Fraud Newsletter 17 – March 2018

CASES

Criminal and Administrative penalties can be imposed for same market abuse offence: ne bis in idem can be limited if justified i.e. subject to proportionality genuine need to meet general interests or protect rights and freedoms of others: Garlsson Real Estate SA  v  Commissione Nazionale per le Società e la Borsa [2018] EUECJ C-537/16, [2018] Lloyd’s Rep. F.C. 288.

Dishonesty, Ivey and Ghosh again. The test for dishonesty is objectiveIvey v Genting Casinos UK Ltd (Crockfords Club)[2017] UKSC 67 [74]. Integrity is a broader concept than honesty (approving Williams v SRA [2017] EWHC 1478 (Admin)). Integrity connotes adhering to the standards of one’s profession Wingate v SRA [2018] EWCA Civ 366 reversing Malins v SRA [2017] EWHC 835 (Admin) in the light of Ivey.  In Pabon[2018] EWCA Crim 420, [2018] Lloyd’s Rep. F.C. 258, [23-24] Gross LJ reiterated that the second limb of Ghosh has been disapproved as not correctly representing the law. P had been tried “on a basis more favourable to [him] than if he was tried today.”

Expert Evidence and Dishonesty: expert’s failure/recklessness in complying with basic duties does not render conviction for conspiracy to defraud unsafe where real issue is dishonesty: Pabon [2018] EWCA Crim 420; [2018] Lloyd’s Rep. F.C. 258.

LPP: manager’s statement in s9 format to company solicitors is not privileged where it had been made when no-one knew what the investigations would unearth. Any privilege (if it existed) was the company’s and the company had not asserted it: Jukes [2018] EWCA 176; CA [2018] 2 Cr. App. R. 9.

Misconduct in public office: Terminatory and additional s58(7) ruling: (i) no case; (ii) refusal to allow amendment of indictment at start of trial. Terminatory ruling to be dealt with first unless other ruling has significant impact on it. Judge not unreasonable in dismissing case: Ikram [2018] EWCA Crim 440.

SENTENCING AND CONFISCATION

Conspiracy to Defraud: pleas of guilty. Vulnerable individual (9 months suspended) provided DNA sample to hide the identity of father (2 years) where the mother claimed child support. £10k in child maintenance owed.  Father appealed. 2 years reduced to 18 months: W [2017] EWCA Crim. 1758, [2018] 1 Cr.App.R. (S) 20 (Westlaw).

E-Crime: Largest copycat government websites fraud: netted £37m over 3½ years. Sentences between 8 and 3 years: National Trading Standards 6 Mar 18.

Reduction of benefit figure can only be made on appeal: Crown Court has no power but it can reduce the available amount for inadequacy: Oyebola [2018] EWCA Crim 246 (Westlaw).

Tainted gifts: Clear, complete an unassailable evidence of recoverability required before an order can be said to be disproportionate: Box [2018] EWCA Crim 542, [2018] Crim. L.R. 581.

BILLS, STATUTES & STATUTORY INSTRUMENTS

Criminal Records Bill (private members bill) to alter Rehabilitation of Offenders Act by substantially reducing time before records can be spent, including any sentence over 4 years can be spent 4 years after end of sentence date, 8 Feb 18.

Crime and Courts Act 2013 (Deferred Prosecution Agreements) (Amendment of Specified Offences) Order 2018: Draft SI to correct error in Schd 17 of Crime and Courts Act 2013 by ensuring a DPA can now be sought and ordered for offences under ss 89-91 FSA.

Proceeds of Crime Act 2002 (References to Financial Investigators) (Amendment) (England and Wales) Order 2018 SI 2008 No. 318 in force 17 Apr 2018: Dealing with accredited financial investigators (AFIs) and their powers (now extended to Intellectual Property Office staff).

Soft Drinks Industry Levy (Enforcement) Regulations 2018, SI 2018 No. 264 granting HMRC enforcement powers to deal with levy evasion etc. In force 6 April 18.

Welsh Revenue Authority (Powers to Investigate Criminal Offences) Regulations 2018 SI 2008 No. 400 apply PACE and CJPA provisions to investigation of offences by the WRA.

CONSULTATIONS, GUIDANCE, CIRCULARS AND REPORTS

AML Guidance for the Legal Sector (Legal Sector Affinity Group) approved by Treasury and replacing Law Society’s AML notes, Mar 18.

FCA Consultation on its approach to enforcement responses by 21 June 18.

HMRC AML Guidance for Money Service Businesses updated 7 Mar 18 and Guidance for High Value Dealers updated 7 Mar 18.

HM Treasury AML and CFT Supervision Report 2015-17 Mar 18.

Criminal Finances Act: sharing information within the regulated sector Re sharing information concerning suspected money-laundering / terrorist financing) Home Office Circular 007/2018, 1 Feb 18.

European Investigation Orders Requests Guidance Home Office, 26 Feb 18.

Mutual Legal Assistance Requests Home Office Guidance updated, 26 Feb 18.

Duty on manufacturers not to facilitate tobacco smuggling HMRC Excise Notice 477.

The role of online platforms in ensuring tax compliance by their users: HMRC 13 Mar 18 seeking evidence.

UK-EU security Co-operation post Brexit:  Home Affairs Committee, HC 635 14 Mar 18.

NEWS

Britain’s White-Collar Cops are getting too good at their Job: Profile of SFO and David Green (formerly of 18RLC!). Bloomberg 1 Mar 18.

Conspiracy to defraud: Apprenticeship fraud: Acquiring £5m public funds earmarked for vulnerable young people. SFO prosecution. Sentences from 18 months to 6 years.

EU proposals corporate tax avoidance: 13 Mar 18.

SG seeks corporate offence for failing to prevent economic crime: Independent 18 Mar 18 .

Self-Reporting company tried and convicted of bribery: Skansen Interiors convicted in COLP prosecution after trial. Allen & Overy report, 27 Mar 18.

SFO recovers £4.4m for Chad in High Court civil recovery: 22 Mar 18.

Speech by SFO Joint Head of Bribery & Corruption 19 Mar 18: Touching on s7 defences; DPAs; failing to prevent tax evasion.

UK not to join EPPO (European Prosecutor’s Office): Justice & Home Affairs, 15 Mar 18.

UWOs: 2 UWOs and 2 IFOs to look at £22m properties owned by a suspected PEP. NCA secures first unexplained wealth orders, 28 Feb 18.