UK “Magnitsky provisions” – time for a change?

Since the events that unfolded in Salisbury last week, there have been calls to introduce into UK law a version of the so-called “Magnitsky Act” that was enacted in the US in 2012 following the death in custody in Russia of the lawyer Sergei Magnitsky. Part 1, Chapter 3 of the Criminal Finances Act 2017 creates provisions that at the time were referred to as “the Magnitsky provisions”, so there seems to be some misunderstanding as to what powers are already available to enforcement authorities, such as the National Crime Agency.  In Parliament, the Security Minister stated that these provisions were intended to have a deterrent effect and to demonstrate that the UK is a hostile environment for those who commit human rights abuses and violations abroad.  The purpose of this post is to examine these provisions with the aim of setting out the powers they confer upon enforcement authorities.

Part 1, Chapter 3 of the Criminal Finances Act 2017 amends the Proceeds of Crime Act 2002 (“POCA”) so that the definition of “unlawful conduct” now includes conduct which:

1. occurs in a country or territory outside the UK;
2. constitutes, or is connected with, the commission of a gross human rights abuse or violation; and
3. if it occurred in a part of the UK, would be an offence triable on indictment only or is an either way offence.

If these conditions are satisfied, then recovery proceedings can be commenced. Crucially, there is no need for the conduct to be a criminal offence in the country in which it occurred, but it must be an offence in the UK. This is significant as generally speaking property is only recoverable if the principle of dual criminality is satisfied.

By virtue of s.241A of POCA, conduct constitutes the commission of a gross human rights abuse or violation if each of the following three conditions is satisfied:

1. the conduct constitutes the torture of a person who has sought to expose illegal activity carried out by a public official or a person acting in an official capacity or who has sought to obtain, exercise, defend or promote human rights and fundamental freedoms; or the conduct otherwise involves the cruel, inhuman or degrading treatment or punishment of such a person;
2. the conduct is carried out in consequence of that person having sought to do something falling within (1); and
3. the conduct is carried out by a public official, or a person acting in an official capacity, in the performance or purported performance of his or her official duties, or at the instigation or with the consent or acquiescence of a public official or a person acting in an official capacity who in instigating the conduct, or in consenting to or acquiescing in it, is acting in the performance or purported performance of his or her official duties.

These new provisions are intended to be broad in scope. That much is evident from the fact that by virtue of s.241A(5)(a)-(d), conduct is connected with the commission of a gross human rights abuse or violation if it is conduct that involves:

1. acting as an agent for another in connection with activities relating to conduct constituting the commission of a gross human rights abuse or violation;
2. directing, or sponsoring such activities;
3. profiting from such activities; or
4. materially assisting such activities.

At first glance, these provisions appear to be robust.  Their potential effectiveness is undermined, however, by the fact that they only allow for the recovery of property that is obtained as a result of conduct which constitutes a gross human rights abuse or violation.  Proving this causal link could be very difficult indeed.  Even if the enforcement authority is able to establish that someone has committed gross human rights abuses or violations, proving that the house they own in Belgravia was obtained as a result of that conduct could prove impossible.

According to news reports, MPs are campaigning for a “Magnitsky amendment” to be introduced into the Sanctions and Anti-Money Laundering Bill that is currently progressing through Parliament.  It is unclear from news reports what form such an amendment would take and what exactly it would be intended to achieve.  What is clear is that if any new law is to be effective, it must be drafted very differently from the “Magnitsky provisions” that are currently in force.

Karl Laird is a Fixed-term Fellow and Tutor in Law at St Hilda’s College, Oxford and a future 6KBW pupil.