No Problem with AML No Consent Regime
06 September 2019
Jersey's AML reporting regime has been criticised in the past for the absence of a time limit within which a "no consent" can be maintained. This can have significant implications where no criminal investigation or charges are being pursued but the suspicion of illegal activity has not been dispelled; in such circumstances, the police can maintain a "no consent" whatever period of time has elapsed, effectively freezing assets indefinitely without a court order.
An important recent judgment in the Royal Court of Jersey examined in detail the underlying rationale and justice of the no consent regime. The Court dismissed the Applicant’s application for judicial review, finding that the decision to maintain the no consent had been reasonable and proportionate.
Counsel, Katie Hooper and Mathew Cook review the case and, in particular, the effectiveness of proportionality as a safeguard under Article 1 of Protocol 1 of the European Convention on Human Rights. Given the emphasis on public policy in Jersey and in Guernsey, It's likely to take a very clear case of disproportionality to ensure the success of a judicial review application of this nature. No guidance as to when the proportionality threshold will be breached has been given by the Court and the testing of this threshold is ripe for further litigation in future.