1 00118601 Emerging themes 2019 A4 AW v31 combined - Page 35



EMERGING THEMES 2019
•The property in question does not have to reside
within the UK, and so in practise UWOs have broad
extraterritorial reach. Furthermore, in complying
with a UWO, the respondent(s) may have to reveal
information about foreign properties and third
parties that provide new avenues of investigation
for investigating authorities.
•On 12 November 2018, the Proceeds of Crime (External
Investigations) Order 2014 was amended to allow UK
authorities (those listed previously) to obtain UWOs
on behalf of overseas authorities. Evidence obtained
from these “indirect UWOs” can be used by overseas
authorities in their own equivalent of confiscation
investigations. Confiscation investigations seek
to identify and confiscate any benefit obtained
by a person following a criminal conviction – civil
proceedings will still be dealt with under the Proceeds
of Crime Act. It is clear that this is intended to allow
the UK’s investigating authorities to assist with foreign
investigations where, for example, criminal proceeds
are located within the UK. We can see UWOs being an
important tool in this regard, and that overseas
investigators and prosecutors will be keen to utilise
them vicariously via UK law enforcement agencies.
In summary
It is still too early to tell how effective UWOs will be in
fighting corruption and fraud. However, this new tool
has significant “teeth” – not least that a false or
misleading statement about the nature and extent of
a respondent’s interest in the property can be punished
with a sentence of up to two years and/or a fine.
Furthermore, certain elements of this power have now
been “stress tested” following the High Court’s dismissal
last year of Mrs Hajiyeva’s challenge to the UWOs
against her. That included the High Court upholding
Mrs Hajiyeva’s classification as a PEP, which is certainly
significant at a time when UK law enforcement continue
to set their sights on PEPs. We anticipate a series of
further UWOs being issued in the year ahead. In
choosing the Hajiyeva matter as a test case, the NCA
selected a case that not only fell very clearly within the
ambit of UWOs, but one that would also send a clear
message to big ticket money launderers yet to be
prosecuted in the UK. However, whether this test case
will carry through into similarly successful UWOs against
more PEPs and non-PEPs – as the authorities confidently
assert – remains to be seen.
As test cases go, the NCA chose one
that not only fell very clearly within
the ambit of UWOs, but one that
would also send a clear message
to big ticket money launderers yet
to be prosecuted in the UK.
RICHARD FINNERAN
Partner, St. Louis
TOM HUTTON
Associate, London
/35

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