission of the offence.
• Took all reasonably practicable steps to minimise the extent of any pollution.
• Informed the Minister for the Environment as soon as reasonably practicable.

For the purposes of this defence, the person’s compliance or non-compliance with an approved code of practice is admissible evidence of whether the person conducted themselves reasonably and with due diligence. There are currently two approved codes of practice that have been made pursuant to the Water Pollution (Jersey) Law 2000, namely the Water Pollution (Code of Good Agricultural Practice) (Jersey) Order 2015 and the Water Pollution (Approval Code of Practice) (Jersey) Order 2020.

In addition, a person will not be guilty of an offence relating to the pollution of water if they have sought and obtained a discharge permit from the Minister which may be unconditional or subject to such conditions as specified by the Minister.

A statutory defence of emergency is available in respect of the offences relating to movement of hazardous waste. It is a defence to prove that the circumstances in which the offence was committed constituted an emergency beyond the person’s control, the decision was reasonable, the person took all steps that were reasonably practicable for ensuring it was carried out safely and full details were given to the Minister for the Environment.

As with water pollution offences, a statutory licencing regime exists whereby a person will not be guilty of an offence in respect of certain activities relating to waste where they have sought and obtained a waste management licence from the Minister. Certain specified activities are exempt from the requirement for a licence and the Minister retains a power to grant exemptions from the requirement for a licence depending on the nature of the activity in question.

Enforcement

18. Which authorities have the powers of prosecution, investigation and enforcement in cases of environmental offences? What are the authorities powers of prosecution, investigation and enforcement, and what are the consequences of non-compliance?

Prosecution authorities

The Minister for the Environment has responsibility for protecting Jersey’s environment.

Prosecutions are brought by the Attorney General of Jersey (see Question 4).

Prosecution powers

The investigatory powers available to the Minister for the Environment vary depending on the legislation in question. Both the Water Pollution (Jersey) Law 2000 and Waste Management (Jersey) Law 2005 allow the Minister for the Environment to appoint designated officers to conduct an investigation (termed inspectors in the Waste Management (Jersey) Law 2005).

Where a potential criminal offence is to be investigated, this will be done in conjunction with the States of Jersey Police and/or Honorary Police (see Question 4).

Powers of interview

Neither the Minister nor a designated officer has the power of interview.

Powers of search/to compel disclosure

A designated officer has the power to enter any land or vehicle where they have reason to believe it is necessary for the purposes of an investigation.

Only the Minister (and not his designated officer) has the power to require production of documents. Documents subject to legal privilege are not expressly excluded from production.

Powers to obtain evidence

A designated officer is empowered to take measurements and samples, install apparatus or equipment and carry on investigatory works.

A designated officer is empowered to take or remove any substances, articles or other items, for the purposes of evidence in any civil or criminal proceedings.

Power of arrest

Neither the Minister nor a designated officer has the power of arrest which is reserved to the States of Jersey Police and Honorary Police. A person arrested in criminal proceedings may be granted bail (see Question 4).

A designated officer can require the owner or occupier of any land or vehicle, or any other responsible person, to render such assistance as they require for the purpose of exercising their investigatory powers. Failure to comply constitutes an offence.

Court orders or injunctions

The Minister or a designated officer can apply to the Royal Court of Jersey for an injunction to enforce compliance with, or constrain contravention of, the statutory regime.

Prosecution authorities

19. Which authority makes the decision to charge and on what basis is that decision made? Are there any alternative methods of disposal and what are the conditions of such disposal?

The Attorney General will decide whether to charge in accordance with the usual procedure and in conjunction with the Department for the Environment. The Attorney General has the power to prosecute regardless of whether a decision may have been made by the Minister for the Environment (or a designated officer) not to refer the case.

A suspected breach of the law must be referred to the Attorney General:

• If it was significant.
• If it was conscious and deliberate.
• Where it is in the public interest to do so.
• Where it was part of a persistent trend of contravening the law.
• Where there are grounds for prosecution as a warning or example case.

There are some instances when a breach must not be referred, for example:

• Where the offence was minor or committed as a result of a genuine mistake or misunderstanding.
• Where it is not in the public interest to do so.

If there is any doubt as to whether to refer a case to the Attorney General, it should be referred.

Where the Minister has reasonable grounds to suspect that a person is in control of any substance that may cause pollution, the Minister can require the person to take precautions or to comply with conditions to prevent or reduce pollution. The making of such an order does not preclude the issue of criminal proceedings in respect of any offences committed.

Conviction and sanctions

20. What are the penalties for environmental offences?

Each offence carries a different penalty as provided for in the relevant legislation.

The offences of causing or knowingly permitting water pollution, and dealing with waste in a manner likely to cause pollution, both render a person liable on conviction to a term of imprisonment not exceeding two years, or a fine, or both.

There is no tariff for fines for environmental offences and each case depends on its individual circumstances. The court aims to sentence consistently and will pass sentence with regard to previous cases of a similar nature. The court may consider English authority or guidelines on a comparative basis, however, it will pass sentence as required for Jersey as a small, distinct jurisdiction.

In determining the sentence to be imposed for contraventions of the Water Pollution (Jersey) Law 2000, the court will consider the:

• Degree of culpability.
• Offender’s previous record (including any failure to observe specific warnings or recommendations).
• Need to find a balance between a fitting censure designed to punish but also to stimulate improved performance and the counterproductive effect of imposing too great a financial penalty.
• Offender’s subsequent attitude and performance including whether they had entered a guilty plea and their approach to the incident.

Where a person has caused or knowingly permitted pollution, the Minister may require that person to eliminate or control the pollution, to remedy or mitigate its effects, or to restore any land affected, and any flora or fauna that are dependent on it, to its state immediately before the pollution occurred.

Where a company and/or its directors have been found to be in breach of the 1989 Law, those directors may be subject to a disqualification order, if such an order is expedient in the public interest (Article 78, Companies (Jersey) Law 1991). The maximum period of disqualification is 15 years.

Safeguards

21. Are there any measures in place to safeguard the conduct of investigations? Is there a process of appeal? Is there a process of judicial review?

Where investigations are conducted in conjunction with the States of Jersey Police, the usual protections will apply (see Question 7).

Where the Attorney General determines that charges are to be brought, the trial will take place in the usual manner, with the defence being able to apply to exclude evidence (see Question 7).

A defendant has the right of appeal against conviction and against sentence in the usual manner (see Question 7).

Judicial review is available (see Question 14).

The exercise of the Minister’s powers to compel the production of documents, to control potential pollution and to require remedial action by the polluter, is subject to appeal to the Royal Court of Jersey. The appeal must be brought 21 days after the appellant is served with a written copy of the decision or notice. The procedure for bringing the appeal is governed by Part 15 of the Royal Court Rules 2004. The lodging of an appeal does not operate to stay the effect of the decision in question. On hearing the appeal, the Royal Court may confirm, reverse or vary the decision in question and make any such order as to the costs of the appeal as it thinks fit. The appellant has the right to appeal to the Court of Appeal.

Although legally privileged documents are not expressly excluded from production, under both the Water Pollution (Jersey) Law 2000 and the Waste Management (Jersey) Law 2005, where a person has been required to produce or disclose information, they may apply to the Minister for a certificate of confidentiality on the ground that provision of the information sought would reveal a trade secret.