Lawyer Monthly Magazine - March 2020 Edition

Unexplained Wealth Orders: Is the Refusal of Zamira Hajiyeva’s Appeal Really Good News for the National Crime Agency? John Binns and Michael Drury of the Business Crime team at BCL Solicitors analyse the consequences of the Court of Appeal ruling. Enthusiasts for the UK’s still relatively new system of Unexplained Wealth Orders (UWOs) are cheering the recent victory of the National Crime Agency (NCA) against Mrs Zamira Hajiyeva in the Court of Appeal. Certainly, the decision has implications for the use of UWOs, which until now have remained relatively rare: by all accounts, the NCA and other law enforcement authorities have been stacking up potential UWO applications while awaiting Mrs Hajiyeva’s appeal, which was granted permission precisely because it was felt useful to have a steer from the Court of Appeal on some of the knottier questions posed by the legislation. There are, however, at least two reasons why the rest of us should be a little more circumspect about cheering this particular result. The first is that, in the scheme of potential targets of the UWO scheme, Mrs Hajiyeva, who famously managed to spend £16m at Harrods and buy an expensive mansion nearby despite her husband’s job as head of the Azeri state bank, is one of the more obvious, and the Court of Appeal was not, therefore, engaging with particularly difficult questions. On Politically Exposed Persons (PEPs), for instance, we now know that the question of whether an enterprise is state-owned is to be decided without reference to local (in this case Azeri) law, and the inference from a stake of over 50% is that the state had ultimate control over it. We also know that where an individual such as Mr Hajiyev is shown to have had prominent public functions, there is no need to prove specifically that he was entrusted with them by a state. We also have clear confirmation that the UWO provisions are intended to abrogate spousal privilege, though a real risk to a 36 WWW.LAWYER-MONTHLY.COM | MAR 2020