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Fraud Newsletter 25 - NOVEMBER 2018

CASES

Abuse of Process and entrapment by vigilantes: Looseley [2002] 1 Cr.App.R. 29 criteria apply to state agents, not to private citizens. For private citizens the test – whether reliance on the conduct would compromise the court’s integrity – will rarely be met: TL [2018] EWCA Crim 1821.

Conspiracy to defraud (forged will): evidence of co-conspirator’s (husband’s) guilty plea admitted under s74 PACE to prove existence of the conspiracy at wife’s trial (she asserted the will was genuine): Shirt [2018] EWCA 2486.

Private Prosecutor’s Duty of Candour: deliberate failure to disclose material documents when seeking and obtaining ex parte summons risks costs order based on indemnity rather than standard costs: R (Kay) v Leeds Magistrates’ Court [2018] EWHC 2842 (Admin) (Costs judgment): as to the facts see R (Kay) v Leeds JJ [2018] EWHC 2842 (Admin).

Solicitors are not data holders holding “relevant data” under Sched 23 Finance Act 2007, and the obligation to keep records under MLR 2007 does not make them so: Wilsons Solicitors LLP v HMRC [2018] UKFTT 627 (TC).

SENTENCING AND CONFISCATION

6 months for unlawfully accessing previous employee’s customer database (Computer Misuse Act 1990 s1: Kasim ICO 12 Nov 1028

BILLS, STATUTES & STATUTORY INSTRUMENTS

Sanctions and Anti-Money Laundering Act 2018 (Commencement No. 1) Regs 2018 S.I. 2018 No. 2013 (post-Brexit regulations).

Data Retention and Acquisition Regulations 2018 S.I. No. 1123: acquisition of electronic communications data by public authorities and retaining same by telecoms and postal companies: in force 1 Nov 18.

The Crime and Courts Act 2013 (Deferred Prosecution Agreements) (Amendment of Specified Offences) Order 2018 S.I. 2018 No. 1170 amending Part 2, Sched 2 Crime and Courts Act 2013 to include offences under ss 89-91 Financial Services Act 2012 within the DPA scheme.

Cash Controls: EU Regulation 2018/1672 extends control of cash leaving and entering EU to include other financial instruments (e.g. traveller’s cheques) and high value items (gold, etc): 23 Oct 2018. To apply from 3 June 2021.

Mutual Recognition of freezing orders and confiscation orders within the EU transmitted before 19 Dec 2020: Regulation (EU) 2018/1805: 14 Nbv 18.

Draft Money Laundering and Transfer of Funds (Information) (Amendment) (EU Exit) Regulations 2018: Draft Regulations and Explanatory Note: HM Treasury 13 Nov 18.

CONSULTATIONS, GUIDANCE, CIRCULARS AND REPORTS

NEWS

Afren convctions: former CEO and COO received respectively concurrent sentences of 6 and 5 years for fraud and money laundering re $45m breach of trust.

Asylum Corruption: Nicola Gruevski (ex Macedonian PM) has apparently been granted asylum in Hungary thus avoiding a 2 year sentence for influencing pubic officials, with 3 other trials pending: 20 Nov 18. Alan Garcia (ex President Peru) sought asylum in Uruguayan embassy (18 Nov 18 ) having been banned from leaving the country while under investigation for receiving $100k from an Odebrecht fund (part of Operation Car Wash a Brazilian corruption scandal involving $5B in illegal payments.)

Cum-Ex £55b German stock trading fraud involving Santander: Freshfields Frankfurt office searched again: 18 Oct 18

NCA alleged investigation of UK companies and professionals in Danske Bank £178B money laundering scandal: Reuters 21 Nov 18

Deutsche Bank confirms it processed $150M for Danske Bank which allegedly laundered $230B in its Estonian branch 2007-2015: 20 Nov 18

MoneyGram DPA default. Moneygram agreed to extend its 2012 DPA and forfeit $125m for significant weaknesses in its anti-fraud and AML program resulting in breach of its 2012 DPA: DOJ 8 Nov 2018

National Economic Crime Centre (NECC) established, (based at NCA HQ) to identify and prioritise the most appropriate types of criminal, civil or regulatory investigations to ensure maximum impact: NCA: 5 Nov 18

SFO Speech by Joint Head of Fraud, Hannah von Dadelszen at Pinsent Masons Business Crime and Compliance conference 9 Nov 18. SFO require genuine co-operation which excludes:

• reporting minor wrongdoing in one jurisdiction, but omitting to mention significant wrongdoing elsewhere
• providing bundles of key documents that are not key, and omitting those that are
• omitting to provide a sensible narrative of the suspicions around what actually took place and who was involved
• blocking access to documents because of commercial sensitivity.

She also added that going forward the SFO would “take an increasing interest in the detail of your compliance programmes.” (see MoneyGram DPA default above.)
Société Générale SA fined a total of $1.3B by DoJ, FRS (Federal Reserve System), US Treasury sanctions office, and Manhattan DA’s office: Wall St Journal: 28 Nov 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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