On 10 January, Interpol issued the first-ever silver notice. It is the latest addition to Interpol’s colour-coded notice system (the best known being the red notice for persons wanted for arrest and extradition).
A silver notice is a request to locate, identify and/or monitor assets alleged to be the proceeds of crime. Unlike some red notices, it will not be published on Interpol’s website.
Silver notices are intended to make it quicker and easier for countries to cooperate in tracing, freezing and, ultimately, confiscating dirty money. They are being trialled in a pilot until the end of the year.
However, on closer inspection of the legal framework governing their use, silver notices appear limited in ambition. They may be vulnerable to the same abuse and lack of safeguards as red notices.
What do they achieve?
Silver notices allow ‘non-coercive measures, notably requesting and sharing information with a view to facilitating follow-up bilateral cooperation’ between countries. Hard-edged measures such as restraint and confiscation will still need to follow the slow, cumbersome formal mutual legal assistance procedures.
There are already well-established arrangements for the international exchange of financial intelligence on the suspected proceeds of crime, such as the 177-strong Egmont Group of national financial intelligence units (FIUs).
A silver notice appears to be slightly wider than an FIU request, in that it asks countries to proactively trace assets rather than only provide pre-existing intelligence.
However, they are much narrower in scope where it really matters: tracing the proceeds of crime at the earliest possible stage, when potential criminal activity is first detected and the identity of the perpetrator and the specific offence may not be known.
This is because a silver notice can only be issued when the assets can be shown to be connected to ‘a natural person subject to a criminal investigation’.
Given the speed with which money can be moved and hidden, by the time an investigation has been launched against a specific defendant, it is normally too late. This is a serious gap.
A country that identifies assets subject to a silver notice is obliged only to ‘immediately inform’ the requested country of that fact and provide information on how to request further action, such as restraint or confiscation via non-Interpol channels. Even this limited response is ‘subject to limitations deriving from national law and applicable international obligations’.
In short, requested countries are not obliged to do anything more than their existing laws already allow. Silver notices may encourage countries to exchange information more readily once criminal assets have been identified but, given the requirement to have already launched an investigation against a named defendant, they will either be too late or simply duplicate existing information-sharing channels in most cases.
Are they vulnerable to abuse?
During the pilot phase, each silver notice will be reviewed by Interpol’s general secretariat and will be subject to the same rules as other notices, including that they are not used for political or improper purposes. The rules are enforced by the Commission for the Control of Interpol’s Files (CCF), a notionally independent review body.
However, those same rules have not prevented the abuse of the red notice system, so this is scant comfort to practitioners and potential targets of politically motivated investigations.
Which safeguards are offered?
Some safeguards will be offered by the obligation on requesting countries to provide ‘judicial data’ justifying the notice, including a case summary establishing the link between the crime and the assets, and a ‘valid judicial decision’ that the person’s assets are already subject to some form of domestic restraint. If the underlying investigation is justified by the evidence, then swift cooperation in locating the proceeds of crime should be encouraged.
However, there is no provision for notice to the defence, and the purpose of the silver notice is fulfilled once the information has been exchanged. So even if there are valid grounds to challenge it, the damage will have been done before the subject of the silver notice knows what has happened. Therefore, the usual remedies against improper use of Interpol notices, such as requesting the CCF to suspend or delete the information before execution, or resisting enforcement in domestic courts, may be pointless.
Given the lack of opportunity for external scrutiny and challenge, the pressure will be on Interpol to ensure robust oversight during the pilot phase and to publish transparent results to determine not just whether silver notices have any use, but whether they are being used properly.
Nick Vamos is a partner and head of business crime at Peters & Peters, London
No comments yet