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APR
12

Unexplained Wealth Orders: A new tool for seizing proceeds of crime

The Criminal Finances Bill, aimed at improving the ability to tackle money laundering, corruption, tax evasion and terrorist financing in the UK, is currently making its way through Parliament. It contains new, potentially draconian, investigatory powers that enable law enforcement agencies, both regulatory and prosecuting, to require an individual to explain the origin of their wealth. These Unexplained Wealth Orders (UWOs) have been introduced to close loopholes that are being exploited to hide the proceeds of crime.

In this blog, we provide a brief overview of UWOs and raise some concerns over their use once they become available to the authorities. If you require more information, please contact us. Our specialist asset restraint and confiscation team have vast experience successfully acting for a variety of businesses and individuals in both civil recovery and criminal proceedings.

What are Unexplained Wealth Orders?

Unexplained Wealth Orders (UWOs) are a civil investigatory tool intended to be used by enforcement agencies investigating serious criminality (the National Crime Agency, HM Revenue and Customs, the Financial Conduct Authority, the Serious Fraud Office and the Crown). They require an individual or company to set out the nature and extent of their interests in property and explain how it was obtained. An order may also require them to provide information or produce documents.

An enforcement agency must make an application to the High Court for a UWO. For an order to be made, the High Court must be satisfied that the respondent holds the property and the property value is greater than £100,000. It must also be satisfied that there are reasonable grounds for suspecting that the respondent’s lawfully obtained income was insufficient for them to obtain the property. Only certain people can be the subject of a UWO: the respondent must either be a politically exposed person, or someone who is, has been, or is connected to a person who is or has been, involved in serious crime, whether in the UK or beyond.

If an UWO is made, the court may also make an interim freezing order prohibiting the property from being dealt with in any way, provided it considers it necessary to avoid the risk of any recovery order being frustrated. If an UWO is made without notice, a freezing order can also be made without notice.

A failure to respond to an UWO will allow assets to be made subject to civil recovery action under the Proceeds of Crime Act 2002. Further, a person can be found guilty of an offence if they provide false or misleading information in response to an UWO. Penalties include imprisonment for a maximum of two years or a fine on conviction on indictment, or imprisonment for a maximum of 12 months or a fine on summary conviction.

How will Unexplained Wealth Orders be used?

The current framework requires a legal conviction in the country of origin before highly suspicious wealth can be acted on and corrupt property seized. This requirement is currently being exploited by overseas individuals and businesses where their home country is in a state of crisis or they hold power. UWOs are therefore being introduced to stop the UK being used as a safe haven for money laundering by overseas criminals.

Although UWOs will be subject to safeguards, such as only applying to specific circumstances, requiring an application to be made to the High Court and their use being guided by a statutory code of practice, there are concerns that these new measures have the potential to be abused by the authorities. Under their current form, which is currently being debated in the House of Lords, the respondent does not have to be a UK resident or even live in the UK. Further, they can be retrospective and therefore apply to property that was obtained before the Act comes into force.

It’s also vital for the authorities to not become too overly reliant on UWOs and use them disproportionately, such as in cases where criminal activity is unproven, or against the family, friends or business associates of suspected criminals. Unfortunately, there is a precedent for this, as the authorities have, in some cases, over-stretched their powers in the pursuit of civil asset recovery under the Proceeds of Crime Act.

When your assets are threatened by enforcement agencies, it’s vital to act quickly and seek specialist legal advice as soon as possible. The powers they have at their disposal are very draconian and widely drawn. They do not require a prosecution or conviction and the onus is upon the respondent to prove upon the balance of probabilities that the assets are not the proceeds of crime.

Lewis Nedas Law – Specialist Business & Financial Crime Defence Solicitors London

Our expert Serious Fraud team has over 30 years’ experience successfully defending clients against fraud and financial crime allegations. We are also ranked in Chambers and the Legal 500 for the high quality of our fraud work, and our expert solicitors are described as 'precise', 'steely determined' and 'always mindful of securing the best outcome'. Our specialist financial crime & fraud solicitors, based in the heart of London, therefore have extensive experience of preparing successful defences to fraud prosecutions, including corporate fraud, whether these are brought by the Crown or a statutory body such as the FCA or the Department of Business innovation and Skills. For more information, please contact Jeffrey Lewis or Siobhain Egan on 02073872032 or contact us online.

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APR
12

Further Reform of Corporate Crime?

Rebuilding trust and confidence in business and markets has put tackling corporate criminality high on the Government’s agenda. To this end, it’s considering whether to reform economic crime, including corporate fraud, money laundering and false accounting, to make it easier to prosecute companies for criminal activity. 

In this blog, we take a brief look at the Ministry of Justice’s proposals for extending corporate criminal liability beyond bribery and tax evasion in its call for evidence, Corporate Liability for Economic Crime, which closed on the 24th March. These proposals go beyond the corporate compliance requirements contained in the Bribery Act 2010 and Criminal Finances Bill, representing what could be a major shift in the law with potentially major consequences for companies and the wider corporate landscape. If you require more information, please contact us. Our specialist corporate crime team can help you resolve any corporate compliance or criminal issues your business may have. 

Proposals to extend corporate criminal liability

The issue of corporate criminal liability comes to the fore every so often. Most recently, it’s been highlighted by recent court approval of a Deferred Prosecution Agreements (DFAs) between the Serious Fraud Office (SFO) and ‘XYZ Ltd’ under the Bribery Act 2010 concerning bribery in order to obtain contracts overseas. Yet, while DFAs represent a useful tool in combating corporate criminality, they also draw attention the difficulty prosecutors face when seeking to hold large modern multi-national businesses to account for criminal wrongdoing committed by their employees, agents or representatives in areas of economic crime other than bribery and tax evasion. 

Prosecutions for corporate wrongdoing are usually sought under common law rules known as the identification doctrine. Under this principle, a corporation is only criminally liable if prosecutors can prove that individuals who can be regarded as ‘the directing mind’ of the company knew about, actively condoned or played a part in the offending. This is a very hard thing to do, and there have been many cases in which evidence of wrongdoing was insufficient to sustain a criminal prosecution. The Government has therefore sought views on a number of proposals aimed at improving effective criminal enforcement against companies in a way that will complement the regulatory regime.

Amend the identification doctrine 

As the common law rules are considered to be a principal hurdle faced by prosecutors, the Government has sought views on whether legislating to amend the identification would be possible and desirable. For instance, legislation could amend the doctrine by broadening the scope of those regarded as a directing mind of a company. In putting forward this proposal, the Government emphasised that: ‘retaining the identification doctrine in any form would perpetuate the notion that a company can commit a criminal offence. It would encourage corporate efforts to limit potential liability through the adoption of evasive internal structures. It would not promote the prevention of economic crime as a component of corporate good governance’.

Create a strict vicarious liability offence 

Vicarious liability, where a company is automatically responsible of the actions of its employees, representatives or agents, without the need to prove any fault, is well established in UK civil law. A form of vicarious liability also governs corporate criminal liability in the US. The Government asked whether such an offence should be subject to a due diligence type defence, so as to be an effective way of incentivising economic crime prevention.

Create a strict direct liability offence 

Unlike vicarious liability, direct liability focuses on the responsibility of a company to make sure that offences are not committed in its name or on its behalf. It’s a separate offence akin to a breach of statutory duty, and when coupled with a due diligence type defence mirrors the corporate offences contained in the Bribery Act. The Government proposed that such a model, based on a failure to exercise supervision, could more accurately target the real nature of corporate culpability. It also sought views on whether such an offence should include the concept of a failure to prevent, which places a burden on the prosecution to prove that the company had not taken adequate steps to prevent unlawful conduct occurring.

Greater regulatory reform on a sector by sector basis

Finally, the Government noted that ‘strengthening deterrents to misconduct through regulatory reform in sectors where it is less developed must always be regarded as a possible alternative to the extension of the criminal law’, citing the reform of the financial services sector as a way of improving conduct through an increased focus on personal accountability for wrongdoing. It therefore sought views on the co-existence of regulatory and criminal law enforcement as a means of holding companies to account. 

The Government is currently reviewing the information it has received following its call for evidence on these proposals. If it determines that a new form of corporate liability for economic crime is needed, a full consultation will be launched on detailed proposals and draft legislation. As ever, our specialist corporate crime lawyers are closely watching developments and keeping clients informed of relevant changes. 

Lewis Nedas Law – Specialist Business & Financial Crime Defence Solicitors London

Our expert corporate crime defence team has over 30 years’ experience successfully defending clients against fraud and financial crime allegations. We are also ranked in Chambers and the Legal 500 for the high quality of our fraud work, and our expert solicitors are described as 'precise', 'steely determined' and 'always mindful of securing the best outcome'. Our specialist financial crime & fraud solicitors, based in the heart of London, therefore have extensive experience of preparing successful defences to corporate crime prosecutions, including corporate fraud, whether these are brought by the Crown or a statutory body such as the SFO, FCA or the Department of Business innovation and Skills. For more information, please contact Jeffrey Lewis or Siobhain Egan on 02073872032 or contact us online.

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MAR
15

Recent results for Lewis Nedas specialist criminal defence solicitors

  1. RCJExcellent sentencing result in a high profile case; Jeffrey Lewis represented a solicitor convicted of seriously assaulting a plaintiff at the Royal Courts of Justice. After a difficult and complex hearing (and as a result of in-depth mitigation), the superb David Nathan QC managed to persuade the sentencing court to impose a suspended sentence of imprisonment. This case attracted national publicity;

  2. Excellent sentencing result in a large benefit fraud; Sean Reilly acted for an individual who pleaded guilty to a large and complicated benefit fraud. After offering detailed mitigation the client was fined, he was expecting an immediate term of imprisonment and was delighted;

  3. Siobhain Egan represented an accountant/banker investigated for fraudulent activity; after submitting detailed representations the matter was dealt with by a civil remedy.

      

 

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MAR
15

New cases for Lewis Nedas criminal and fraud defence lawyers

  1. Modern Slavery ActNew instruction in Modern Slavery Act prosecution; We have been instructed to represent an individual in a large NCA multi-defendant prosecution under the Modern Slavery Act, which has attracted national publicity; 

  2. Siobhain Egan has been instructed by a local authority planning officer investigated for fraud. Additionally, she is instructed by a professional man investigated for fraud and fraud by misrepresentation allegations.
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MAR
03

Recent results for Lewis Nedas Law specialist criminal defence lawyers

  1. court representation defence londonJeffrey Lewis represented;
    i) A businessman accused of leaving the scene of an accident. Jeffrey advised him during lengthy police station interviews and was able to successfully persuade police that there was simply no case for his client to answer, and the investigation was dropped.

    ii) Jeffrey also successfully represented a businesswoman accused of being intoxicated whilst in charge of a motor vehicle, which she adamantly denied. After a Magistrates Court trial she was acquitted of the charge, much to her delight.

  2. Siobhain Egan represented a leading University Professor accused of an altercation with a Public Servant. After lengthy and detailed written representations the court proceedings were discontinued.
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