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Chambers UK

Recent amendments to the Proceeds of Crime Act 2002 (POCA) make it possible for the National Crime Agency (NCA) and others to obtain an Unexplained Wealth Order (UWO) in the High Court that, in effect, puts the onus on the holder of a property to explain their interest in it and how it was acquired.

We are well placed to give advice on UWOs, both because of our experience in POCA generally, and because of the potential for UWO investigations to overlap with or lead to criminal or civil recovery investigations. Our experience in advising high net worth clients in related areas, including extradition and Interpol, is also invaluable in this context.  We already have substantial experience in advising clients on how to prepare for UWOs and avoid them where possible.

The preconditions for a UWO are that the property concerned is worth £50,000 and the holder is either a Politically Exposed Person (PEP) (including family members and people connected with a PEP) or reasonably suspected of involvement in serious crime (or being connected with someone who is). The definitions of PEP, family member, connected persons and serious crime are all very broad in this context. In both scenarios, the applicant will also need to show that the holder’s known sources of legitimate income are insufficient to explain their interest in the property.

Where a UWO is made, the holder will be forced to provide a statement and perhaps supporting evidence within whatever the court considers to be a reasonable timeframe. If they fail to do so, then the next step could be a civil recovery application under POCA in which the property will be presumed to represent the proceeds of crime.

The NCA’s use of UWOs so far has been cautious, with a focus on the cases that are most likely to yield results. But the failure of a high-profile first challenge to the regime may lead to a bolder approach in future. In any case, PEPs and others who may be at risk of being targeted would be well advised to be prepared.

Please contact us in the strictest confidence if you wish to discuss any of the issues raised with our panel of legal experts.