Criminal Law: Unexplained Wealth orders

Unexplained Wealth Orders require a defendant to explain the origin of assets that appear to be disproportionate to their known or declared income

If you are charged with an alleged financial crime, you might find yourself facing an ‘Unexplained Wealth Order’.

The Criminal Finances Act 2017 creates “Unexplained Wealth Orders”.

An Unexplained Wealth Order is a tool used by law enforcement agencies in connection with High Court Civil Recovery, which falls under Part 5 of Proceeds of Crime Act. The Unexplained Wealth Order will precede a potential Civil Recovery application and can be obtained from a High Court Judge, without a suspect having prior knowledge.

In England & Wales, it is common for the National Crime Agency, HMRC, the Financial Conduct Authority, the Serious Fraud Office or the Crown Prosecution Service to apply for such an order.

A person who is suspected of involvement in or association with serious criminality must explain the origin of an asset that appears to be disproportionate to their known or declared income. However, this only applies to assets with a value in excess of £50,000.

A failure to provide a response might give rise to a presumption that the asset in question is the product of crime and may be frozen in order to assist any subsequent civil recovery action. If frozen property is found not to be a proceed of crime the owner of the asset may be entitled to compensation.

An individual may be convicted of a criminal offence if they make a false or misleading statement in response to an Unexplained Wealth Order.

In addition to ‘Unexplained Wealth Orders,’ another tool in the prosecutor’s armoury is the Disclosure Order under the Criminal Finances Act 2017.

A disclosure order authorises a law enforcement officer to require anyone they think has relevant information to an investigation to answer questions, provide information or to produce documents.

‘Relevant information’ is defined by Section 357 (5) of the Proceeds of Crime Act as information the officer considers to be relevant to the investigation.

The application for a disclosure order must state that a person named in the order is subject of a confiscation, exploitation, or money laundering investigation, or that property specified in it is subject to a civil recovery, detained cash, or frozen funds investigation.

The disclosure order may require a person to answer questions at a specified time and place, to provide information at a time and in a manner specified in the notice and/or to produce a document or documents of a specified description by a time and in a manner specified in the notice.

A disclosure order may remain in force throughout the life of a money-laundering investigation, confiscation, civil recovery or exploitation proceeds investigation.

Statements made in response to a Disclosure Order may not – subject to certain exceptions – be used in criminal proceedings against the person who gave the information. A person subject to an order is not required to provide items or material subject to legal privilege or excluded material which, broadly speaking, comprises medical and other personal data held subject to a duty of confidentiality.

Malcolm Simmons

Malcolm Simmons

Consultant Solicitor
Criminal Law

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