Guernsey

The primary Guernsey laws dealing with white-collar crime are as follows:

• Fraud (Bailiwick of Guernsey) Law 2009 (the “Fraud Law”).
• Prevention of Corruption (Bailiwick of Guernsey) Law 2003 (the “Prevention of Corruption Law”).
• Theft (Bailiwick of Guernsey) Law 1983.
• Customary law fraud and theft offences.

Guernsey’s predicate money-laundering offences (non-drug related) are governed by the Proceeds of Crime Law.

As a UK Crown Dependency, the UK is responsible for representing Guernsey internationally and, in particular, with respect to international agreements.

International agreements can apply to Guernsey in one of two ways being (1) extension of a treaty or convention by the UK to Guernsey, and (2) Guernsey may be authorised to conclude its own international agreements (for example, tax information exchange agreements).

In relation to white-collar crimes, the relevant international treaties and conventions extended by the UK to Guernsey are as follows:

• European Convention on Mutual Assistance in Criminal Matters (ETS No. 030).
• OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
• United Nation Convention Against Corruption (UNCAC).
• United Nations Convention against Transnational Organized Crime (UNTOC).

Guernsey’s white-collar crimes contain individual and corporate offences. Where a corporation commits an offence with the consent, connivance or neglect of an officer of the company, both the company and the officer is guilty of an offence.

Guernsey’s white-collar crime offences apply to Guernsey-resident individuals, companies incorporated under the laws of Guernsey and businesses with offices in Guernsey.

In addition, the legislation also includes extra-territorial jurisdiction, in particular:

• The Fraud Law contains an offence where a person within Guernsey aids, abets, counsels or procures the commission of an offence by someone in another jurisdiction which would be an offence if committed in Guernsey.
• The Prevention of Corruption Law contains an offence where a Guernsey resident does or omits to do anything in a foreign jurisdiction which would be an offence if the act or omission occurred in Guernsey.
• As referred to above, the Proceeds of Crime Law applies a single criminality test in determining criminal conduct caught by that law. That is, an act done legally in a foreign jurisdiction will be deemed criminal conduct for the purposes of the Proceeds of Crime Law (and, importantly, the money-laundering offence) if it would be illegal to do that act in Guernsey, whether or not the original wrongdoing took place in Guernsey.

The primary white-collar offences are as follows:

• Fraud by false representation, failing to disclose information and abuse of position.
• Obtaining services dishonestly.
• Aiding or abetting fraud in another jurisdiction.
• Corrupt transactions with agents.
• Corruption by public officials.
• Failure of a commercial organisation to prevent bribery, subject to a statutory defence of the commercial organisation having in place adequate procedures designed to prevent persons associated with it from undertaking such conduct.
• Theft.

Penalties for offences under the Fraud Law are imprisonment up to seven years (depending on the offence) and/or a fine.

Penalties for offences under the Prevention of Corruption Law are imprisonment up to 12 years (depending on the offence) and/or a fine.

The main predicate money-laundering offences are as follows:

• concealing or transferring proceeds of crime from criminal conduct;
• assisting another person to retain the proceeds of criminal conduct; and
• acquisition, possession or use of proceeds for criminal conduct.

The proceeds of crime include a broad catch-all definition of property, situated in or out of Guernsey, which arises “directly or indirectly, in whole or in part” from criminal conduct.

There is an exemption from criminal liability under the Proceeds of Crime Law offences if, before handling (or assisting in handling) criminal property, a person makes a disclosure to the relevant law enforcement agency, in the form of a suspicious activity report (SAR). In addition, there is a specific defence to the acquisition, possession offence, where a person obtains criminal property for adequate consideration.

Penalties for offences under the Proceeds of Crime Law are imprisonment up to 14 years (depending on the offence) and/or a fine.

In addition, there are criminal offences for tax evasion under Guernsey’s taxation legislation. Further, a breach of foreign tax legislation would trigger anti-money laundering (AML) reporting and offences.

Please see above.

The principal investigative and enforcement agents in Guernsey are as follows:

• The Financial Intelligence Unit (FIU) is the central agency responsible for gathering, analysing and sharing intelligence on money laundering, terrorism financing and organised crime. Its principal role is to receive and disseminate SARs and provide consent.
• The Economic and Financial Crime Bureau (EFCB) is the law enforcement agency responsible for investigating complex economic crime.
• The Law Officers of the Crown are the prosecutorial authority.

The Proceeds of Crime Law contains a wide range of investigatory and enforcement powers, which are available to Guernsey’s prosecuting authorities. These include the power to require the production of documents, and to seek from the Royal Court of Guernsey (Royal Court) restraint orders over property, customer information orders and account monitoring orders.

Following the conviction of a person within the Bailiwick, the Proceeds of Crime Law gives the Royal Court wide powers to confiscate property (which was most likely secured pre-conviction by a restraint order) and to enforce that order. Further, the Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Enforcement of Overseas Confiscation Orders Ordinance 1999 provides the statutory framework for the enforcement of foreign confiscation orders by the Royal Court as if they were a domestic confiscation order.

However, in practice, where fraud is concerned, the authorities usually utilise the provisions of the Criminal Justice (Fraud Investigation) Bailiwick of Guernsey Law 1991 (the “Fraud Investigation Law”), which provides them with considerably stronger investigative powers. In particular:

• the Proceeds of Crime Law deals with the proceeds of crime only, whereas the Fraud Investigation Law is directed at the crime itself;
• under the Fraud Investigation Law, the person producing the disclosed documents may be compelled to explain them (or, if he cannot produce the documents, to state where they are), whereas under the Proceeds of Crime Law there is no power to compel explanation; and
• the Fraud Investigation Law empowers the authorities to issue a notice to attend, answer questions and provide information if there is reason to believe that the person has such knowledge or information. The Proceeds of Crime Law, however, requires an application to the bailiff for an order to produce information or documentation only where there is an investigation into whether a person has benefitted from criminal conduct or to the extent or whereabouts of the proceeds of criminal conduct.

Finally, Guernsey’s anti-money laundering arsenal is bolstered by its civil forfeiture regime. This provides Guernsey’s authorities with non-conviction-based remedies to seize, detain, freeze, confiscate and have forfeited money that is the proceeds of, or is intended to be used in “unlawful conduct”, coupled with investigatory powers similar to those under the Proceeds of Crime Law.

Guernsey’s civil forfeiture regime is, as the name denotes, a civil procedure to which the lower standard of proof applies, being the balance of probabilities. As a result, the authorities are provided with a useful avenue to investigate and confiscate monies where they cannot prove an offence to the criminal standard of proof (that is, beyond reasonable doubt).

In addition, Guernsey’s civil forfeiture regime can be beneficial to the victims of a fraud, as discussed later in this chapter.

Guernsey’s civil forfeiture regime was revised and modernised recently, when the Forfeiture of Assets in Civil Proceedings (Bailiwick of Guernsey) Law 2023 came into force on 26 April 2024.

There is no separate law or process in relation to seeking leniency for white-collar offences in Guernsey. Rather, sentencing for white-collar crimes is dealt with under normal criminal sentencing principles. An early guilty plea will usually result in a one-third discount on the sentence and self-reporting should be taken into account by the Guernsey courts as a mitigating factor on sentencing.

In Guernsey, there is no formal plea-bargaining regime as there is in some other jurisdictions. That said, the Law Officers of the Crown (as Guernsey’s prosecutorial authority) may be open to discussing accepting a lesser charge if evidence on the higher charge is not strong and the defendant is prepared to plead guilty to that lesser offence. Where multiple offences are committed, only some may be proceeded with and the other offences will be taken into consideration in sentencing.

There is no formal procedure or guidance from the authorities in Guernsey in relation to conducting an internal investigation involving potential criminal conduct. Accordingly, each organisation will or should have their own policy and procedure. Best practices for conducting such an investigation include the following:

• Procedural fairness adopting the principles of natural justice should at all times be paramount.
• The employee must be informed from the outset of the allegations and the investigation, unless to do so would potentially impede or interfere with a police investigation.
• To the extent possible, an independent investigator within the organisation should be appointed who had no knowledge of, or involvement with, the alleged conduct or event. Terms of reference should be agreed.
• The investigation should focus on evidence gathering from all relevant persons including the employee.
• Confidentiality must be maintained at all times.

Unless the investigation is conducted by an in-house or external lawyer, or its dominant purpose is for anticipated or actual litigation, the documents and internal communications in relation to the investigation will not be protected by legal professional privilege. However, communications and advice between the organisation and its external lawyer, or internal communications with the organisation’s in-house lawyer for the purposes of obtaining legal advice, will most likely be protected by legal professional privilege.

There are no statutory whistleblower protection laws in Guernsey in the context of white-collar crime.

Prosecution for white-collar crime in Guernsey is minimal. There will occasionally be prosecutions for fraud, although these tend to be in the lower court and often by an employee or family member, but not white-collar crime (or at least higher end white-collar crime). Accordingly, it is difficult to provide any meaningful analysis of the enforcement history for such offences in Guernsey. No central public records exist to interrogate for statistics.

Prior to 2021, the investigation of white-collar crime in Guernsey was considered to be under-resourced and sporadic.

However, in June 2021 a considerable investment was made by the States of Guernsey (being Guernsey’s government) to create the EFCB, whose main focus is the investigation of white-collar crime.

Guernsey recently passed its MONEYVAL (the European agency responsible for assessing the effectiveness of countries’ AML and CFT regimes) inspections which found that there is a full suite of expected legislation in form. There is currently no known proposed or pending reforms in relation to white-collar crime in Guernsey.