Unexplained wealth orders against politically exposed persons as a response to jurisdictional limitations: problems and potential

There is a risk that politically exposed persons (PEPs) who misappropriate state assets, hide their wealth abroad, and do not face domestic criminal proceedings, may enjoy the fruits of their misconduct in peace. Jurisdictional constraints may limit the potential for criminal prosecution and confiscation outside the jurisdiction in which the crimes were committed. Concealing assets outside the territories from which assets are stolen obstructs civil recovery of those assets in any jurisdiction. Corrupt PEPs may thus avoid adverse legal consequences in both the criminal and civil spheres.

Unexplained Wealth Orders (UWOs) were introduced in the United Kingdom in 2018. Where illicitly acquired assets are laundered by foreign PEPs in the UK, UWOs offer enforcement authorities an investigative tool to facilitate civil recovery without having first to establish a link to serious crime.

This chapter argues that where property is civilly recovered by enforcement authorities using UWO processes which are publicised, corrupt PEPs are made subject to a measure that is quasi-criminal both in its process and its impact. It is therefore useful as a potential means of ensuring that corrupt foreign PEPs are held to individual account for their misconduct, even if no investigations or prosecutions are progressed in the territorial states in which the corrupt acts were committed. The chapter also notes, however, that the use of UWOs may represent a form of jurisdictional overreach given the territorial limitations on enforcement jurisdiction. It concludes that notwithstanding these jurisdictional concerns, the availability of civil recovery using UWOs against PEPs is a potentially useful means of tackling impunity.