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Last Updated: Wednesday, 14 June 2006, 12:32 GMT 13:32 UK
Putting the bite on criminal assets
The work of the Assets Recovery Agency hits the headlines when it moves in to feeze someone's assets, but a lot of people are still confused about exactly how it goes about its business.

What has it to prove before it can freeze assets and publicly name their owners? BBC Northern Ireland's Home Affairs Correspondent Vincent Kearney explains.

Money
Assets of at least 10,000 are needed for the ARA to investigate

The process starts with a referral.

If the police or customs believe that someone has benefited from crime but they don't have enough evidence to secure a criminal conviction, they hand over their files to the Assets Recovery Agency.

The agency will take the case on if it case satisfies two criteria.

Firstly, there must be at least 10,000 of assets that can be seized, and secondly there must be clear evidence that the assets were obtained through crime.

If it adopts the case, the agency can investigate an individual's financial affairs going back 12 years.

Initially, the investigation is done covertly, without the knowledge of the person being investigated - to avoid the risk of them trying to dispose of their assets.

Orders

At this time, the agency can apply for what are called production orders.

These are issued by the High Court if the agency can demonstrate that there are reasonable grounds for suspecting that the individual has benefited from crime.

The production orders can be served on banks and solicitors and they are then compelled to hand over details of financial accounts and other documents relating to the person under investigation.

They are also forbidden from telling their client that the information has been handed over, and anyone who breaches this can be jailed for up to five years.

This also applies to the media and journalists could face legal action if they report that an investigation is under way while it is at this covert stage.

The agency also receives information from the police, customs and other relevant government departments.

The legal advice was quite clear, that once we initiated action against individuals, that was action in an open court and therefore there was an issue about naming them
Alan McQuillan

If it is satisfied that a person's assets are the proceeds of crime, the agency goes back to the High Court to ask for the assets to be frozen.

If it satisfies the court that "there is a good arguable case that the person has benefited from crime", the assets are frozen to prevent them being disposed of.

The agency then names, and some would say shames, the individuals under investigation by making their names public.

But is that fair when the investigation is still under way?

Alan McQuillan, the agency's deputy director, defends the practice, which he says was introduced after seeking legal advice.

"The legal advice was quite clear, that once we initiated action against individuals, that was action in an open court and therefore there was an issue about naming them," he explains.

Receiver

"We have also taken advice under the Freedom of Information Act and quite clearly the advice on that is that if we receive Freedom of Information requests we have to respond to them.

"So the fact is that we have started proceedings in a public session of the court against an individual and therefore the argument is, why should they not be named?"

The court can then appoint an independent interim receiver to investigate the origin of the assets, or in some cases the agency can continue the investigation itself.

At this stage the person being investigated can be served with a disclosure order, which requires them to go for an interview at a particular time and place.

Refusal to attend, or to answer questions, is a criminal offence.

Court graphic
The ARA makes applications to the High Court

When the investigation is completed, the agency goes back to the High Court.

If it proves "on the balance of probabilities" that the money was gained through crime, it is then granted a recovery order. The agency then affectively owns the assets and can sell them off.

The agency takes what remains after any creditors, like lawyers, banks or other lenders are paid off.

It gets half of what's left and can invest that money in more resources and staff to pay for more investigations.

But what if the agency gets it wrong? What if the High Court is not satisfied that the assets are the proceeds of crime and refuses to issue a recovery order? What about the person who was named when the assets were frozen?

"In those circumstances the legislation provides for a compensation order, so there is provision for the judge to award them compensation," Mr McQuillan explains.

"Obviously we are going to try to make sure that we don't do that in any cases but these are legal proceedings and it may well be that at times we lose cases."

If the agency is convinced that a person has benefited from crime, but can't prove it, it can then use its tax powers.

If it demonstrates that an individual has a substantial income but has not paid tax on it, the agency takes over the tax affairs of that person.

They are then served with a tax bill, plus penalties for failure to pay.

Because the agency's investigation is a civil action it cannot result in anyone being sent to jail for criminal activity.

But if at any point the agency uncovers evidence that could secure a criminal conviction, it will hand the case, and any information it has gathered, back to the police.

    How the process works

  • Police or customs refer cases to the ARA if they think someone has benefited from crime but do not have enough evidence to secure a criminal conviction.

  • There must be at least 10,000 of assets that can be seized and clear evidence they were obtained through crime.

  • The initial ARA investigation is done covertly.

  • Production orders - issued by the High Court - can be served on banks and solicitors to compel them to hand over details of financial accounts and other documents.

  • To freeze a persons assets, the agency must satisfy the High Court that "there is a good arguable case that the person has benefited from crime".

  • When a person's assets have been frozen, they can be served with a disclosure order, which requires them to go for an interview. Refusal to attend, or to answer questions, is a criminal offence.

  • When the investigation is completed, the agency goes back to the High Court. If it proves "on the balance of probabilities" that the money was gained through crime, it is then granted a recovery order meaning it effectively owns the assets and can sell them off.

  • If the agency is convinced that a person has benefited from crime, but cannot prove it, it can then use its tax powers to demonstrate that they have not paid tax on this source of income.

  • The agency takes over the tax affairs of that person and serves them with a tax bill, plus penalties for failure to pay.




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