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Corrupt elite are 'very litigious,' which complicates probes, says anti-graft police chief
04 June 2019 00:00
Corrupt public officials engaged in looting state assets are “very litigious” and investigators probing allegations of grand corruption can expect court battles “dealing with the best counsel money can buy,” the head of a global anticorruption investigations network told MLex.
In an interview, Rupert Broad, head of the International Anti-Corruption Coordination Centre, or IACCC, explained the difficulties and hurdles agencies face investigating and prosecuting international corruption cases.
Focus on grand corruption
The IACCC, which was officially launched in July 2017, focuses on investigating allegations of grand corruption, which can be broadly defined as the stealing and laundering of state assets by senior political officials.
Canada, New Zealand, Singapore, the UK and the US are full members of the IACCC, which is housed in the UK’s National Crime Agency in London. Switzerland and Germany, which helped design and establish the facility, are classed as "observers." Interpol also provides support to the unit.
Specifically, it aims to assist agencies, generally from developing countries, to identify assets and bank accounts where corrupt or stolen money has been hidden and then help them with the legal processes to obtain evidence needed to seize those assets or bring a prosecution against corrupt officials.
When the IACCC receives a request, investigators from each member country will comb through their respective databases, such as logs of suspicious financial transactions that are filed by banks to national police agencies, to see what information they can gather.
In the UK, some requests are put before the Joint Money Laundering Intelligence Taskforce — a public-private intelligence-sharing platform involving UK authorities and banks. “That’s a fantastic tool and has been very useful in a number of cases,” Broad said.
Once the police-to-police cooperation has taken place, and assets and evidence have been located, the IACCC will then look to help those same foreign agencies execute formal requests for search warrants or financial and banking records by way of a Mutual Legal Assistance, or MLA, request.
But formulating an MLA request — particularly one that involves search warrants — is filled with many potential legal tripwires. One missstep, and the hunt to obtain crucial evidence could be thwarted.
“The people that are involved in grand corruption, the corrupt elite, will be very litigious,” Broad said.
He said agencies are “very nervous to accept and act on a document that might be challenged, if it’s not absolutely clear what they are asking you to do.”
“If you are doing a warrant over here against these kinds of subjects, you should expect, and can expect, that as soon as you’ve completed it, the lawyers will be seeking to take you to court to claim that your warrant was unlawful in the first place, and that it should be overturned and you should have to give back or destroy all the evidence,” he said.
Broad said that UK authorities executing such requests can expect to find themselves in court “dealing with the best counsel that money can buy.”
“We have all suffered in the court from not paying enough attention to the details when it comes to the warrants,” he said.
“The reality is that a lot of day-to-day policing does not get challenged in the way it does when you are investigating corrupt elites who have access to significant funds and will ask their lawyers to look at every single element of the police investigation,” Broad said.
Avoiding MLA errors
One of the reasons the IACCC exists is to help avoid MLA requests being challenged in court, Broad said.
He explained that following the Arab spring in 2011, many countries from North Africa and the Middle East sought to recoup what they said were their stolen assets. But in those cases, many of the countries went straight to filing formal, high-level MLA requests before engaging in police-to-police cooperation.
Background police-to-police contact before filing an MLA request can help ensure that these requests are more targeted, have a greater chance of success and, most importantly, are free from errors.
It’s not the quickest of processes, however. MLA requests involve understanding the different laws in other jurisdictions and, sometimes, translating legal requests accurately into English. The IACCC also needs to conduct risk assessments to be sure that its intelligence won’t be leaked or misused once it is transferred to another jurisdiction.
“When you disseminate intelligence to a foreign country, you have to take great care so that nobody is harmed as a result,” he said. To do this, Broad said agencies need to build trust between them, and it is something he hopes the IACCC will help to cultivate.
Paying attention to all these risks and details takes time. But Broad said that carrying out police-to-police cooperation with the IACCC beforehand will help foreign investigating agencies understand “as quickly as possible” where they should be looking and what questions they should be asking in their legal requests for assistance.
Going after professional enablers
The so-called professional enablers of financial crimes such as grand corruption — lawyers, estate agents and accountants — are a new target for the UK’s National Crime Agency.
Broad said he hopes that the public will see such facilitators subjected to scrutiny in the coming months.
“Specifically, in the corruption space, I would be very disappointed if we haven’t put enablers before the court, say, within the next 12 months,” he said.
But, again, investigations into these enablers takes time, even when they are based in the UK.
“Their criminality might have involved setting up overseas companies to hide the assets and there may be emails or other messages that will prove or disprove…their involvement in the offences that are held overseas,” Broad said.
“You might get enough to suspect from the information that is held in the UK, but you won’t get enough to charge or convict unless you have got all the information from [overseas],” he added.
Almost two years after being established, what does success look like for the IACCC?
To date, it has “identified and disseminated intelligence on approximately £51 million” of suspicious assets and provided “vital intelligence” to nine grand corruption probes, which have seen two senior officials “directly arrested as a result of IACCC support,” according to the agency’s webpage.
In 2018, it received a total of 27 referrals, 14 of which came from Asian countries and 10 from African ones.
Asked to name names or mention specific cases, however, he said he couldn’t. Broad said this information needed to remain private in order to protect the foreign investigators and their agencies from potential attacks.
“It’s a very, very difficult challenge, and in some countries a life-threatening challenge, to investigate grand corruption. I know there have been many incidents around the world where investigators have been attacked and hurt and it can be very difficult for them in their environment to be seen to be actively investigating and receiving support from a country like ours,” Broad said. “We do tread carefully in this arena.”
However, he said he hopes that the IACCC’s assistance will lead to an uptick in MLA requests from developing countries.
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