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Fraud Newsletter - 49 November 2020

Fraud Newsletter 49 November 2020 (17 downloads)

CASES

Right of silence applies in market abuse administrative proceedings: member states not required to punish those who refuse to answer questions put by supervising authorities which could establish responsibility for an offence liable to incur administrative sanctions of a criminal nature: AGs

Opinion: DB v Commissione Nazionale per le Società e la Borsa (Consob), Intervener Presidenza dei Consiglio dei Ministri: Case C-481/19.

Search warrants: “other methods . . have been not been tried because . . they were bound to fail” (§2(b)(ii) Sched 1 PCA 84, and notice . . may seriously prejudice the investigation” (§14(d)) are separate conditions and must be addressed separately: R (Ashbolt) v HMRC [2020] EWHC (Admin).

SENTENCING AND CONFISCATION

Calculation of benefit: (i) market value of property excludes sale costs which are relevant only to calculation of realisable assets; (ii) observations on problems of double counting in joint benefits and lifestyle assumption cases: Lowther [2020] EWCA Crim 1387.

S10A POCA Hearings: (interests of third parties [3P] in assets). (1) 3P is in same position as any litigant whose ownership of property is in issue; (2) 3P entitled to “make representations” in s10A confiscation proceedings; (3) civil standard and burden of proof apply; (4) no civil adverse inference from D or 3P’s failure to give evidence, but judge entitled to have regard to the fact that a party who could have contradicted the opposing case has not chosen to do so. Forte [2020] EWCA Crim 1455.

Restraint orders: reasonable living expenses and

legal expenses for related civil proceedings: (i) useful list of non-exhaustive factors re assessment of living expenses; and (ii) s41(4) (absolute prohibition on funding legal expenses) does not extend to civil proceedings, even if the issues are related, but such funding is subject to court’s discretion: Luckhurst [2020] EWCA Crim 1579.

Mere custodian/possessor of drugs does not obtaining property under s76(4) POCA; some proprietary interest must be obtained. Court bound by unchallenged written basis of plea: Munir [2020] EWCA Crim 1549 [Westlaw].

Judge must give reasons for confiscation order:

Ayenesu [2020] EWCA Crim 1569 [Westlaw]

BILLS, STATUTES & STATUTORY INSTRUMENTS

Sentencing Act 2020 (Commencement No 1) Regulations 2020 SI 2020 No 1236: Sentencing Code in force from 1 Dec. 20.

CONSULTATIONS, GUIDANCE, CIRCULARS AND REPORTS

MONEY LAUNDERING:

Opinion of European Banking Authority on how to take into account ML/TF risks in the Supervisory Review and Evaluation Process: EBA 4 Nov 20.

Corporate  liability  for  economic  crime:  Call  for

Evidence: Government Response: MoJ: 3 Nov 20. [Evidence inconclusive: remitted to Law Com for expert review.]

Corporate Criminal Liability: Law Com. to investigate and draft Options Paper: Law Com: 3 Nov 20.

SARs Annual Report 2020: NCA 19 Nov. 20. Record no. of SARs (20% increase). £172m recovered (31% increase) as result of DAML requests. NCA Summary.

NEWS

International Fraud Awareness Week (15-21 Nov 20)

ACFE.

CPS:

Major Investments scammers brought to justice: (£5 year 1.2m investment scam; 10 year £20m Ponzi; 13 year Ponzi): 4 Nov 20.

FCA:

bans 3 from financial services industry for non-financial (sexual) misconduct: 5 Nov 11.

fines TFS-ICAP £3.44 million for market misconduct i.e.

 “printing“ or announcing false trades to simulate market activity: 23 Nov 20. Final Notice.

SFO:

confirms investigation into Bombardier: over suspected corruption re Garuda Indonesia contracts/orders: 5 Nov 20.

 secures £1.2m following investigation into West London property linked to Brazilian bribery scandal (Operation Car Wash): 12 Nov 20

 and FSCS to work together against fraud: MoU to assist co-operation and co-ordination MoU: FSCS (Financial Services Compensation Scheme): 19 Nov 20.

collaborating  with  Australian  police  in  AFP investigation of Leighton Offshore Pty Ltd and $77.6m suspicious payments associated with Iyer and Unaoil re Iraqi oil export contracts: Mirage: 18 Nov 20

HOME:

ENRC acknowledges spying – a common tactic in big commercial litigation: ABA Journal: 4 Nov.20

Former BHS owner jailed for six years for tax evasion– failing to declare £2.2m income: BBC News 6 Nov. 20

Euribor fraud: French court refuses extradition of national convicted in absentia of helping to rig interest rates and sentenced to 8 years because his conduct was not a crime in France at the time: Reuters: 4 Nov 20.

HMRC 2018-2019m Annual Report and accounts: contains references to tax, VAT, customs, child benefit and similar frauds: HMRC: 5 Nov 20.

Lloyds £1B fraud report delayed by another year: The

Times:       Message  from  Dame  Linda  Dobbs  to witnesses: 13 Nov. 20

Regulator urges pensions industry to combat pension scams supported by the Pensions Scams Industry Group (PSIG): TPR: 10 Nov 20

ABROAD:

Ex Ghanaian President denies making any money from the Airbus deal: Modern Ghana: 3 Nov 20.

How does corruption shape Asia? Transparency International: 24 Nov 20.

Carding Action 2020: 3 month European operation with Italian and Hungarian police supported by UK & Europol prevent €40m in card fraud losses: 26 Nov 20: Europol.

Alleged REvil member spills details on group’s ransomware operations: makes $100m pa from its attacks: Intel 471: 28 Oct 20.

DoJ seize $1B in Bitcoin linked to Silk Road (an online black market): BBC News: 6 Nov 20.

Cum-Ex

German Tax Authorities Probing $5 Billion of Losses:

reviewing 391 open cases with potential illegal payouts of €4,3B in 2019: Bloomberg Tax: 28 Oct 20.

Trials start in Germany against Warburg bankers:

Archyde 6 Nov 20.

Whistleblower Program: 2020 Annual Report to

Congress SEC: 16 Nov 20 – $175m paid to 39 individuals. In the new financial year $152m has already been paid out to 3 individuals: $114m (22 Oct 20); $10m (29 Oct 20); and $28m (3 Nov 20).

Nicholas Sarkozy’s corruption trial suspended to assess health of a co-Defendant: Independent 24 Nov 20.


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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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