Editorial | Too slow on unexplained wealth law

A convicted drug dealer’s bid to prevent the Government from confiscating an estimated J$1 billion worth of his assets has put the spotlight back on whether Jamaica is aggressive enough in pursuing the spoils of corruption, and if the island’s authorities have sufficient, or the best, tools with which to do the job.

The answer on both counts is no. Among the questions this raises is what has happened to the Government’s promise to pass legislation to allow courts to issue orders for the seizure of unexplained wealth, on the basis of civil, rather than criminal standards. The bill should have been tabled perhaps a year ago, as one of the Holness administration’s anti-crime initiatives. It now seems that we will be lucky if the legislation makes it to Parliament in 2023.

For the avoidance of doubt, we wish to make clear that we are in no position to offer a legal opinion – beyond restating the generally known facts – on the likely outcome of the efforts of Andrew Hamilton et al to prize the Government’s hands off assets that the claim was proceeds of crime. Part of that matter is at appeal. The other bit is before the Supreme Court.

Mr Hamilton, a one-time policeman, pleaded guilty in the United States a dozen years ago to charges of money laundering and trafficking marijuana. In 2014 he was sentenced to four years in jail.

On the basis of Mr Hamilton’s conviction, the Government, using the Proceeds of Crime Act (POCA), has been attempting to seize, first, J$500 million of assets, mostly homes, vehicles and bank accounts, held in the names of family, friends and associates, which were acquired over a decade, up to 2009.

FORFEITURE

A court recently ordered a forfeiture for the first tranche of assets, but that ruling is being appealed. In the meantime, the Assets Recovery Agency/Financial Investigations Division (FID) is attempting to get a similar order for a second tranche of assets.

Under POCA, a person’s conviction for certain types of offences can be the basis for the authorities to see the confiscation of assets deemed to have been acquired as part of the convicted persons criminal conduct or criminal lifestyle. The law also allows for the recovery of assets, via civil proceedings, from “any person who the enforcing authority believes holds recoverable property” – that is, property presumed to have been obtained through unlawful conduct.

The benchmark for success under the civil procedure is that on a balance of probabilities the property was obtained through unlawful conduct, compared to the higher standard of “beyond reasonable doubt” that is required in criminal matters, such as when an accused person is tried for, and found guilty of, say, money laundering, drug running, or other forms of corruption.

The latter cases are often complex and difficult to prove to a criminal standard. Which makes it harder for the authorities to depend on such convictions to go after assets that flow from the activities of criminals. That, on the face of it, is the use of the unexplained wealth orders (UWO), which would make life simpler for anti-corruption and anti-crime agencies.

BURDEN OF PROOF

Essentially, UWOs place the burden of proof on someone who is subject to such an order to show that the property in contention isn’t the fruit of illegality, and therefore shouldn’t be confiscated.

While the arrangement is present in many jurisdictions, the mechanism has gained significant attention since Britain’s POCA law was amended in 2018 to introduce the use of UWOs. However, the UK’s legislation is aimed primarily at foreigners, especially so-called politically exposed persons (PEPs), who, especially prior to the Russia/Ukraine war, found Britain a good place to park their wealth. They invested heavily in London properties.

The first British UWO, covering assets worth £22 million, was issued in 2018 against the wife of a jailed Azerbaijani banker, who was convicted of fraud and corruption. In January last year, the UK’s Supreme Court upheld the decisions of the lower courts.

Obviously, a UWO system in Jamaica would have to be tailored to this country’s circumstance. The people against the orders are most likely Jamaicans who hold accounts for which their obvious legal sources of income couldn’t sustain.

However, real success would hinge on the ability of the investigative agencies, such as FID and Major Organised Crime & Anti-Corruption Agency to efficiently, and at speed, do the kind of forensic accounting probes the system requires. That, if Jamaica is serious about attacking and defeating the country’s endemic corruption, shouldn’t be beyond us. There is already a large cadre of accountants in the island from whom investigative agencies can recruit, and specially train, for this type of work.

The first hurdle, though, is getting the bill drafted and passed. Jamaica’s record in producing legislation in a timely fashion when its back isn’t against the wall and it isn’t being prodded by international agencies isn’t stellar. So, the cynics expect to continue the long wait. But then, the Government may just surprise us. Which this newspaper would welcome.