Proving the Dough: National Crime Agency v Baker & Ors
| Published date | 01 January 2021 |
| Author | Áine Clancy |
| Date | 01 January 2021 |
| DOI | http://doi.org/10.1111/1468-2230.12589 |
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Modern Law Review
DOI:10.1111/1468-2230.12589
Proving the Dough: National Crime Agency v Baker & Ors
Áine Clancy∗
This note examines the High Court’s recent decision in National Crime Agency vBaker to dis-
charge three unexplained wealth orders (UWOs) relating to properties in London. The UWOs
were originally granted on the basis that the properties were suspected of constituting ‘recover-
able property’ for the purposes of the Proceeds of Crime Act 2002.The decision is the rst to
overturn an UWO.Given the few UWO applications to date,it is an important contr ibution to
the available jurisprudence on the mechanism. This comment examines the presiding judge’s
statements on the evidential thresholds to be met in raising a presumption that property con-
stitutes the proceeds of crime and looks at the decision’s emphasis on enforcement authorities’
obligations to meet proportionality requirements.It reviews the Court’s discussion of complex
property ownership structures. It concludes that the judgment raises issues which enforcement
authorities may nd challenging in seeking to use UWOs in future investigations.
INTRODUCTION
Where individuals suspected of involvement in serious crime or politically ex-
posed persons (PEPs) hold assets which appear disproportionate to their known
legitimate income, a relevant enforcement authority (namely: the National
Crime Agency (NCA), HMRC, the Financial Conduct Author ity, the DPP,
or the Director of the Serious Fraud Oce1) may apply to the High Court for
Unexplained Wealth Orders (UWOs) requiring those individuals to explain
how they obtained those assets.2In practical terms, UWOs impose a burden
on respondents where there is an apparent disconnect between their lifestyles
and their sources of wealth to establish that their assets were licitly acquired,
often in circumstances where the relevant information may be only within the
asset-holder’s knowledge.3The order is used as a tool to assist in gathering ev-
idence as part of, or to assist in determining whether to initiate, civil recovery
∗PhD candidate in law,Queen Mar y Universityof London. The author would like to thank Professor
Peter Alldridge for his comments on an earlier draft, and the anonymous reviewer for providing
valuable feedback.
1 Proceeds of Crime Act 2002 (POCA),s 362A(7).
2 Provided for pursuant to POCA,ss 362A-362T,as introduced pursuant to amendments made by
the Criminal Finances Act 2017.
3 Home Oce, ‘Code of Practice issued under Section 377 of the Proceeds of Crime Act 2002 –
Investigations’ (January 2018) (Code of Practice) at [170]: UWOs provide an alter native means
of ‘obtaining information and allowing for the consideration of action against persons and their
property about whom little information is available’.
© 2020 The Author.The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2021) 84(1) MLR 168–180
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium,provided the original work is properly cited.
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