There are a number of important points that make UWOs an arguably much more effective investigative tool than previous forms of law enforcement orders.
The first is that the burden of proof to obtain an order is much lower than that required in a trial of an issue in either civil or criminal proceedings.
In those instances, the test would be either on a balance of probabilities or proof beyond reasonable doubt respectively.
However, with a UWO, if the target of the order is not a PEP, then law enforcement need only have “reasonable grounds to suspect” that the person doesn’t have enough lawful income to have obtained the property and that they have been involved in serious crime.
If the person is a PEP outside of the EEA, then there is no requirement for this to be proved at all.
It has already arguably been proven in other types of law enforcement order, where the test is one of reasonable suspicion, that such orders are usually more readily granted and more difficult to challenge.
Source of wealth
The second point is that there is no requirement on the part of law enforcement to prove that either the property in question was obtained by the alleged crime, nor is there any requirement for criminal proceedings to have been commenced against the respondent to the order.
In fact, the burden is reversed so that it is the respondent who has to justify the legitimacy of the source of their wealth.
In this regard, law enforcement does not have to build a case capable of being prosecuted (which is expensive and time consuming) but can instead rely more on intelligence and more limited evidence that raises reasonable inferences that the respondent should be expected to address.
The initial purpose of a UWO is to require the respondent to the order to provide information, but once that information is obtained (or not as the case may be), the attention of law enforcement will move to whether any property can then be made the subject of what is termed a civil recovery order.
A civil recovery order is an order to, in effect, forfeit the property in issue. In this regard, if the respondent fails (without “reasonable excuse”) to provide the required information, then the court may presume that the property is recoverable property which can then be made the subject of a civil recovery order application to later forfeit those assets.
This is an important consequence that assists to persuade the respondent that it is in their interests to co-operate.
