GUERNSEY – A NEW FORFEITURE OF ASSETS LAW 2023
THE FORFEITURE OF ASSETS IN CIVIL PROCEEDINGS (BAILIWICK OF GUERNSEY) LAW, 2023 repeals the Forfeiture of Money, etc. in Civil Proceedings (Bailiwick of Guernsey) Law, 2007 and replaces it with a new Law.
Part 1 of this Law sets out the purpose of the Law and gives meaning to key expressions used in the Law. The purpose of the Law is to enable recoverable property to be forfeited in civil proceedings and (in certain cases) by the giving of an administrative notice.
"Recoverable property" is to be construed in accordance with Schedule 1 to this Law. Provisions of Part 1 also give meaning to "unlawful conduct", property "used in unlawful conduct" and property "obtained through unlawful conduct".
Part 1 also sets out the meaning of conduct constituting a gross human rights abuse or violation, and the meaning of "associated property" in relation to recoverable property.
Part II of this Law applies to property of any type, other than property seized or detained under Part III (which is dealt with under Part III) or money held in a bank account in the Bailiwick (which is dealt with under Part IV).
Part II provides for His Majesty's Procureur to apply to the Royal Court for a property freezing order in respect of property suspected to be recoverable property. If this order is granted, His Majesty's Procureur may apply for an order to forfeit the property in due course, in which case the burden of proof is reversed: the respondent will need to satisfy the Court that the property is not recoverable property, in order to avoid forfeiture.
An application can be made in respect of property outside the Bailiwick only if there is a connection with the Bailiwick in the particular case.
Part I provides for His Majesty's Procureur to request assistance from the government of a country outside the Bailiwick to restrict dealings with property in that country, including where a property freezing order is made under this Law in respect of that property. It also provides for His Majesty's Procureur to request assistance from the government of another country to detain and realise property where a forfeiture order has been made under this Law in respect of the property.
Part III of this Law applies to cash (within the meaning of the Cash Controls (Bailiwick of Guernsey) Law, 2007) and certain types of tangible property such as cheques, bearer bonds, bearer shares, casino tokens, precious metals, watches and artistic works. This Part provides for police officers to search for, seize and detain (for a limited period) these kinds of property if suspected to be recoverable property.
A Judge of the Magistrate's Court, the Chairman of the Court of Alderney or the Seneschal may grant a warrant for these purposes. Where property is seized and detained, His Majesty's Procureur may apply (or authorise an application) to the appropriate Court for an order to detain the property beyond the limited period. The "appropriate Court" is defined as the Magistrate's Court for property valued at less than £25,000, and the Royal Court for any other property.
A forfeiture notice can be issued for any property detained by a Court order, and if no objection is received within the objection period, the property is forfeited and vests in His Majesty's Sheriff. His Majesty's Procureur can also apply to the appropriate Court for a summary forfeiture order in respect of any property detained by Court order, in which case the burden of proof is reversed: the respondent will need to satisfy the Court that the property is not recoverable property (or not designated property), in order to avoid forfeiture.
Part IV of this Law applies to money in an account kept with a bank licensed in the Bailiwick. His Majesty's Procureur can apply to the appropriate Court for an order to freeze the bank account. If an account freezing order is granted, His Majesty's Procureur can issue an account forfeiture notice in respect of a sum of money in the account. If no objection to the notice is received within the objection period, that sum of money is forfeited from the account concerned.
His Majesty's Procureur can also apply to the appropriate Court for an account forfeiture order in respect of a sum of money in a frozen bank account. In this case, the burden of proof is reversed: the respondent will need to satisfy the Court that the money concerned is not recoverable property, in order to avoid forfeiture.
Part IV also provides for His Majesty's Procureur to issue a forfeiture notice in any case where money in a bank account is believed to be recoverable property, and more than 12 months has elapsed since the Financial Intelligence Unit refused a person consent to deal with money in the account.
In this case, a "no-consent forfeiture notice" can be issued to require the account holder to attend a hearing in the appropriate Court to show cause why the money should not be forfeited.
If the person served the notice fails to attend the hearing, the appropriate Court can order forfeiture of the money without any notice. If the person served the notice attends the hearing, the burden of proof is reversed: that person will need to satisfy the Court that the money concerned is not recoverable property, in order to avoid forfeiture.
Part V of this Law provides for civil forfeiture investigations, detained property investigations and frozen funds investigations, in support of the earlier Parts of this Law. It creates offences relating to prejudicing investigations, such as disclosures of information or falsifying, concealing destroying or disposing of documents that are relevant to an investigation. It also allows a police officer or His Majesty's Procureur to apply to the Bailiff for a production order, an order to grant entry, a disclosure order or an account monitoring order. Failure to comply with an order is an offence. The Bailiff may also grant a search and seizure warrant.
Part V also provides for His Majesty's Procureur to apply to the Bailiff for a production order, an order to grant entry, a disclosure order or an account monitoring order in connection with a request for assistance from an overseas authority. His Majesty's Procureur can also apply to the Bailiff for an order to preserve data pending a request for assistance from an overseas authority.
Part VI of this Law provides for His Majesty's Procureur to apply to the Royal Court to register a forfeiture order issued abroad in non-conviction based proceedings in respect of property in the Bailiwick.
Part VII of this Law deals with miscellaneous and general matters. It provides for customs officers to exercise the powers of police officers under this Law, and makes it clear that proceedings under this Law (other than proceedings for offences) are civil proceedings, and that any matter to be determined by a court in these proceedings is to be determined to the balance of probability. It also excludes the States of Guernsey (and other persons carrying out functions under the Law) from liability for costs or damages except in the case of bad faith, with the exception of any damages awarded under the Human Rights (Bailiwick of Guernsey) Law, 2000).
It provides that the passage of time from the time that any unlawful conduct occurred, or is suspected or believed to have occurred, does not prevent a police officer or His Majesty's Procureur from making an application under this Law, and does not prevent a court making an order under this Law.
Part VII also makes provision for the service of documents and gives meaning to expressions used in the Law.
Finally, it repeals the Forfeiture of Money, etc. in Civil Proceedings (Bailiwick of Guernsey) Law, 2007, and related legislation (including subordinate legislation made under it) and incorporates transitional and savings provisions and consequential amendments to other legislation in the Schedules, and provides for these provisions and amendments to be amended by regulations.
Schedule 1 sets out the meaning of "recoverable property".
Schedule 2 sets out examples of cases where there is a connection with the Bailiwick, for the purposes of bringing proceedings under Part II in respect of property located outside the Bailiwick.
Schedule 3 sets out an index of expressions defined in the Law.
Schedule 4 sets out transitional and savings provisions.
Schedule 5 makes a number of consequential amendments to other enactments that refer to the Forfeiture Money, etc. in Civil Proceedings (Bailiwick of Guernsey) Law, 2007, or orders made or actions taken under that Law.
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