If you were asked to prove where all of your assets have come from, could you do it? For myself, I have the mortgage documents for the house, and the original receipt for my car (bought for £4,950 cash in 1987 – yes, that’s 1987), and company accounts since the birth of Thinking about Crime Limited, and personal tax returns for the past seven years. Whether that would satisfy a court that my assets are legitimately acquired, I cannot say. But if you are a PEP, or someone suspected of serious criminality, and you have more than £50,000 under suspicion of being dodgy (or, less sensationally, where there are reasonable grounds for suspecting that those assets are disproportionate to your known income), thanks to section 1 of the Criminal Finances Act 2017 (which amends the Proceeds of Crime Act 2002) the UK authorities can now serve you with a unexplained wealth order and compel you to come into court and explain it all.
Opinion is divided on UWOs, as we must learn to call them. (Reminds me of something vaguely Star War-ish – oh yes, Ewoks.) Transparency International – the anti-corruption campaigning organisation – is thrilled to see them. Lawyers are less jubilant, many of them concerned that UWOs are retrospective – in other words, they can be used to target assets that were acquired before UWOs were invented – and that there is no need for proof of criminality to be obtained before an UWO is deployed. If an UWO is “successful” – i.e. it roots out criminal assets – then the next step is likely to be a civil recovery investigation. And an MLRO might find himself being handed a POCA civil recovery order that is the fruit of an UWO.
We did not invent the UWO, of course – they are already used in other jurisdictions such as Ireland (where they work well) and Australia (where results are more mixed). And, as far as I know, we have not yet used one. When we do, lawyers are anticipating numerous challenges, such as how much detail does the respondent have to provide in order to be deemed to have complied with an UWO, and what will be done with the information obtained. As they say in Ewokese, danvay – or be careful.