Aim of the Law
Disclosure of Information
Tipping Off

The States of Guernsey recently approved the Criminal Justice (Fraud Investigation) (Bailiwick of Guernsey) (Amendment) Law 2002, which is due to come into force early next year.

Aim of the Law

The purpose of the law is to amend the Criminal Justice (Fraud Investigation) (Bailiwick of Guernsey) Law 1991.

The existing law gives certain powers of investigation to the procureur (Guernsey's attorney general) if there appears to be a suspected offence involving serious or complex fraud, and there is good reason for investigating the affairs of the suspect.

The procureur has the power to obtain documents, take copies and extracts from them, and require the producer of the document to provide an explanation in relation to the investigation.

The law has two main sections, which are summarized below.

Disclosure of Information

This section amends the provisions of the existing law by extending the class of persons to whom the procureur may disclose information.

Subject to certain provisions, information obtained by the procureur or other designated persons may now be disclosed:

  • to anyone for the purpose of any investigation of an offence or prosecution in Guernsey or elsewhere;

  • to any competent authority; and

  • to Guernsey's administrator of income tax.

Competent authorities include (i) anyone with supervisory, regulatory or disciplinary functions relating to financial services or any commercial area, whether in or outside of Guernsey, and (ii) anyone appointed to investigate the affairs of a company in or outside of Guernsey.

Tipping Off

This is a new provision. The existing law made it an offence to falsify, conceal, destroy or dispose of documents relevant to the investigation, if that person knew or suspected an investigation was taking place.

The new law now provides that a person is guilty of an offence if (i) he or she knows that the procureur is conducting or proposing to conduct an investigation, and (ii) he or she discloses information likely to prejudice the investigation to any person.

It is a defence for the person to prove that he or she did not know or suspect that the investigation was likely to be prejudiced.

A person guilty of the offence of tipping off shall be liable (i) on summary conviction, to imprisonment for no longer than 12 months, a fine not exceeding £5,000 or both, or (ii) on conviction or indictment, to imprisonment for no longer than five years, a fine or both.

It is not an offence for a professional legal adviser to disclose information to a client in connection with giving legal advice, or to anyone in connection with or for the purpose of legal proceedings, unless it is with a view to furthering any criminal purpose.

For further information on this topic please contact Ian Kirk or Paul Nettleship at Collas Day by telephone (+44 1481 723191) or by fax (+44 1481 724074) or by email ([email protected] or [email protected]).