Successful asset recovery involves careful gathering of financial as well as personal information. Getting this information is continuously becoming difficult because individuals are crafting ways of benefitting from rules that protect citizen information to hide their criminal proceeds from financial investigators. This paper summarizes the article titled “ Winning the information wars: Collecting, sharing and analysing information in asset recovery investigations.” According to the author, the process of financial investigation involves analyzing such information as taxation records and bank records while seeking to demonstrate money movements and relevant information as regards lifestyle (Kennedy, 2007). Financial investigations take two forms. Firstly, the investigators try to find out the particular location of the funds. Secondly, the net worth or all the property owned by an individual is also established . The work of the investigator is to share the pieces of information gathered to help analysts come up with meaningful patterns and connections upon which they can draw a conclusion.
There are a number of legal barriers that hinder the transmission of information. Therefore, while investigators seek to obtain information, the information must be acquired in a lawful manner thus the need to analyze the legal barriers. One of the legal obstacles to information gathering is the duty of confidence, which is a Common-Law concept. It arises when an individual provides information to another with the expectation that the information will only be used or divulged in accordance with the individuals’ wishes. However, documents such as those held by a legal adviser, solicitor’s attendance notes, time sheets and fee records may not be covered by privilege. Another legal challenge to asset recovery is The Human Rights Act 1998. The act provides that establishments are obliged to work in a way that is attuned with an individual’s rights under the European Convention on Human Rights. This Act significantly impacts how public authorities use the information in their possession (Kennedy, 2007). Another legal hurdle is the Data Protection Act 1998 which controls treating and handling of personal data both in the private and public sectors. This act aims to protect individuals’ rights to privacy and also guarantee access to information held about them. Another legal hurdle is the issues of vires . According to well-established values of legislative law; any public authority must possess the power to carry out what it anticipates to do and may only act within the law. If not, any action taken will be ultra vires and void.
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Kennedy (2007) cites that the chief mechanism for obtaining information in asset recovery investigations is through the use of investigative court orders. Quite often, private sector companies are unwilling, and sometimes legally unable, to reveal information regarding their customers without a court order so as to protect the client’s confidentiality. Some of the orders issued by courts include production orders, search warrants, customer information orders , account monitoring orders. One area where the legal rules on information sharing are scarce is international sharing . Therefore, arrangements for this have to be active and efficient. A new global structure needs to be established to allow information-sharing aid to be given for non-conviction based asset recovery reports.
Asset recovery investigation involves the obtaining and analysis of relevant financial information held in the public and private sectors of a government. The key to modernizing the government is data sharing, and therefore it is important to have the necessary tools to attempt to do so (Kennedy, 2007). Insufficient information-gathering powers will only result in ineffective recovery of criminal proceeds. The broadening of financial investigation powers is an answer to the money laundering techniques increasingly being used by criminals. Kennedy (2007) concludes that for asset recovery to be successful, the investigators have to be able to collect, connect and share the dots.
References
Kennedy, A. (2007). Winning the information wars: Collecting, sharing and analysing information in asset recovery investigations. Journal of Financial Crime , 14 (4), 372-404.
