Unexplained wealth orders : a way forward?

Abstract

An unexplained wealth order is a relatively novel, investigative tool in the law’s anti-crime toolbox, which is designed to clamp down on criminally tainted assets. The underlying premise of unexplained wealth orders is that where one lives beyond one’s means, where one’s lawfully known sources of income is incommensurate to one’s wealth, then that fact alone is suggestive – though not necessarily demonstrative – of unlawful activity. Significantly, an unexplained wealth order does not require that a link be proved between the legally questionable wealth and the commission of a particular criminal offence; and it is for the property owner, faced with suspicions of involvement in unlawful activity, to prove that his wealth has been lawfully acquired. These elements are what make unexplained wealth orders equal parts effective and controversial. While human rights implications surrounding unexplained wealth orders, such as those relating to the presumption of innocence and the right to private property, are well acknowledged, they are largely considered a proportionate response to the increasingly complex nature of modern-day crime and the threat that this poses to society. Unexplained wealth law has been introduced in various countries, such as Ireland, Australia and (more recently) the United Kingdom. The recent Maltese Proceeds of Crime Act 2021, though in itself a laudable piece of legislation, makes no mention of unexplained wealth orders, which, it is submitted, are a missing piece of the jigsaw and without which the said Act is arguably blunted. The implementation of the unexplained wealth regime in Malta, together with an operational Asset Recovery Bureau, properly resourced and expertly staffed, would indeed be a step in the right direction and improve upon the hitherto substandard confiscation framework.