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The passing of the Criminal Finances Act 2017 gave agencies the power to apply for Unexplained Wealth Orders (UWO).
The background was growing concern that the UK was increasingly becoming a safe haven for criminals to store and move their assets. It was often quoted that around £90 billion of criminal money has been laundered through the UK. Prior to the passing of this statute, an assessment of the state of serious and organised crime by the National Crime Agency (NCA) expressed concern this figure was a “significant underestimate”. Unexplained Wealth Orders were conceived as a response. The authorities can apply for these Orders from the High Court. The Order compels a person to confirm their interest in specified, identified property and explain in detail how it was obtained.
The Court can only make these Orders against certain people. Two categories of person are specified:
If a person fits into either category, then an UWO can then be made in respect to their assets if they are valued at more than £50,000. There must be reasonable cause to believe a person has an interest in the property and it could not have been obtained with legitimately obtained funds. So, these Orders are directed at high value assets where there is concern by authorities that they were acquired with funds from unlawful conduct. The Order compels the person named to set out how the asset was acquired and in effect show it was obtained lawfully.
Accompanying the power to obtain Unexplained Wealth Orders, is the ability to apply for interim freezing or seizure of these assets. The aim of this is to ensure the asset is not dissipated before it is established how it was acquired and whether it is lawfully owned.
Those subject to UWO’s may be shocked by the process. The authority does not have to prove that the asset was obtained unlawfully. The onus is on the Respondent to show they are above suspicion. They must convince the Court that funds used to acquire the asset did not come from criminal conduct and were legitimately obtained.
The stakes are high. If a person fails to respond, or is thought to have responded inadequately or unconvincingly, then applications can be made for forfeiture of the assets. A Respondent will wish to take great care in how they manage this. Their response can be used to inform criminal proceedings against them and others.
At the moment, UWOs have been used quite sparingly. But it is clear that the NCA has many people of interest in their sights, and we must expect that many more people will be made subject to such Orders. The Director of Economic Crime at the NCA was quoted as saying, “We have a number of other cases which we’re currently developing, involving both PEPs and people with links to serious crime. We have live investigations into professional enablers.”
It is absolutely vital that anyone made subject to such an Order, or who fears this development, seeks immediate, specialist advice. At Hodge Jones and Allen we have unparalleled experience in dealing with asset seizure and forfeiture We know how to navigate this complicated landscape where the burden of showing legitimacy is put on the Respondent. We understand the challenge of having to prove that property is not the proceeds of crime and what is required in managing such cases. We have the experience and knowledge to deal with any international dimension such cases may have.
What sets us apart, is our great breadth of experience in defending complex, serious criminal proceedings. In advising on Unexplained Wealth Orders – and all forms of asset seizure and forfeiture – we will understand the wider landscape and how responses to such civil orders can impact a broader criminal case. We will be able to move quickly, assembling if necessary a team to guide and assist you through the process. We have the expertise to develop a proper strategy and manage such cases wisely.
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