Editorial: On effectively combating corruption

The spectre of corruption looms large in the partisan political sphere. It appears that many view it as a potent weapon to accuse one’s opponent of corruption, as any viewer of the advertisements currently being broadcast in anticipation of the US mid-term elections in November would have observed.

Our own local circumstance is similar, though not identical, and the issue has firmly entered the into public domain with the ongoing hearings on the proposed Integrity in Public Life Act and with the charges laid against a former Cabinet Minister in the US.

The intended consequence of an act of corruption or, indeed, any criminality is ordinarily the acquisition of monetary proceeds to be converted into property of some kind or another. The notion of preventing the offender from benefiting from criminal conduct already finds example in legislation such as the Anti-money Laundering statute of 2011 and the Proceeds of Crime Act, Cap 143, that serve to restrain the culprit from disguising the criminal origin of the proceeds used and from enjoying their fruit respectively.

Both of these strategies however require the state to establish that the defendant has committed some criminal offence from whence the impugned proceeds emanate. There have been official noises over the years that Barbados should enact what is essentially civil forfeiture legislation.

This enables the state to seize property that it reasonably believes to have been acquired with the proceeds of criminal activity. The difference here, however, is that there is no requirement to establish the commission of a criminal offence and the burden of establishing that the property was acquired by lawful means lies on the defendant who must do so on a balance of probabilities or show that this was more likely than not.

We were reminded of this by the recent news report out of the UK that the wife of an ex-banker from Azerbaijan must now provide the National Crime Agency under an unexplained wealth order [UWO] with a clear account of how she and her husband could afford to buy their large home in the exclusive London neighbourhood of Knightsbridge.

The BBC describes the UWO as a power that has been designed to target suspected corrupt foreign officials or politically exposed persons who may have laundered stolen money through the UK. It need not be so restricted however and may encompass any suspicious acquisition beyond the ostensible means of the individual.

According to the BBC report “During her unsuccessful challenge to the Unexplained Wealth Order, Mrs Hajiyeva said her husband was a legitimate businessman who had become independently wealthy thanks to a string of successful businesses, before becoming a chairman at the bank.

But the National Crime Agency told the court that Mr Hajiyev had been a state employee between 1993 and 2015 - and as an official he would not have had the means to amass the wealth investigators have traced.”

It should be noted that similar legislation exists in the region in the Dominica Proceeds of Crime (Amendment) Act and the Antigua and Barbuda Money Laundering Prevention Act and has been upheld as valid in 2017 by the Eastern Caribbean Court of Appeal. There the Court adopted the argument that civil forfeiture is separate and distinct from criminal confiscation, the latter requiring a conviction in a criminal court. Under the civil forfeiture regime, there is no criminal charge, property may be forfeited if the court is satisfied on the balance of probabilities that a defendant’s property was obtained from money laundering activity. The Court of Appeal held that civil asset recovery does not therefore infringe protections under sections 15(2)(a) of the Constitution concerning the presumption of innocence and 15(5) of the Constitution concerning double jeopardy.

Barbados may find this a useful device.