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Fraud Newsletter 16 - February 2018

CASES

VAT Fraud and ne bis in idem: useful analysis of current EU and ECrtHR law on double jeopardy in relation to criminal sanctions and administrative penalties in VAT fraud: Advocate General’s opinion, Menci C‑524/1512 Sep 17,[2017] Lloyd’s Rep. F.C. 624 (AGO).

Fairness / Procedural Errors:significant procedural error in failing to give someone the opportunity to address points relied on by the judge made in unpromulgated decisions:R (Spencer) v City of Westminster Magistrates’ Court[2017] EWHC 3603 (Admin), [2018] A.C.D. 21 (Westlaw).

Fraud: Concurrent regulatory and criminal proceedings:Hayes (LIBOR 1) had applied to CCRC and passed its screening test (treated as equivalent of permission to appeal pending) and sought stay of FCA’sapplication for as56 FSMA orderprohibiting him from performing any regulated functions. Stay granted;presumptions and issues discussed:Hayes v FCA[2017] UKHT 423 (TCC); Lloyds Rep FC. 57.

Privilege:documents created by a bank and external litigation solicitors after HMRC assessment of over-claimed VAT in an MTIC carousel had been created for the sole/dominant purpose of expected litigation and were covered by litigation privilege:Bilta (UK) Ltd (in liquidation) v RBS[2017] EWHC 3535 (Ch),[2018] Lloyd’s Rep. F.C. 202 (not following SFO v ENRC[2017] EWHC 1017 (QB),[2017] 2 Cr. App. R. 24). ENRC was applied in Jukes [2018] EWCA Crim 176, [2018] 2 Cr. App. R. 9(a draft witness statement did not create an irrebuttable presumption that criminal proceedings were in reasonable contemplation).  LPP was considered in Edwardian Group Ltd v Singh [2017] EWHC 2805 (analysis of authorities on issue whether LPP extends to material which evidences the substance of privileged communications/betraying the trend of legal advice).

Appeal from Terminating Ruling not permissible unless Crown undertaking given before or at the time of the prosecution application, not when the application had concluded: C [2017] EWCA 2557; [2018] Crim. L.R. 564 (Westlaw).

Costs Order on Appeal: Unmeritorious appeal in person 5 years out of time. Costs order (£70 being ½ his available cash) with warning if he had the means a full order for costs would have been made:Nolan[2017] EWCA Crim 2449 (Westlaw).

SENTENCING AND CONFISCATION

Variation after increase in value of assets looking at relevant factors to be taken into account:Mundy[2018] EWCA Crim 105.

BILLS, STATUTES & STATUTORY INSTRUMENTS

Criminal Procedure (Amendments) Rules2018 SI 2018 No. 132:Various amendments including re POCA applications.

CONSULTATIONS, GUIDANCE, CIRCULARS AND REPORTS

UK Anticorruption Strategy 2017-22Home Office / DIT: 11 Dec 17

Anti-Money Laundering compliance for small firms: Law Society, 12 Feb. 18.

Big Data – a 21st Century Arms Race:Joint report from Thomson Reuters & the Atlantic CouncilJune 17dealing with: security v privacy; internal IT risks; latest tools in fighting crime; tackling illegal money flows and mitigating financial crime risk.

Company Director’s Addresses:As an anti-fraud measure,Co. Dirs. will be allowed to use their company address as from some date in the summer. BEIS announcement22 Feb 18.

CyberSecurity Security of Network and Information Systems: Government Response to public consultation: DDCMS, Jan 18.

Disclosure:Justice Committee inquiry. Written submissions required by 21 March 18.

Financial Secrecy Index launched 30 Jan 18 by Tax Justice Network including Report on UK.

FRC investigation into Carillion audit following collapse.29 Jan 18.

HMRC Fraud Investigations Code of Practice 8 (COP 8) has been updated, 23 Feb 18.  COP 9 (for serious tax fraud) remains unchanged.

National Risk Assessment (NRA) Guidance: what does it mean for Law firms?re Money laundering in legal sector. Law Society, 1 Feb 18.

POCA: Home Office Updated Guidance on s2a: 31 Jan 18.

Sanctions and Anti-Money Laundering Bill Briefing Paper: CBP 8232 House of Commons, 15 Feb. 18.  Legislation design to maintain the same or similar sanctions and AML regimes post Brexit.

Transparency International Corruption Perceptions Index 2017 21 Feb 2018.

NEWS

CMA launches new anti-cartel campaign targeting in particular construction, manufacturing and business support services, 19 Feb 18.

FCA warn of increased risk of online fraud: Binary options;CFDs; forex; bitcoin; use of social media. Under 25s are 6 times more likely to trust social media investment offer than 55s+ (glad we oldies are better at something!), 29 Jan 18.

Operations Athena and Pandora II: Joint operation (Oct – Dec 17) involvingWCO (World Customs Organisation), INTERPOL, Europol and the Guardia Civiltargeting trafficking of cultural items.41,000 objects seized.

Pensions:  cold-calling investigationby Pensions Regulator announced, 20 Feb 18.

Rabobank fined $369mfollowing plea for handing hundreds of millions of dollars of untraceable cash, 7 Feb 18.

SFO charges Barclays with unlawful financial assistance (s15 Companies Act 1985) ($3b loan to Qatar Holding in 2008 to directly or indirectly acquire Barclays shares), 12 Feb 18.

SFO granted £9.5m contingency funding for 2017/18: Commons written answer, 31 Jan 18. HCWS 437.

Symbiosis Healthcare: 4th Defendant sentenced at Southwark to 3½ years for £1.4m investment fraud, 31 Jan 18. FCA press release.


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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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