Unexplained wealth order

Unexplained Wealth Orders

Introduced by the Criminal Finances Act in 2018, an Unexplained Wealth Order (“UWO”) is a tool used by UK law enforcement bodies to seize the proceeds of crime.

What is an Unexplained Wealth Order?

The power was introduced by section 1 of the Criminal Finances Act 2017 (“CFA”) which created a new section 362A of the Proceeds of Crime Act 2002 (“POCA”).

A UWO requires that the respondent explains how they acquired property. If the respondent does not provide adequate evidence the property is deemed by the relevant authority to be “recoverable property” for the purposes of a civil recovery (s.362C).

Who can issue an unexplained wealth order?

Whilst the primary UK law enforcement agency to use UWO’s is the National Crime Agency (“NCA”), others have the authority to apply for them also such as:

  • the Director of the Serious Fraud Office;
  • HM Revenue and Customs;
  • the Director of Public Prosecutions; and
  • Financial Conduct Authority.

Any of the listed authorities above can make an application to the High Court for a UWO, which can be made without notice (s.362I).

What are the requirements for making an UWO?

Contrary to the standard used in a criminal trial where the relevant authority must decide whether the evidence is strong enough that a jury would find beyond reasonable doubt that there had been a criminal act, in order to successfully apply for a UWO one of the above authorities must only meet the civil standard of proof.

Civil recovery proceedings under POCA only require the relevant authority to prove to the High Court that on the balance of probabilities there has been a criminal act.

The High Court must also be satisfied that there is reasonable cause to believe that:

  • the respondent hold the property;
  • the value of the property is greater than £50,000;
  • there are reasonable grounds for suspecting that the known sources of the respondent’s lawfully obtained income would have been insufficient for the purposes of enabling the respondent to obtain the property;
  • the respondent is a politically exposed person or there are reasonable grounds to suspect they have been or are involved with serious crime or a person connected to serious crime

Additionally, the respondent can hold the property in part or in its entirety alone or with any other persons. It is irrelevant whether the property was obtained before or after the legislation permitting the UWOs came into force, namely the CFA.

What to do if you have been served with an unexplained wealth order

Firstly, as aforementioned the the issuing authority only needs prove that on the balance of probabilities there has been a criminal act in order to issue the UWO. Therefore, any response to a UWO must be carefully considered and it is advised that you instruct a specialist team who can assist you with this.

As per POCA s.362A, in order to comply with the UWO the respondent must provide a statement:

  1. setting out the nature and extent of the respondent’s interest in the property in respect of which the order is made,
  2. explaining how the respondent obtained the property (including, in particular, how any costs incurred in obtaining it were met),
  3. where the property is held by the trustees of a settlement, setting out such details of the settlement as may be specified in the order, and
  4. setting out such other information in connection with the property as may be so specified.

What happens after an UWO is made?

If a UWO is granted by the High Court they may make an interim freezing order in respect of the property if they consider it necessary to do so for the purpose of avoiding the risk of the frustration of any recovery order they may make in the future.

In order for the Court to grant the freezing order they must establish the following conditions:

  • The applicant must have a strong case. The applicant must establish that its case is capable of a serious argument.
  • There must be a substantive cause of action against the defendant
  • The applicant must demonstrate the risk of the asset being disposed of if the order is not put into place.
  • It must be ‘just and convenient’ to grant the order – it would cause unnecessary and disproportionate hardship to the defendant to grant the order. 

Not based in London? We provide nationwide representation

That does not matter, we will represent you no matter where you are based in England or Wales.

If you contact us through our contact form, by email or by phone, one of our debt recovery team members will contact you by phone to discuss your matter and assess whether we can help you.

If we can, we will arrange a conference with a senior member of our debt recovery team. This meeting will take place either in person or using our telephone conference facilities or via Skype if you prefer. Therefore, no matter where you are based in England or Wales we can represent you.

Unexplained Wealth Order Defence Lawyers

The legislation in respect of the above have become a field of great importance in recent years. The consequences of falling foul of a UWO can be very serious and devastating for individuals and corporations. Therefore considered, timely and accurate expert advice is essential.

Our Defence and Private Prosecution team advises both corporate clients and individuals on all legal issues concerning offences created by way of the Proceeds of Crime Act 2002.

We regularly deal with complex, large and difficult confiscation proceedings in the criminal courts under the Proceeds of Crime Act and the previous statutory regimes.

We are experienced in asset tracing, restraint orders, the appointment of Receivers under the Proceeds of Crime Act, third party rights and directors’ disqualification proceedings. We are also happy to appear for interested parties in receivership proceedings and have particular expertise in forfeiture/cash/property seizure hearings. We are frequently instructed in defendant High Court restraint work and have in depth experience of lifting restraint or receivership orders from assets of defendants or third parties to criminal proceedings.

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