Fraud Newsletter 9 – July 2017
Case Management [Motoring case, but principles of general application]: Courts have a duty actively to manage a case; increased rigour is needed; game-playing must be stopped; focus must be on real issues, not attempts to wear down opponents; each participant has a duty to inform the court at once of any significant failure to take any procedural step; defence must draw attention to missing material early, or effectively lose the right to seek adjournment for material to be provided: R (Hassani) v West London J  EWHC 1270 (Admin),  Crim. L.R. 720. Counsel are professionally obliged to cite Hassani if appropriate when applications to adjourn or issues of case management arise.
Disclosure: Appeal granted on failure to reveal identification witnesses’ recent convictions for fraud and drugs: Accamo  EWCA Crim 751 (Westlaw).
Hearsay differences: Where a witness did not testify and had given completely contradictory accounts admitted at trial, the jury have to be given a precisely formulated warning on the need for care before convicting, on part of that evidence. Matters should be discussed with counsel. Retrial ordered: S  EWCA 1908,  4 W.L.R. 24.
Publicity: no reasonable expectation of privacy about reporting matters discussed in public at trial: Khuja v Times Newspapers Ltd and Ors  UKSC 49,  1 Cr. App. R. 1.
Severing Conspirators: unsuccessful joint interlocutory appeal following rejection of submission of no case based on Griffiths  1 QB 589 on indictment with one global count of conspiracy to commit fraud and prosecution amendment to charge three distinct conspiracies. Held standard principles applied: Barker  EWCA 437.
Search Warrant: tax fraud investigation. HC injunction granted as Crown Court judge failed to give reasons for issue; failure of HMRC to provide relevant material, or even to summarise the emails forming the basis of suspicion; possible HMRC failure in duty of disclosure. Full hearing in 6 weeks’ time: R. (on the application of Newcastle United Football Club Ltd) v HMRC  EWHC 2402 (Admin).
SENTENCING AND CONFISCATION
Deferred Prosecution Agreements: whether DPA is in the interest of justice – issues to be considered. SFO v Rolls Royce  Lloyds Rep FC 249 (Southwark -Sir Brian Levenson P).
Impersonating UK authorities: 3 years not excessive for conspiracy to defraud by shaking down tourists for monies and cards by passing themselves off as UK authorities: Ionita (unreported 11 Jul 17, Case Analysis on Westlaw).
Misrepresenting a barrister: 22 months’ imprisonment for 8 offences of providing unregulated immigration advice imposed on a barrister disbarred for taking instructions directly from clients when not authorised to do so and then offered legal services targeting vulnerable people: Wainwright 29 June 2017.
Newton Hearing required on dispute over fraud loss: Guilty plea to defraud Virgin Media of revenue. Written basis of plea noted differences in loss, prosecution £1m (accepted by judge), defence £0.5m-£0.75m. As difference had a potentially material effect on sentence, there should have been a Newton hearing: Tailor  EWCA Crim 699 (Westlaw).
Totality: 18 years starting point too high for fraud against 2 companies totalling £809,766. 12 years (one third discount for guilty plea) reduced to 9½ years. Gore-Strachen  EWCA Crim 644 (Westlaw).
BILLS, STATUTES & STATUTORY INSTRUMENTS
Criminal Justice (European Investigation Order) Regulations 2017 SI 2017 No 730 (giving effect to Directive 2014/41/EU re European Investigation Order (EIO) in force as from 31 July 2017.) Effectively replaces Mutual Legal Assistance within EU for obtaining existing evidence, or triggering investigations or evidence gathering.
Criminal Finances Act (Commencement No. 1) Regulations 2017 (SI 2017/739) bring into force the remaining provisions of Criminal Finances Act 2017 Part 3 (re corporate offences of failure to prevent facilitation of tax evasion), as from 17 July 2017.
Criminal Practice Directions 2015 Amendment No. 5  EWCA 1076 (Crim) [26 July 17] come into force as from 2 Oct 2017.
Criminal Procedure (Amendment No. 3) Rules 2017 S.I 2017 No. 755 [18 July 2017] come into force on 10 Aug 17.
S241A POCA 2002 added by s13 Criminal Finances Act 2017 to cover property obtained by a public official as a result of (i) gross human rights abuse or violations overseas or (ii) whistleblowing on a public official.
CONSULTATIONS, GUIDANCE, CIRCULARS AND REPORTS
Consultation on Anti-Money Laundering supervisory regime: Responses sought by 17 Aug 17. [Usual 4 week response time sought on important topic during holiday season].
CPS Inspectorate Annual Report 2016-17: 11 Jul 2017, includes the fact that Crown Court caseload has fell by 12.8% (2014-2015) but the proportion of complex crime appears to be increasing. (Magistrates’ courts caseload fell by 11.2% in same period.)
Disclosure: (1) CPS Inspectorate / HM Inspector of Constabulary Joint Report, Making it Fair: A Joint Inspection of the Disclosure of Unused Material in Volume Crown Court Cases, 18 Jul 17.
(2) Mouncher Investigation Report: by Richard Horwell QC 7 Jul 17.
FCA Anti-Money Laundering Report 2016/2017 5 July 2017.
Money Laundering Regulations 2017 Law Society’s quick guide, 11 July 2017.
Online Fraud: National Audit Office Report, 30 June 2017.
SFO Annual Report 2017 19 Jul 17: Conviction rate 87%; 2 DPAs; £25m confiscation; £9m recovered; 2m docs processed monthly; use of AI processing etc.
Cartel Screening Tool: CMA (Cartel and Markets Authority) issued a screening tool which helps procurers screen tender data for signs of cartel activity, 13 July 17.
Polygraph tests to be used on counter-terrorism informants. Independent, 9 Jul 17