Fraud Newsletter 32 – June 2019

CASES

Bush [2019] EWCA Crim 29 (the unsuccessful prosecution appeal against the terminatory ruling of no case in the Tesco trial) is now reported at [2019] Lloyd’s Rep F.C. 210.

 SFO v Tesco Stores Ltd (U20170287: Leveson LJ: 10 Apr 17) is now reported at [2019] Lloyd’s Rep. FC 283.

Gilani v Saddiq [2018] EWHC 3084 (Ch) (application for permission to use in separate criminal proceedings, documents disclosed in civil proceedings) is now reported at [2019] Lloyd’s Rep FC 251.

R (KBR) v Director, SFO [2018] EWHC 2368 (Admin) [extraterritorial application of s2(3) requiring production of documents): permission to appeal granted by SC: 8 Apr 19.

Volaw Trust & Corporate Services Ltd v Comptroller of Taxes (Jersey) [2019] UKPC 29: factually complex but significant case on privilege against self-incrimination re pre-existing documents; criteria to be applied at pre-trial investigative and trial stages and where material is to be used in foreign proceedings; interest of justice test; earlier authorities reviewed and explained.  Summary by Shane Collery QC

Woodward [2019] EWCA 1002: factors to consider in determining whether long trial breaks (for pre-booked juror holidays) make trial unfair.  (Murder, but applicable to long fraud trials).

SENTENCING AND CONFISCATION

R (Bahbahani) v Ealing JJ [2019] EWHC 1385 (Admin):  2014 summary convictions for failure to comply with enforcement notice and subsequent confiscation order for £4.3m set aside on grounds claimant was impersonated in the proceedings, thus robbing the court of its statutory jurisdiction. An extraordinary case, incapable of brief accurate factual summary.

S [2019] EWCA Crim 569:  circumstances in which assistance give to the prosecution can be taken into account under s22 POCA (prosecution’s/receiver’s application for reconsideration of available amount.

Fulton [2019] EWCA Crim 163 is now reported at [2019] Crim.L.R 633 and [2019] Lloyd’s Rep FC 263.

BILLS, STATUTES & STATUTORY INSTRUMENTS

Regulation (EU) 2019/881 on IT and communications technology certification to improve cyber security (repealing and replacing Reg. (EU) No 526/2013): published 7 June 19: in force 27 June 19 (some articles in force 28 June 2021.

CONSULTATIONS, GUIDANCE, CIRCULARS AND REPORTS

Algorithm use in the criminal justice system: Full Report  Law Society: 4 Jun 19. Summary. Uses include video & photographic analysis; DNA profiling; risk assessment; predictive crime mapping; data mining etc. Recommends new oversight mechanisms, extended testing and monitoring, transparency and examination of lawful basis.

Anti-money laundering: the SARS regime: Report: Law Com No 384, HC 2098: 18 Jun 19. Law Com Report Summary

EU Council adopts new rules of 24 May 19  “facilitating the use of financial and other information for the prevention, detection, investigation or prosecution of certain criminal offences”: 14 Jun 19  (Press Release Summary) 14 Jun 19. Member states have 2 years to comply.

Examining the Unknowns: Money Laundering Risk in the UK Professional Services Sector: Royal United Services Institute, Centre for Financial Crime and Security Studies (RUSI CFCS) 25 Jun 19. Summary

Further Investigative Steps in relation to RBS GRG: FCA Report 13 June 19: Summary

Intellectual property crime threats assessment 2019: EU Intellectual Property Office (EUIPO): 12 Jun 19:  re growth in counterfeiting, piracy and social media misuse.

Tackling fraud in Government with Data Analytics – Starting the conversation: Cabinet Office and DDCMS 27 Jun 19.  Details/ Summary.

Tackling serious and Organised Crime: Nat. Audit Office Report HC 2219: 28 Jun 19: Summary.

Understanding the Money Laundering Risks in the Capital Markets: FCA Thematic Review TR19/4: 10 Jun 19. FCA summary

What’s in a Name? Corruption and Fraud in the UK: 17 Jun 19: RUSI CFCS. Summary

NEWS

Multilateral Memorandum on Enforcement: SIFoCC (Standing International Forum on Commercial Courts): 27 Jun 19 sets out procedures for enforcing commercial money judgements among 32 SIFoCC countries. (Possible impact on civil fraud, asset recovery, and AML issues. Summary here.

FCA News: Bank of Scotland fined £45.5m for failure to disclose suspicions about fraud to FCA: FCA Press Release: 21 Jun 19; FCA Final Notice to RBS: 20 Jun 19. 3 year sentences for insider dealing imposed on senior compliance officer and a day trader: FCA Press Release: 27 Jun 19

Five reasons why aid providers get it all wrong on anti-corruption: interesting article by Phil Mason, anti-corruption specialist, formerly DFID: 20 May 19: Transparency International.

NHS Counter Fraud Authority Priority Action Areas: 2019-2020: 10 Jun 19

Sentencing Code moves to completion with the Sentencing (Pre-consolidation Amendments) Bill designed to make technical amendments and remove redundant legislation: MoJ Press Release: 23 May 19. See  Sentencing Code Vol 1: Report: Law Com. No. 382, HC 1724, 22 Nov 18 and The Sentencing Code Vol II: Draft Legislation: Law Com. No. 382, HC 1725, 22 Nov 18.

SFO News: Director pleads to £300k bribes paid over 5 years to secure £12m contracts: 30 May 19: sentenced to 2 years: 27 Jun 19.;    FH Bertling fined £850k for $350k bribes to secure $20m Angolan contract: 3 Jun 19   ENRC charge for failing to produce documents: 14 Jun 19