“When did you stop beating your wife?” Famous as the question to which there is no right answer, this is now joined by “Don’t you support civil liberties?”. Of course we all agree that there should be civil liberties, but I think most people can recognise that because over the millennia we have chosen to gather into communities (so that some of us can concentrate on being teachers and butchers and lorry drivers while others of us fritter our time away bleating on about AML), those liberties have to be tempered by the needs of everyone else as well. In most communities, therefore, the rights of the individual are balanced with the rights of the group – to extremes, in some places, but sort of middling in most countries, including the UK. I don’t particularly want to be tracked around town by dozens of CCTV cameras, but I do recognise that when it comes to crime prevention and investigation, such footage has proved valuable – as well as revealing just how often I pop into Hotel Chocolat (what do they expect, when they give away free samples). Likewise, I don’t really want to carry a photographic ID card, mainly because I’m not used to the idea, but if it comes in in the UK, am I bovvered? Not really. I suppose my rationale is that, as I have nothing to hide, I don’t really mind people checking up on me. Into this comes Transparency International’s thought-provoking suggestion of the Unexplained Wealth Order.
Background: last week, TI-UK published a paper called “Empowering the UK to recover corrupt assets: Unexplained Wealth Orders and other new approaches to illicit enrichment and asset recovery”. It has been much in the press, thanks to its revelation that “in 2014, UK law enforcement agencies were only able to take action on 7 individual reports of suspicious financial transactions that were identified as the possible proceeds of international corruption” (remember that TI’s bag is corruption, not any other predicate crime). They also say (correctly) that “under current legal powers in the UK, there is very limited prospect of restraining suspicious transactions, unless there is already a pre-existing conviction against the individual”. And so they propose the Unexplained Wealth Order.
UWOs already exist in Australia, Colombia and Ireland. They do not rely on a criminal conviction, as does our current forfeiture regime. And – this bit’s really interesting – they shift the burden of proof to the asset owner, who must prove a legitimate source for his wealth. Of course there are a gazillion questions to address – who decides what is proof of source? what level of suspicion would be needed for the granting of an UWO? what if the asset holder says that the source is legitimate but can’t prove it and his assets are forfeited, and then later he finds proof? should I be keeping all of my financial records for longer than the taxman-advised seven years that I apply at the moment? – but surely it’s worth having the debate. Desperate times, etc.