On 31st January 2018, regulations bring into force sections of The Criminal Finances Act 2017. These deal with unexplained wealth orders as well as various other related provisions. They are intended to be used with existing civil recovery powers.
The purpose of the unexplained wealth orders is to allow for certain people who obtain property, which would ordinarily be beyond their obvious means, to be required to prove how they lawfully acquired it. This is, in effect, a reverse of the usual burden of proof where the prosecution must make a court sure of wrong doing.
Law enforcement agencies often have reasonable grounds to suspect that identified assets of such persons are the proceeds of serious crime. However, they are often unable to freeze or recover the assets under provisions in the Proceeds of Crime Act due to an inability to obtain evidence (often due to the inability to rely on full cooperation from other jurisdictions to obtain evidence).
Who can apply for unexplained wealth orders?
The authorities which may apply for such an order are:
- The National Crime Agency
- HM Revenue and Customs
- The Financial Conduct Authority
- The Director of the Serious Fraud Office
- The Director of Public Prosecutions
What happens if you are subject to an order?
If you are subjected to an order of this kind, you must provide a statement which does the following:
- Sets out the nature and extent of your interest in the property
- Explains how you obtained the property, particularly how any costs involved were met
- Provides details of any settlement if the property is held by trustees
- Sets out any other information about the property specified in the order
In addition to a statement, it may be necessary to supply documents connected to the property as required by the order.
What does the High Court need to be satisfied of?
Before it can make an order, the High Court must be satisfied that the following criteria are met:
- There is reasonable cause to believe that the person in question holds the property and that it is worth over £50 000;
- There are reasonable grounds for suspecting that this person’s known income (from lawful sources) would not be enough to obtain the property; and,
- The person in question is a politically exposed person (see definition below) or there are reasonable grounds for suspecting that they are or have been involved in a serious crime or someone connected to this person is or has been so involved.
A politically exposed person (PEP) is someone who is or has been entrusted with prominent public functions by an international organisation, a State other than the UK or another EEA State, a family member of such a person, a close associate or someone connected to them in another way.
Are any criminal offences created?
It is a criminal offence to knowingly or recklessly make a statement that is false or misleading in response to an unexplained wealth order. Doing so can result in two years’ imprisonment and/or a fine. This offence can be tried in either the Magistrates’ Court or the Crown Court.
What if I fail to provide the information?
In some cases, an unexplained wealth order will be accompanied by an interim freezing order. This prohibits the respondent to the order and any other person with an interest in the property from in any way dealing with the property.
Property held outside this country
Where the property is thought to be in a country outside the UK, the Secretary of State may forward a request for assistance to the government of the receiving county. This can be a request to prevent anyone in that country from dealing with the relevant property and provide assistance in managing it as required.
Contact VHS Fletchers for specialist legal advice
To discuss unexplained wealth orders, or any other matter, please contact confiscation law solicitor Julia Haywood on 0115 9599550 at our Nottingham office. Alternatively use the contact form below for prompt expert advice.