March 2, 2021
Fraud Newsletter 52 – February 2021
CASES
ECJ: right of silence: criminal sanctions should not be imposed for exercising right of silence in market abuse investigations: preliminary ruling in DB v Commissione Nazionale per le Società e la Borsa (Consob) (2021) C-481/19, ECLI: EU: C: 2021: 84.
S2 CJA 1987 (SFO disclosure) has no extra-territorial effect to force disclosure of documents from foreign companies abroad: R (KBR Inc.) v Director SFO [2021] UKSC 2.
Discredited carbon credit expert: appeals re convictions in 4 different earlier fraud trials dismissed: failure to understand and comply with duties not determinative: expert evidence, unchallenged at trial, remained unchallenged on appeal: Byrne [2021] EWCA 107.
Secure EncroChat mobile evidence not excluded by Investigatory Powers Act 2016 as extracted from unencrypted storage in a handset and not during interception: A, B, D & C [2021] EWCA Crim 128.
Judicial protection and EAWs: ECJ ruling (A-G’s opinion) at request of Westminster Mag’s Court: effective judicial protection is not engaged where the issuing authority was not a court and the EAW could not be reviewed in the courts of the issuing country before the surrender of the person concerned: Svishtov Regional Prosecutor’s Office Case C‑648/20 PPU (11 Feb. 21)
Bankers Book Evidence Act 1879 s7 disclosure applications limited to UK proceedings and thus exclude Canadian extradition proceedings to US: Meng v HSBC [2021] EWHC 342 (QB).
SENTENCING AND CONFISCATION
Nothing of moment
BILLS, STATUTES & STATUTORY INSTRUMENTS
Pensions Schemes Act 2021 given royal assent: provides new powers to The Pensions Regulator (TPR) to obtain information and new criminal offences of intentionally avoiding an employer debt without reasonable excuse; knowingly and detrimentally affecting the likelihood of members receiving accrued benefit without reasonable excuse (7 years max.); knowingly or recklessly giving false information to TPR; failure to comply with a TPR notice without reasonable excuse. Financial penalties not to exceed £1m. Useful summary provided Pensions Scheme Act promises fundamental change: Carolyn Saunders & Simon Tyler (Pinsent Masons).
CONSULTATIONS, GUIDANCE, CIRCULARS AND REPORTS
In the Dark. Who is behind Luxembourg’s €4.5Tr investment funds industry? Transparency Internat. / ACDC (Anti-Corruption Data Collective): 8 Feb 21.
The UK’s Response to Cyber Fraud: A Strategic Vision: RUSI Occasional Paper: 22 Feb 21.
No Rest for the Wicked: Driving Change in the UK’s Post-FATF Evaluation AML Regime: RUSI Whitehall Report: 19 Feb 21.
Yateley Industries for the Disabled Pension and Assurance Scheme – Regulatory intervention report: The Pensions Regulator: 23 Feb 21: report on £250k charity fraud by CEO (5 years imprisonment).
NEWS
FCA:
- Criminal charges for insider trading by company employees: 11 Feb 21.
- Criminal proceedings for fraud and insider trading against two brothers employed at Goldman Sachs and Clifford Chance: 16 Feb 21.
NCA:
- 10 hackers arrested for string of sim-swapping attacks against celebrities hijacking their mobiles: over $100m stolen in crypto-currencies: Europol: 10 Feb 21. 8 men arrested in UK: NCA 9 Feb 21.
SFO:
- Senior UK fraud prosecutor unfairly sacked after US sabotage, tribunal finds: Guardian: 17 Feb 21
- SFO Handling of Complaints: HMCPSI report: 25 Feb 21
- Fourth executive convicted of bribery in post-occupation Iraq: (Unaoil case) 24 Feb 21.
HOME:
- Mike Lynch begins extradition battle with US over Autonomy takeover: “forum bar” issue: The Times: 6 Feb 21.
EU & ABROAD:
Following Gamseshop share price volatility the European Securities & Markets Authority (ESMA) warned that organizing or executing coordinated strategies to move a share price and posting false or misleading information on social media could constitute market manipulation. Disseminating investment advice on social media is also subject to regulatory requirements. Episodes of very high volatility in trading of certain stocks: ESMA 17 Feb 21.