Fraud Newsletter 27 – January 2019
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  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  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  EWCA Crim 2294 (Westlaw)
SFO v Tesco: -Sir Brian Leveson’ s DPA judgement dated 10 April 17) released 23 Jan 19.
SENTENCING AND CONFISCATION
BILLS, STATUTES & STATUTORY INSTRUMENTS
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.
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 2018: HM 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).