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ARTICLE · 30 JANUARY 2025

Who Bears The Burden: Applications Under The Forfeiture Law

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Under the Forfeiture of Money (etc) in Civil proceedings (Bailiwick of Guernsey) Law 2007 (the "Old Forfeiture Law") it was for His Majesty's Procureur or Comptroller...

Cayman IslandsLitigation, Mediation & Arbitration
Adam Cole
Adam Cole
Jamie Bookless
Jamie Bookless
Jarrad Knoetze
Jarrad Knoetze
Chris Hutley-Hurst
Chris Hutley-Hurst
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KEY TAKEAWAYS

  • The burden of proof rests on the party opposing a forfeiture application.
  • The Law Officers are still required to establish a causal nexus between the monies (or a relevant part of them) sought to be forfeited and unlawful conduct.
  • The requirement to established causal link is a necessary safeguard for a person seeking to defend their rights of property.

Under the Forfeiture of Money (etc) in Civil proceedings (Bailiwick of Guernsey) Law 2007 (the "Old Forfeiture Law") it was for His Majesty's Procureur or Comptroller (the "Law Officers") to show that funds to be forfeited represented the proceeds of unlawful conduct, or were intended by any person for use in unlawful conduct. The burden of proof in a forfeiture application therefore rested squarely on the Law Officers.

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