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Fraud Newsletter 15 - January 2018

CASES

Conspiracy to defraud: (i) LIBOR submissions require a genuine and honest assessment; (ii) directions crafted and appropriate in one of a series of trials are not necessarily appropriate for use in another. Crafting directions for each separate case is essential: Merchant and Mathew  [2017] EWCA Crim 60, [2018] 1 Cr. App. R. 11.

Ghosh directions: the obiter dismissal of the second limb of Ghosh in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67, 20-17, [2018] 1 Cr. App. R. 12 has been supported by the obiter remarks of Leveson LJ in DPP v Patterson [2017] EWHC 2820 (Admin), [2018] 1 Cr. App. R. 28. Although Ghosh remains formally binding on the Crown Court, the updated Crown Court Compendium: Part I ignores that fact and at §8.6 which states that Ghosh no longer reflects the law and sets out the appropriate direction to be given in future.

Search Warrants: (i) Magistrates/Crown Court may rely on undisclosed PII material in deciding to grant a SW/retain seized items; (ii) same principle applies on judicial review; (iii) the subject of SW has no automatic right to receive even the gist of the material which forms the basis of the ex p PII application. Once charged, other protections came into play. However, every case must be considered in the light of its particular circumstances:  R (Haralambous) v St Albans Crown Court [2018] UKSC 1; [2018] 1 Cr. App. R. 26.

Warrant of Commitment for failure to pay confiscation based on liquidation of a company should only be made after enquiry into means and if satisfied default due to wilful refusal or culpable neglect: R (Sanghera) v Birmingham Magistrates’ Court [2017] EWHC 3323 (Admin), (Westlaw).

SENTENCING AND CONFISCATION

Confiscation and Interest: Part payments made towards a confiscation order should lead to a reduction in time to be spent in lieu, calculated on the basis of the amount of the original order. Subsequent added interest falls outside the calculation: R (Gibson) v Secretary of State for Justice [2018] UKSC 2, [2018] 1 Cr. App. R. (S.) 51.

Confiscation and Tax: (i) HMRC should only recover the tax due (plus any penalties); (ii) the burden of proving how any agreed assessment of taxable profits made in confiscation lies on the taxpayer; (iii) double jeopardy does not apply: confiscation and deprivation of benefit is one thing, tax penalties are another: Higgins v National Crime Agency [2018] UKUT 14 (TCC), [2018] Lloyd’s Rep. F.C. 164.

Goodyear and AG’s Reference: Prosecution counsel should not give any indication of support or approval for the sentence indication (including agreement as to category): R. v. Powell [2017] EWCA Crim 2324, [2018] 1 Cr. App. R. (S.) 40.

Receivership Order granted to SFO in £41m confiscation despite risks sum realised might be absorbed by costs because S was not to be trusted. Modified Pigott [2010] EWCA Civ 285 condition to determine future disputes between SFO and innocent third parties:  In re Gerald Smith  [2017] EWHC 3332 (Comm), [2018] Lloyd’s Rep. F.C. 239.

BILLS, STATUTES & STATUTORY INSTRUMENTS

Draft Breaching Limits on Ticket Sales Regulations 2017: new criminal offence under the Digital Economy Act 2017 to prevent ticket touts from using bots (automated software) to avoid online security measures and buy more tickets than allowed for onward sale at inflated prices.

Criminal Finances Act 2017 (Commencement No. 4) Regulations 2018 SI 2018 No 78 brings into force unexplained wealth orders (UWOs) as from 31 Jan 18 and other provisions as from 30, 31  Jan 18 and 16 April 18.  Criminal Finances Act 2017 (Consequential Amendment) Regulations 2018 SI 2018 No 80 makes consequential amendments to POCA as from 31 Jan 18,

Draft Investigatory Powers (Technical Capability) Regulations 2018: pursuant to Investigatory Powers Act 2016 s 253 covers obligations on postal/telecoms operators with over 10k customers re bulk and targeted interception warrants and related matters.

Magistrates’ Courts (Immigration Act 2014) (Freezing Orders) Rules 2018 SI 2018 No. 66: procedure etc. for making, varying and discharging appropriate freezing orders.

Oversight of Professional Body Anti-Money Laundering and Counter Terrorist Financing Supervision Regulations 2017: SI 2017 No 1301 in force from 18 Jan 18. Creates OPBAS (part of FCA) to have oversight of 22 SROs (self-regulatory organisations) responsible for ensuring compliance with

Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regs 2017 S.I. No. 692. SROs include Law Society, Bar Council and accountancy bodies (e.g. ACCA, ICA).

Proceeds of Crime Act 2002 various Codes of Practice Orders 2018:

Search Seizure and Detention of Property SI 2018 No 82 in force 31 Jan 18.

Cash Searches SI 2018 No 83 in force 16 Apr 18.

Investigations SI 2018 No 84 in force from 31 Jan 18.

Recovery of Listed Assets (England and Wales) SI 2018 No 85 in force 16 Apr 18.

Sanctions and Anti-Money Laundering Bill 2017: To enable imposition of sanctions to comply with UN/international obligations; prevent terrorism; further national security/ peace /foreign policy; prevent money laundering/terrorist financing. 3rd Reading HL 24, Jan 18.

CONSULTATIONS, GUIDANCE, CIRCULARS AND REPORTS

Better Case Management Handbook Judiciary of England and Wales, 8 Jan 18.

Disclosure and CPS: Justice Committee to launch an inquiry, 25 Jan 18 (about time!).

OPBAS proposals for recovering OPBAS costs. FCA/ CP17/35, 27 Oct 17.  Law Society response, 10 Jan 18 and Bar Council response, 12 Jan 18.

OPBAS is the Oversight of Professional Body Anti-Money Laundering Supervision and Counter-Terrorist Supervisor within the FCA. The Regs came into force on 18 Jan 17.

Sourcebook for Professional body anti-money laundering supervisors FCA 22 Jan 18.

NEWS

Anglo-Indian MoU to increase mutual co-operation and information sharing re criminal records, fingerprints, intelligence etc. 14 Jan 18.

Corporate Beneficial Ownership Register to go live early 2021 showing beneficial owners of overseas companies owning UK property, 18 Jan 18.

Joint National Disclosure Improvement Plan: To agree an effective approach to current challenges. CPS/ NPCC/ College of Policing 26 Jan, 18916 cases dropped because of disclosure 2016-17.

MoJ spending £1b over 6 years to “modernise outdated processes and create a swifter, more accessible and more efficient justice system for the public.” Guardian, 2 Jan 18.

UK Fraud at highest level (£2.1b) for 15 years: London / SE hotspot (£1.63b). Finance / insurance fraud quadrupled in value to £900m since last year. BDO Report, 15 Jan 18

Whistleblower’s successful LuxLeaks appeal Antoine Deltour’s conviction for theft and violating professional secrecy laws by leaking controversial tax deals (including Apple, IKEA, and Pepsi) quashed by Luxembourg’s Court of Appeal which recognised him as a whistle-blower as defined by ECHR. His colleague Raphael Halet was not so recognised and is appealing to Strasbourg, 11 Jan 18.


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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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