Regulation  

Can UWOs shake their 'spectacularly unsuccessful’ label?

Nicola Sharp

Nicola Sharp

In the modern world, PR seems to creep into everything, making many minor successes or even genuine failures appear to be resounding achievements. Yet there are occasions when no amount of positive spin can disguise the truth. And that, unfortunately, seems to be the case with unexplained wealth orders.

The fact that they were dubbed “spectacularly unsuccessful’’ by no less than the government’s Foreign Affairs Committee a matter of weeks ago is an indicator of the problems surrounding UWOs.

The committee’s assessment is the latest blow to a concept for which many had high hopes – hopes that have proved to be, so far at least, misguided.

UWOs were introduced by the Criminal Finances Act 2017 to enable law enforcement agencies to compel individuals or companies to explain how they obtained certain assets when they were believed to have been obtained illegally.

They were available to the National Crime Agency, the Serious Fraud Office, the Crown Prosecution Service, the Financial Conduct Authority and HM Revenue & Customs. 

At the time, the government predicted around 20 UWOs would be used each year. Yet, as the committee itself noted, only the NCA has used them – with a grand total of nine orders being issued, relating to just four investigations.

This is why the committee views UWOs as failure on a spectacular scale. It pinpoints a lack of resources and the risks involved as the reasons why the SFO and NCA – and arguably, the other agencies – have not rushed to utilise UWOs.

The sheer amount of evidence put forward by targets of UWOs and the legal fees that an agency may have to pay out if a UWO proves unsuccessful are cited as major deterrents to their use.

Economic Crime Act

The question now is whether UWOs will ever be as popular as their proponents believed they would be. In the past, I have said it would be wrong to write-off UWOs as a white elephant. That is still the case. The idea still has its supporters and the UWO regime has, in recent months, been given what could prove to be an important boost.

Russia’s invasion of Ukraine prompted the UK government to pass the Economic Crime (Transparency and Enforcement) Act 2022, as an attempt to stem the flow of dirty money to the UK. This act, in theory at least, has given strength to the UWO regime. 

Agencies now have more time to investigate material received in response to a UWO before discharging any interim property freezing order over the assets in question. This increase from 60 days to 186 days could be of real use for agencies, as they look to pore over information relevant to a UWO.

In addition, the agencies are now shielded from the prospect of having to pay unlimited legal costs if an application for a UWO is not successful.

Two years ago the NCA was left facing a £1.5mn legal bill after an appeals court upheld a ruling that the agency did not have reasonable grounds to issue UWOs on property purchased by prominent Kazakh nationals.