FRAUD NEWSLETTER 27 January 2019

CASES

­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 [2019] 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 [2018] 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 [2018] EWCA Crim 2294 (Westlaw)

Obtaining a summary judgment where serious fraud is alleged requires more cogent evidence than usual: NCA v Nuttall [2019] EWHC 10 (QB) applying Apvodedo NV v Collins [2008] EWHC 775 (Ch)

SFO v Tesco: -Sir Brian Leveson’ s DPA  judgement dated 10 April 17) released 23 Jan 19.

SENTENCING AND CONFISCATION

Confiscation order imposed prematurely in postponed proceedings was wrong but not a nullity, and applying Soneji [2006] 1 AC 340would not be set aside: Sachan [2018] EWCA Crim 2592.

BILLS, STATUTES & STATUTORY INSTRUMENTS

Confiscation order imposed prematurely in postponed proceedings was wrong but not a nullity, and applying Soneji [2006] 1 AC 340would not be set aside: Sachan [2018] EWCA Crim 2592.

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.

NEWS

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).