Restraint orders in Guernsey have no extra-territorial effect

The Royal Court has ruled that restraint orders obtained in Guernsey on requests from foreign authorities can only apply to assets located in the Bailiwick, striking down the extra-territorial effect of a restraint order obtained at the request of a National Prosecuting Authority of South Africa.

In its decision in King v HM Procureur, the Court ruled the restraint order, originally obtained in 2006, must be amended to ensure that it only applied to assets within the Bailiwick of Guernsey. In narrowing the scope of the restraint, the Court rejected arguments by HM Procureur that the presence of a Trustee in Guernsey empowers the Court to make worldwide orders restraining the trustee dealing with assets of the Trust under the Proceeds of Crime provisions.

An application to vary the restraint order was brought by a South African resident, David King, who since 2002 has been the subject of criminal proceedings in relation to a number of offences under South African tax and finance laws. Mr King is a beneficiary of the Glencoe Trust (the “Trust”), of which HSBC Trustee (Guernsey) Limited was trustee (the “Trustee”). The Trustee was represented by Advocate Christopher Edwards. It was Mr King’s interest in the Trust which caused the National Prosecuting Authority of South Africa (the “NPA”) to seek criminal restraint orders in both England and Guernsey…

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