Guest Post: Could Unexplained Wealth Orders Fight White Collar Crime In Malta?
A few years back, as part of my law studies, I penned my dissertation on unexplained wealth law, the relevance of which remains undiminished in a world where white-collar crime has run so uncontrollably rampant.
In my dissertation, short though it was, I pointedly argued for the introduction of unexplained wealth law locally, which would significantly help clamp down on ill-gotten gains and improve upon a substandard asset confiscation framework. Today, that argument still very much stands.
The recent case of Lilu King, the so-called ‘King of Paceville’, who currently faces a spate of financial crime charges, and whose ostentatious lifestyle has been the talk of the town of late, rekindled my interest in unexplained wealth law, which—owing to other commitments, perhaps—had lain dormant ever since I clicked ‘Upload’ on VLE and submitted my dissertation.
Such instances of unexplained wealth have become all too commonplace now. For this reason, not only would such law help restore a semblance of normality to a country where organised crime has insidiously rooted itself deep within the very fibre of its tattered fabric but it would also help crack down on many other cases of self-proclaimed ‘royalty’.
Hereafter follows a thumbnail sketch of unexplained wealth orders, which I hope explains—no pun intended!—to the reader what they are really all about.
An unexplained wealth order (UWO) does exactly what it says on the tin. It is an order, typically issued by a court, which, provided that certain conditions are met, compels a particular individual to give a sufficient explanation for his questionable wealth.
For a UWO to be made, it must be shown that the said individual lives beyond his or her means; that the value of the individual’s assets is decidedly disproportionate to his or her lawful income.
In other words, an individual who, much like HRH, The King of Paceville, is either work-shy or on the dole, is seen tooling along in his swanky sports cars, showing off flashy jewellery and lavish wristwatches, alarm bells immediately start—or at least ought to start—ringing out. Now, I would be willing to bet that almost every single one of us happens to know of someone who falls squarely under such a description, which makes such a law all the more necessary.
But what makes a UWO any different to other existing investigative tools in the law’s anti-crime toolbox? The essential qualities of a UWO—which, in view of their draconian and radical nature, have attracted much criticism in academic circles—are principally two:
(1) a UWO does not require that a link be proved between the questionable wealth and the commission of a particular criminal offence; and (2) it is for the owner of the questionable wealth, faced with suspicions of involvement in unlawful activity, to prove that his wealth has been lawfully acquired.
In other words, a UWO entails a prove-it-or-lose-it approach, whereby if the individual, against whom a UWO is issued, fails to satisfactorily explain the source of his wealth, a presumption arises that said wealth has been acquired illicitly.
I mean does it not stand to reason that an upstanding, law-abiding member of the community would have no qualms about explaining his hard-earned money?
Now, before criminal defence lawyers chime in and burst out crying foul at such seemingly heavy-handed approach—their mouths watering all the while at the torrent of constitutional lawsuits they may in time come to unleash on behalf of their disgruntled clients—we need to clear things up, lest we incur their litigious wrath.
Unexplained wealth law targets the asset rather than the person. It primarily seeks to cancel out the profit motive, which would mean that certain criminal offences, such as money laundering (the very purpose of which is to make criminal proceeds appear to have been lawfully acquired) and corruption (of which we have been lucky enough to be served up with an assorted cornucopia), become purposeless and unrewarding and what was previously appealing, what with the easy money and the relatively low risk of being caught, would no longer hold any allure for would-be offenders.
In other words, UWOs would help law enforcement authorities keep up with the increasing complexity of modern crime. Needless to say, the fact that UWOs conveniently short-circuit fundamental constitutional principles, such as the presumption of innocence (in that the onus of proof shifts onto the individual and unless he or she proves otherwise, a presumption of unlawful provenance arises), as well as the ostensibly inviolable right to property (that the questionable wealth is forfeited if the individual fails to explain the source of his wealth), is as controversial as it is expedient.
No doubt, the constitutionality of UWOs would be challenged left, right and centre, with much the same frequency and fervour as the old rent laws. However, I argue—in agreement with many others, foremost amongst which are judges of the High Court in Ireland, where non-conviction-based confiscation obtains, and judge of UK courts, where UWOs have been introduced relatively recently—that the interference of unexplained wealth law with human rights is a proportionate response by the state to modern-day crime.
It tackles organised crime head-on by piercing through an impenetrable layer of impunity which has hitherto so effectively shielded criminal movers-and-shakers. This is what arguably outweighs the risks of the invasiveness of the law.
So, all in all, it must be said that, although the implementation of UWOs would certainly not be a smooth-sailing process (legally, not least), their effectiveness is rooted in their invasive nature. Recently, the Government enacted the Proceeds of Crime Act, which, well-intentioned though it is, did not introduce UWOs and is, as a result, rather toothless in its application.
Of course, unexplained wealth law would not close all the chinks in the law’s armour but would undoubtedly be detrimental to business models of organised criminal networks, for it would hit people of the same ilk as Lilu King where it hurts most—their pockets.
Lovin Malta is open to interesting, compelling guest posts from third parties. These opinion pieces do not necessarily reflect the views of the company. Submit your piece at [email protected]
Do you agree that UWO’s should be introduced?
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