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New SFO Guidance on Bribery Act 2010 – by Siobhain Egan

The SFO’s new Director now appears to be taking a slightly different approach to that of his predecessor when focusing upon the controversial issues of self-reporting, hospitality, and facilitation payments.

Self-reporting still remains of crucial importance (and therefore the need for companies to have comprehensive up-to-date compliance systems in place), however the SFO appear to be moving slightly away from the Deferred Prosecution Agreement/civil settlement so favoured by Richard Alderman and the present government. The latter has just finished consulting upon DPAs.

The SFO have stated that, “The revised policies make it clear that there will be no presumption in favour of civil settlements in any circumstances.” One wonders how much of this is ‘grandstanding’.

We know that the SFO are working under a much-reduced budget, in fact only £2 million has been allocated to bribery and corruption, so there does not appear to be much in the pot to fund large, long-running, in-depth investigations and prosecutions. That is, unless they pursue companies using the Proceeds of Crime Act 2002, which has a reverse burden of proof or civil asset recovery. Essentially companies and individuals would have to prove that the payments in question were legitimate.

Facilitation payments have always been a ‘bone of contention’ between the US and UK prosecuting authorities. The SFO now say that they will prosecute if there are, for example, large/repeated payments but they are no more definitive than that.

Very little is said about hospitality, other than that they recognise that hospitality is part of business culture but that bribes can be dressed up as hospitality.

So what does this mean for companies? As stated earlier, ensure that you have ‘gold plated’ compliance systems in place and, if you are facing a SFO prosecution, it is likely to lead to a POCA investigation and you should ensure that you instruct specialist forensic accountants and solicitors when preparing your defence.

Contact Jeffrey Lewis or Siobhain Egan

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Changes to Defence Costs Orders from 1 October 2012 – by Miles Herman

The changes in provisions to the making of defendants’ costs orders only apply where proceedings commence on or after 1 October 2012. Prior to this date the current arrangements still apply.

As part of the Government’s commitment to the reducing of costs awards being made from Central Government a number of changes are being introduced which significantly reduces the scope the Court have in making awards that the defendants’ costs be met in whole or in part.

It is important to note that, although there are principles that apply to all stages of a criminal case, each case will have to be considered on its own merits and tailored advice will be provided to clients in each case where it is proposed that this firm is instructed on a private basis or contemplation is being given to such an instruction.

For guidance purposes, however the following rules will apply from 1 October 2012:

  1. In respect of all Magistrates’ Court cases legal costs can be included in a defence costs order. However, the rates that will apply to those orders being made are capped broadly at rates that would have been paid if the defendant had been the beneficiary of a legal aid order. In many cases this can mean the hourly rate is no more than 25% of the firm’s private rate. In many of the cases in which these provisions apply, legal aid would not have been available to a defendant in any event, and consequently even if a defendant is successful in a case that ends in the Magistrates’ Courts they are only able to recover a portion of their costs from Central Funds;
  2. In cases which are in the Crown Court on indictment, legal costs cannot be included in a defence costs order unless the costs apply to appeal proceedings against a conviction or sentence of the Magistrates’ Court.

This principle has been introduced on the basis that all defendants are eligible to receive the benefit of legal aid; in the Crown Court either subject to nil or monetary financial contributions. There are a number of other regulations that apply to the making of defendants’ costs orders including in respect of extradition and cases which are before the Court of Appeal, and in those cases defendants will receive specific advice at the outset as to the costs that may be returned to a defendant in the event of a successful outcome.

These changes represent a significant challenge to this firm and clients of this firm. We are committed to providing comprehensive advice at the outset of cases where these provisions may apply in order that clients and prospective clients obtain all the information that they require prior to make a decision as to the instruction of the firm on a private basis.

We fully recognise that in a number of cases defendants are financially worse off in the event of an acquittal or successful outcome than they otherwise would have been prior to 1 October 2012 and that is a direct impact of the Government’s policy. Clients will be aware that not only are there cost implications for cases tried in all courts, but the decision as to whether to instruct a firm privately will also be influenced in some cases by the potential financial penalties in the event of conviction, namely confiscation and Proceeds of Crime Act proceedings which inevitably follow in most cases which are before the Crown Court.

Those are issues that the firm will discuss with all clients at the commencement of a case.

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Making a Will: Our Top Ten Tips – by Prue Abrahams

Single, married or co-habiting? Infant children? Own a property or have savings/investments?

Whatever your position in life everyone should consider having a will to make it clear how you want your affairs dealt with after death.

Our top 10 tips for writing a will are:

  1. Make a list of all your assets and any debts that you have so that you have a reasonable idea of what you ‘estate’ will be worth. Sometimes this can be a lot more than you think… you may even find that your assets will be worth more than the inheritance tax (IHT) limit of £325,000 which means IHT might be payable. How will this affect the amount you are able to leave?
  2. Revoke any previous wills you have made.
  3. Decide who you want as your executors. They are the people who will be responsible for sorting out your affairs and administering your estate. Make sure you ask them if they would be willing and able to act.
  4. Think about guardians for your children. Who do you want to bring your children up if you are no longer around? The guardians will assume ‘parental responsibility’ for your children. They will have to decide where they live; where they go to school; what (if any) religious upbringing they receive; what medical treatment they can have.
  5. What about trustees? If you do not want your children to inherit any money until they reach 18 or 21 but you still want your money to be used to look after them until they reach that age you will have to create a ‘trust’.
  6. Any specific legacies? You might want particular people to have particular items for sentimental or financial reasons. Make a list of what items you want to go to which people. Or you might want to leave a sum of money to an individual or to a favourite charity.
  7. It is very important to have a residue clause. The ‘residue’ is everything that is left once all your debts, funeral expenses and any specific legacies have been paid. You need to decide who you want to receive the residue. This can be one person or a number of people (or charities) it can be divided equally or unequally or calculated in percentage shares.
  8. Make sure the will has been signed. There are very particular rules to signing a will and the will is not valid until properly signed.
  9. Keep your will somewhere safe and fireproof. Make sure that your executors know where to find it.
  10. Review your will every 3 to 5 years or after a major ‘life’ event such as a marriage or divorce or a significant change in your financial circumstances.

At Lewis Nedas Law we have fully qualified solicitors who can help you with the will writing process to ensure that your will properly reflects your wishes.

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Should a Gun Ever be used in Self-Defence? – by Laura Saunsbury

The occasions on which the use of a firearm or shotgun in self-defence can be justified as necessary and reasonable must be extremely rare. However, it would be difficult to find a clearer example than the unfortunate Mr and Mrs Ferrie who were both arrested earlier this week after Mr Ferrie used a licensed shotgun to frighten away four intruders who had broken into their home in the dead of night.

Quite apart from the fact they were outnumbered by the burglars, the latest reports that have emerged indicate that at least one of the intruders was masked. Having been roused from their sleep by the sound of breaking glass, the couple awoke to be faced by one or more of the gang in their bedroom. Furthermore, they had been the victims of several burglaries in the past. This and the prospect of what was yet to come must all have been operating on Mr Ferrie’s mind at the point when he decided to fire the shotgun. Had he retaliated with anything less than a gun, it is highly questionable whether the burglars would have left them unharmed or exited the property so soon.

In the circumstances, it is difficult to imagine why it took so long for a senior lawyer at the Crown Prosecution Service to reach the decision that their actions amounted to no more than lawful and reasonable self-defence, and that consequently neither of them should be prosecuted. The couple spent almost three whole days in police custody before being released on police bail. No doubt, they must have been greatly relieved when their ordeal ended some 24 hours later and they were informed a decision had been reached to take no further action.

But is it really over yet for Mr and Mrs Ferrie? The fact remains they suffered the ignominy of being arrested on suspicion of causing grievous bodily harm, a serious criminal offence, and were deprived of their liberty for 3 days. The couple would have been detained separately from each other at a time when the very thing each of them craved was almost certainly the comforting presence of their spouse. This must have added significantly to the trauma of the burglary and will no doubt stay with them for a very long time to come.

The further aspect of this case, which probably won’t have occurred to the wider public, is that Mr and Mrs Ferrie may now face scrutiny from their police firearms department as to whether the shotgun certificates held by them should be revoked. It is to be hoped that the licensing department will take a sensible view in the circumstances of this case. But as our firearms law specialist Laura Saunsbury knows only too well from her experience in advising on firearms licensing appeals, the mere fact that an individual has been cleared of a criminal offence they were suspected of committing does not by any means guarantee their firearm or shotgun certificate is safe. If there is any indication their certificates may be in jeopardy, Mr and Mrs Ferrie would be well advised to avail themselves of specialist representation.

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Are the FSA at Risk of Throwing the Baby Out With the Bathwater? – By Siobhain Egan

The FSA have outlined details of another new offensive against Unregulated Collective Investment schemes (UCIS) and have many alternative investments firmly within their sights.

New rules are due to come into force in early 2013, which will effectively preclude the majority of private investors from UCIS unless the investors fall within strictly prescribed definitions, e.g. the investors should have an income of £100,000, have an investment fund of at least £250,000, and be considered to be experienced/sophisticated investors.

The new rules will also cover Special Purpose Vehicles (SPVs).

This is very admirable as far as unscrupulous financial advisors are concerned, i.e. those who ‘hard sell’ to vulnerable investors, but it doesn’t necessarily mean that there is a problem with the products themselves e.g. wine, carbon credits or property, and in effect it will exclude all but the most wealthy private investors.

The rules concerning UCIS/SPVs will affect legitimate well-performing Hedge Funds as well, so we can expect some reaction to these proposals from some influential figures in the City.

Currently, the FSA have determined that there are some 85,000 people with ‘alternative investments’ worth over £3.5 billion and controlled by over 3,000 companies.

We are advising a number of clients who run alternative investment companies, and investors who are worried about the legitimacy of these investments.

Contact Jeffrey Lewis or Siobhain Egan if you have any concerns.

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