Fraud Newsletter 10 – September 2017
Double jeopardy / market abuse: Administrative and criminal penalties imposed for the same market abuse are contrary to ne bis in idem. See Garlsson Real Estate SA v Commissione Nazionale per le SocietA e la Borsa. EU: C:2017:668,  Lloyd’s Rep. F.C. 648 (AG Opinion) Request for a Preliminary Ruling.
FCA compulsion to answer questions: US convictions against two Rabbobank LIBOR traders quashed on grounds their testimony compelled by the FCA breached the 5th Amendment: Allen and Conti v US US Court of Appeals 2nd Circuit 16-898, 19 Jul 17.
Privilege against self-Incrimination: (i) does not extend to material independent of the will of the person relying on privilege; (ii) does not apply to incrimination under foreign law, but court has general discretion to permit refusal to answer questions which may lead to foreign incrimination: R (River East Supplies Ltd) v Nottingham Crown Court  EWHC 1942 (Admin),  2 Cr. App. R. 27.
SENTENCING AND CONFISCATION
Nothing of interest.
BILLS, STATUTES & STATUTORY INSTRUMENTS
Criminal Fraud (Private Prosecutions) Bill 2017: (Private members bill) First reading 5 Sep 17. Not clear at this stage what it is. One of many private members bills presented by Christopher Chope MP.
Data Protection Bill 2017 has first reading. If passed it will replace the DPA 1998. Additional offences proposed re personal data: s. 161(1) (knowingly, recklessly obtaining, disclosing or procuring; s161(4) and (5) (selling unlawfully obtained data); and others. Statutory defence of necessity to prevent/detect crime/public interest/court order/reasonable belief in consent.
SI No 876 coming into force on 30 Sep 17. For Guidance see here.
Investigatory Powers Act 2016: Analysis of Tele2 Sverige AB v Post-och telestyrelsen and Secretary of State for the Home Department v Tom Watson (joined cases) C-203/15 and C-698/15 identifying areas where the Act may be incompatible with the mandatory requirements suggested by the cases. Mbioh, Post-och Telestyrelsen and Watson and the Investigatory Powers Act 2016: E.D.P.L. 2017, 3(2), 273-282 (purchase access only).
CONSULTATIONS, GUIDANCE, CIRCULARS AND REPORTS
Accountants’ acceptance and offer of inducements: Consultation/comments sought on draft of International Ethics Standard Board for Accountants. Exposure Draft 8 Sep 17.
Draft AML Guidance 19 Sep 17 issued by the Legal Sector Affinity Group and the SRA. HM Treasury approval being sought.
Assets Recovery Statistical Bulletin 2011-2017 Home Office 12 Sep 2017. Main findings summarised on page 3.
EBA Final Guidelines: (European Banking Authority) Joint Guidelines under Article 25 of Regulation (EU) 2015/847 on measures payment service providers to take to detect missing or incomplete information on payer or payee, and procedures they should put in place to manage transfer of funds lacking required information JC/GL/2017/16, 22 Sep 17.
Europol Suspicious Transactions Report (STR/SAR): From Suspicion to Action: Report on EU monitoring and results. 65% of all EU reports (over 1m in 2014) come from the UK and Netherlands!
LCJ’s Report 2017 part 4 includes: (i) number of cases falling cases in Magistrates’ and Crown Courts, but length and complexity increasing; (ii) concerns about effective and timely criminal justice.
NAO Report into how HMG have distributed £973m from the LIBOR fund. Monies accruing from fines imposed on LIBOR and Forex market manipulation, 6 Sep 17.
US Money laundering issues: Deferred prosecution agreements in the US, HSBC, drug monies, and Mexico. Goldhaber, America’s Real Border Problem: IBA Global Insight Aug/Sep 2017
Court Reforms starting to make a difference HMCTS blog, 28 Sep 17 refers inter alia to Crown Court DCS, WiFi in criminal courts, progress on the Common Platform etc.
ATM hacking: Many UK ATMs use XP machines which are susceptible to hacking. BBC News 25 July 17.
Combatting Fraud and counterfeiting non-cash means of payment: Proposed EU Directive 13 Sep 17.
Combined Fraud Court (combining civil and criminal jurisdictions) proposed by Alison Levitt QC. Cambridge Symposium 4 Sep 17, Mischon de Reya.
Counselling for jurors in complex fraud trials: 20 month trial of Edwin McLaren. Independent 29 Aug 17.
Corruption in the EU: EPRS Report 18 Sep 17. EU Parliamentary Research Services report on social and economic costs in EU. In UK, tax fraud and VAT avoidance is the biggest problem.
Deferred Prosecution Agreements SFO General Counsel (Alan Milford) at Cambridge Symposium analysing the themes emerging from the 4 SFO DPAs to date, 5 Sep 17. Themes included: (i) not a rubber stamp exercise; (ii) even most serious criminality could be eligible for DPA; (iii) critical factors are co-operation and reform seen in the round.
Tax Evasion Offences: SRA Warning GAAR (General Anti-Abuse Rule) 2013 deals with tax schemes “that Parliament did not anticipate when it introduced the tax rules in question and [which] . . cannot…be regarded as reasonable”. Solicitors who advise on schemes judged to be illegal may be guilty of misconduct.