Editorial | Going after unexplained wealth

The call by policy researcher Joanna Callen for legislation to require persons to justify their suspicious wealth, or face the possibility of its confiscation, has echoes of Howard Mitchell’s suggestion a year ago that Jamaica borrow from a British law with similar effect.

As this newspaper argued at the time, it is an idea that, while compelling at first glance, requires serious debate lest it become another piece of legislation to grow mould in dusty law books without attending to the mischief it is aimed at correcting. And as the proposer noted, there are constitutional questions to be considered.

Ms Callen works on issues of crime, security, and justice at the Caribbean Policy Research Institute (CAPRI). Last week, she spoke at a forum at which her agency presented a report on how gangs, over the last decade, have splintered in Jamaica and of the problem that poses for law-enforcement agencies. Among her mix of solutions is to go after the wealth of gang members, and other corrupt individuals, by placing the burden of proof on how they got it on the accused, contrary to the norm in most common-law jurisdictions.

“Increase the scope and depth of financial investigations,” Ms Callen said. “This is for all criminal activities, and not only financial crimes. Legislate change with regard to unexplained wealth to put the burden of proof on the owner of the suspected asset and to asset-recovery schemes, having addressed any extant constitutional constraints.”

Laws allowing for the confiscation of suspect or tainted assets are not novel in this jurisdiction although they have not yet gone to the extent suggested by Ms Callen. Under the Proceeds of Crime Act (POCA), for instance, the State can go after the assets of a persons who may have gained them as a result of a criminal lifestyle or criminal conduct, although the crime for which such persons were convicted may not have been directly connected with the confiscated asset. Other beneficiaries of the tainted assets can also have them forfeited.

BALANCE OF POSSIBILITIES

In determining whether a person has a criminal lifestyle, or has benefited from criminal conduct, the court decides on the basis of “a balance of probabilities”, rather than “beyond a reasonable doubt”, which is the general standard for criminal matters.

Relatively few cases, however, have reached the courts since the law became operational in 2007, and several of those that have are related to the conviction of Jamaican drug smugglers in overseas jurisdictions, primarily the United States and Canada.

This provided part of the context for last week’s suggestion by Ms Callen and the earlier intervention by Mr Mitchell, when he was president of the Private Sector Organisation of Jamaica (PSOJ). Mr Mitchell urged Jamaica to adopt a regime similar to Britain’s that would allow it to issue unexplained wealth orders (UWOs), requiring suspected persons to say how they got their assets. In the absence of a credible explanation, it could be forfeited.

MORE AGGRESSIVE

The United Kingdom introduced the UWOs, the first of which was issued in late 2018 against the wife of a jailed Azerbaijani state banker, after criticism that Britain’s POCA was too difficult to use against foreign so-called politically exposed persons, who laundered ill-gotten wealth in that country.

It is possible that such a law could be of value to Jamaica, without giving the State the power of “indefinite and isolated detention” of suspected persons, as was suggested by Mr Mitchell. However, we believe that before Jamaica introduces a new law, current ones should be more robustly employed in going after the finances of crooks.

The authorities, for one, can be more aggressive in their use of POCA in its current form, targeting, especially, persons holding assets on behalf of beneficial owners, who gained them through criminal lifestyles or via criminal conduct. This cannot be beyond the capabilities of the Financial Investigative Division, or the Major Organised Crime and Anti-Corruption Agency.

Tax Administration Jamaica, with the support of these agencies, should also be making requisite income tax assessments against persons whose affluent lifestyles are not borne out by their apparent legitimate sources of income.

What, however, is necessary is the will, without which new laws will be of little value.