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Fraud Newsletter 18 - April 2018

CASES

Blackmail triable in UK where threats come from abroad: Pogmore [2017] EWCA Crim 925, [2018] 2 Cr.App.R. 2.

Criminal Procedure Rules do not supersede statutory provisions: fact that D had not engaged with the process/identified issues was irrelevant to application to treat as hearsay and read key witness statement where the witness was actually at court (s114(2)(g) CJA 2003: Randell v DPP [2018] EWHC 1048 (Admin), [2018] 6 Archbold Review 2.

Data Protection. Right to be forgotten and de-listing from an internet search applies to less serious crimes. Both had previous convictions for different conspiracies (NT1 4 years for £3.3m fraud, NT2 6 months for invasion of privacy, not dishonest, guilty plea). NT2 only succeeded:  NT1 and NT2 [2018] EWHC 799 (QB), [2018] 3 All E.R. 581.

PP, DPAs and the SFO: (i) the High Court is not an appropriate forum for a dispute about disclosure in the Crown Court (whether SFO should procure interviews from a  company who were subject to a DPA in order to disclose them to a defendant); (ii) obiter (but considered at length) where a DPA includes an agreement to co-operate, failure to hand over detailed minutes of interviews required for disclosure to the defence, oral summaries of which had been provided to the SFO in the course of their investigation, might amount to a breach of the DPA and failure by the Crown to pursue production of the interviews could amount to an abuse.: AL v SFO (XYZ Ltd) [2018] EWHC 856 (Admin), [2018] 2 Cr.App.R. 13 DC.

LPP and Waiver: (i) privilege may be waived for a limited purpose without being waived generally; (ii) the right to resist disclosure may be relinquished only in relation to a particular context: Belhaj v DPP [2018] EWHC 513 (Admin). [Overturned on appeal on a different issue – whether a decision of the DPP not to prosecute is an integral part of the criminal process and amount to “proceedings in a criminal cause or matter”: Belhaj v DPP [2018] UKSC 33, [2018] 3 W.L.R. 435.]

SENTENCING AND CONFISCATION

Confiscation: Equity in properties, re-assessment years later: 2009 confiscation case where the benefit was £575k, available amount £55k to be met by sale of properties acquired by mortgage fraud. The order was discharged when relatives paid cash. 2014 plea to drug offences. Prosecution entitled to recalculate 2009 order to take account of subsequent increase in equity applying Waya. Fact that the banks took commercial decision to permit mortgage payments to continue irrelevant: Cole [2018] EWCA Crim 888, [2018] Lloyd’s Rep. F.C. 321.  

16 months for perverting course of justice re repeated failures to abide by terms of restraint and confiscation order 23 Mar 18.

Calculating fraud confiscation benefit on re-mortgage: same as for mortgage: i.e. based on equity increase in property over re-mortgage period: Reid  [2018] EWCA Crim 628, [2018] Lloyd’s Rep. F.C. 328.

Wife’s joint legal and beneficial interest a tainted gift where she made no financial contribution to the purchase of the property: Hayes [2018] EWCA Crim 682.

BILLS, STATUTES & STATUTORY INSTRUMENTS

New POCA Codes of Practice in force.

Recovery of Cash: Search Powers from 16 Apr 18 (guidance on cash seizure).

Recovery of Listed Assets: Search Powers (England and Wales and Scotland) from 16 Apr 18 (power to recovery personal moveable assets e.g. gold, jewels, watches, art etc.)

CONSULTATIONS, GUIDANCE, CIRCULARS AND REPORTS

Corporate tax avoidance: Agreement reached on tax intermediaries: EU measures to prevent corporate tax avoidance, 13 Mar 18.

EU Whistle-blowers’ Protection Directive proposed  with Annex and Explanatory Memo, 23 Apr 14.

FCA Guidance Consultation GC18/1: Proposed guidance on financial crime systems and controls: insider dealing and market manipulation, 27 Mar 18.

IMF Review: Proposes framework to include assessing G7 nations’ anti-money laundering and anti- corruption controls, 6 Apr 18.

Treasury Committee Economic Crime Inquiry launched 29 Mar 18.

NEWS

Cybercrime: webstresser.org (responsible for 4m global cyber-attacks) shut down in international operation involving NCA, 25 Apr 18.

Cyber Breaches Survey 2018 Dept for Digital, Culture, Media & Sport: 43% of businesses attacked in last 12 months.

DPAs: Correspondence between SFO and Transparency International published: TI letter (9 Mar 18)  and SFO Response (11 Apr 18).

Humberside Police fined £130k for Data Protection offence (video interview of rape victim went missing) 5 Apr 2018.

FCA obtains £16.9m restitution orders for 4 unauthorised CIS (collective Investment schemes) in carbon credits generated by African reforestation programs and which used false and misleading statements, 26 Mar 18.

First NHS Counter Fraud Authority prosecution successful 26 Mar 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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