lexisnexis* - gbv

Kingsley NapleySerious Fraud: Investigation& Trial

Fourth edition

Stephen Gentle and Louise Hodges with:

Mark Beardsworth

Ella Blackburn

Emily Carter

Eve Giles

Jonathan Grimes

Claire Hegarty

Nicola Hill

Sophia Kemp

Jill Lorimer

Shamsun Nahar

Julie Norris

Previous editions written by David N Kirk and Tony Woodcock.

LexisNexis*

Contents

Table of Statutes xxxiiiTable of Statutory Instruments xlvTable of European Legislation xlviiTable of Cases xlix

Chapter 1 Fraud Offences 1.1

Offences under the Fraud Act 2006 1.2Fraud by false representation 1.5Fraud by failing to disclose information 1.14Fraud by abuse of position 1.19Possession of articles for use in fraud 1.26Making or supplying articles for use in fraud 1.32Fraudulent trading 1.36Obtaining services dishonestly 1.40Liability of company officers for offences by company 1.42Limitation to the privilege against self-incrimination under the FA

2006 1.43Prosecuting authorities 1.44Jurisdiction 1.45

Statutory conspiracy and conspiracy to defraud 1.46Statutory conspiracy 1.46

Elements of conspiracy 1.50Jurisdiction 1.61

Conspiracy to defraud 1.65Background 1.66Attorney General's Guidelines 1.67Elements of the offence 1.68

Offences under the Financial Services and Markets Act 2000 1.72Introduction 1.72Offences of misleading the market and market manipulation 1.80Misleading statements 1.81

Jurisdiction 1.86Statutory defences 1.87

'Misleading practices' 1.88Jurisdiction 1.89

IX

Contents

Statutory defences 1.90Miscellaneous definitions 1.91Penalties 1.92

Insider dealing 1.93The insider dealing offences 1.97Legislation 1.99Definitions 1.100Statutory defences 1.113Jurisdiction 1.120Penalties 1.121The market abuse regime 1.123

Money laundering 1.124Introduction 1.124Money laundering offences 1.125

The concealing offence 1.128The arrangement offence 1.129The acquisition, use and possession offences 1.130The failure to disclose offence: regulated sector 1.131Failure to disclose offences for nominated officers 1.137Criminal property 1.138Criminal conduct 1.142Overseas criminal conduct 1.144Suspicion 1.145Tipping off 1.147Prejudicing an investigation 1.152

Defences to money laundering offences 1.155Defences to the principal money laundering offences: concealing,arrangement, acquisition, use and possession 1.156Types of disclosure 1.160Authorised disclosures - requests for consent 1.161Adequate consideration 1.169Defences for failure to disclose offences 1.170

Review of disclosures 1.174Miscellaneous 1.175

Cheating the public revenue and statutory tax offences 1.177Introduction 1.177Cheating the public revenue 1.180

Elements of the offence 1.180Missing trader intra-community (MTIC) or carousel fraud 1.184Cheating the public revenue or statutory offence? 1.188Tax avoidance schemes and statutory disclosure 1.189Sentence 1.192

Statutory tax offences 1.193Fraudulent evasion of VAT 1.194Furnishing false information 1.201Multiple offences under VATA 1994

Contents

Fraudulent evasion of duty 1.208Evasion of Income Tax 1.213Untrue declarations etc 1.216Counterfeiting documents etc 1.219Falsification etc of documents under the Taxes Management Act 19701.222

Fraudulent trading and Companies Acts offences 1.226Fraudulent trading 1.227Offences related to the keeping of records 1.236Provision of false information to an auditor 1.240Auditor's right to information 1.242Limited company acquiring its own shares 1.243Prohibited financial assistance 1.246Definitions 1.249Officers of the company and criminal liability 1.253Directors' duties and offences 1.256Director's disqualification 1.261Prosecutors for fraudulent trading or Companies Act offences 1.266

Cartel offences 1.267Definitions 1.267Types of arrangements 1.271Dishonesty 1.275Jurisdiction 1.277Sanctions 1.278

Corporate liability 1.283Overview 1.283Piercing the 'corporate veil' 1.289

The Criminal Justice Act 1993 and jurisdiction for fraud offences 1.290Corruption 1.295

Definitions 1.295Bribery 1.296Public Bodies Corrupt Practices Act 1889 1.300The Prevention of Corruption Act 1906 1.303The Prevention of Corruption Act 1916 1.305'Corruptly' 1.307The Anti-Terrorism Crime and Security Act 2001 1.308The Criminal Law Act 1977 1.312Penalties 1.314The future 1.318

Chapter 2 Fraud Prosecutions 2.1

Serious Fraud Office 2.1Structure 2.4Remit 2.15Relationship with other agencies 2.19

xi

Contents

Crown Prosecution Service 2.22Structure 2.23Remit 2.29Relationship with other agencies

Financial Services Authority 2.34Structure 2.37Remit 2.41Relationship with other agencies 2.45

Department for Business, Enterprise and Regulatory Reform 2.47Structure 2.50Remit 2.52

Office of Fair Trading 2.58Structure 2.60Remit 2.62Relationship with other agencies 2.66

Her Majesty's Revenue and Customs 2.71Structure 2.76Remit 2.78

Civil (Code 9) procedures to investigate fraud 2.80Criminal investigations 2.83Relationship with other agencies 2.87

Serious Organised Crime Agency 2.90Structure 2.92Remit 2.96Relationship with other agencies 2.100

Chapter 3 Serious Fraud Investigations - Criminal Investigation Powers 3.1

Background to the key investigative powers 3.1Investigative powers, procedural safeguards and the Human Rights Act 19983.6Statutory powers of entry - background 3.8Powers of arrest - background 3.9Interviews in serious fraud cases - general 3.12

The purpose of interviews 3.12Confessions and admissions 3.15Statutory powers of interview 3.16Procedural safeguards 3.17Types of interview - voluntary, under caution and compelled 3.20Audio and visual recording and transcripts of interviews 3.21Interviewers 3.26Location of interviews 3.27Interviews and admissions, benefit from indications of guilt,

assisting investigations, immunity and undertakings as to use ofevidence 3.28

The role of the legal adviser before interview 3.30The role of the legal adviser during the interview 3.37

xii

Contents

Questioning techniques 3.40The role of the legal adviser and legal professional privilege 3.42Waiver of legal professional privilege 3.43The legal adviser's duties to the court and professional

embarrassment 3.46Conflict of interest 3.50

Interviews under caution - Police and Criminal Evidence Act 1984 and theCodes of Practice 3.52

The caution 3.54Voluntary interviews under caution 3.56The legal basis for arrest 3.59

The necessity criteria 3.61Interviews under arrest with a warrant 3.64Detention at a police station or custody suite 3.65DNA, fingerprints and photographs 3.66Fraud offences and testing for the presence of Class A drugs at a

police station 3.67Other consequences of arrest 3.68Pre-interview disclosure 3.73Inferences from exercising the right to silence 3.75Special warnings under the Criminal Justice and Public Order

Act 1994, ss 36 and 37 3.86Considerations and tactics in interviews under caution 3.88

Answering questions 3.95Not answering questions/'no comment' interviews 3.99Providing a pre-prepared statement 3.103

'Character evidence' interviews 3.109Interviews under compulsion 3.111

The 'compulsory' nature of interviews 3.113The defence of 'reasonable excuse' 3.115Criminal offence of providing false of misleading information 3.116Statutory restrictions on the use of compulsory interviews 3.117Compelled interviews of witnesses 3.120Compelled interviews of legal professionals 3.122Compelled interviews and overseas investigations 1.123

Obtaining documentary evidence in fraud cases - and overview 3.124Documentary evidence and the privilege against self-incrimination

3.128Voluntary disclosure 3.129Statutory notices 3.132

Issue and authorisation 3.134Additional information, copies and retention of material 3.136Form of service 3.137Restrictions on the duty to disclose 3.138Non-compliance - consequences and offences 3.140

xiii

Contents

Restrictions on the use of statements obtained under a statutory notice3.142

Production orders, customer information orders and accountmonitoring orders 3.143

Warrants for entry, search and seizure 3.144Disclosure notices

Obtaining documentary evidence under PACE 3.155Powers to obtain documentation by search warrant under PACE

3.157Powers to obtain documentation without a search warrant under

PACE 3.159Search warrants under PACE - safeguards 3.162Production orders - access to 'excluded material', 'special procedure

material' and legally privileged material under PACE 3.169Excluded material under PACE 3.173Special procedure material under PACE 3.178

Disclosure to the client of a production order or warrant forconfidential information 3.184

Obtaining documentary evidence - legally privileged material 3.187Legal professional privilege and other documentary evidence 3.187Seizure of LLP material under Part 2 Criminal Justice and Police

Act 2001 - the problem of inextricably linked material' 3.190Seizure of material held by legal advisers 3.198

Crisis management 3.203Crisis management and planning for a dawn raid 3.203Crisis management during a raid 3.204The role of the legal adviser and the execution of search warrants or

'dawn raids' 3.213Crisis management and issues to consider after a raid 3.214

Whistle-blowing, immunity from prosecution, undertakings as to use ofevidence and sentence reduction/leniency or 'plea bargaining' 3.219

Immunity from prosecution, undertakings as to use of evidence andreduction in sentence under SOCPA 3.222Immunity from prosecution 3.233Restricted use undertakings 3.235Assisting offenders and the Proceeds of Crime legislation 3.238Conditions on assisting offenders 3.240Assisting offender arrangements ceasing to have effect 3.241Disclosure by the offender 3.242Role of the adviser 3.243

Intrusive powers under the Regulation of Investigatory Powers Act 20003.249

The interception of communications 3.255The acquisition and disclosure of data relating to communications

3.256Surveillance and the use of covert human information sources 3.258

xiv

Contents

Access to electronic data protected by encryption or passwords3.259

Serious Crime Prevention Orders 3.260The test for the grant of a Serious Crime Prevention Order 3.262Requirements imposed by Serious Crime Prevention Orders 3.265Safeguards under Serious Crime Prevention Orders 3.266Penalties under Serious Crime Prevention Orders 3.267

The decision to prosecute 3.269The Code for Crown Prosecutors 3.270

The evidential test 3.272The public interest test 3.274

Serious Organised Crime Agency investigations 3.276Background to Serious Organised Crime Agency investigative

powers 3.276Disclosure notices - compulsory interviews and production of

documents 3.278Contents of a disclosure notice 3.280Interviews under a disclosure notice 3.283Compulsory nature of disclosure notices 3.284The defence of 'reasonable excuse' 3.285Offence of providing false of misleading information 3.286Restrictions on requiring information under a disclosure notice 3.287Restrictions on the use of statements obtained under a disclosure notice3.288

Warrants for search and seizure 3.289Immunity from prosecution 3.292Serious Crime Prevention Orders and Financial Reporting Orders

3.293Regulation of Investigatory Powers 3.294

Serious Fraud Office investigations 3.295Background to Serious Fraud Office investigative powers 3.295SFO questioning of suspects and witnesses in fraud cases 3.301

SFO interviews conducted under caution 3.304Interviews under s 2 CJA 1987 using powers of compulsion 3.306

The relationship between s 2 interviews and interviews undercaution 3.314

Production of documents 3.317Search and seizure 3.320Disclosure of information by the SFO 3.325Legal professional privilege and confidential information 3.326Offences under CJA 1987 3.328SFO powers and the defence of reasonable excuse 3.331Regulation of Investigatory Powers 3.332Overseas investigation 3.337Immunity from prosecution and undertakings as to use of evidence

3.342

xv

Contents

Decision to prosecute 3.343HM Revenue and Customs investigations 3.344

Background to HM Revenue and Customs' investigative powers3.344

Powers of arrest 3.351Questioning of suspects and witnesses in fraud cases 3.354Production of documents 3.356Search and seizure 3.363Offences 3.365Regulation of Investigatory Powers 3.367Decision to prosecute 3.375

FSA criminal investigation powers 3.377Background to FSA investigations 3.377FSMA, the FSA Handbook and the Enforcement Guide 3.379Appointment and powers of investigators 3.383Use of powers 3.390Notice of investigation 3.391Interviews 3.394Voluntary interviews 3.398Interviews under caution 3.399

Powers of arrest 3.400Interviews under compulsion 3.401Production of documents 3.403Search and seizure 3.406Disclosure of confidential information 3.411Offences 3.414Assisting overseas regulators 3.418Intrusive powers under Regulation of Investigatory Powers Act 2000

3.420Immunity from prosecution 3.421.1The decision to prosecute 3.422Caution 3.425Parallel civil or regulatory proceedings 3.426

Office of Fair Trading investigations 3.427General powers of investigation 3.430The role of the Serious Fraud Office in OFT criminal investigations

3.434Powers to interview witnesses or suspects 3.439Notice to obtain documentary evidence 3.445Powers to enter premises under a warrant 3.448Legal professional privilege 3.454Restrictions on the use of statements 3.456Use of statements obtained under Competition Act 1998Disclosure of confidential information 3.458Offences 3.461Parallel criminal and civil investigations 3.465

xvi

Contents

Regulation of investigatory powers 3.472Whistle-blowing - financial incentives for information regarding

cartel activities 3.477Whistle-blowing - immunity, leniency and no-action letters 3.483Overall approach of the OFT to the leniency and immunity

programmes 3.490Disclosure of information, confidentiality and use of information by

the OFT 3.494Procedures for obtaining Type A immunity 3.496Procedures for obtaining Type B immunity 3.500Procedures for obtaining Type B and C leniency 3.502The coercer test 3.503The grant of criminal immunity - no-action letters 3.504The grant of criminal immunity in Type A and B immunity cases

3.508The grant of criminal immunity in Type B or C leniency cases 3.510The grant of individual criminal immunity 3.511Criminal investigation - interviews of former and current employees

and directors of a leniency applicant 3.512Revocation of immunity agreements or no-action letters 3.514Bad faith 3.516OFT leniency and Commission immunity applications 3.517Form of leniency and no-action agreements 3.518Decision to prosecute 3.519

Department of Business, Enterprise and Regulatory Reform (formerly DTI)investigation powers 3.521

Companies Investigation Branch (CIB) 3.523Questioning of suspects of witnesses under s 447 3.530Interviews under caution 3.532Production of documents under s 447 3.533Search and seizure warrants under s 448 3.534Security and limited onward transmission of information 3.538Powers to enter and remain on premises 3.542Legal professional privilege 3.545Confidential banking information 3.547Protected disclosures 3.548Offences 3.549Powers under the Regulation of Investigatory Powers Act 2000

3.555Immunity from prosecution 3.556Decision to prosecute 3.557Overseas companies 3.560

xvii

Contents

Chapter 4 Core Issues 4.1

Introduction 4.1Legal professional privilege - an overview 4.2

Legal advice privilege 4.7Litigation privilege 4.9Who is the client? 4.12The crime/fraud exception 4.15Search, seizure and the production of documents 4.20

The 'seize and sift' powers - an overviewThe powers available 4.27Examination of seized property 4.38Retention of privileged material 4.44Application to judicial authority 4.47Use of inextricably linked material 4.51

Joint and common interest privilegeJoint retainer 4.58Joint interest 4.60Common interest privilege 4.63Joint interest privilege and corporations 4.64Common interest agreements 4.66

Loss of privilege 4.67Partial waiver of privilege 4.68Privilege in interviews 4.72

Abuse of process 4.79Introduction 4.79Jurisdiction of the Magistrates' Court to stay criminal proceedings

for abuse of process 4.84The procedure to be followed for an application to stay proceedings

4.85Tactical considerations 4.91Burden and standard of proof 4.93Production of documents 4.94Appeals 4.95Grounds for abuse 4.96

Manipulation or misuse of the court's process: non-disclosure 4.96Illegally obtained evidence 4.99Entrapment 4.103Breach of promise 4.105Delay 4.108Delay cause or contributed to by the defendant 4.113

Abuse of process for delay in relations to fraud cases 4.116Miscellaneous examples 4.119

Autrefois acquit or convict 4.119Adverse media publicity 4.120Inability to call evidence 4.121Inability to question prosecution witnesses 4.122

xviii

Contents

Proceeds of crime 4.123Public interest immunity 4.125

Introduction 4.125The legal framework 4.128The PII process: identification of material 4.130Applications for public interest immunity 4.132

The guidance in H&C 4.137Defence practice 4.139

Chapter 5 Disclosure in the Crown Court 5.1

Introduction 5.1Criminal Procedure and Investigations Act 1996 5.4

The unamended CPIA disclosure process 5.7The amended CPIA disclosure process 5.8

Non-statutory guidance 5.11Code to the Criminal Procedure and Investigations Act 1996 5.14The Attorney General's Guidance 5.16'Control and Management of Heavy Fraud and other Complex

Criminal Cases' 5.18The Criminal Procedure Rules 2005 5.19'Disclosure: A Protocol for the Control and Management of Unused

Material in the Crown Court' 5.21The Crown Prosecution Service Disclosure Manual 5.22

Prosecution disclosure 5.25The disclosure team 5.25The disclosure process: retaining, recording and revealing -

disclosure in the prosecution team 5.28Inspection of unused material 5.31Preparation of schedules and revealing of material to the prosecutor

5.33The CPIA disclosure test 5.35

'Prosecution material' 5.35Application of the disclosure test 5.38Timing of initial (or primary) disclosure 5.46Service of the non-sensitive schedule 5.48Continuing (or secondary) duty to disclose 5.49Timing of continuing (or secondary) duty to disclose 5.52

Sensitive and non-sensitive material 5.54Financial material 5.58Disclosure of material to the defence 5.60Management of the disclosure process in fraud cases - document

control systems 5.61Common law disclosure 5.67

Defence statements 5.69The purpose of the defence statement 5.70Content of a defence statement 5.72

xix

Contents

Authority for a defence statement 5.75Service of the defence statement 5.77

Timing of service of defence statement 5.77Cross-service of defence statement 5.81

Consequences of faults in defence disclosure 5.83Comment and adverse inference 5.83Judicial warning 5.89Guidance to the prosecution and the court 5.90

Prosecution use of defence statements 5.92Defence requests for disclosure 5.93Defence applications to the court for disclosure 5.95Further defence disclosure 5.98

Updated defence statements 5.99Notification of intent to call defence witnesses 5.100Notification of experts instructed by the defence 5.102

Third party material 5.105Prohibitions on the use of disclosed material 5.112

Chapter 6 Parallel Investigations and Proceedings 6.1

Introduction 6.1The nature of fraud investigations and proceedings 6.4Collateral investigations 6.6

Who should investigate and prosecute? 6.6Interviews and documentary disclosure 6.10Use limitation 6.11

Transmission to other authorities and regulators 6.17Transmission to overseas authorities 6.21

Collateral civil proceedings 6.22Disclosure - stay of proceedings 6.23Self-incrimination 6.31

Collateral regulatory and disciplinary proceedings 6.39Stay of proceedings 6.40Self-incrimination in disciplinary or regulatory proceedings 6.47

Internal investigations 6.50Introduction 6.50Interviews 6.51Documents 6.55

Some conclusions 6.57

Chapter 7 Transfer and Sending of Cases to the Crown Court 7.1

Background 7.2Transfers under Criminal Justice Act 1987 7.6

The power to serve a notice of transfer 7.7The criteria for transfer 7.8Procedure 7.14

xx

Contents

Documents for the defence 7.17Documents for the Crown Court and prison 7.20Bail, witness orders and legal aid in transfer cases 7.21

Sending cases under Crime and Disorder Act 1998 7.25Sending a case under the amended s 51 CDA 1998 procedure 7.30Section 51B CDA 1998 - notices in serious or complex fraud cases

7.33Challenging a notice under the amended CDA 1998 procedure 7.39

Chapter 8 Dismissal of Transferred Charges 8.1

Background 8.1The application to dismiss 8.7

Timing 8.9Applications for dismissal and oral evidence 8.10Content of the application 8.11

The prosecution response 8.14The test to be applied 8.17Effect of dismissal, appeals and challenges 8.21Voluntary bills of indictment 8.23

Chapter 9 Procedural Issues, Preparatory Hearings, Case Management andTrial 9.1

Introduction 9.1Criminal Procedure Rules 2005 9.10Sanctions for non-compliance with CrPR 9.17

Transfer/sending 9.19Bail 9.21Service of evidence 9.23Hearings at the Crown Court 9.27

Preliminaries 9.27The first hearing 9.29Retaining the judge for trial 9.34Timetabling 9.37Case management hearings 9.40

The preparatory hearing 9.41Power to order a preparatory hearing 9.41Procedure for applying for a preparatory hearing 9.49Service of evidence in advance of a preparatory hearing 9.53Preparatory hearing as the start of the trial 9.54Custody time limits 9.55The purpose and ambit of a preparatory hearing 9.57The judge's powers at the preparatory hearing 9.58Rulings and orders made outside s 9 9.63Service of the prosecution statement 9.65Defence orders 9.68

xxi

Contents

Cross service of statements 9.71Use to which statements may be put 9.72Failing to comply with an order under section 9 9.76Separate preparatory hearings for separate defendants 9.78

Applications to dismiss 9.79Amendments to the indictment 9.81Motions to quash 9.83Joinder and severance 9.86Trial without jury 9.91Jury bundles 9.94Admissions 9.98Hearsay evidence 9.99Bad character evidence 9.102Witness Summonses 9.105Varying orders made at preparatory hearings 9.107Reporting restrictions 9.109Appeals 9.113

Interlocutory appeals 9.113Prosecution's right of appeal of determinative rulings 9.120RvH 9.123

The trial 9.129Judicial mastery of the case 9.130The order of the evidence 9.131Case management sessions 9.133Live evidence 9.134Electronic Presentation of Evidence 9.139Use of interviews 9.141Jury management 9.143Court sitting hours 9.147Real time transcription 9.153Working at court 9.156Layout of the court 9.158The jury 9.161Speeches 9.167Evidence by television link 9.171The defendant 9.173Read evidence 9.176

Witness statements 9.176Admissions 9.179

Expert evidence 9.180Judge's summing up 9.182

Chapter 10 Sentencing 10.1

Introduction 10.1General principles of sentencing 10.4

Purposes of sentencing 10.4

xxii

Contents

Sentencing guidelines 10.9Custody thresholds 10.15Reduction in sentence for guilty plea 10.16

General guidance of reduction 10.18Recommended approach to reduction 10.19Determining the level of reduction 10.20

Imprisonment 10.24Determinate sentences 10.25Time spent on remand 10.26Prison sentences of less than twelve months (custody plus) 10.27Intermittent custody 10.28Suspended sentence 10.29

Sentencing for fraud offences 10.30The Barrick and Clark guidelines 10.30Large-scale fraud 10.36Advanced fee frauds 10.51Fraudulent trading 10.52Insider dealing 10.53Money laundering 01.54Fraud Act offences 10.56Other cases of dishonesty 10.57Frauds on the public revenue 10.60Corruption 10.71

Community orders 10.77Fines 10.79Plea negotiations 10.81Corporate and individual offending 10.82

Section 73, Serious Organised Crime and Police Act 2005 10.83R v Goodyear (the Goodyear direction) 10.88

The judge 10.89The defence advocate 10.90The prosecution advocate 10.91General matters 10.92

Appeal against sentence 10.96Ancillary orders 10.106

Compensation orders 10.106General power 10.106Appeal 10.118Review 10.119Effect on civil proceedings 10.121Enforcement 10.122

Restitution orders 10.123Disqualification under the Company Directors Disqualification

Act 1986 10.129Serious Crime Prevention Orders 10.143

Serious Crime 10.147

xxi n

Contents

Types of provisions 10.148Safeguards 10.149Length and variation 10.151Appeal 10.152Failure to comply 10.153General matters 10.154Use to date 10.156

Financial Reporting Orders 10.157Practical advice 10.158Looking to the future 10.161

The Sentencing Commission Working Group Report of July 200810.161

Plea bargaining 10.162

Chapter 11 Restraint 11.1

Restraint orders 11.1Introduction 11.1Applications for restraint orders 11.7

Risk of dissipation 11.11The statutory regime 11.15

Which regime? 11.16Property liable to restraint 11.25

Third parties 11.29Limited companies 11.31

Exceptions to restraint orders 11.32Living expenses 11.33Legal expenses 11.37Legal aid and pre-charge restraint orders 11.39

Variation/discharge of a restraint order 11.40Variation 11.41Discharge 11.42

Right of appeal 11.46Ancillary orders 11.50Disclosure orders 11.51Self-incrimination 11.53Management receivership order 11.56Repatriation orders 11.59Seizure orders 11.60Relationship between asset recovery and investigation in

prosecutorial bodies 11.61Civil asset recovery 11.67Property freezing order 11.69Interim receiving order 11.71Funding 11.72

xxiv

Contents

Chapter 12 Confiscation 12.1

Introduction 12.1Pre-POCA 2002 legislation 12.8

Summary of key confiscation legislation 1986-present 12.9The Proceeds of Crime Act 2002: the new regime 12.14

The Human Rights Act 1998 12.17The guidance in May 12.21

An overview of the confiscation process 12.22Conditions for making a confiscation order 12.25The confiscation process 12.31

Procedural matters - service of statements 12.32Standard of proof 12.38

The calculation of a defendant's benefit 12.39Criminal lifestyle 12.42Criminal lifestyle: the four assumptions 12.47General criminal conduct 12.59Particular criminal conduct 12.61

Value 12.62Property 12.64Obtaining 12.65

The amount that may be confiscated - the recoverable amount 12.68'Tainted gifts' 12.75'Free property' 12.80Time for payment 12.81The relationship between a confiscation order and the court's other

powers 12.83Procedure: postponement 12.85Reconsideration, variation and discharge 12.87Writing off amounts owed 12.93Absconding defendant 12.94Appeals 12.96Third party interests and pre-existing charges 12.99

Enforcement of confiscation orders 12.101Appointment of receivers 12.104Enforcement abroad 12.107

Defending confiscation proceedings 12.108Multiple recovery/apportionment 12.109Additional evidence 12.111Negligible evidence 12.113

Negotiated settlements and basis of plea 12.117Compensation as an alternative to confiscation 12.122

Chapter 13 International Issues 13.1

Introduction 13.1The legislative framework 13.3

Introduction 13.3

XXV

Contents

The conventions and treaties 13.6The Crime (International Co-operation) Act 2003, the Proceeds of

Crime Act 2002 and rule 32 of the Criminal Procedure Rules13.8

UK assistance to overseas authorities 13.12Mutual service of process 13.12Information sharing 13.15Requests from overseas to the UK for witness or documentary

evidence - 'informal mechanisms' 13.20Requests from overseas to the UK for witness evidence - the role of

the court 13.21Self-incrimination and legal professional privilege 13.25

Requests for assistance and the use of investigative powers 13.28Requests for the exercise of powers of compulsion 13.29Search and seizure 13.33Requests for banking information - customer information orders andaccount monitoring orders 13.34

Requests for evidence by television link or telephone 13.37Requests to the UK 13.37Requests from the UK 13.39

Requests for assistance from the UK to overseas authorities 13.40Introduction 13.40The application for a letter of request: process and content 13.43Requests for banking information 13.46Defence requests to the United States 13.47

Mutual legal assistance in restraint and confiscation 13.48Requests for assistance from overseas - restraint proceedings 13.49Requests for assistance from overseas - confiscation order 13.52UK requests for overseas assistance - restraint and confiscation

orders 13.55

Appendix 1 Primary legislation Al . l

Police and Criminal Evidence Act 1984 Al.lCriminal Justice Act 1987 Al . l lCriminal Procedure and Investigations Act 1996 A1.25Human Rights Act 1998 A1.52Financial Services and Markets Act 2000 A1.64Proceeds of Crime Act 2002 A1.83Enterprise Act 2002 A1.192Crime (International Co-operation) Act 2003 A1.219Serious Organised Crime and Police Act 2005 A1.239Fraud Act 2006 A1.256

Appendix 2 Secondary legislation A2.1

Criminal Procedure Rules 2005 A2.1

xxv i

Contents

Appendix 3 Guidance and Protocols A3.1

Attorney General's Guidelines: Disclosure of Unused Material in CriminalProceedings A3.1Disclosure: A Protocol for the Control and Management of Unused Materialin the Crown Court A3.16Control and Management of Heavy Fraud and other Complex CriminalCases: A Protocol issued by the Lord Chief Justice of England and Wales -22 March 2005 A3.25Mutual Legal Assistance Guidelines for the United Kingdom (5th Edition)A3.56

Index

xxvn