FRAUD

The extradition of a Czech Republic national who had been convicted of serious fraud offences in his absence was not unjust or oppressive, nor did it constitute an interference with his ECHR art.8 rights or those of his partner, notwithstanding the nine-year delay between the date of sentence and certification of the European arrest warrant. The district judge had correctly identified the factors favouring and militating against extradition.

[2017] EWHC 2360 (Admin)

A total sentence of three years and eight months’ imprisonment was appropriate in the case of a woman who had been convicted of eight offences of fraud (she had secured or attempted to secure tenancies of expensive properties by lying about her financial and other circumstances), two offences of using a false instrument with intent and one offence of threatening to take revenge.

[2017] EWCA Crim 1209

An offender who had pleaded guilty to conspiracy to commit fraud, but denied an offence of theft, had the theft conviction quashed where unbeknownst to him, the witness who had identified him had a previous fraud-related conviction. There was a real possibility that the jury would have reached a different verdict if they had known about the witness’ conviction.

[2017] EWCA Crim 751

A fraud conviction was rendered unsafe by the judge’s conduct in questioning the defendant in a way that went beyond elucidation of the evidence to undermining the defence, and in muddling his directions to the jury so that it was left open to them to draw adverse inferences from the defendant’s silence without the safeguards required by the Criminal Justice and Public Order Act 1994 s.34.

[2017] EWCA Crim 632

Although there had been a lengthy unexplained delay in bringing criminal proceedings against an individual for an alleged crime of forgery in 2001, the public interest in honouring the UK’s extradition obligations outweighed his right to family life in the UK, and extradition would not be unjust or oppressive despite the passage of time.

A sentence of six years’ imprisonment for burglary was appropriate where the offender had used subterfuge to gain the trust of an elderly man on more than one occasion, and had numerous similar previous convictions involving vulnerable victims, which showed an attitude of ingrained recidivism.

The court reiterated that in determining the category of harm of a money laundering offence under the Sentencing Council’s definitive guideline for fraud, bribery and money laundering offences, the scale of the harm had to be measured by the scale of the funds which included criminal proceeds, not by the amount of the criminal proceeds themselves.

[2017] EWCA Crim 308

An insurance company was not permitted to bring committal proceedings against two respondents for allegedly pursuing a fraudulent road traffic accident claim. Although the trial judge had found fraud to the balance of probabilities, the evidence had mainly been circumstantial and there was no strong prima facie evidence of fraud. Further, the insurance company had waited 18 months before bringing the proceedings.

A known figure in the world of online fitness advice could not rely on the Protection from Harassment Act 1997 to restrain unauthorised use of her name and photographs on another person’s fitness website and on social media. It was a case of identity fraud and belonged in the Chancery Division.

A district judge, having considered the Extradition Act 2003 s.21A, had been entitled to conclude that it would not be disproportionate to extradite an individual accused of a fraud offence. Notwithstanding that under domestic sentencing guidelines the offence fell into the lower category of harm, many factors indicating lesser culpability were absent and there were aggravating factors.

Certain amendments to particulars of claim were allowed where they did not distort and extend the trial. The amendments related to evidence that had arisen from German trades that were part of alleged VAT fraud involving the sale and purchase of European Union allowances under the European Emission Trading Scheme.

The Court of Appeal set out the correct approach to the sentencing guideline for Fraud, Bribery and Money Laundering Offences. Where offences were charged as a conspiracy and the actual loss did not reflect the intended loss from the conspiracy as a whole, sentencing judges were entitled to move the case up to the corresponding point in the category above the level of harm which had been quantified.

[2016] EWCA Crim 1948

It was appropriate to strike out the claim of a company arising from the sale, arranged by receivers, of commercial premises which it had acquired. The company had no real prospect of establishing that there had been a “corrupt agreement” between the buyer and the banks who had appointed the receivers.

[2016] EWHC 3048 (Ch)

When sentencing a solicitor who had pleaded guilty to fraudulently obtaining £25,000 from her own firm, the judge had erred in taking into account additional, consequential loss that had been caused to the firm when categorising the offence under the relevant sentencing guidelines. In order for such consequential loss to be taken into account, it was necessary to establish to the criminal standard that it was a direct result of the conduct to which the solicitor had pleaded guilty.

A requested person’s extradition to France to serve a prison sentence for offences of organised fraud and money laundering did not amount to an abuse of process as considered in Zakrzewski v Poland [2013] UKSC 2 and was not barred by reason of specialty pursuant to the Extradition Act 2003 s.17.

[2016] EWHC 2868 (Admin)

A sentence of 20 months’ imprisonment imposed following guilty pleas to charges of fraud, possession of false identification documents with intent and two charges of possession of articles for use in fraud, was reduced to 15 months, where the offender had admitted his guilt immediately and given information to the police that led to the apprehension and charge of another offender.

In an appeal against its decision that a taxpayer could not zero-rate its supplies of mobile phones because no relevant export of phones had been made, HMRC was entitled to adduce evidence that the taxpayer’s freight forwarder habitually participated in VAT fraud, despite not having alleged fraud against the taxpayer. The evidence was relevant to the reliability of the evidence from the freight forwarder; the fact that it was also supportive of a case alleging fraud did not mean it should not be admitted.

[2016] EWCA Civ 1014

In a case involving missing trader intra-Community fraud, HMRC’s claim that a company, through its director, knew that certain transactions were connected to fraud was plainly an allegation of conduct that was dishonest, and the company understood the case against it. Under the first limb of the test in Kittel v Belgium (C-439/04) EU:C:2006:446, the First-tier Tribunal had only to determine whether the company, through its director, knew of the connections to fraud, HMRC did not have to show that the director was dishonest.

[2016] UKUT 436 (TCC)

Drivers of vehicles carrying alcoholic beverages were found to be “holding” those goods without payment of excise duty within the meaning of the Excise Goods (Holding, Movement and Duty Point) Regulations 2010 reg.13(2). They had had physical possession and control of the goods at the relevant time; knew the nature of the goods they were carrying and that they were subject to excise duty; and the First-tier Tribunal had made unchallenged findings of fact that the drivers were knowingly concerned in the fraudulent evasion of duty.

[2016] UKUT 479 (TCC)

The appropriate sentence for transferring criminal property, namely two counts of £9000 from separate victims’ bank accounts where the offender had lesser culpability, was a two-year community order with an 80-hour unpaid work requirement. The offender’s basis of plea had been plausible and the judge should have given her an opportunity to put forward evidence to support her case before rejecting it.

The court refused a letter of request from the United States requiring a chief financial officer to give evidence at a trial concerning allegations of false accounting within his former company. Given that he was defending unparticularised related proceedings in the Chancery Division and the other party had refused to rule out using his evidence in those proceedings, granting the request would be oppressive and would breach his right to a fair hearing.

[2016] EWHC 1942 (QB)

The fraudulent claim rule, which applied to contracts of insurance and prevented an insured from recovering under the policy where his claim was fabricated or exaggerated, was of considerable importance. However, it did not extend to fraudulent devices or collateral lies where the claim was justified and the lie had no relevance to the insurer’s liability.

[2016] UKSC 45

A district judge had not been wrong to find that the extradition of a mother of a three-year-old child to serve a two-year sentence for fraud would not be disproportionate. The offending was serious, the mother had re-offended during the suspension period and she had not paid all the required compensation when the sentence had been deferred.

A co-defendant in a fraud trial who had been excused attendance on production of a medical certificate so that his trial was severed and listed separately, was convicted of contempt of court when he shortly afterwards failed to turn up for his individual trial without sending an excuse. He was found to have been deceiving his doctors and was sentenced to six months’ imprisonment for contempt of court.

Looking at the totality of the evidence against a defendant accused of conspiracy to commit fraud, the circumstantial evidence was unable to bear the weight of a conviction. A co-accused’s sentence of five-and-a-half years’ imprisonment was reduced to four-and-a-half years where the judge had set the starting point too high.

[2016] EWCA Crim 718

An 18-month sentence of imprisonment for contempt of court was imposed upon the chief executive of a Saudi Arabian waste treatment company who had demanded payment of a performance guarantee of £8.57 million from a UK supplier of incinerators, having made no previous complaint of bad performance. He had failed to transfer the sum to the company’s solicitors for payment into court as security for costs further to a consent order, and had kept the money, deliberately concealing the fact for almost a year.

The Extradition Act 2003 s.12A did not bar an individual’s extradition to Germany even though no formal decision to charge or try him had been taken; that formal stage did not exist in German criminal proceedings. The evidence showed that the sole reason that there had been no charge was his absence from Germany and that he would be charged and tried once there.

[2016] EWHC 400 (Admin)

The court granted a civil recovery order for properties registered to an individual who had been unable to account for his income, and had concealed his criminal record from mortgage brokers and a social housing group. The only reasonable inference on the evidence was that he had been involved in money laundering.

A judge had not erred in refusing to conduct separate trials for two co-defendants accused of fraud where one defendant did not attend trial. Appropriate jury directions were given to cure any prejudice that might arise from the absence.

[2015] EWCA Crim 2238

Sentences of two-and-a-half years’ and five years’ imprisonment imposed on offenders convicted of conspiracy to facilitate a breach of immigration law were increased to five and eight years respectively, due to their callous disregard for immigration law and the acute impact on innocent victims.

[2015] EWCA Crim 1402

Two defendants who admitted lying in a motor insurance claim by asserting that the vehicle owner was driving at the time of a rear end shunt when it was, in fact, her boyfriend, received custodial sentences for contempt of court even though their motivation for lying had not been to obtain money, but to protect against problems arising out of the possible invalidity of the boyfriend’s driving licence. The boyfriend received an immediate two-month term, and the owner a one-month term suspended for two years.

Although a judge had asked a defendant some closed and leading questions suggestive of challenge to the defendant’s account during his trial on fraud charges, some questioning had been open and entirely appropriate. The judge had also clearly directed the jury that nothing he had said was intended to give them guidance except on matters of law: the trial was not thereby rendered unfair by the judge’s intervention, and the defendant’s convictions were safe.

[2015] EWCA Crim 1080

In calculating the benefit figure for the purpose of making confiscation orders under the Proceeds of Crime Act 2002 s.6 in relation to participants in a VAT carousel fraud, it was irrelevant that the total amount of the inputs claimed from HMRC did not produce an actual gain for those offenders, since there was no injustice for the purposes of s.10(6)(b) in treating the fruits of their fraudulent claims as part of the benefit where they had chosen to pass them onto the next link in the carousel chain.

[2015] EWCA Crim 816

There was no reason to interfere with a total 14-month sentence imposed on an offender in respect of one count of fraud by false representation and one count of conspiracy to commit fraud by false representation where he and two others had engaged in a sustained practice of defrauding bookmakers by exchanging betting slips.

A Chinese bank was ordered to honour guarantees issued in support of two shipbuilding contracts where the nature of the guarantees was by way of performance bonds and not contracts of surety, and their express terms excluded discharge, notwithstanding that the party in whose favour they had been issued had been found culpable of fraud by the Chinese courts in relation to the installation of second-hand engines. Moreover, the fraud had nothing to do with the fraudulent party’s right to cancel the contracts, since there was no suggestion that the late delivery was caused by the nature of the engines.

[2015] EWHC 999 (Comm)

When a judge was considering whether it was appropriate to make a confiscation order against an offender who had pleaded guilty to conspiracy to commit fraud, there was a distinction to be made between a courier or custodian of stolen property who had sought to exercise no rights in relation to that property, and the person who had obtained the property from another and thereby assumed the rights of the owner. By his actions, a conspirator had usurped the rights of the true owners, and on that basis he was to be distinguished from the couriers in R. v Allpress (Sylvia) [2009] EWCA Crim 8, [2009] 2 Cr. App. R. (S.) 58 and the bailee in R. v Clark (Martin) [2011] EWCA Crim 15, [2011] 2 Cr. App. R. (S.) 55 who had merely held the relevant criminal property with the permission of and under the direction of those who had transferred it to them and had not themselves usurped the rights of the true owners.

[2015] EWCA Crim 797

It was not appropriate to interfere with sentences of three years’ and three-and-a-half years’ imprisonment imposed respectively on two offenders for concealing criminal property where they had concealed the proceeds of fraudulent activity by their family members in their own bank accounts.

[2015] EWCA Crim 1041

A compensation claim in respect of a property restrained during proceedings for diversion fraud that were subsequently withdrawn was refused as the claimant had failed to prove serious default by any officer concerned either in the investigation or in his prosecution. Further, the property had been purchased with the proceeds of crime.

[2015] EWHC 538 (Admin)

A judge’s decision to reject a submission of no case to answer and leave a charge of money laundering before a jury was correct, as there were enormous amounts of evidence as to the suspect movement of funds and the criminal nature of loan monies paid into an account.

[2015] EWCA Crim 333

A total sentence of 8 months’ imprisonment was appropriate following a solicitor’s pleas of guilty to various fraud offences which involved facilitating a client’s property purchase in the knowledge that the client was not entitled to the right to buy discount which she was receiving. Although the offences involved abuse of a position of power, trust or responsibility, they were not motivated by personal gain. Those higher and lesser culpability factors balanced themselves out in assessing the appropriate starting point under the sentencing guidelines for fraud.

[2015] EWCA Crim 81

A judge had not been wrong to refuse to sever two counts that related to an offender’s sham marriage from an indictment containing a string of fraud and deception offences, as all counts were part of a series of offending involving dishonesty and making false representations to public officials.

A sentence of two years’ imprisonment imposed following a guilty plea to conspiracy to defraud in relation to involvement in professionally planned “crash for cash” staged car accidents was not manifestly excessive. A sentence of 18 months’ imprisonment imposed following a guilty plea to perverting the course of justice by breaching a restraint order imposed in respect of the same fraudulent conduct was also not excessive.

[2014] EWCA Crim 2748

It was possible for an unlicensed gangmaster to be in a position whereby he was expected to safeguard the financial interests of another person within the meaning of the Fraud Act 2006 s.4. The critical factor in the instant case was that there was evidence that the gangmasters had assumed control of, and responsibility for, collecting the workers’ wages or that they controlled the wages when they were handed over.

[2014] EWCA Crim 2888

A search warrant was quashed, and seized property was to be returned, where the warrant had been issued and executed in relation to drug offences, but the police indicated that they wished to retain the property in connection with fraud offences. The police had given no information as to why and when the focus of the investigation had changed from drugs to fraud.

A European arrest warrant was found to be valid as, although the offences had not been discretely set out, the warrant contained all the required information under the Extradition Act 2003 s.2.

A judge had not erred in a trial for conspiracy to burgle by allowing the prosecution to adduce hearsay evidence through statements written by the relatives of elderly victims under the Criminal Justice Act 2003 s.116 where one victim had died before trial and four others were unfit to testify because of their infirmities.

[2014] EWCA Crim 2957

The Crown Court had jurisdiction under the Criminal Justice and Police Act 2001 s.59 to entertain an application by the police, or other investigating authority, to retain material that had been unlawfully seized under search warrants pending an application for a fresh search warrant.

[2014] EWHC 2821 (Admin)

Where an individual had permitted the receipt of £715,000, being criminal property obtained by fraud, from the United Kingdom into his Spanish bank account, and then allowed the subsequent withdrawal of that money, the Crown Court had had jurisdiction to try him for converting criminal property, contrary to the Proceeds of Crime Act 2002 s.327(1)(c), both by reference to the statute and because the significant part of the criminality underlying the case had taken place in England.

[2014] EWCA Crim 1680

A judge had been justified in refusing to admit psychological evidence as to the suggestibility of an individual with a learning disability and in not giving a full direction under the second limb of the Ghosh test; the individual’s convictions for fraud were safe.

The court made an order under the Proceeds of Crime Act 2002 s.13(6) on the basis that a defendant would only have sufficient funds to satisfy a confiscation order and a compensation order if her family home was sold.

[2014] EWCA Crim 1664