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A conspiracy to defraud is an agreement by two or more persons by dishonesty to deprive a person of something which is his or to which he is or would be or might be entitled, or to injure some proprietary right of his.
The first variant of the offence involves economic prejudice, and here it suffices if there if there is a dishonest agreement to expose the proposed victim to some form of economic risk or disadvantage. In the second variant, there must be a dishonest agreement by two or more persons to defraud another by deceiving him into acting contrary to his duty.
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Sentencing Guidelines for Corporate offenders—Fraud or VAT offences checklist This Checklist summarises the Sentencing Council’s guidelines for sentencing corporate offences of fraud under the Fraud Act 2006 (FrA 2006), Theft Act 1968 (TA 1968), Value Added Tax Act 1994 (VATA 1994) and Customs and Excise Management Act 1979 (CEMA 1979) in the Crown Court and magistrates’ court. The Fraud Guidelines for corporate offenders can be accessed here: • Magistrates’ Court Sentencing Guideline—Corporate offenders: fraud, bribery and money laundering—for use in cases involving corporates being sentenced in the magistrates’ court • Crown Court Sentencing Guideline—Corporate offenders: fraud, bribery and money laundering—for use in cases involving corporates being sentenced in the Crown Court The Sentencing Council also publishes a number of overarching guidelines, which should be considered in respect of all sentencing exercises. This includes: • Totality guideline (Crown Court) • Totality guideline (magistrates’ court) • General guideline—overarching principles (Crown Court) • General guideline—overarching principles (magistrates’ court) • Reduction in sentence for a guilty plea (Crown Court) • Reduction in...
Offences for which a DPA may be entered into—checklist A deferred prosecution agreement (DPA) is an agreement between an organisation and a designated prosecutor to enable the latter to defer a prosecution by staying an indictment on specific terms. No proceedings in relation to the matters covered by the DPA may be instituted against the organisation while the DPA remains in force. A DPA therefore allows a company to continue without the threat of a lengthy criminal investigation and a costly prosecution hanging over it. For detailed information on DPAs, see Practice Notes: • Deferred prosecution agreements • DPA process • Terms and content of a DPA • DPAs in practice DPA’s are only available to organisations in respect of the offences specified under the Crime and Courts Act 2013, Sch 17 (CCA 2013). The checklist below, lists the offences for which a DPA may be entered into, including common law and statutory offences. In addition to the offences below, any offence that is ancillary to those listed below,...
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Offence of conspiracy to defraudConspiracy to defraud is a common law offence which was expressly preserved by section 5(2) of the Criminal Law Act 1977 (CLA 1977) and is triable only on indictment.The offence requires that two or more individuals dishonestly conspire to commit a fraud against a victim. It is a very wide offence and catches conduct that might not constitute an offence but which, by reason of two or more people agreeing to do it with the requisite intent, it becomes an offence.Common law conspiracy is therefore wider than statutory conspiracy because it does not require the agreement to be in respect of the commission of a substantive criminal offence.The statutory offence of conspiracy is found in CLA 1977, s 1. The statutory offence requires a conspiracy that will necessarily amount to or involve the commission of an offence by one or more of the parties to the agreement, or would do so, but for the existence of facts that render the commission of the offence or any of...
Coronavirus (COVID-19) fraud—criminal offences, investigations and penalties [Archived] ARCHIVED: This Practice Note has been archived and is not maintained. What is Coronavirus (Covid-19) fraud? The coronavirus (COVID-19) global pandemic created new opportunities for criminality, particularly in relation to fraud offences. Fraudsters exploited both the weaknesses in the UK government-backed financial assistance schemes (support schemes) and the vulnerabilities and anxieties of individuals and businesses surrounding coronavirus. Office of National Statistics figures for England and Wales show that fraud levels spiked during the COVID pandemic, growing to over 5 million incidents in the year ending December 2021. The term ‘coronavirus fraud’ or ‘covid fraud’ may apply to any fraudulent activity which would not have been possible but for coronavirus, such as manipulation of the support schemes, including: • overstating company turnover in a support scheme application to receive greater sums • making multiple support scheme applications to receive greater sums • obtaining support scheme funds and subsequently filing for bankruptcy • impersonating a legitimate business or individual in a support...
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Corporate criminal liability—code of ethics 1 Introduction 1.1 [Insert organisation name] takes great pride in the way we conduct our business. Our Code of ethics embodies the standards and policies under which we operate. It applies to us all. Please take care to read the Code, understand it, and use it to guide you in your work. If you have any questions about the Code and its application, you should speak with [insert, eg your manager]. 1.2 [Insert organisation name] has a zero tolerance towards employees committing criminal acts. 1.3 From 26 December 2023, the Economic Crime and Corporate Transparency Act 2023 provides that where a senior manager, acting within the actual or apparent scope of their authority, commits a relevant offence, the organisation is also guilty of the offence. 2 Senior manager 2.1 A senior manager is someone who plays a significant role in: 2.1.1 making decisions about how the whole or a substantial part of the activities of the organisation are to be managed or organised; or 2.1.2...
Corporate criminal liability board briefing Date: [insert date] 1 Introduction The Economic Crime and Corporate Transparency Act 2023 (ECCTA 2023) is intended to strengthen the UK’s fight against economic crime. One of the most significant elements of the ECCTA 2023 for commercial organisations is the expansion of corporate criminal liability for the actions of senior managers. 1.1 What’s the issue? The identification doctrine, established by the courts in 1971, is the legal test for deciding whether the actions and mind of a natural person can be regarded as those of a legal person. It is the main way in which criminal liability has been attributed to corporate entities. The doctrine requires that an offence must be committed by the ‘directing mind and will’ of a corporation to trigger attribution to the corporate itself. In practice, this was limited to the managing director or owner where they were also involved in the running of the company. This has always been a high bar for prosecutors, which the government has now significantly...
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Is it possible to amend a deed after the fact by subsequently dating or backdating the deed? Date of signature v date of commencement The date on which an agreement is intended to commence can be different to the date on which it is signed. Whereas a simple contract takes effect once signed by all parties, a deed will take effect on delivery. If the obligations under the deed are intended to commence or be deemed to commence on a date different to the date of delivery, then this should be made clear in the document itself in a separate commencement clause. The date of the deed is usually stated at the beginning of the document and the commencement clause within the main body of the document. Practice Note: Executing documents—deeds and simple contracts summarises the law, guidance and practice relating to simple contracts and deeds, including the particular transactions for which a deed is required and execution formalities for deeds. You may find this helpful as this explains what...
If the time for the registration of a legal charge created by a company over land at Companies House has been missed (outside the 21 day period), can the legal charge be post-dated and can an application be made to re-register? There are serious consequences for failing to register a charge at Companies House in time, however, there are options to correct the situation. While it is not possible to post-date the document to re-register the charge (backdating a document is potentially an offence. It may also be conspiracy to defraud and contrary to the rules of professional conduct for solicitors: sections 17 and 19 of the Theft Act 1968), there are two main options for rectifying the situation; either to apply for an extension of time to register the charge or to retake the security. Extension of time If a charge is not registered in time, the chargor or any person interested in the charge (eg the chargee) can apply to the court to extend the...
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Tax analysis: In Impact Contracting Solutions Ltd (ICS), the Court of Appeal upheld the Upper Tribunal (UT) decision that HMRC has the power to deregister a taxable person for reasons related to tax fraud, even if the taxpayer makes other legitimate taxable supplies, provided that the deregistration is a proportionate step in the circumstances.
This week's edition of Corporate Crime weekly highlights includes analysis of the Supreme Court decision on the double criminality rule in the Extradition Act 2003, of the circumstances surrounding the halting of the new Imposition of community and custodial sentences guideline, of divergent approaches to Russia sanctions enforcement emerging from the UK, US and EU, and of the key questions arising from the Libor conviction cases currently awaiting judgment in the Supreme Court. Also included is news of the largest sanctions package being implemented against Russian shadow fleet tankers, of HMCTS’s strategy for remote participation in court proceedings, of the EA securing two confiscation orders in relation to illegal waste offences, and of a pub chain being fined for food safety breaches following a child's severe allergic reaction. All this, and more, in this week’s Corporate Crime highlights.
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