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Fraud Newsletter 29 - March 2019

CASES

ACL Netherlands BV v Lynch [2019] EWHC 249 (Ch). Claimant application for leave (as required by CPR 31.22 and 32.12) to comply with US subpoena and disclose to the FBI witness statements and documents served in UK civil proceedings concerning fraudulent manipulation of accounts. Leave refused.

S3 Fraud Act: No legal duty for failing to notify residence in property, therefore no dishonest failure to disclose for council tax purposes. Alternative s2 charges (implied false representation) mooted: D [2019] EWCA Crim 209.

Disclosure ordered despite contravening foreign law:  Iranian bank ordered to produce unredacted documents (albeit under confidentiality club provisions) despite risk of criminal penalties in Iran: Bank Mellat v HM Treasury [2019] EWCA Civ 449.

Takhar v Gracefield Developments Ltd [2019] UKSC 13: setting aside a judgment obtained by fraud (forging of key document): in most cases, fraud unravels all: criteria to be applied.

SENTENCING AND CONFISCATION

Confiscation:  (1) An argument that ownership of foreign property should be determined local law requires evidence of local law, without which English law will be applied; (2) Fining that D was the true beneficial owner: Thayaparan [2019] EWCA Crim 247 (Westlaw)

No power to exclude tainted gift to innocent third party from confiscation:  Morrison (2019) EWCA Crim 351. Third party rights can be considered at enforcement stage: see Ahmed & Qureshi [2004] EWCA Crim 2599.

Costs: Equity in a home can be considered when making an order: McIntosh [2019] EWCA Crim 231.

BILLS, STATUTES & STATUTORY INSTRUMENTS

CONSULTATIONS, GUIDANCE, CIRCULARS AND REPORTS

AML Supervision by the Legal and Accountancy Professional Body Supervisors: Themes from the 2018 AML supervisory assessments: OPBAS / FCA: Mar 19.

Bribery Act 2010: post-legislative scrutiny: House of Lords Select C’tee Report HL paper 303: 14 Mar 19.  Generally upbeat assessment.  Skansen Interiors discussed. Recommends further statutory Guidance for s7 to make it clear that the “adequate procedures” defence does not mean anything more stringent than “reasonable in all the circumstances” §§196 -211. Great quote from Sir David Green §215. [The MoJ’s Bribery Act 2010: Post-Legislative Scrutiny Memorandum Cmnd 9631 was published in June 18.]

Corporate Crime Gap: How the UK Lags behind the US in Policing Corporate Financial Crime (Full Report): Corruption Watch: March 2019: Executive Summary

Cyber-Security – industry insights: FCA Report 8 Mar 19,

Economic Crime – Anti-money laundering supervision and sanctions implementation: Treasury Committee Report 8 Mar 19: suggesting introduction of a failure to prevent model of economic crime and that the AML framework is not fit for purpose as too fragmented.

Guidance on the preparation, admissions and examination of expert evidence: ICCA:  Mar 19 (criticised in Criminal Law Week 11/2019)

Implementing the OECD Anti-Bribery Convention: Phase 4 2 year Follow-up Report: UK UK Report to OECD Working Group on Bribery and OECD Summary and Conclusions: 20 Mar 19

Money Laundering and Terrorist Financing controls in higher risk jurisdictions. Updated HM Treasury Advisory Notice:  26 Feb 19.

Review of 2009 OECD Anti-Bribery Recommendation: OECD Consultation: 22 Mar 19. Ends 20 Apr 19.

Special Committee on Financial Crime, Tax Evasion and Tax Avoidance Report: adopted by European Parliament: 26 Mar 19. Recommendations include creation of European financial police, EU financial intelligence unit, and EU AML watchdog.    

No-deal Brexit Guidance: Criminal Justice and Security co-operation: Law Society: 28 Feb 19.

SFO s2 interviews: Guidance for lawyers §8(c) amended to allow additional lawyer to attend solely to take notes: 28 Feb 19.

NEWS

London & Capital Finance plc. Commons Treasury Committee ask FCA to consider an investigation and also ask the Treasury to require the FCA to do so: 19 Mar 19

LCJ sets up advisory group on AI to offer guidance to senior judiciary on likely impact of AI developments and its legal, ethical, policy, cultural and economic effects. 4 Mar 19.  [Ed. Most immediate impact of AI seems likely to be on investigation and disclosure in data large cases]

European Parliament Special Committee on Financial Crimes, Tax Evasion and Tax Avoidance  Report and recommendations sent to plenary for approval: 27 Feb 19.

Huge Pools of Dirty Money are Europe’s Worst-Kept Banking Secret:  Bloomberg Businessweek: 14 Mar 19.

SFO:  Secures its first £1.5m forfeiture order from a convicted fraudster: 15 Mar 19.

SRA to conduct rigorous checks to ensure law firms AML obligations:  20 Mar 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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