Articles

INSOLVENCY ACT OFFENCES : A SUITABLE CASE FOR GUIDANCE

Those who deal with cases brought by the Department for Business Innovation and Skills (DBIS) for offences under Insolvency Act 1986 Part IX Chapter VI (ss. 353 – 362) will also be familiar with the various authorities often cited by the Department in the sentencing guidance.

INCREASED USE OF SERIOUS CRIME PREVENTION ORDERS

On the 10th June 2010, the Serious Organised Crime Agency (SOCA) published details of ancillary orders imposed to 'aid the lifetime management of offenders'.

MEETING LEGAL COSTS IN CIVIL RECOVERY

When an individual faces civil recovery proceedings in the High Court the first priority will be legal representation. Thereafter, one of the first considerations for the legal team will be the issue of funding.
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BRIBERY ACT 2010

Bribery Act 2010 - the need for compliance.

According to the Ministry of Justice, The Bribery Act 'reforms the criminal law to provide a new, modern and comprehensive scheme of bribery offences that will enable courts and prosecutors to respond more effectively to bribery at home and abroad'.

ASSET FORFEITURE

Does current UK asset forfeiture law strike the correct balance between the interests of the general public in the recovery of the proceeds of crime and the rights of the defendant?
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The PROSECUTORS' CONVENTION 2009

2009 sees the introduction of the Attorney Generals Prosecutors’ Convention. In years gone by joint investigations between more than one Prosecuting Authority were rare. In the past if one Prosecuting Authority became aware of an offence that might be of interest to another Prosecuting Authority there was no structured approach as to how it should be dealt with.
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VAT FRAUD ON CARBON CREDITS

Carbon credits are licences to emit carbon dioxide or “permits to pollute”- and are seen as a vital weapon in the battle against climate change.

They are issued to companies that emit CO2 such as power stations, electricity companies and so on. They can be traded privately, through a broker or through exchanges, the European Climate Exchange, (ECX) being the largest.

In 2008 the market was worth almost £80 billion. However, there are growing concerns that the UK has become a major target for VAT fraudsters, which has led to a swift response from the Government to ensure that the integrity of the EU Emissions Trading Scheme is not undermined by VAT fraudsters.

CIVIL RECOVERY – WHO NEEDS A CONVICTION?

The Proceeds of Crime Act 2002 (POCA) increased the already wide ranging powers available to the courts in relation to the confiscation and asset forfeiture regimes provided under the Criminal Justice Act 1988 and the Drug Trafficking Act of 1994.

However, not only did POCA enhance the existing confiscation regime by extending the benefit provisions, it also introduced ‘Lifestyle Offences’ and enhanced and strengthened the ‘Cash seizure and Forfeiture” provisions available to the Magistrates Court.

Whilst there is little doubt that for those who have been convicted of offences which attract the provisions of POCA, the powers of the State have been increased to an extent whereby the defendant is now placed in a much more difficult position with regard to discharging the burden of proof and assumptions. One of the most talked of new provisions introduced by the Act in to English law is the concept of ‘Civil Recovery’.

CRIMINAL DEFENCE SERVICE (PROVISIONAL REPRESENTATION ORDERS) REGULATIONS 2009

In our previous article entitled ‘Attorney General’s Guidelines on Plea Discussion in cases of Serious or Complex Fraud ’ we discussed the new provisions that came into force in May 2009.

It is clear from the Attorney General’s Guidelines that a substantial amount of work will have to be undertaken by defence teams once early plea discussions have been invited by the Prosecutor.

Moreover, the discussions cannot simply involve the defendant’s solicitor because such discussions will form the basis of guilty pleas tendered to the Court in due course. It is important, therefore, for counsel to be involved at this early stage.

At the time of the Guidelines coming into force there was no provision for funding in respect of early plea discussions.

As from the 1st August 2009, Provisional Representation Orders can be granted, thus ensuring that adequate funding is in place for solicitors and counsel involved in pre-charge negotiations.

WITNESS ANONYMITY ORDERS - CRIMINAL EVIDENCE (WITNESS ANONYMITY) ACT 2008

Introduction

The Attorney General’s Guidelines dealing with the role of a prosecutor in applying for Witness Anonymity Orders start by stressing the fact that “every defendant has a right to a fair trial”. This overriding principle is reiterated in the DPP’s Guidance to Crown Prosecutors. Both sets of guidance stress the long established principle that a defendant in a criminal case is entitled to be confronted by, and to challenge those who accuse him.

The Criminal Evidence (Witness Anonymity) Act 2008 came into force following the ruling in the case of R-v-Davis (2008) UKHL 36 in which the House of Lords ruled that the measures used rendered the trial unfair under Article 6 ECHR. In that case measures included full anonymity, screens, voice distortion and the use of pseudonyms.

Anonymous testimony is not necessarily incompatible with Article 6 ECHR but whether the measures used to allow a witness to give evidence anonymously would make the trial unfair has to be evaluated on the facts of each case.

RESTRAINT ORDERS-IMPOSITION, VARIATION AND REMOVAL

Introduction

The intention of this article is to explain the purpose of a Restraint Order and the circumstances in which an Order can be imposed. It also considers what can be done to remove or vary a Restraint Order.

General Principle

A Restraint Order freezes property that may be liable to confiscation following a trial and the making of a Confiscation Order. Not only can it be made against a defendant or person under investigation, it can be made against any other person holding realisable property. The intention is to strike a balance between keeping a defendant’s assets available to satisfy any potential Confiscation Order that may be made in the event of conviction and also meeting the defendant’s reasonable requirements in the meantime.

This is a delicate balancing act particularly when a Restraint Order can be imposed against a person who has not been charged and is simply under investigation.

A Management Receiver may be appointed on the application of a Prosecutor to manage assets pending the making of a Confiscation Order if the defendant’s assets are such that require active management and the defendant is either unable to manage assets or the Court is unable to trust the defendant to manage the assets properly.

ATTORNEY GENERAL'S GUIDELINES ON PLEA DISCUSSIONS IN CASES OF SERIOUS OR COMPLEX FRAUD

In a move that will evoke comparisons with US style plea bargaining the Attorney General has issued Guidelines on plea discussions in cases of serious or complex fraud.

Director of the Serious Fraud Office, Richard Alderman refers to the measures “streamlining systems and delivering faster justice”.

The Guidelines require a Defendant to be legally represented before entering negotiations and discussions can even take place before a suspect has been charged. The Guidelines reflect a much more formal approach than the current system involving informal discussions of pleas.

Attorney General Baroness Scotland feels that the measures “are designed to help Prosecutors deal with fraud more effectively and efficiently, to the benefit of the public and all parties involved.” The Attorney General goes on to state that “ the Guidelines should put discussions about plea and possible sentence on a much clearer footing in fraud cases.

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