The Return of the UWO?

20 May 2024

Last Friday, we commented that the National Crime Agency (NCA) perhaps deserved more attention for its growing role investigating and prosecuting serious financial crime.

Later that day, in a timely announcement, the NCA confirmed it had secured its first unexplained wealth order (UWO) in Northern Ireland. This is the first UWO secured by the NCA in some time and one of only a couple since the NCA’s setback in the Baker case in 2020, when three UWOs were discharged – and the NCA’s appeal refused – all at significant cost for the NCA. The fallout from the Baker case appeared to perhaps make the NCA more reluctant to risk bringing applications for UWOs and there has been a notable reduction in their use since 2020. 

To address the financial risk of applying for UWOs, the Economic Crime (Transparency and Enforcement) Act 2022 introduced cost protection measures. It amended the Proceeds of Crime Act 2002, introducing a new section 362U, so that costs would only be awarded against an enforcement authority if it had acted unreasonably in making or opposing an application for a UWO or if it acted dishonestly or improperly in the course of the proceedings.

Notwithstanding this change, the UWO annual report produced by the UK Government for the period May 2022 to May 2023 confirmed that only one UWO was applied for in that time. This latest order, made by the High Court in Belfast, may therefore represent a welcome step forward by the NCA in this area. In particular, the NCA note that “The Order followed a number of legal challenges in the High Court… including an unsuccessful challenge to the legal standing of the NCA in Northern Ireland.”

The NCA will doubtless be pleased to have secured this legal success. However, the property in respect of which the UWO has been made is reportedly only worth approximately £275,000. That is insignificant in comparison to previous UWOs, which have targeted property worth tens of millions of pounds. Whether this success will embolden the NCA to apply for more UWOs – and in particular to target higher-value property with them – remains to be seen.