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Government Proposals To Grab Assets – Implications

The Proceeds of Crime Act 2002 (POCA) was brought in to permit the confiscation of assets acquired by criminals through their criminal activity. The Act allows the authorities to seize assets, wherever they are held, that are the proceeds of crime.

POCA has not been as efficient as the Government had hoped, however, because it can be difficult to prove that the source of funds used to acquire assets was criminal activity.

The Government is therefore proposing a new line of attack, called the 'unexplained wealth order' (UWO). The introduction of UWOs would allow the authorities to require people to explain the sources of their wealth and, where the explanation is deficient, to obtain an order to 'recover' the assets concerned.

UWOs will also be sought where individual transactions are suspected of involving corruption, which David Cameron has pledged to take strong action against – even to the extent of appointing an 'anti-corruption champion'.

In effect, the use of UWOs will shift the burden of proof required in order to seize assets from the criminal ('beyond a reasonable doubt') to the civil ('on the balance of probabilities') test. This will make asset seizure orders much easier to obtain as the asset owner will, in effect, be required to prove that the asset was legitimately obtained.

One aspect of the proposals which has attracted little comment as yet is that the Government already has high quality financial investigation capabilities outside the usual criminal investigation and data seizure channels in the form of HM Revenue and Customs (HMRC). HMRC's standard armoury in 'in-depth' investigations has for decades included a similar approach to matching known wealth with declared earnings. Indeed, the rise in prosecutions for tax fraud by HMRC has been linked to the ability to seize assets under POCA.

Richard Howlett - Partner

Richard Howlett – Partner

Richard Howlett - Solicitor

For legitimate businesses, the new proposals create a risk that unusual transactions or events might lead to an attempt by the authorities to apply for a UWO and that time and expense will be incurred in fighting a powerfully-resourced opponent to protect your rightful assets.

Richard Howlett can advise you on how best to protect yourself from attempts by the authorities to deprive you of your lawfully acquired assets

Telephone 02077925649 Email richard@selachii.co.uk

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