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Fraud Newsletter 28 - February 2019

CASES

SFO s2 Powers: It would not be right to deny claimants in civil proceedings access to s2 documents supplied by the SFO to Tesco while negotiating a DPA under conditions of confidentiality intended to protect the supplier of the documents, where such documents were likely to be of litigious advantage to the defendant. Omers Administration Corp v Tesco [2019] EWHC 109 (Ch)

 Terminatory Rulings:  informing the court of its intention to appeal and of the acquittal agreement does not require an oral hearing in open court: PY [2019[ EWCA Crim 17

SFO Terminatory Appeal Ruling in Tesco:  prosecutors face a high hurdle in challenging a ruling of no case: there must be an error of law on an unreasonable conclusion: Bush and Scouler [2019] EWCA Crim 29.

 HMRC has power to serve information notice on British national resident abroad under Sched 36 Finance act 2008 para 1:  R (Jimenez) v First Tier Tribunal (Tax Chamber) & HMRC [2019] EWCA Civ 51.

SENTENCING AND CONFISCATION

Confiscation: (i) control over transfers to the account is sufficient – legal ownership of the account is not required; (ii) confiscation in cheating the public revenue is the amount of tax evaded. Where others evaded tax, d’s benefit was the monies he transferred for others: Fulton [2019] EWCA Crim 163.  Interesting comment in para 45 that confiscation benefit calculations may result in greater benefits accruing to conspirators than to the actual cheats.

BILLS, STATUTES & STATUTORY INSTRUMENTS

Crime (Overseas Production Orders) Act 2019 (enabling UK courts to grant ‘overseas production order’ or grant access to electronic data for serious crime. Royal Assent 12 Feb 19

Criminal Procedure (Amendment) Rules 2019 S.I. 2019 No. 143 disclosure obligations imposed on experts and parties re anything which might be reasonably thought capable of undermining the reliability of opinion or the credibility or impartiality of expert: Part 19, r19.2-19.3. New rule re determining whether in public interest to withhold certain information re expert evidence: r19.9. A brief Home Office Guide has been published: 15 Feb 19.

Investigatory Powers Act 2016 (Commencement No. 11) Regs 2019 SI 2019/174:  provisions of the Act coming into force on 5 Feb 2019 including s11 offence (unlawfully obtaining communications data).

CONSULTATIONS, GUIDANCE, CIRCULARS AND REPORTS

Fraud Resilience Survey launched by Charities Commission & Fraud Advisory panel: 26 Feb 19.

Corruption Perception Index 2018:  Democracy a key factor: US has dropped out of the top 20: UK up 6 points since 2012.  Transparency International: 29 Jan 19.

European Banks in Money Laundering Scandals: what lessons for the EU? Transparency International article: 26 Feb 19.

FCA Approach to Enforcement updated (following consultation which closed in June 1) to be published in March 19: 1 Feb 19.

Global Britain and the British Overseas Territories (OTs): Resetting the relationship. HoC Foreign Affairs C’tee: HC 1464 21 Feb 19: urging public registers of beneficial ownership: see para 33.

HMRC self-report Guidance on failure to prevent the facilitation of tax evasion: HMRC 21 Feb 18

Investigatory Powers Commissioner’s Office Report 2017: ICPO 31 Jan 19

­Inspection of the CPS International Justice and Organised Crime Division: HCPSI Report: 29 Jan 19

Parliamentary Question on steps to implement FATF AML recommendations: Treasury: 14 Feb 19

Technology and the Law Policy Commission – Algorithms in the Justice System : midway through 4 videoed evidence sessions to assess what controls, if any, are needed to protect human rights and trust in the justice system: Law Society.

NEWS

New Australian whistle-blower legislation makes companies liable for failing to have support plans in place to protect whistle-blowers, or failing to implement them:  Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019.

City of London Combined Court and City of London Police HQ Site has been purchased at 68-71 Fleet St. Work to start in 2021 for 18 to replace Mayor’s & City of London Court & London Magistrates Court buildings by 2025. The new courts will primarily to deal with fraud and related economic crime including secure and cyber-crime courts.

FCA: Virdee sentenced – Guilty pleas to for unauthorised investment scheme and fraud: 2 years suspended & 300 hours community service: 5 Feb 19.  First decision under competition law – FCA enforcement action to protect competition.  21 Feb 19

 MoU between FCA and ICO on co-operation, co-ordination collaboration and information sharing: 18 Feb 19.

£197m in investment scams in 2018: 85.2% by firms unauthorised by FCA: FCA 6 Feb 19

SFO:  Petrofac Investigation:  former Global Head of Sales (David Lufkin) pleaded to 11 counts of bribery: 7 Feb 19. GlaxoSmithKline investigation and investigation into Rolls-Royce individuals closed: 22 Feb 19.

New General Counsel appointed: Sara Lawson QC of Red Lion Chambers: 25 Feb 19.  

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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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