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Giovanni Lombardo interviewed by Sky Italia

press conferenceOur Italian law specialist, Giovanni Lombardo, has been interviewed by the Italian TV company Sky Italia about the differences between the criminal justice systems in Italy and England and Wales.

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APR
19

Fare Evasion ....online (in)justice on the horizon?

Fare Evasion costs rail companies millions of pounds each year ,and both the companies and government are determined to do something about it . Since the Joint Prosecuting Protocol( July 2015) prosecutors and rail companies view persistent fare evasion as fraud and prosecute accordingly .

In February 2017 , the Government following a Consultation announced a 'wholesale shift to access justice digitally , this will allow those facing a ,currently ,limited number of supposedly low level criminal offences to be dealt with on line .One of these offences is fare evasion.

An individual facing an allegation of fare evasion only has to click onto the website , enter a guilty plea and receive a pre determined fine and compensation order AND a criminal conviction .
The Government stresses that this system is entirely voluntary and is NOT suitable for those who wish the prosecuting authorities to take MITIGATING circumstances into account

Let's look at this carefully ... a conviction for fare evasion ( even one prosecuted under the Railways Act bylaws) is considered by most employers and professional regulatory bodies as convictions of dishonesty which can lead to immediate dismissal and or/ professional sanction .
It's accurate to say that in time these offences become 'spent ' and it can be unlawful for employers to ask if a potential candidate has a criminal conviction , but unfortunately that doesn't stop them .
Many employers insert clauses in employment contracts that stipulate that an employee must notify them of any pending and actual criminal prosecution . Failure to do so can lead to immediate dismissal .
Certain jobs demand enhanced Disclosure and Barring Service checks , and an employer will take such a conviction into consideration when making the decision to recruit .

Further in our experience ,every individual facing a such an allegation has mitigating circumstances that can be used to dissuade the rail authority from prosecuting , it's a question of identifying the mitigation and putting it to the authority in an attractive way .
Most of the rail authorities take a 'firm but fair ' approach , and the majority take a very firm approach to persistent fare evasion and /or the abuse of privilege or free travel passes .

We successfully defended the leading case in this field , which involved a Senior Financier who was , rather inaccurately , accused of fare evasion spanning many years . It attracted Nationwide publicity ,led by The Daily Mail and The Times and prompted the drafting of the Joint Prosecuting Protocol in July 2015.
We managed to dissuade the Police from prosecuting our client ,after raising legal argument .

Since 2014 we have successfully defended hundreds of clients , most of whom have come from business or professional backgrounds , who simply cannot afford to have a criminal conviction or the risk to their employment or profession .We have defended doctors , nurses , lawyers , University professors , social workers ,bankers , accountants , financiers ,journalists , university students , charity trustees ,teachers to name but a few .

Anybody who has FCA authorisation would have good reason to worry ,because this organisation takes a particularly draconian approach to these offences .
We have years of experience when it comes to defending FCA Regulatory and disciplinary proceedings .

It can affect immigration status ,your ability to raise loans or credit or even to get insurance .

What should you do if stopped by a Ticket Inspector?

First of all stay calm ... don't make up a silly or false explanation .... answer their questions honestly and in full .
Remember they are not trained police officers and they can often make important mistakes when noting responses and gathering evidence , which you should scrutinise carefully for accuracy .
Most rail authorities ( but by no means all ) will write to you within a few weeks , and send a letter entitled Notice of Intended Prosecution ,... please do NOT ignore this letter . It's vital that you respond promptly and it's a good time to consult a genuinely experienced solicitor.
This is your opportunity to try and deflect the prosecution and to persuade the prosecution to agree to an out of court settlement .
If you ignore the original letter then the next correspondence that you will receive will be a Court Summons .

How can we help you?

As highly experienced and successful criminal ,fraud and regulatory specialist defence lawyers , we adopt a legalistic approach to these cases .
We have established working relationships with most of the Country's rail authorities and understand immediately what mitigation will appeal to the prosecutors .
Our approach genuinely works in the overwhelming majority of cases , one of our colleagues has only lost one case in three years and was the lawyer who defended the leading case in this field , as mentioned earlier .

How much will it cost?

We do charge , and give an accurate estimate of the range of legal costs involved from the outset .
We do not offer a fixed fee basis of costs , this is because most cases take a great deal of time and care . We want to do the very best that we can for you , because we fully understand what is at risk for you .
We are a legal business ,and as solicitors sell our time and expertise .
Some cases involve quite complex mitigation and that can take time .

Currently most rail companies when assessing the cost of an out of court settlement will calculate as follows:
The cost of the missing rail fares and a contribution towards their investigative and legal costs .It is still a relatively small price to pay when your professional future is at stake .

If you feel that we can help you please contact us on 02073872032 or use our online enquiry service.

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APR
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Lewis Nedas Law welcome criminal defence specialist Ayeh Nowroozi

lewis nedas new staff femaleLewis Nedas are delighted to announce that criminal defence specialist, Ayeh Nowroozi, has joined the firm as a consultant solicitor. 

Ayeh has a long standing following within the Iranian community amongst a number of communities, and specialises in the defence of high profile complex crime.

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APR
12

Unexplained Wealth Orders: A new tool for seizing proceeds of crime

The Criminal Finances Bill, aimed at improving the ability to tackle money laundering, corruption, tax evasion and terrorist financing in the UK, is currently making its way through Parliament. It contains new, potentially draconian, investigatory powers that enable law enforcement agencies, both regulatory and prosecuting, to require an individual to explain the origin of their wealth. These Unexplained Wealth Orders (UWOs) have been introduced to close loopholes that are being exploited to hide the proceeds of crime.

In this blog, we provide a brief overview of UWOs and raise some concerns over their use once they become available to the authorities. If you require more information, please contact us. Our specialist asset restraint and confiscation team have vast experience successfully acting for a variety of businesses and individuals in both civil recovery and criminal proceedings.

What are Unexplained Wealth Orders?

Unexplained Wealth Orders (UWOs) are a civil investigatory tool intended to be used by enforcement agencies investigating serious criminality (the National Crime Agency, HM Revenue and Customs, the Financial Conduct Authority, the Serious Fraud Office and the Crown). They require an individual or company to set out the nature and extent of their interests in property and explain how it was obtained. An order may also require them to provide information or produce documents.

An enforcement agency must make an application to the High Court for a UWO. For an order to be made, the High Court must be satisfied that the respondent holds the property and the property value is greater than £100,000. It must also be satisfied that there are reasonable grounds for suspecting that the respondent’s lawfully obtained income was insufficient for them to obtain the property. Only certain people can be the subject of a UWO: the respondent must either be a politically exposed person, or someone who is, has been, or is connected to a person who is or has been, involved in serious crime, whether in the UK or beyond.

If an UWO is made, the court may also make an interim freezing order prohibiting the property from being dealt with in any way, provided it considers it necessary to avoid the risk of any recovery order being frustrated. If an UWO is made without notice, a freezing order can also be made without notice.

A failure to respond to an UWO will allow assets to be made subject to civil recovery action under the Proceeds of Crime Act 2002. Further, a person can be found guilty of an offence if they provide false or misleading information in response to an UWO. Penalties include imprisonment for a maximum of two years or a fine on conviction on indictment, or imprisonment for a maximum of 12 months or a fine on summary conviction.

How will Unexplained Wealth Orders be used?

The current framework requires a legal conviction in the country of origin before highly suspicious wealth can be acted on and corrupt property seized. This requirement is currently being exploited by overseas individuals and businesses where their home country is in a state of crisis or they hold power. UWOs are therefore being introduced to stop the UK being used as a safe haven for money laundering by overseas criminals.

Although UWOs will be subject to safeguards, such as only applying to specific circumstances, requiring an application to be made to the High Court and their use being guided by a statutory code of practice, there are concerns that these new measures have the potential to be abused by the authorities. Under their current form, which is currently being debated in the House of Lords, the respondent does not have to be a UK resident or even live in the UK. Further, they can be retrospective and therefore apply to property that was obtained before the Act comes into force.

It’s also vital for the authorities to not become too overly reliant on UWOs and use them disproportionately, such as in cases where criminal activity is unproven, or against the family, friends or business associates of suspected criminals. Unfortunately, there is a precedent for this, as the authorities have, in some cases, over-stretched their powers in the pursuit of civil asset recovery under the Proceeds of Crime Act.

When your assets are threatened by enforcement agencies, it’s vital to act quickly and seek specialist legal advice as soon as possible. The powers they have at their disposal are very draconian and widely drawn. They do not require a prosecution or conviction and the onus is upon the respondent to prove upon the balance of probabilities that the assets are not the proceeds of crime.

Lewis Nedas Law – Specialist Business & Financial Crime Defence Solicitors London

Our expert Serious Fraud team has over 30 years’ experience successfully defending clients against fraud and financial crime allegations. We are also ranked in Chambers and the Legal 500 for the high quality of our fraud work, and our expert solicitors are described as 'precise', 'steely determined' and 'always mindful of securing the best outcome'. Our specialist financial crime & fraud solicitors, based in the heart of London, therefore have extensive experience of preparing successful defences to fraud prosecutions, including corporate fraud, whether these are brought by the Crown or a statutory body such as the FCA or the Department of Business innovation and Skills. For more information, please contact Jeffrey Lewis or Siobhain Egan on 02073872032 or contact us online.

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APR
12

Further Reform of Corporate Crime?

Rebuilding trust and confidence in business and markets has put tackling corporate criminality high on the Government’s agenda. To this end, it’s considering whether to reform economic crime, including corporate fraud, money laundering and false accounting, to make it easier to prosecute companies for criminal activity. 

In this blog, we take a brief look at the Ministry of Justice’s proposals for extending corporate criminal liability beyond bribery and tax evasion in its call for evidence, Corporate Liability for Economic Crime, which closed on the 24th March. These proposals go beyond the corporate compliance requirements contained in the Bribery Act 2010 and Criminal Finances Bill, representing what could be a major shift in the law with potentially major consequences for companies and the wider corporate landscape. If you require more information, please contact us. Our specialist corporate crime team can help you resolve any corporate compliance or criminal issues your business may have. 

Proposals to extend corporate criminal liability

The issue of corporate criminal liability comes to the fore every so often. Most recently, it’s been highlighted by recent court approval of a Deferred Prosecution Agreements (DFAs) between the Serious Fraud Office (SFO) and ‘XYZ Ltd’ under the Bribery Act 2010 concerning bribery in order to obtain contracts overseas. Yet, while DFAs represent a useful tool in combating corporate criminality, they also draw attention the difficulty prosecutors face when seeking to hold large modern multi-national businesses to account for criminal wrongdoing committed by their employees, agents or representatives in areas of economic crime other than bribery and tax evasion. 

Prosecutions for corporate wrongdoing are usually sought under common law rules known as the identification doctrine. Under this principle, a corporation is only criminally liable if prosecutors can prove that individuals who can be regarded as ‘the directing mind’ of the company knew about, actively condoned or played a part in the offending. This is a very hard thing to do, and there have been many cases in which evidence of wrongdoing was insufficient to sustain a criminal prosecution. The Government has therefore sought views on a number of proposals aimed at improving effective criminal enforcement against companies in a way that will complement the regulatory regime.

Amend the identification doctrine 

As the common law rules are considered to be a principal hurdle faced by prosecutors, the Government has sought views on whether legislating to amend the identification would be possible and desirable. For instance, legislation could amend the doctrine by broadening the scope of those regarded as a directing mind of a company. In putting forward this proposal, the Government emphasised that: ‘retaining the identification doctrine in any form would perpetuate the notion that a company can commit a criminal offence. It would encourage corporate efforts to limit potential liability through the adoption of evasive internal structures. It would not promote the prevention of economic crime as a component of corporate good governance’.

Create a strict vicarious liability offence 

Vicarious liability, where a company is automatically responsible of the actions of its employees, representatives or agents, without the need to prove any fault, is well established in UK civil law. A form of vicarious liability also governs corporate criminal liability in the US. The Government asked whether such an offence should be subject to a due diligence type defence, so as to be an effective way of incentivising economic crime prevention.

Create a strict direct liability offence 

Unlike vicarious liability, direct liability focuses on the responsibility of a company to make sure that offences are not committed in its name or on its behalf. It’s a separate offence akin to a breach of statutory duty, and when coupled with a due diligence type defence mirrors the corporate offences contained in the Bribery Act. The Government proposed that such a model, based on a failure to exercise supervision, could more accurately target the real nature of corporate culpability. It also sought views on whether such an offence should include the concept of a failure to prevent, which places a burden on the prosecution to prove that the company had not taken adequate steps to prevent unlawful conduct occurring.

Greater regulatory reform on a sector by sector basis

Finally, the Government noted that ‘strengthening deterrents to misconduct through regulatory reform in sectors where it is less developed must always be regarded as a possible alternative to the extension of the criminal law’, citing the reform of the financial services sector as a way of improving conduct through an increased focus on personal accountability for wrongdoing. It therefore sought views on the co-existence of regulatory and criminal law enforcement as a means of holding companies to account. 

The Government is currently reviewing the information it has received following its call for evidence on these proposals. If it determines that a new form of corporate liability for economic crime is needed, a full consultation will be launched on detailed proposals and draft legislation. As ever, our specialist corporate crime lawyers are closely watching developments and keeping clients informed of relevant changes. 

Lewis Nedas Law – Specialist Business & Financial Crime Defence Solicitors London

Our expert corporate crime defence team has over 30 years’ experience successfully defending clients against fraud and financial crime allegations. We are also ranked in Chambers and the Legal 500 for the high quality of our fraud work, and our expert solicitors are described as 'precise', 'steely determined' and 'always mindful of securing the best outcome'. Our specialist financial crime & fraud solicitors, based in the heart of London, therefore have extensive experience of preparing successful defences to corporate crime prosecutions, including corporate fraud, whether these are brought by the Crown or a statutory body such as the SFO, FCA or the Department of Business innovation and Skills. For more information, please contact Jeffrey Lewis or Siobhain Egan on 02073872032 or contact us online.

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