Guernsey Court of Appeal reverses discharge of asset restraint

The Guernsey Court of Appeal has reinstated an asset restraint order made over assets in a trust, where a beneficiary of that trust faced criminal proceedings in South Africa. In HM Procureur v King & HSBC Trustee (Guernsey) Ltd, the Court of Appeal ruled that the discretionary power given to the Royal Court to discharge or vary a restraint order in support of ‘external proceedings’ did not permit it to consider allegations of undue delay in those proceedings. The Court of Appeal ordered the restraint order, originally made in June 2006, should continue, despite there being no prospect of a trial in the South African proceedings in the foreseeable future.

The prosecuting authority of any country may request the assistance of Her Majesty’s Procureur to restrain assets in support of criminal proceedings, including investigations. The restraint of assets must be by way of an order of the Royal Court. The decision in HMP v King represents the first time the Court of Appeal has considered the discretionary power to discharge a restraint order granted in support of such external proceedings. Neither the Guernsey provision, nor its equivalent in the UK, have previously been the subject of detailed judicial consideration…

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