John Binns, partner in the financial crime team at BCL Solicitors LLP analyses the broad range of law enforcement powers available to tackle suspected money launderers, terrorist financiers and their money.
Law enforcement agencies in the UK may not always be the best resourced, but they do have an increasingly broad range of legal powers with which to tackle suspected money launderers and terrorist financiers, and their money. These powers can be difficult to keep abreast of for investigators, and of course for suspects and others on the receiving end.
Arrests, searches, and seizures
Where evidence of money laundering comes to an investigator’s attention, their options are to some extent the same as in any criminal case. Depending on their role and the agency they work for, they may open a criminal investigation and apply for warrants to search premises and seize items there, arrest and interview suspects, and consider placing them on bail, with or without conditions, under the Police and Criminal Evidence Act 1984 (‘PACE’) or other applicable legislation. At some stage, they may put together a file to be considered for potential prosecution (although the investigation does not necessarily end there).
In the meantime, the investigator, or an accredited financial investigator (‘AFI’) working alongside them, will want to consider the options available to them under the various parts of the Proceeds of Crime Act 2002 (‘POCA’). Under Part 2, in England; Parts 3 and 4 have similar regimes for Scotland and Northern Ireland, respectively, they will need to consider whether they have reasonable grounds to suspect that anyone has benefited which here means simply ‘obtained property’, as a result of or in connection with an offence, in which case, they can obtain a restraint order in respect of assets that belong to that person, or that represent a ‘tainted gift’ from that person. Ultimately, those assets may be considered ‘available’ to the person if they are convicted and ordered to pay a confiscation order.
The investigator will also need to consider the options available to them under Part 5 of POCA. This concerns civil recovery, the primary basis of which is that assets can be recovered by court order, based on the civil standard of proof and without a criminal conviction.
While the traditional route for civil recovery was proof in the High Court (under Chapter 2 of Part 5) that the assets represent the proceeds of ‘unlawful conduct’, there is a subset of it, which takes place in the magistrates’ court, where cash (Chapter 3), certain ‘listed’ assets (Chapter 3A), and funds in certain accounts with banks, building societies, and e-money institutions (Chapter 3B) can be forfeited either on that basis, or because they can be shown to be ‘intended for use’ in unlawful conduct. Confusingly perhaps, the courts have held that this can cover cases where cash is intended for use in money laundering.
This may be significant in a money laundering investigation where cash, funds or other assets are identified but the authorities do not (yet) have either a reasonable basis to suspect their owner, or a good enough case about their origin to persuade the High Court to freeze them.
There is an obligation to specify at least a category, or categories, of offences, of which the assets are said to represent the proceeds, although it seems the courts will accept ‘money laundering’ as such a category even without specificity about the alleged predicate conduct.
The boundaries of the civil recovery regime are also now extended by the availability of unexplained wealth orders (‘UWOs’), which are designed to trigger a presumption that assets are recoverable where the holder of them does not respond to an order to explain (in broad terms) how they acquired their interest in them.
In practice, the availability of these orders provides a further option in a money laundering investigation, provided various criteria are met: the assets in question must be worth at least £50,000, and the holder of them must either be:
- a politically exposed person, someone who is or has been entrusted with a prominent public function by an international organisation or a state, in this context excluding the UK or another EEA state, or a family member or close associate of such a person;
- reasonably suspected of involvement in serious crime in the UK or abroad; or
- (in each case) connected with someone in that category.
While a statement made by someone in response to a UWO cannot generally be used in proceedings against them, it may provide valuable intelligence against them or others involved in a money laundering investigation.
A recent change in the law (under the Economic Crime (Transparency and Enforcement) Act 2022) means that a further requirement, that the known legitimate sources of the holder’s wealth are insufficient to explain their interest in the property, no longer applies where there are reasonable grounds to suspect that the property itself represents the proceeds of unlawful conduct.
The National Crime Agency (‘NCA’) also has powers under Part 6 of POCA to step into the shoes and adopt the functions of the tax authorities in respect of persons suspected of crime. This may be appropriate where a suspect in a money laundering investigation has substantial assets that may represent the benefit of either lawful or unlawful trading, there is the potential to recover significant assets from him via the tax system, and the expertise of the NCA may increase that potential.
Suspicious activity reports
Where the trigger for an investigation is a consent request under Part 7 of POCA, for example from a bank that has suspicions about funds in a customer’s account, the investigator will also need to consider the statutory timescales within which consent will be deemed granted. A refusal within seven working days will trigger a moratorium period of a further 31 calendar days, which is designed to allow the investigator time to consider and apply for orders to restrain or freeze the assets where appropriate.
The investigator may apply for extensions of that period if they can show that his investigation is proceeding diligently and expeditiously and that more time is needed. In practice, banks and others may be cautious about dealing with assets they regard as suspicious even where they have deemed consent to do so. They may be prepared to assist investigators by blocking access to the assets for longer periods.
Various powers are available to various investigators under Part 8 of POCA in the context of criminal money laundering investigations, as well as in other related contexts such as confiscation, civil recovery, and detained cash. Very broadly speaking, they can apply to the courts for:
- production orders, against persons that hold relevant material;
- warrants, to search premises and to seize items found there, either where production orders have not been complied with, or otherwise;
- disclosure orders, to enable notices to oblige persons to provide relevant information; and
- orders against financial institutions to provide information about their customers, or about ongoing activity on their accounts.
Investigations into terrorist money laundering and terrorist financing under the Terrorism Act 2000 (‘the TA’) can emerge from investigations into other offences, including planned or completed acts of terrorism. Unlike money laundering investigations, however, the challenge is less likely to be to the forward tracing of the proceeds of such acts (their aim rarely being to generate such proceeds), but the backward tracing of the funds used to finance those acts, and/or the assets of any proscribed organisations involved.
Disclosures from banks and others in the regulated sector and, indeed, from those outside it, the obligations under the TA having much broader application may, similarly to money laundering investigations be the source of useful information that may trigger an investigation into terrorist money laundering or terrorist financing. In practice, disclosures that have a terrorist connection will be flagged as a priority so that appropriate action may be taken on an urgent basis.
The investigator’s options in investigations for these offences are for the most part not unique to them: they may apply for warrants to search and seize premises, arrest, interview, and bail suspects, and ultimately refer them for prosecution. There are, however, various additional bespoke powers for use in terrorist investigations (and, in some cases, specifically for terrorist financing investigations) under the TA.
The balance of power
Law enforcement agencies will often talk in terms of needing to have broad powers and not to be stymied by suspects and their lawyers, particularly where their efforts are directed at tackling financial crime. But the increasingly vast array of powers in money laundering cases and civil recovery investigations can affect a broad range of people, many of whom may be innocent of any crime. It is important to ensure both that the agencies are well enough resourced to make use of their powers properly and to target them at the right cases, and that those affected by such powers are in a good position to take appropriate advice.
John Binns is a partner at BCL Solicitors LLP, specialising in money laundering and POCA.