Jonathan Spicer
Head, Legal ICAR
Jonathan Spicer is Head of Legal at the Basel Institute’s International Centre for Asset Recovery. He was promoted in 2024, having served as Senior Specialist, Asset Recovery from October 2017. He is a barrister specialised in asset recovery, financial crime and international co-operation.
Between 1997 and 2014, Jonathan was at the independent Bar prosecuting and defending in cases involving serious and organised crime, fraud, money laundering and the proceeds of crime. In 2011 he was recognised in the Legal 500 as being a leading junior in criminal work that “calmly and patiently deals with substantial matters clearly and with an eye for detail”. He was appointed by the Crown Prosecution Service as a specialist advocate in serious and organised crime, fraud and proceeds of crime at the highest level.
He joined the Crown Prosecution Service as a Specialist Prosecutor and Crown Advocate in 2014. Working in the CPS International Justice and Organised Crime Division, he pioneered a new roving role in international asset recovery, primarily focussed on European jurisdictions. Within this role he provided advice to domestic and overseas prosecutors on securing the freezing of criminal assets and subsequent confiscation in international cases. Having developed networks of judicial, prosecutorial and law enforcement contacts across Europe and through the promotion of using video conferencing technology, more assets were recovered from overseas and an increase in requests for assistance from overseas authorities.
Jonathan represented the UK and the CPS at international conferences speaking on international cooperation and asset recovery, as well as attending EU ARO and CARIN steering group meetings. His experience includes cases involving assets frozen under the EU misappropriations sanctions and he latterly covered the CPS liaison prosecutor role for the United Arab Emirates.
Jonathan is a contributing editor to a leading textbook on consumer and trading standards law, where he edits the chapter on criminal enforcement including asset recovery.
Publications
Targeting Profit: Non-Conviction Based Forfeiture in Environmental Crime
Environmental criminals and their corrupt facilitators get rich by destroying our planet and its natural resources. This publication for the Targeting Natural Resource Corruption (TNRC) project explains how and why to confiscate their illicit assets – with or without a criminal conviction.
The introductory overview of asset recovery tools to tackle environmental crime was a collaboration between the Basel Institute’s Green Corruption programme and International Centre for Asset Recovery. It is part of a wider research collaboration between the Basel Institute and the TNRC project consortium.
Takeaways
- Using legal powers to confiscate assets can be an important element of enforcement against environmental crime because it targets the profit motive for environmental crime and disrupts the financing of further criminal activity.
- Confiscating illicit assets does not require an individual to be convicted. Many countries have judicial procedures to confiscate assets derived from criminal activity without the need for a specific criminal conviction.
- This procedure, referred to as non-conviction based forfeiture (NCBF), can be an effective way to target the profits from environmental crimes, where corruption and money laundering are frequently significant components.
- Understanding and applying anti-corruption and anti-money laundering laws in their country is vital for enforcement practitioners to be able to pursue criminals’ assets more effectively. Early coordination with anti-corruption and financial intelligence authorities will assist in this.
- NCBF is no different to the process of criminal investigation and prosecution, in that it depends on the degree to which good governance, strong and accountable institutions, and a well-functioning justice system are present in a country. Prior to engaging NCBF for environmental corruption cases, risks should be assessed in a similar manner to the risks of existing law enforcement and prosecution practices in a given country.
About the TNRC project
The TNRC project seeks to improve biodiversity conservation outcomes by helping practitioners to address the threats posed by corruption to wildlife, fisheries and forests. TNRC harnesses existing knowledge, generates new evidence, and supports innovative policy and practice for more effective anti-corruption programming on the ground.
A USAID-funded project, TNRC is implemented by a consortium of leading organizations in anti-corruption, natural resource management, and conservation: World Wildlife Fund (WWF), the U4 Anti-Corruption Resource Centre at the Chr. Michelsen Institute, TRAFFIC, and the Terrorism, Transnational Crime and Corruption Center (TraCCC) at George Mason University.
News and blog
Three ways to improve international cooperation in asset recovery
Grand corruption and asset recovery cases are generally transnational and require both informal and formal international cooperation at every stage. Yet despite laudable efforts to smoothen international cooperation, there are still many obstacles to overcome. Jonathan Spicer of our International Centre for Asset Recovery spoke at the 2024 Thematic Discussions on the implementation of the Kyoto Declaration of the Commission on Crime Prevention and Criminal Justice CCPCJ , which took place at the UNODC headquarters in Vienna, Austria, from 2–4 December 2024. His short intervention below sets out three tangible actions that would improve the processes of international cooperation in cross-border asset recovery cases. By taking these steps, we would hope to see a significant increase in the amount of illicit financial flows detected, intercepted, confiscated and returned. Excellencies, Distinguished panellists and experts, thank you for inviting me to speak at this Thematic Discussion. Part of the work of the Basel Institute on Governance, through our International Centre for Asset Recovery, is to provide our partner countries with technical assistance as regards international cooperation both through formal and informal routes. From this we have experienced some of the best and some of the worst examples of attempts at international cooperation. 1\. Improve the quality of mutual legal assistance requests Paragraph 61 of the Kyoto Declaration calls for increasing the efficiency and effectiveness of central authorities. One way of increasing the effectiveness of central authorities could be to ask them to act as gatekeepers for outgoing requests and as a form of quality control. What do I mean by this? From my experience, quite often requests are written by investigators or prosecutors with little or no experience of international cooperation. The requests then pass through central authorities without anybody reviewing for quality. By quality, I mean that the request is reviewed to ensure that it is easily understood both in terms of the facts underlying the request and what is actually being asked for. Many requests simply contain cut and paste passages from legal documents such as long form indictments, which are far too detailed. By the time the request has been translated, they become incomprehensible to the receiving country. Central authorities could play a pivotal role in reviewing outgoing requests and in educating and advising domestic prosecutors and investigators on best practice in preparing requests. But quite often we do not see this. The point here is simple: well-written requests get answered, bad ones do not. In addition, countries sending requests should look to their own legislation in terms of making it easier to receive evidence from another state, for example through secure email or cloud-based file systems rather than through diplomatic channels for example. 2\. Reconsider dual criminality Even a well-written mutual legal assistance request can sometimes meet with a refusal. Often this is on the grounds of dual criminality: that the requesting country does not have the same offence which is being prosecuted or that it does not recognise the procedure which is being adopted. A common example is forms of non-conviction based forfeiture. Dual criminality is a basic tenet of international cooperation, but perhaps it is time to re-open the discussion as to when and how it should apply. Many countries no longer take a literalist approach to the label given to a crime and instead look at the underlying criminal behaviour. However, there are still offences which fall foul of dual criminality. For example, Article 20 of the United Nations Convention against Corruption introduced the offence of illicit enrichment, which is an effective tool in tackling corruption where the facts of the illicitly obtained wealth cannot be easily established. Quite often, requests for banking information, details on companies etc. will be refused as the country receiving the request has not adopted illicit enrichment legislation. What are the real objections to providing this sort of information, given that this is an offence which appears in UNCAC? 3\. Innovation in asset recovery: corporate structures and trusts The last point that I would like to make relates to asset recovery. As we have seen from investigations such as the Panama Papers and others, criminals hide their wealth in corporate structures, often with nominee shareholders and directors or behind trusts. Often asset recovery focuses on the jurisdiction where the asset is held to secure the asset, but more needs to be made of the legal obligations that arise from trusts and companies as a means of realising assets. In a recent case also discussed here , Jersey gave effect to an Indonesian confiscation order where assets were held in a trust based in Jersey. The Jersey trust held shares in a British Virgin Islands BVI company which owned property in Singapore. By obtaining a freezing order in Jersey over the trust assets, the Jersey authorities stood in the position of the trustee and were able to effect the sale of the assets of the BVI company, being the Singapore property. More needs to be made of using these structures against the criminals. It can be particularly helpful where assets are held in countries which do not provide assistance. Learn more See all presentations and statements from the CCPCJ event and the full session recording. We were invited to take part in the discussions in our capacity as a member of the Institutes of the UN Crime Prevention and Criminal Justice Programme Network PNI .
International cooperation in illicit enrichment cases – scope for reform?
Why is international cooperation in asset recovery cases based on illicit enrichment/unexplained wealth laws a particularly challenging issue? This is a question we have received from many corners of the world following our publication last year of an open-access book on Illicit Enrichment: A Guide to Laws Targeting Unexplained Wealth . In this annexed contribution to the book, Jonathan Spicer explains why international cooperation in illicit enrichment cases can come up against barriers – and asks whether there is scope for reform. Jonathan is Senior Asset Recovery Specialist at the Basel Institute’s International Centre for Asset Recovery. He worked closely with the book’s author, Andrew Dornbierer, during the book’s development and editing. Illicit Enrichment is freely available to read and download at illicitenrichment.org. A Spanish version of the book is available here: Enriquecimiento ilícito: Una guía sobre las leyes que abordan los activos de procedencia inexplicable. Why international cooperation is needed Criminal activity is not confined to national borders and illicit enrichment investigations will often have an international element. Investigators may seek information or evidence from other jurisdictions which relates to the suspected criminal activity that has led to the illicit enrichment or that relates to the possession, concealment or use of illicit assets. For example, a public official may be suspected of using a foreign corporate structure to hold illicit funds in bank accounts in another jurisdiction. In order to progress the investigation and potentially freeze the funds , prosecutors will need to use mutual legal assistance MLA to obtain evidence from the respective jurisdictions where the foreign company is registered and where the bank account is located. Alternatively, it may be known that the child of a public official attends a renowned and expensive fee-paying school overseas. Investigators would be seeking information not only on the amount of fees that have been paid, but also on the source and manner of the payments. The school may voluntarily provide the information on the payment of the fees, but if it does not a court order will be necessary. Accordingly, insofar as this information is not publicly available, assistance will be required from the authorities in the jurisdictions where intelligence or evidence is held. Whether that jurisdiction is able to assist will usually depend upon its domestic law and also whether it has either illicit enrichment as an offence or civil procedure. Formal and informal cooperation channels International cooperation exists at both informal and formal levels. Informal international cooperation is usually seen as cooperation at a law enforcement level or as police-to-police assistance. Often this will amount to intelligence sharing for example between financial intelligence units or it may involve assistance which can be provided without the need for coercive measures such as obtaining the voluntary assistance of the school in the example above . As these enquiries may be made at an early stage where the investigation is not limited to illicit enrichment but also looking at underlying criminality, there are likely to be fewer difficulties in obtaining assistance. Formal means of international cooperation, known as MLA, is where a state requests another state to apply its laws to obtain evidence for use in the proceedings being brought by the requesting state. This cooperation usually requires the use of coercive measures by the requested state, for example searches of properties, interviewing of witnesses or production of documents. This formal means of cooperation is usually based on multilateral treaties, bilateral treaties or other forms of state to state agreements. In terms of illicit enrichment proceedings, MLA may be required to obtain evidence during the investigation stage, for example bank statements, or may be required to freeze assets or to enforce a final order for confiscation. Dual criminality – an obstacle to international cooperation Under the dual criminality principle, States will only provide MLA in criminal matters if the offence being investigated in the requesting State is also an offence in the State being asked to provide assistance. The application of this principle by States which do not recognise an offence of illicit enrichment can often be an obstacle to international cooperation in illicit enrichment investigations. The promotion of the criminalisation of illicit enrichment as a measure to tackle corruption is seen within UNCAC Article 20 as well as other regional treaties such as IACAC Article IX or AUCPCC Article 8 . However the introduction of illicit enrichment offences is not compulsory under these conventions. Under UNCAC and the AUCPCC, non-mandatory language permits States to decide themselves whether to implement illicit enrichment laws, while under the IACAC, States may also refrain from introducing an illicit enrichment offence if they deem that it will contravene existing constitutional rights. Providing assistance despite a lack of dual criminality While the IACAC and AUCPCC do not address the issue of dual criminality directly, they both have almost identical provisions on assistance to be provided in illicit enrichment investigations, by States Parties that do not introduce illicit enrichment offences. Under IACAC at Article IX paragraph 3: Any State Party that has not established illicit enrichment as an offense shall, insofar as its laws permit, provide assistance and cooperation with respect to this offense as provided in this Convention. The United States of America posted a reservation on its signing of the IACAC, where it stated that it understood it was not obligated to introduce an offence of illicit enrichment, as this would be inconsistent with the United States constitution and fundamental legal principles due to the burden of proof being placed on the defendant. However, the U.S. does make clear that as far as it is permitted by domestic law, it does intend to assist and cooperate with other States Parties investigating illicit enrichment. The provisions of UNCAC emphasise the need for cooperation and address dual criminality directly. Article 43 1 mandates State Parties to cooperate in criminal matters in accordance with Article 44 to 50 of the Convention, before addressing dual criminality in Article 43 2 : In matters of international cooperation, whenever dual criminality is considered a requirement, it shall be deemed fulfilled irrespective of whether the laws of the requested State Party place the offence within the same category of offence or denominate the offence by the same terminology as the requesting State Party, if the conduct underlying the offence for which assistance is sought is a criminal offence under the laws of both States Parties. Thus, States Parties receiving MLA requests cannot refuse on the basis of the name of the offence or the category under which it is deemed to fall, but must look at the actual conduct which constitutes the offence and consider whether this would amount to an offence under the domestic law. However, illicit enrichment offences, and particularly those that include a shifting of the burden of proof on to the defendant, do not compare easily with other types of offending. Nonetheless, Article 46, which addresses MLA, requires State Parties to “afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by \ the\ Convention”. Finally, Article 46 9 of UNCAC makes further provision on MLA and dual criminality: a A requested State Party, in responding to a request for assistance pursuant to this article in the absence of dual criminality, shall take into account the purposes of this Convention, as set forth in article 1; b States Parties may decline to render assistance pursuant to this article on the ground of absence of dual criminality. However, a requested State Party shall, where consistent with the basic concepts of its legal system, render assistance that does not involve coercive action. Such assistance may be refused when requests involve matters of a de minimis nature or matters for which the cooperation or assistance sought is available under other provisions of this Convention; c Each State Party may consider adopting such measures as may be necessary to enable it to provide a wider scope of assistance pursuant to this article in the absence of dual criminality. It can be said, therefore, that the framers of the Convention sought to encourage the provision of assistance by States Parties which had not criminalised offences under the Convention including illicit enrichment to those States Parties which have. Requested States need to consider the purposes of the Convention under Article 1 and to consider whether it is possible to provide assistance falling short of coercive measures under their domestic law. Pragmatic solutions to practical challenges Despite these provisions, the lack of dual criminality may still prevent jurisdictions from using coercive measures to provide assistance in illicit enrichment investigations / prosecutions. Where this is the case, requesting States may be able to obtain help by outlining the suspected criminal behaviour which is thought to have led to the illicit enrichment. When this behaviour is considered by the requested State, it may consider that it is possible to provide support in the obtaining of evidence using coercive measures. In this respect, requesting States should consider providing a wide explanation of the facts revealed by the investigation and the activities of the suspects, as this will potentially provide grounds for the requested State to assist. Caveat: the specialty principle There is a caveat that should be highlighted here, which is the rule of specialty. This is that the evidence which is obtained by the requested State should only be used for the investigation or proceedings stated in the request. Therefore, it would not be permitted to apply for evidence on the basis of a corruption investigation and then use it in a hitherto unmentioned prosecution for illicit enrichment. Permission has to be sought from the State which provided the evidence. Scope for reform? One of the reasons for the adoption by States of a criminal offence of illicit enrichment is due to the difficulties in investigating the underlying criminality, especially in cases of corruption. However, an offence of illicit enrichment has not been widely adopted in those States where the assets may be held or through which they have been laundered. Notwithstanding this, many of those States encourage the adoption of procedures which tackle corruption and may have some alternative form of addressing illicit wealth, for example non-conviction based forfeiture procedures incorporating unexplained wealth investigative orders such as the United Kingdom . This does not seem to be enough to overcome the issue of dual criminality for some jurisdictions. The question arises whether further steps should be taken internationally to promote a limited exception to the rule on dual criminality, which would apply to MLA requests to obtain evidence in illicit enrichment cases.
Managing seized and frozen assets – what are international norms?
As countries improve their capacity to recover assets derived from criminal activity, they are faced with a challenge: how should these assets be managed while the judicial process is underway? In brief: An integral part of the asset recovery process is the power to take interim precautionary measures to prevent assets being hidden, spent or sold by the suspects before the final order for confiscation is made by the court. This could involve a court or prosecutor ordering that assets be seized or frozen, placed in the custody of others to manage them, or left with the owner under strict conditions. Assets such as money in bank accounts can be frozen without the need for active management. Physical or moveable assets – houses, cars, yachts, etc. – often require more active intervention. These assets may require storage or regular maintenance to keep them in good condition and over the course of a criminal court process this can incur significant costs. Other assets may depreciate during the period of seizure and others may perish or degrade over time. In order for countries to meet the challenge of managing suspected illicit assets, it is necessary to have regard to international obligations and take account of guidance and best practice advice from international organisations. They then need to apply these lessons within their particular domestic context. Jonathan Spicer, Senior Asset Recovery Specialist at our International Centre for Asset Recovery ICAR addressed this topic at a meeting of the Global Forum on Illicit Financial Flows and Sustainable Development on 21–22 September. The Global Forum is an initiative of the German Federal Ministry for Economic Cooperation and Development BMZ and the Norwegian Foreign Ministry, organised by the Deutsche Gesellschaft für Internationale Zusammenarbeit GIZ . Studying international norms in asset management Speaking to representatives of European and Latin American asset management institutions, other international experts and civil society representatives, Jonathan outlined the key findings of a recent study on International Norms in Asset Management. This study, a collaboration between ICAR and GIZ, analysed relevant international standards and guidance on best practice in asset management and considered what international legal obligations apply. The final report will incorporate an analysis of the legal and institutional setup and policies for asset management in five selected countries and assess capabilities as set against the established benchmarks. This will help identify legal, institutional and capacity gaps in these countries and recommend areas for improvement. Guidance on asset management, but no cut-and-paste model There is no set model for the managing of assets in criminal or non-conviction based forfeiture cases. The implementation of a system for asset management will be determined by each State according to their own law. Differences between countries may arise due to: legal traditions; the capacity for recovering criminal assets; the scale and nature of assets being recovered; the resources available to manage seized assets. Yet countries do have obligations under international treaties, including the 2003 United Nations Convention against Corruption UNCAC , the 2005 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime, and 2014 Directive on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union. Guidelines also exist, such as the 2004 G8 Best Practice Principles on Tracing, Freezing and Confiscation of Assets, and the 2012 FATF Best Practices on Confiscation. Two key pieces of guidance are currently under review: the 2019 Revised Draft Non-Binding Guidelines on the Management of Frozen, Seized and Confiscated assets Conference of the States Parties to the UNCAC , and the Effective Management And Disposal of Seized and Confiscated Assets UNODC . Proposing international principles for asset management From these treaties and guidance, Jonathan explained, it is possible to derive a set of key international principles for asset management. Though still under discussion, these principles include the need for appropriate legislation, a clear asset management framework with defined roles and responsibilities between agencies as well as the engagement of skilled practitioners to manage assets. Of particular importance is the need for pre-planning prior to the seizure of assets and the need to be able to dispose of assets prior to final confiscation to realise the full value of assets and minimise costs. Asset management powers should be exercised transparently. This can be achieved by utilising IT systems to register and track seized assets through to final disposal, policies for efficient management and regular audits. A key theme in the discussion is how to dispose of assets after the final order: can the asset be re-used for social purposes or can the funds realised from the sale of assets be re-purposed to crime-fighting initiatives, for example? In this way, public confidence in criminal asset recovery will be increased as criminals will be seen as not being able to retain the profit from their crimes.
Mutual legal assistance in practice: presentation for Indonesian anti-corruption officials
At a virtual meeting attended by around 900 Indonesian anti-corruption professionals on 8 July, Senior Asset Recovery Specialist Jonathan Spicer gave practical advice on how to succeed in obtaining mutual legal assistance MLA in corruption and money laundering cases. MLA is a crucial form of international cooperation in cases of grand corruption and money laundering, which often involve multiple jurisdictions. Through MLA, investigators and prosecutors can obtain evidence located in another country by asking that country to use its law to seize the evidence. MLA is most commonly used where a prosecutor’s or court order is required to obtain the evidence, for example for the search of premises or the production of banking documents. Webinar participants included members of the Indonesian anti-corruption agency, the KPK, as well as police officers, financial intelligence analysts, judges and internal auditors. MLA in 45 minutes Among other practical advice, Joe covered: First steps, such as engaging early with overseas authorities, checking guidelines and making full use of informal methods of cooperation. Barriers to successful MLA, which include differences in legal traditions and confiscation systems, procedural variations and human rights/political considerations. Limits on the use of evidence provided through MLA. Delays, which are sometimes due to states giving individuals affected by a request the opportunity to object. Exploring dual criminality Joe went into detail on the issue of dual criminality, which is the requirement that the criminal activity being investigated or prosecuted is a criminal offence in both countries. Narrow interpretations of dual criminality have resulted in refusals to execute MLA requests. The progressive approach is for countries to consider whether the conduct being investigated would be a criminal offence in their jurisdiction even if labelled differently. This is why countries submitting MLA requests should give as clear as possible descriptions of the criminal activity that is being investigated, as a means of overcoming dual criminality. Advice based on on-the-ground experience MLA is a significant hurdle for many victim states seeking to recover stolen assets from foreign jurisdictions, and is an important part of ICAR's assistance to its partner countries. Based on his own and colleagues’ on-the-ground experiences, Joe's presentation included some practical tips on how to write MLA request and avoid common flaws. Forthcoming editions of our quick guide series will see Joe explaining about how MLA works, top tips on how to get your request accepted and executed, and looking at some of the alternatives to MLA that have been developed. See also Our recommendations to the UNGASS on enabling full cooperation in asset recovery matters, including a recommendation on dual criminality. Takeaways from the 2nd Africa-Europe Dialogue on Asset Recovery on 2019, including on cooperation and dual criminality.
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