Reaching the Unreachable: Attacking the Assets of Serious and Organised Criminality in the UK in the Absence of a Conviction

The UK government’s growing recognition that tackling the national security threat posed by the 37,317 nominals linked to the 4,542 organised crime groups (OCGs) mapped in the UK cannot be achieved purely through traditional criminal justice outcomes was evident in its Serious and Organised Crime Strategy 2018. The increasingly hard-line rhetoric as regards the use of asset confiscation tools in the fight against serious organised crime – particularly since the introduction of the Unexplained Wealth Order (UWO) in 2017 – is a reflection of this.

This paper explores the extent to which this rhetoric has been matched by reality, with regards to greater use of the powers available under Part 5 of the Proceeds of Crime Act 2002 (POCA, of which the UWO is an investigatory tool), to allow for the confiscation of unlawfully obtained assets in the absence of a conviction – known as non-conviction-based (NCB) confiscation. 

In understanding the operation of the NCB confiscation powers today, it is important to understand the history of their 16 years in operation. The high-profile demise of the original ‘enforcement authority’ – the Assets Recovery Agency (ARA) – in 2008 cast a long shadow over the perception of the powers by prosecutors and law enforcement, who now approach them with some caution. This paper notes the need for meaningful leadership from the UK government under a new Asset Recovery Action Plan to give use of the powers renewed focus.

As regards the operational environment, on ARA’s disbandment, the powers were dispersed across the Serious Organised Crime Agency (SOCA – now the National Crime Agency, NCA), the Crown Prosecution Service (CPS) and the Serious Fraud Office (SFO). Having gained the ARA’s staffing contingent, the NCA had an advance on other agencies, but initially failed to capitalise on this, with annual returns from NCB confiscation languishing around the £5–6 million mark. A renewed focus in the past year on the ‘high end of high risk’ is welcome. However, there are concerns that a higher investigative burden, particularly of grand corruption cases, may overstretch the NCA’s current capabilities. 

The NCA’s refocus has also exacerbated a gap in NCB confiscation capability and capability at the regional and local policing tiers. The CPS – in conjunction with UK policing – has not yet stepped into the breach in the decade since the powers were extended to it. The reasons for this may include the lack of investigative resource, an in-house skills deficit and concerns regarding cost risks. The attention brought to the wider NCB confiscation regime by the introduction of the UWO has provided much-needed impetus to the CPS and policing to develop a capability at the regional policing tier. However, the funding model for this new contingent is fragile and its longer-term place in the Regional Organised Crime Unit (ROCU) structure is unconfirmed. This paper recommends formally adding NCB confiscation as a ROCU capability, providing long-term central funding to embed specialist CPS civil lawyers and dedicated NCB confiscation investigators within these units, and ensuring that central government provides contingency funding for prosecutors in the event of adverse costs.

These findings should be viewed in the context of the bold political discourse since the implementation of the UWO – a discourse that seems to suggest the new tool is the solution to wider problems of capacity and capability in the system. This is emphatically not the case; without dealing with the underlying issues highlighted above and some of the inherent limitations in the UWO legislation, the impact of NCB confiscation (including through UWOs) will remain limited.

Added together, the author finds in NCB confiscation a potentially highly potent tool – and in many cases the only means of targeting those who insulate themselves from the reach of criminal law – which is being woefully underexploited.

It is also evident that the UK has much to learn from jurisdictions (such as the Republic of Ireland, South Africa and the US) where NCB confiscation is a more mainstream part of the response. 

The Irish Criminal Assets Bureau (CAB) model is frequently held up as an example of best practice, for the following reasons:

• Broad public and political support: Continuing cross-party and public support for the CAB from its introduction has insulated it from cuts in the broader public economy.
• Lack of perverse incentives: The lack of an ‘incentivisation scheme’ has allowed the CAB to select cases on merit, unhampered by considerations as to the likely financial gain.
• Multi-disciplinary approach: The mix of police, revenue and social welfare powers and information is an essential component of the CAB’s success.
• Deal-making: A more flexible approach to deal-making and settlements allows for a pragmatic response to case management. 

South Africa’s Asset Forfeiture Unit (AFU) model has established NCB confiscation as a more mainstream tool through the following measures:

• Clear purpose and priorities: The AFU was established with a clear mandate under law to tackle serious and organised crime, in a way the UK model was not.
• Targeted outreach: The AFU model is comprised of a central unit and individuals embedded in wider prosecutorial structures to aid case identification.
• Risk appetite: The AFU was established with a clear mandate from government to fight test cases and establish jurisprudence, thus empowering it with a healthy risk appetite.

The US regime in many ways acts as a cautionary tale of the need to exercise NCB confiscation with appropriate restraint. However, aspects of the US regime merit consideration by UK policymakers:

• Interoperability: On investigating assets, the US regime does not presuppose either the criminal or civil route; evidence gathered can be used to pursue either.
• Tools to reduce litigation: The range of external tools to encourage cooperation and/or reduce litigation in NCB confiscation in the US is notable.

In conclusion, this paper finds that the original promise of NCB confiscation – to target those who insulate themselves from the reach of criminal law – has at best been only marginally fulfilled. Initial moves to resolve the fundamental capacity and capability issues in prosecutorial structures and create the necessary support function in policing are welcome, but do not provide a long-term, sustainable solution; the UK must follow the example of others to fully embed the powers into the response to serious and organised crime. Any suggestion that the implementation of UWOs solves these problems is misguided. 

12 Recommendations for Policymakers

Recommendation 1: The government should deliver on its commitment to publish an Asset Recovery Action Plan. Under this it should commit to formulating a specific strategy for increasing the take-up of NCB confiscation as part of the response to serious and organised crime. 

Recommendation 2: The NCA should commit to reviewing its NCB confiscation staffing to consider whether the team has in place all of the skills and experience needed to undertake the more complex cases it is now pursuing under its new NCB confiscation case adoption strategy. 

Recommendation 3: NCB confiscation should be adopted as a formal ROCU capability. 

Recommendation 4: The Home Office should provide additional funding to the CPS Proceeds of Crime Division and to the ROCU network to recruit and train a network of NCB confiscation specialists. This funding should run for a minimum of three years to aid recruitment.

Recommendation 5: The government should ring-fence a proportion of asset confiscation receipts each year to act as a contingency fund for unexpected litigation and costs associated with NCB confiscation.

Recommendation 6: UWO provisions should be amended to allow enforcement authorities to apply to the courts for a moratorium of up to an additional 120 days following responses to a UWO to allow for further evidence gathering where necessary.

Recommendation 7: Under a refreshed Asset Recovery Action Plan the Home Office, working with enforcement authorities, should lead a strategic communications campaign to raise public and political awareness of NCB confiscation and its associated strengths

Recommendation 8: The NCB settlement policies of enforcement agencies should consider the opportunity cost of a hardline approach to settlements alongside other factors. 

Recommendation 9: The Serious Organised Crime Inter-Ministerial Group should mandate officials to mainstream NCB confiscation into the broader strategic response as part of the Serious Organised Crime Strategy 2018 response. 

Recommendation 10: The roll-out of NCB confiscation to the ROCUs should be accompanied by a programme of awareness raising within policing (specifically to Chief Constables) and to Police and Crime Commissioners, led by the National Police Chiefs’ Council Financial Crime Portfolio.

Recommendation 11: The government should remove the presumption of the primacy of the criminal confiscation route under Section 2(a) of POCA to mirror the more flexible approach of the US, the Republic of Ireland and South Africa.

Recommendation 12: The government should consult on whether fugitive disentitlement provisions are appropriate for adoption in the UK.