Fraud Newsletter – 49 November 2020

December 1, 2020

Fraud Newsletter – 49 November 2020

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[su_spoiler title=”CASES” open=”yes” style=”default” icon=”plus” anchor=”” class=””]

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).

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[su_spoiler title=”SENTENCING AND CONFISCATION” open=”no” style=”default” icon=”plus” anchor=”” class=””]

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]

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[su_spoiler title=”BILLS, STATUTES & STATUTORY INSTRUMENTS” open=”no” style=”default” icon=”plus” anchor=”” class=””]

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

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[su_spoiler title=”CONSULTATIONS, GUIDANCE, CIRCULARS AND REPORTS” open=”no” style=”default” icon=”plus” anchor=”” class=””]

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.

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[su_spoiler title=”NEWS” open=”no” style=”default” icon=”plus” anchor=”” class=””]

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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