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Fraud Newsletter 27 - January 2019

CASES

­Data Protection Act 1998 s55 (unlawful obtaining or disclosure of personal information) imposes an evidential, not a legal burden of proof on the defence: Shepherd v Information Commissioner [2019] EWCA Crim 2.

 POCA disclosure in civil recovery: POCA granted wide powers and the standard order did not require separate applications for disclosure orders each time information was sought from another person; NCA v K [2018] EWHC 3531 (Admin) (unreported –Westlaw)

Fraudulent evasion of income tax & breach of s35 Tac Credits Act 2002:  (being knowingly concerned in a fraudulent activity with a view to obtaining payment of tax credits) both require knowledge: recklessness is not enough:  Godir [2018] EWCA Crim 2294 (Westlaw)

Obtaining a summary judgment where serious fraud is alleged requires more cogent evidence than usual: NCA v Nuttall [2019] EWHC 10 (QB) applying Apvodedo NV v Collins [2008] EWHC 775 (Ch)

SFO v Tesco: -Sir Brian Leveson’ s DPA  judgement dated 10 April 17) released 23 Jan 19.

SENTENCING AND CONFISCATION

Confiscation order imposed prematurely in postponed proceedings was wrong but not a nullity, and applying Soneji [2006] 1 AC 340would not be set aside: Sachan [2018] EWCA Crim 2592.

BILLS, STATUTES & STATUTORY INSTRUMENTS

Confiscation order imposed prematurely in postponed proceedings was wrong but not a nullity, and applying Soneji [2006] 1 AC 340would not be set aside: Sachan [2018] EWCA Crim 2592.

BILLS, STATUTES & STATUTORY INSTRUMENTS.

Crime (Overseas Production Orders) Bill 2018: permits application for electronic information located or controlled in countries with which we have a designated international co-operation arrangement, for use in investigation & prosecution of indictable offences. Committee stage amendments: 18 Dec 18

Money Laundering, Terrorist Financing and Transfer of Funds (Miscellaneous Amendments) Regulations 2018  S.I. 2018/1337: (restricting the use of anonymous safe-deposit boxes) in force on 10 Jan 19.


CONSULTATIONS, GUIDANCE, CIRCULARS AND REPORTS

Code for Private Prosecutors. Consultation by the PPA (Private Prosecutors Association) closing on 6 March: 21 Jan 19.

Corporate liability for economic crime: MoJ is reviewing a range of competing views: a Response expected later this year: 7 Jan 19: Answer to PQ.

Criminal Finances Act 2017 Practice Note and guidance for solicitors on corporate offences of failure to prevent the criminal facilitation of tax evasion: Law Society 4 Jan 19.

Framework Agreement between the Law Officers and the SFO: (replacing the July 2009 Protocol between A-G and prosecution authorities) 21 Jan 19

JMLSG (Joint Money Laundering Steering Group) Guidance amended: minor amendments following Money Laundering, Terrorist Financing and Transfer of Funds (Miscellaneous Amendments) Regulations 2018 S.I. 2018/1337 (supra).

Suspicious Activity Reports (SARs) Annual Report 2018: record number of reports in 2018 (up 10%):  NCA: 29 Dec 18.

NEWS

Countries led by populist leaders see on average a 5% deterioration in their corruption index: Mounk & Kyle: The Atlantic 26 Dec 18.

Economic Crime Strategic Board – a new taskforce created by Home Secretary /Lord Chancellor to tackle economic crime estimated at £14.4B pa:  HM Treasury; Home Office etc. 14 Jan 19.

HMRC’s top 10 fraud prosecutions in 2018HM Treasury / HMRC: 28 Dec 18.

FCA investigation into London Capital and Finance plc: 2 Jan 19; re-trial of UBS compliance officer and day trader on 5 counts of insider trading listed for 15 Apr 19:  9 Jan 19.

Nike could owe Billions in back tax following new EU Probe:  ICIJ investigation into Nike’ Dutch tax arrangements and Paradise Papers: 10 Jan 18.

Paradise Papers lead to $700m in fines and back taxes to date: ICIJ 26 June 18.

SFO:   Alstom (bribery & corruption re £325m worth of contracts) 19 Dec 18: former Alstrom Global Sales director sentenced to 4.5 years imprisonment:  21 Dec 18.  Further charges in Unaoil investigation against Stephen Whiteley: 21 Dec 18. 4 more sentenced in FH Bertling Angola corruption trial: all received suspended sentences: 11 Jan 19.  Tesco case collapses: 23 Jan 19

US extra-territorial anti-corruption campaign criticised:  (i) the process is opaque, rarely goes to court, lack judicial scrutiny resulting in ever more expansive jurisdictional interpretations by prosecutors;  (ii) punishments can be disproportionate (e.g. BNP Paribas and ZTE); (iii) US legal actions often become intertwined with US commercial interests:  Judge Dread (The Economist 19-25 Jan 19: p.14).


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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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