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Fraud Newsletter 10 - August 2017


CASES

Case Management: observations on working documents or summaries which states to: decide on a case by case basis; proper warnings to jury about lack of agreement (where appropriate); defence to be given equal opportunity; handle with care; reminder of facts given, and brief and neutral conclusions: Jurecka [2017] EWCA Crim 1007, [2017] 4 W.L.R. 205 §78-82.

Cash Seizures – forfeiture:  The only issue is whether s298 POCA conditions are satisfied. The lawfulness of seizure is irrelevant: Campbell v Bromley Magistrate’s Court [2017] EWCA Civ 1161, [2017] Crim. L.R. 987.
Corporate Veil and Prest v Petrodel Resources Ltd [2013] 2 AC 415. VAT fraud. Limited circumstances in which veil can be pierced does not apply where directors are charged as principals: Popat [2017] EWCA Crim 899 [Westlaw].

Disqualified director’s application to be involved in the management of a company pursuant to s17(2)(a) Company Directors Disqualification Act 1986 re criteria to be applied: Re Liberty Holdings Unlimited sub nom Keith Owen v Sec of Sate for BIS (No. 4001 of 2015), [2017] B.C.C. 298, ChD. (Westlaw).

Grey Market Goods: unauthorised use of trade marks (s92(1) Trade Marks Act 1994) applies to “grey market” goods (goods sold without the trademark proprietor’s consent) as well as to “true counterfeits”: R. v C. sub nom M and ors [2017] UKSC 58, [2017] 2 Cr. App. R. 30.

Hearsay differences: precisely formulated warning required in summing up: R. v. S [2016] EWCA 1908; [2018] 4 W.L.R. 24.

Insider Dealing:  insider trading and the illegality of contracts: Patel v Mirza [2016] UKSC 42, [2017] AC 467.

Letters of Request / self-incrimination (i) Letters of Request are confidential and not disclosable; (ii) privilege against self-incrimination does not apply to documents that exist independently and which the suspect was not compelled to make; iii) such documents may be obtained through compulsory powers e.g. under production order: R (on the application of River East Supplies Limited) v Crown Court at Nottingham [2017] EWHC 1942 (Admin), [2017] 2 Cr.App.R. 384(27).

LPP and WikiLeaks: restricted emails not in the public domain when disclosed by Wikileaks as a result of anonymous third party hack. Singapore High Court in its equitable jurisdiction can restrain their use in litigation: Wee Shuo Woon v HT SLR [2017] SGCA 23 CA (Singapore).

Money Laundering: example of irresistible inference that monies could only be derived from proceeds of crime: Otegbola [2017] EWCA Crim 1147.

Procedural failure – out of time: Prosecutors must serve notice of appeal against bail within 2 hours as per s1(7) Bail (Amendment) Act 1993. But here, failure to serve due to court and prison service. Defence judicial review challenge failed following Soneji [2006] 1AC 340 and R (Jeffrey) v Warwick Crown Court [[2002] EWHC 2469 (Admin): R (Cardin) v Birmingham Crown Court) [2017] EWHC 2101 (Admin), [2018] 1 Cr. App. R. 3.

Search Warrant: tax fraud investigation. HC injunction granted as Crown Court judge failed to give reasons for issue; failure of HMRC to provide relevant material, or even to summarise the emails forming the basis of suspicion; possible HMRC failure in duty of disclosure. Full hearing in 6 weeks’ time: R. (on the application of Newcastle United Football Club Ltd) v HMRC [2017] EWHC 2402.

Theft: withdrawal of cash from ATM can be theft of money where the card holder knows no money in the account, no overdraft facility and was dishonest: Chodorek v Poland [2017] EWHC 995 (Admin), [2018] 1 Cr. App. R. 6.


SENTENCING AND CONFISCATION

Conspiracy to defraud: 30kg horsemeat mixed with 53kg beef over 10 months. Convicted after trial – 4½ years (3½ years for co-D who pleaded): Sideras (Old Bailey) 31 Jul 17.

Fraud by false representation: attempt to withdraw £20k from company account. 7 months reduced to 4 months. Having assessed sentencing range (4 B-C), further reduction required to reflect limited intellect and possible vulnerability to desire to please others: Opuku [2017] EWCA Crim 1110, [2017] 2 Cr. App. R. (S.) 49 (Westlaw).

Money Laundering: 32 months for ML offences reduced to 24 months for significant regulatory breaches, but commercial interest was charged and no evidence of threats:  Dowse and White [2017] EWCA 598, [2017] 2 Cr. App. R. (S.) 26 (Westlaw).

Confiscation and Newton hearing: judge not entitled to make as preliminary finding following a Newton hearing that confiscation criminal lifestyle assumptions would be disproportionate where prosecution have requested a hearing: Parveaz [2017] EWCA Crim 873, [2017] Crim. L.R. 891 (Westlaw) Case disputed finding of growing cannabis plants for personal use. The functions of a Newton hearing and a POCA hearing are different. The decision whether or not to pursue confiscation proceedings is for the prosecution.

BILLS, STATUTES & STATUTORY INSTRUMENTS

EU Directive 2017/1371 to be signed. It directs member states to publish laws by 6 Jul 2019 which comply with minimum rules defining crimes and sanctions re fraud etc. against EU’s financial interest and budgets.

Terrorist confiscation and restraint: ATCSA 2001 (Anti-Terrorism, Crime and Security Act 2001) Sched1, Part 4. has been amended by the Criminal Finance Act 2017 Sched 5 para.16 the addition of Part 4D permitting the prosecution to appear in terrorist cash forfeiture proceedings (not yet in force).

CONSULTATIONS, GUIDANCE, CIRCULARS AND REPORTS

Anti-Money Laundering Supervisory Review Consultation closed on 17 Aug 17.

Body worn video footage: Guidance on viewing through DCS system.

CMA consultation launched on appropriate penalties under Competition Act 1998 to update current 2012 OFT Guidance, 2 Aug 17.

Identity Fraud: CIFAS Report: 23 Aug 17 now epidemic proportions – 500 new cases daily.

Public EU Consultation on improving cross-border access to electronic evidence in criminal matters, 8 Aug 2017, closes 27 Oct 17.

Money LaunderingGambling Commission Consultation on Guidance following MLR 2017 announced 31 Jul 17.

POCA / ATCSA Consultation on new codes of practice on powers to seize and detain property, POCA investigation powers, search powers to recover cash, powers to seize assets, prosecutors’ guidance, use of Criminal Finance Act powers, 31 Jul 17 –  deadline 25 Aug 17.

NEWS

Cyber-Security: Inadequate cyber-risk preparedness reported by DDCMS (Dept. for Digital, Culture, Media and Sports). DDCMS Report on Charities (Aug 17) and DDCMS Report on FTSE 350 Companies July 17.

HMRC Corporate Dawn Raids 2016-17 increased by one third (up to 669). Likely to increase further with HRRC enhanced powers re tax evasion.

PWC fined £5.2m by FRC (Financial Reporting Council) for admitted misconduct re their audit of RSM Tenon financial statements, 16 Aug 17.


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Tony Shaw QC

Tony Shaw QC These monthly Fraud Newsletters are a very succinct summary of fraud cases and matters which have occurred in the preceding four weeks. Their aim is let you check that you have missed nothing of importance. If you need more detail it can be obtained by using the hyperlinks. The newsletters are as opinion free as possible!

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