Charities and Non Profit Organisations (Investigatory Powers) (Bailiwick of Guernsey) Law, 2008

Summary

This is a Bailiwick of Guernsey law (in force since 15 April 2010) that gives Her Majesty's Procureur investigatory and asset freezing powers over charities and non profit organisations (NPOs) suspected of unlawful conduct, including money laundering or terrorist financing concerns. It sets out notice, search warrant, freezing, appeal and offence provisions applicable to NPOs and anyone connected to them.

• Investigation notices: The Procureur may issue a section 1 notice requiring an NPO or a person connected to it (trustees, directors, officers, employees, contractors, or banking/financial/professional service providers) to attend and answer questions or produce documents relevant to an investigation.
• Search and seizure: If a section 1 notice is not complied with or would be impractical or prejudicial, the Bailiff may issue a warrant allowing police to enter premises, search and seize documents.
• Asset freezing: Where a section 1 notice is not complied with, the Procureur may apply to the Bailiff for an order freezing an organisation's or person's bank funds or other assets in the Bailiwick for up to four months, extendable but not beyond two years from the original order (absent exceptional Bailiff direction).
• De minimis exemption: The Procureur cannot exercise these powers against an NPO with gross Bailiwick assets under £100,000 or gross annual Bailiwick income under £20,000, unless there is evidence of unlawful conduct.
• Offences: Failing without reasonable excuse to comply with a section 1 notice, making false or misleading statements in purported compliance, falsifying or destroying relevant documents, or tipping off a person about an investigation are criminal offences with summary and indictable penalties.
• Confidentiality and privilege protections: Persons cannot be required to disclose legally privileged material, and banking or fiduciary confidentiality obligations are protected unless the client consents or the Procureur authorises disclosure.
• Right of appeal: A person given a section 1 notice may appeal to the Royal Court on grounds of legal error or material factual error, within 28 days of the date of the notice.

The law applies extraterritorially, so investigatory powers can be exercised even where the NPO under investigation and all connected persons are outside the Bailiwick.

Key obligations

• A non profit organisation or a person connected to it (trustee, director, officer, employee, contractor, or service provider) must comply with a section 1 notice by attending, answering questions, or producing specified documents.
• A person must not, without reasonable excuse, fail to comply with a section 1 notice, and must not make false or misleading statements in purported compliance.
• A person who knows or suspects an investigation is underway must not falsify, conceal, destroy or dispose of documents relevant to that investigation.
• Persons must not tip off others about an investigation in breach of the tipping off offence provisions.
• A person aggrieved by a section 1 notice who wishes to appeal must institute the appeal by summons served on the Procureur within 28 days of the date of the notice.
• Where funds or assets are frozen, the freezing order is limited to four months at a time and, absent Bailiff direction otherwise in the interests of justice, may not extend beyond two years from the original order.

Applies to

non profit organisations, charities, trustees, directors, administrators, managers, officers or employees of an NPO, persons providing banking, investment, financial or professional services to an NPO

Deadlines

• 28 days immediately following the date of the notice: Deadline for a person aggrieved by a section 1 notice to institute an appeal to the Royal Court.
• four months: Maximum initial period for a freezing order over an NPO's or person's funds or assets under section 3.
• two years from the date of the original freezing order: Overall cap on extensions of a freezing order, unless the Bailiff orders otherwise in the interests of justice.