Fraud Newsletter – 49 November 2020
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
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  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  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  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  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  EWCA Crim 1549 [Westlaw].
Judge must give reasons for confiscation order:
Ayenesu  EWCA Crim 1569 [Westlaw]
BILLS, STATUTES & STATUTORY INSTRUMENTS
CONSULTATIONS, GUIDANCE, CIRCULARS AND REPORTS
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.
Major Investments scammers brought to justice: (£5 year 1.2m investment scam; 10 year £20m Ponzi; 13 year Ponzi): 4 Nov 20.
“printing“ or announcing false trades to simulate market activity: 23 Nov 20. Final Notice.
confirms investigation into Bombardier: over suspected corruption re Garuda Indonesia contracts/orders: 5 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.
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.
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.
DoJ seize $1B in Bitcoin linked to Silk Road (an online black market): BBC News: 6 Nov 20.
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.
Nicholas Sarkozy’s corruption trial suspended to assess health of a co-Defendant: Independent 24 Nov 20.