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Thursday
Feb092017

Martin Kenney: Confiscating the proceeds of crime will make the Caribbean safer

One of the more interesting developments I discovered during the holiday period was a proposal from the Barbadian Chief Justice Minister, Sir Marston Gibson, to set up a regional asset recovery group in the Caribbean.

The initiative, labelled the Asset Recovery Interagency Network (ARIN), appears to be aimed at targeting criminals and their unexplained wealth. ARIN appears to closely mirror the UK’s Regional Asset Recovery Teams (RARTs), which have enjoyed significant success. Add to this the UK’s National Crime Agency remit for conducting civil asset forfeiture, and there is clearly some mileage in Sir Marston’s proposition.

We run a specialized law firm based in the British Virgin Islands (BVI), with investigative experience tackling with fraud/money laundering and asset recovery work, so it’s understandable why ourselves and colleagues in other offshore law firms, forensic accountancy firms and insolvency practitioners have taken an interest in this proposal.

One of my investigative team was a member of one of the aforementioned RARTs during his days as a British police detective. He thinks there is scope for the new plan to succeed, his only reservations being about jurisdictional and legislative issues across the region, plus the ability to freely exchange information about the targets.

As the saying goes, where there is a will there is a way, so protocols and Memoranda of Understanding will need to be drafted. In addition, we think that law enforcement agencies will need to consider using specialist private sector professionals, from a range of disciplines, as effective resources to bolster the initiative. For example, liquidators are already readily recognised in courts across the globe regardless of their jurisdictional origin and can prove a great tool in the armoury to locate hidden company assets.

To this end, I would suggest that those who will ultimately decide on and make up the ARIN team remit and structure to consider partnering with the private sector. Having civil tools at their disposal will help ensure ARIN’s success and enable it to establish itself quickly and effectively. A failure to deliver a new initiative promptly can see it attacked or waylaid by those with a political axe to grind. It is vital that the new ARIN team hits the ground running and has some early successes to insulate itself from such attack. The private sector can assist in this process.

Non-conviction confiscations (civil forfeitures) are nothing new. They are used far and wide (such as in the United States, Australia, New Zealand, and the UK). As Sir Marston has explained, the main drawback when seeking to carry out a post-conviction (criminal) confiscation is the requisite investigative resources needed to convict the criminal in the first place. Using non-conviction powers, the onus is placed squarely on the suspect to explain the derivation of his or her wealth; if they fail to show that it has been earned legitimately, then it could be vulnerable to forfeiture.

Unsurprisingly, there is a lot of resistance and adverse public opinion to be considered with the new ARIN proposal, especially with regard to human rights. But the alternative to civil forfeiture -- that is, leaving assets in place -- is unpalatable. Besides removing the incentive to commit crime, the impact of civil forfeitures can also remove some of the attraction of negative role models in a community. Forfeiture Orders will see criminals unable to touch their money when released from prison  Instead of youngsters watching criminal neighbours drive around in big cars and showing off conspicuous wealth, asset confiscation may see them returned to ‘everyday’ status.

In addition, the assets recovered can be used to fund further law enforcement efforts to investigate and prosecute these often-complex cases, and potentially also be diverted to be spent on community-based projects.

As an adopted resident of the Caribbean, I welcome the Chief Justice Minister’s initiative and believe that the Caribbean will be a safer place for it.

___

Martin Kenney is Managing Partner of Martin Kenney & Co., Solicitors, a specialist investigative and asset recovery practice based in the BVI and focused on multi-jurisdictional fraud and grand corruption cases www.martinkenney.com |@MKSolicitors.

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