Editorial

Author:Dominic Thomas-James
Position:Queens’ College, University of Cambridge, Cambridge, UK
Pages:178-180
 
FREE EXCERPT
Editorial
Unexplained Wealth Orders in the Criminal Finances Bill: a suitable
measure to tackle unaccountable wealth in the UK?
This paper outlines the Criminal Finances Bill’s proposal to introduce Unexplained Wealth Orders
(“UWO”) in the United Kingdom as a civil measure to deal with unaccountable wealth. The rationale
of this proposal will be considered balanced against the alternative of creating a criminal offence of
illicit enrichment. It is suggested that UWO are an appropriate response to unexplained wealth.
The Criminal Finances Bill was introduced to Parliament in October 2016 and contains
various measures which ought to have a positive effect in the United Kingdom’s (“UK”) ght
against economic crime. The Bill is before Parliament and is timely in light of the rst global
Anti-Corruption Summit convened in London in May 2016. The Bill re-emphasises the
deterrent function of law by its accentuation that crime is becoming increasingly less
protable – at least in the UK. Given that the UK is one of the world’s major nancial centres,
it is exposed to risk of abuse by foreign corrupt ofcials and those involved in serious crime
to layer and conceal assets funded by criminality.
UWO are civil measures, not criminal. They would allow enforcement agencies to obtain
an order against an individual whose assets appear disproportionate to their known income.
The individual is dened under Part I as a politically exposed person (“PEP”), or someone
involved in serious crime as dened in Schedule 1 of the Serious Crime Act 2007. The former
means someone holding foreign public ofce. Family and close associates of the individual
fall within the scope of the order. Its purpose is to place a rebuttable presumption on the asset
holder that the assets in question were funded by criminality – to which the individual can
obviate by providing an explanation as to the legitimate source of the asset. The order freezes
the assets in question for a period of time which affords enforcement agencies more time for
evidence gathering. The asset may be a single asset or collection of assets, and the lower
value threshold is £50,000.
Evidence gathering is a challenging process, particularly when the asset or individual
originates from a foreign jurisdiction. Mutual assistance and co-operation is an evident
challenge in ghting economic crime, so the ability to freeze assets and extend the
moratorium to engage in this task is particularly welcome.
The next issue worthy of consideration is the extent to which UWO are, prima facie,
consistent with the recommendations of Article 20 of the United Nations Convention Against
Corruption (“UNCAC”) – or, whether the UK should create a criminal offence of illicit
enrichment. Article 20 stipulates that signatories should consider creating legislation and
other measures to establish a criminal offence of illicit enrichment. The Convention denes
this as a signicant increase of the assets of a public ofcial that they cannot reasonably
explain in relation to their lawful income. Many countries already criminalise it[1]. In many
ways, illicit enrichment and UWO are tautological regimes. However, on closer examination,
it is clear that creating a criminal offence in the UK should be eschewed in favour of the Bill’s
UWO proposal.
First, in the absence of provisions for extraterritoriality, illicit enrichment appears to
focus upon domestic public ofcials, if one follows Article 20’s framing. Yet, there are various
disclosure obligations already placed on UK public ofcials – such as the Register of
Members’ Financial Interests for Members of Parliament. The obvious pitfall is that Article
20 seems far narrower in scope and application than UWO, given UWO concern not only
JFC
24,2
178
Journalof Financial Crime
Vol.24 No. 2, 2017
pp.178-180
©Emerald Publishing Limited
1359-0790
DOI 10.1108/JFC-02-2017-0013

To continue reading

REQUEST YOUR TRIAL