No, no, no to UWO, UWO, UWO

Most of us in the world of AML have welcomed the advent of the Unexplained Wealth Order – the court order introduced by the Criminal Finances Act 2017, which can be served to compel either a PEP or someone involved in serious criminality (or both…) to reveal the sources of their unexplained wealth.  We have tracked breathlessly the serving and processing of the first two UWOs, involving Zamira Hajiyeva (London-based wife of the former chairman of the International Bank of Azerbaijan, and known to the general public as “the £16 million Harrods woman”).  But on 8 April 2020 we were brought up short in our frenzy of prurient schadenfreude: the National Crime Agency confirmed that “the High Court ruled in favour of the respondents to three UWOs secured by the NCA in May 2019, and discharged the orders”.

The UWOs in question related to three properties in London (mansions in Hampstead and Highgate and an apartment in Chelsea, worth a total of £80 million and lived in by relatives of former Kazakh president Nursultan Nazarbayev but owned by offshore companies).  The NCA applied for – and were granted – the UWOs on the basis of their belief that the properties were linked to a PEP involved in serious crime.  But Dr Dariga Nazarbayeva and Nurali Aliyev (daughter and grandson of the former president, and beneficial owners of the properties) appealed to the High Court to have the orders overturned.  And Mrs Justice Lang agreed to discharge the UWOs, holding that the pair had filed sufficient “cogent evidence” of the legitimate source of the funds and that the NCA’s assumptions regarding the source of the money used to purchase the properties were “unreliable”.  (The NCA thinks that the properties were bought with money embezzled by the late Rakhat Aliyev – husband of Dr Nazarbayeva and father of Nurali – who styled himself “Godfather-in-law” and died in prison in Austria in 2015 while awaiting trial for kidnapping and murder.)  And they’re not going to give up, according to Graeme Biggar, Director General of the National Economic Crime Centre: “We disagree with this decision to discharge the UWOs and will be filing an appeal.  These hearings will establish the case law on which future judgments will be based, so it is vital that we get this right.  The NCA is tenacious.  We have been very clear that we will use all the legislation at our disposal to pursue suspected illicit finance and we will continue to do so.”

Personally (and indeed professionally), I think this latest knock-back is a good thing.  I know little about the specific case except what I read in the public domain, but I do know that there has been some unease about UWOs.  I have heard rumblings about them being used inappropriately to settle political scores, or being granted without sufficient scrutiny.  So to have three examined closely, overturned, adjusted and (I have no doubt about this) granted again at a later date shows that the system is both robust and fair.  And this setback has not dented enthusiasm for the UWO in theory, with plans afoot to make them available in Northern Ireland later this year.

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2 Responses to No, no, no to UWO, UWO, UWO

  1. Andy Coles says:

    As a practitioner ( and a person who obtained a UWO under the Serious Organised Crime leg of the legislation) the problem has been with the (good) intentions of the legislation and the practicalities of using them. The PEP leg of the legislation is problematic given that it starts from a point of accepting that the country of the PEP will not or cannot provide information which could be obtained under an International Letter of Request or Mutual Legal Assistance request. So the investigator has potentially little hope of validating or rebutting whatever information the respondent provides by way of UWO. added to this is the time issues. The respondent has 60 days to respond to the questions and request for material set out in the Order. Not so bad for them if they have material to hand, whatever language it is in and covered by whatever legal protoculs it has been drafted in. But pity the investigator who after receipt of the material, has sixty days to review it and then draft a response. In my case the respondent presented me with 126 lever arch folders which were unscheduled and were not referenced to the statement he provided. The investigator has no ground to seek further material or to request anything to clarify what has been provided. So we have to guess what questions to ask when we have limited information and little means of rebuttal. I would also be wary at reading too much into this judgement. The other key area which troubles me about the PEP side of UWO’s is that anything recovered as a result of the presumption clause once realised has to be returned to the country from which it is said the funds have been unlawfully removed. How comfortable are we that we recover property from a Russian oligarch for example and then be obliged to return the funds to Russia. Personally the SOC aspect of the UWO legislation is proving far more profitable in asset stripping iconic untouchables than it has yet to be for the PEP’s

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