International Mutual Assistance – A Recurring Theme in Guernsey

In a recent blog post Mourant Ozannes described a UK Bill which would give law enforcement agencies and prosecutors in the UK the power to apply for orders to obtain data directly from service providers based outside the UK (such as in Guernsey) for the purposes of criminal investigations and prosecutions for serious crime.

In keeping with the theme of the growing susceptibility of Guernsey companies and trustees to orders by the foreign Courts, the Guernsey Court was recently asked to provide mutual assistance to the King’s Prosecutor of Belgium, by way of a forfeiture order[1].

Mr Heykers was the managing director of a company founded as the cover for the transport of large quantities of drugs from Morocco to the Netherlands which were hidden in trucks. He was convicted of drug-trafficking offences in Belgium, sentenced to imprisonment and a confiscation order in the sum of 12 million Belgium francs was ordered. The sterling equivalent at the relevant time was £266,459.00 and was held by a Guernsey company. The Belgian order had been registered by the Royal Court in 2006 and in 2007 was enforced in the amount of £267,496.32. Subsequent to this, remaining funds including accrued interest were located, after having been traced through various company name changes. The present application was to deal with the remainder of the funds, amounting to US $26,529.73 and €70,757.68.

The relevant provision is section 13 of the Forfeiture of Money, etc, in Civil Proceedings (Bailiwick of Guernsey) Law, 2007 (the Law), and H. M. Comptroller had the burden to demonstrate, on the balance of probabilities, that the money was the proceeds of unlawful conduct, or intended by any person for use in unlawful conduct. Section 61 of the Law defines such conduct, for the purposes of this type of case, as being conduct unlawful when it occurs in a country outside the Bailiwick and the corresponding requirement of it being unlawful in the Bailiwick if it occurred there.

The Belgian Court had found that Mr Heyker's company was set-up “as a cover for the transport of huge quantities of drugs (hash) from Morocco” and that the defendant "…had a leading part in this professionally organized, big scaled, illegal and lucrative drugs traffic[ing]…".

The test for a forfeiture order was met.   Drugs-trafficking is an offence in Belgium and in Guernsey. The evidence, especially the Belgian Court's findings, was powerful and persuasive and Mr Heykers did not produce anything beyond a bare assertion to the contrary. Accordingly the forfeiture order was granted.

The case is a reminder of the continuing use in Guernsey of mutual legal assistance powers by overseas authorities.  If you would like to hear about new attempts by overseas authorities to circumvent what are increasingly viewed as outdated mutual assistance procedures, particularly with regards to obtaining documents directly from overseas, then we invite you to attend our seminar entitled 'The long arm of the law – is it getting even longer?', which will be presented by Christopher Edwards and Jessica Roland on 27th November 2018 at Mourant offices, Royal Chambers, St. Julian's Avenue. Sign up here.

[1] In Forfeiture of Money, etc in Civil Proceedings (Bailiwick of Guernsey) Law 2007 v Heykers (32/2018)