- The State decides not to institute criminal proceedings;
- There is a prosecution but it results in acquittals; or
- There are convictions but a confiscation order is not made or is in a low sum.
At the end of 2018, there was much press coverage of the visit of External Relations Minister Ian Gorst to Kenya to sign an asset-sharing agreement for £3 million. The money was confiscated following criminal proceedings in the Royal Court in Jersey in which a Jersey company entered guilty pleas to four counts of money laundering by holding funds derived from criminal conduct. The conduct in question was that of Samuel Gichuru, former chief executive of the Kenya Power and Lighting Company, the Kenyan government’s electricity utility company. Between 1999 and 2001 he accepted bribes from a number of foreign engineering and energy businesses in exchange for the award of valuable contracts. The money was paid into the Jersey-registered company, Windward Trading Limited. The asset-sharing agreement will allow the £3 million in confiscated funds to be returned to the people of Kenya. This successful outcome demonstrates how criminal prosecutions can sometimes in the right case be effective in cross-border asset recovery and the repatriation of stolen funds. It is often the position that civil proceedings offer much the best prospect of achieving results in cross-border asset recovery cases. The higher standard of proof, budgetary constraints, and political and other considerations can make pursuing recovery via criminal proceedings a less promising option. However, the most careful analysis needs to be given to each case and often each branch of a case in determining whether to adopt civil, criminal proceedings or both. The Gichuru case is an excellent example of the factors which frequently militate against using the criminal process not being barriers to the ultimate goal of recovery of assets. For a country, institution or individual seeking to recover stolen funds, the criminal route is cost effective because the state agencies in the jurisdiction where the funds are located carry out the work, but the risks in pursuing this route alone are that: