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7 May 2020
Disputes Quick Read – 77 of 101 Insights
Disputes Quick Read: The latest on Unexplained Wealth Orders
- QUICK READ
When Unexplained Wealth Orders (UWO) were introduced, legal commentators pondered whether the legislation was another idle threat to bolster the government's announcements that we must clamp down on businesses using off shore accounts and overseas investment funds purchasing UK property portfolios in an attempt to avoiding paying tax.
In reality, the National Crime Agency (NCA) has primarily targeted wealthy families.
Once made the subject of an order, an individual is required by the authorities to provide a detailed account of how they came to own an asset, shifting the burden of proof away from authorities. In short, individuals are required to prove the legitimacy of their assets or risk forfeiting them.
To obtain an UWO, the enforcement agency must establish that there is property worth in excess of £50,000 (or a number of properties to that cumulative value) owned by an individual who is either politically exposed, suspected of having committed a serious crime or is someone "connected" to a person suspected of such – a very low bar indeed.
Zamira Hajiyeva, "the woman who spent £16m at Harrods", was the first subject of a UWO. This order was challenged but ultimately upheld by the High Court, representing an early victory for the NCA. Buoyed by the win, the NCA then set their sights on Kazakh Nurali Aliyev and his mother Dariga Nazarbayeva, High Net Worth political individuals based in Kazakhstan.
Having obtained the UWOs, the NCA's success was short lived as, on 8 April 2020, the High Court handed down a damming judgment stating the NCA had proceeded on "unreliable evidence". The key principle of the ruling was that the use of off-shore structures, while demonstrative, is not conclusive evidence of criminal property.
While this gives private client lawyers and their clients a bit of breathing space, we doubt the NCA will be discouraged by the ruling. It will, however, require the NCA to think twice before chasing the low hanging fruit by simply targeting any offshore structure. As for lawyers, we must continue to scrutinise and challenge "evidence" the NCA presents against our clients.
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