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What is an Unexplained Wealth Order?

An Unexplained Wealth Order (UWO) is an investigative Order issued by the High Court first introduced in the Criminal Finances Act 2017, as an amendment to the somewhat draconian Proceeds of Crime Act 2002.

Since the Order came into force at the start of this year, the National Crime Agency (NCA) announced its first successful application for a UWO in October 2018, regarding a property in Knightsbridge, one of London’s most exclusive neighbourhoods. The NCA also stated that “more are in the pipeline”, suggesting it is serious about using this tool.

It has also been put forward that property in the UK worth a total of £4.4 billion could be subject to UWOs over time. This is an attempt by the NCA, and other organisations, to force recipients of a UWO into disclosing the source of their wealth because, otherwise, it is almost impossible to charge the properties’ owners with a crime or seize the assets due of a lack of evidence.

A UWO may be linked to a serious fraud or money laundering investigation.

Investigators can make an application for an Unexplained Wealth Order without giving notice to the High Court. In practice, it is commonplace for this UWO application to go hand-in-hand with an Interim Freezing Order (IFO), which stops assets being sold or transferred.

This means investigators can apply for a UWO and an IFO, without giving the intended recipient any prior knowledge of the application. If the application is successful, not only will the recipient be required to provide evidence of the legitimate source of their wealth, it is also likely that access to their assets will be restricted, by way of the accompanying Interim Freezing Order.

The ability to apply for an Unexplained Wealth Order is limited to those agencies defined as an “enforcement authority”, namely:

  • National Crime Agency
  • Her Majesty’s Revenue and Customs
  • Financial Conduct Authority
  • Serious Fraud Office
  • Crown Prosecution Service

The authority making the application must demonstrate a “reasonable suspicion” that the recipient is involved in, or of being connected to a person involved in, serious crime. Not only does it require the recipient to explain how the property/assets were obtained, but also the nature and extent of their interest in the property or assets.

You must seek legal advice if you have any concerns about a UWO. As specialists in financial law, Holborn Adams will be able to discuss any worries you might have. An Unexplained Wealth Order carries serious consequences and may be the first step towards prosecution. Call us on +44(0)207 205 2303 or email law@holbornadams.com

However, UWO’s are controversial because the authorities do not have to prove the person’s assets are the proceeds of crime, they only need to assume criminal activity, and then it is the responsibility of the recipient to prove that it not the case.

Such an Order can be imposed upon an individual, a company or trustees, and a non-EEA Politically Exposed Person such as a politician or official (however, in this case, the test for granting an Unexplained Wealth Order has a lower threshold).

If a recipient of the Order is unable to explain the source of assets, as required, the civil recovery powers of the Proceeds of Crime Act 2002 are likely to be engaged. Previous case examples have

already demonstrated how draconian these powers are. Furthermore, this can fuel an organisation’s desire to investigate, and potentially prosecute, the recipient for more serious offences such as money laundering, fraud or corruption

How can Holborn Adams help?

Holborn Adams specialises in financial crime, and the civil powers of recovery linked to the investigation of such crimes. We are able to use this expertise to help those who are concerned they may be made subject to an Unexplained Wealth Order.

Bear in mind, a recipient does not have to be guilty of a criminal offence to be made subject to such an Order. In this situation, prior to the involvement of investigators, Holborn Adams would conduct a forensic interrogation into the source of wealth, similar to that which would be carried out by an investigator. We would therefore be able to provide tailored advice in relation to the explanation of wealth and produce a bundle of evidence that could readily be provided to investigators, if an Unexplained Wealth Order was imposed.

Remember, a recipient will have no notice that such an Order is being sought by an investigator and the Unexplained Wealth Order is likely to be accompanied by an Interim Freezing Order—which when in place restricts any appropriate assets. All of our investigative discoveries and advice is subject to Legal Professional Privilege; therefore, our clients do not need to be concerned that the product of our work will end up in the hands of investigators.

We can help after the fact

If it is too late for the proactive assistance above and an Unexplained Wealth Order has already been made, then Holborn Adams can still help. We can look into the issuing of the Order, to ensure that the application and granting of the Order was correct in law.

Often, investigations on which the application is based will be erroneous, which can mean the Order is invalid. The Court needs to be satisfied that there is “reasonable suspicion” that the recipient is involved in, or is connected to a person involved in, serious crime. Legally, there needs to be intelligence or evidence which gives rise to this suspicion. Holborn Adams has already been engaged to explore such suspicion in civil recovery cases.

Finally, if the Order has been made and it cannot reasonably be challenged, then Holborn Adams can work with the recipient to comply with the Order. These Orders can be intrusive, and it is important that information provided does not go beyond the scope of the Order. Complying with the Order can also be time consuming. Holborn Adams works to ensure that this daunting process is dealt with as quickly as possible, so that life can return to normality without delay.

If you’re worried about a UWO or any other financially-sensitive legal problem, Holborn Adams can review your case and answer any questions you may have. Call us on +44(0)207 205 2303 or email law@holbornadams.com

Recent Holborn Adams Cases

R v NO

Representing a client pre-charge in relation to serious sexual offences. Case preparation has involved securing defence material at the early stages of the investigation. We have successfully applied to vary the clients bail conditions pending completion of the investigation.

E v DK

Instructed to defend a client pre-charge in relation to allegations of assault and possession of a Class B drug with intent to supply. We are in the process of obtaining medical evidence and witness statements as part of the pre-charge representations.

HMRC v LM

Retained to defend a client with allegations of VAT and income tax fraud. We have prepared written submissions to the CPS to the effect that criminal charges would not be in the public interest.

S v HO & Others

Holborn Adams is retained by two clients in a vast cross-border human trafficking and a multi-million pound fraud investigation by both UK and Polish authorities. Our Senior Partner, Adam Rasul travelled to Poland to liaise with the clients’ Polish lawyers as part of a coordinated legal response. Written representations have been submitted to the CPS that the investigation failed to follow proper procedures and that the case should be reviewed at the highest level.

United States v EL

Holborn Adams is retained to assist and advise on an international drug trafficking investigation conducted by the Federal Bureau of Investigation (FBI). Our Senior Partner, Adam Rasul, travelled to Washington DC and Virginia to represent the interests of a British Citizen implicated in a large-scale drug trafficking conspiracy. Adam is working jointly with United States Attorneys in preparation of the client’s case.

KH

Retained to make enquiries into the police handling and conduct of an historic incident.

Q v I

Instructed in relation to an appeal against sentence and Proceeds of Crime Act 2002 confiscation order in relation to conspiracy to supply Class A and Class B drugs to the value of £5,000,000.

W v LA

Retained to advise on an appeal against conviction for murder (‘Joint enterprise’) where we did not act at trial. This involves detailed review of ‘what went wrong’ in the trial and investigating evidence and legal errors that may be used to overturn the conviction.

S v KE

Represented a client in a wave of Operations by Greater Manchester Police of conspiracy to supply Class A drugs. This case involved consideration of a voluminous amount of telephone evidence and a large investigation across the North West.

R v NP

Acted for a client cleared of attempted murder in the course of a ‘drive-by shooting’ in Birmingham following a successful submission of no case to answer.

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