The National Crime Agency (NCA) carries out large scale investigations involving cybercrime, international asset recovery, and serious cases of human and drug trafficking.
The NCA’s specialist officers have the resources and training to investigate complex allegations beyond the ability of most police forces. As the UK’s largest enforcement agency, it brings both criminal prosecutions and civil actions.
Any organisation or individual which finds itself involved in an NCA investigation – whether as potential suspect, or a witness – is advised to take the process seriously.
The NCA is able to bring proceedings in both the criminal and civil courts. It will often choose the latter if it considers a criminal conviction to be unfeasible or if, having achieved a criminal conviction, it needs to seek an asset confiscation order.
The agency may also choose to pursue suspects through the civil rather than criminal courts in international cases where cross-border criminal enforcement is considered prohibitively difficult.
The NCA is also able to make use of a wide range of civil asset recovery powers, many of which come under the Proceeds of Crime Act 2002. It is able to apply some of these powers at the earliest stages of an investigation, usually to gather evidence.
The NCA frequently uses the civil court system to obtain Civil Recovery Orders to seize assets. It often does this having first achieved a conviction in the criminal courts, although it can apply for the orders without having first achieved any criminal conviction.
The evidence required for the NCA to obtain a Civil Recovery Order is not high. All the agency must prove that it is ‘more likely than not’ that the assets in question were obtained through unlawful conduct. The NCA can also seek to recover the tax from income or assets obtained through crime under Part 6 of the Proceeds of Crime Act 2002.
However, the court will consider some exceptions when considering whether to make an order. These include where it would be unfair to make an order on the basis that the property has been obtained in good faith, or without knowing it was obtained through unlawful conduct. The question of unfairness is determined in the context of what is considered to be ‘just and equitable’, specifically, how much of a detriment the individual would suffer if recovery was ordered, and the degree to which the NCA have an interest in receiving the value of the property in question. Any defence to a civil recovery order requires strong evidence to be gathered and presented to the court.
The NCA is one of several enforcement agencies able to seek an Unexplained Wealth Order (“UWO”) to seize assets suspected of having been purchased with the proceeds of crime.
Like Civil Recovery Orders, UWOs are obtained in the civil courts and so do have a lower evidential standard than required in the criminal courts.
Introduced into law by the Criminal Finances Act 2017, UWOs require someone whom the NCA suspects is either a “Politically Exposed Person” (“PEP”) or is involved or connected to serious crime anywhere in the world to explain the source of wealth used to buy a particular asset.
If no explanation is provided, (or if a court finds that the given explanation is inadequate) then the asset is likely to be forfeited. The UK Government has said that UWOs may be used against a wide range of people.
The NCA can also use the Proceeds of Crime Act 2002 to apply for Account Freezing Orders to freeze cash in a bank or building society account. Having frozen the money, it is also able to obtain the money using a follow up Account Forfeiture Order.
A Magistrates’ Court needonly be persuaded that the NCA has reasonable grounds for suspecting the money in the account in question is either recoverable unlawfully obtained property or is recoverable property intended for use in unlawful conduct.
Importantly, in order to obtain the AFO, the NCA does need to prove a criminal offence has been committed. It merely needs to show reasonable grounds to suspect the money may have resulted from criminal behaviour, or that it may – in the future – be used for such behaviour.
AFOs can be applied to accounts held abroad and their subject does not need to be given prior notice of the application. This, coupled with the low evidential test, means that these draconian orders can come as a huge shock to those who suddenly find they can no longer access their assets. Robust legal representation is vital to ensure that the offence identified can be sufficiently linked to the funds held in the relevant accounts.
The NCA can obtain arrest warrants if they can show a court that there are reasonable grounds to suspect that that offences under the Proceeds of Crime Act 2002, the Terrorism Act 2000, the Bribery Act 2010 or the Theft Act 1968 amongst others, have been committed.
The test the court will apply is whether a disclosure notice has not been complied with, it is not practicable to give a disclosure notice, or giving a disclosure notice could seriously prejudice the investigation of the relevant offence.
Once granted, the NCA can use the warrant to enter properties, remove documents and electronic storage devices if they relate to the matters specified in the application. They may also take steps to preserve such documents.
The NCA is able to apply for search and seizure warrants in certain confiscation, civil recovery and money laundering proceedings. Here, the court will generally issue the warrant if a Production Order has not been complied with and there are reasonable grounds to believe the that the material sought is on the premises specified.
The NCA’s powers in relation to arrest and search and seizure warrants are wide ranging and can be extremely invasive. It is vital to ensure that they are being exercised proportionately and lawfully.
During a confiscation, money laundering or civil recovery investigation, the NCA may also seek a Production Order from accountants, solicitors or banks relating to the investigation subject under section 345 of the Proceeds of Crime Act 2002.
By obliging professionals to provide the NCA with information, Production Orders can create difficult conflicts of interest between the professional duties of such parties to their clients. There have been a number of cases where Production Orders, having been served, have been found to be unlawful.
Any professional who has been issued with a Production Order is strongly advised to take professional advice so that the tension between client confidentiality and the demands of such an order can be appropriately managed, along with any legally privileged material.
Such orders usually set tight deadlines for compliance, so it is vital to have a reactive and experienced legal team in place.
Hickman & Rose have significant experience in all matters involving the NCA. Our combination of criminal defence expertise and specialist financial crime knowledge enables us to provide clients will a full service in all NCA-related matters.
Hickman & Rose’s financial team has significant experience in dealing with all the civil law proceedings deployed by the NCA. The team are also well versed in negotiating the tactical considerations that apply when there is a parallel criminal investigation at play.
The firm has a strong network of trusted outside experts in forensic accounting, PR and reputation management and other related fields.