In this issue
Welcome
Ill-gotten gains and Unexplained Wealth Orders: A new game of hide and seek?
Co-operation need not lead to loss of privilege: SFO v ENRC revisited.
Assessing the Value of Benefit: Gross Turnover or Profit?
Business crime and the draft Sentencing Code
Regina v ALI BAHBAHANI [2018] EWCA Crim 95
R (on the application of Gibson) (Appellant) v Secretary of State for Justice (Respondent) [2018] UKSC 2
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Feature Articles
 
Ill-gotten gains and Unexplained Wealth Orders: A new game of hide and seek?

The National Crime Agency (“NCA”) estimates that many hundreds of £billions of corrupt money flows through London each year. At the same time, although thousands of individuals are prosecuted and convicted of acquisitive criminal offences where confiscation orders are made, in 2016/17 only £162 million was collected and some £1.9 billion remains outstanding and unpaid despite lengthy default terms of imprisonment being imposed.  Richard Fisher QC and Liam Walker consider the implementation of Unexplained Wealth Orders, introduced at the end of January 2018.

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Co-operation need not lead to loss of privilege: SFO v ENRC revisited.

As we await the outcome of the appeal against the decision of Mrs Justice Andrews in SFO v ENRC (to be heard in June), the case of Bilta (UK) Lts v Royal Bank of Scotland Plc seems to be more alive to the realities of the dialogue between corporates and government agencies. We are delighted to welcome a new member of our Business Crime & Investigations Team, Peter Caldwell, who looks at how the case considers the issue of dominant purpose for the operation of litigation privilege.

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Assessing the Value of Benefit: Gross Turnover or Profit?

David Hislop QC assesses the recent Court of Appeal decision in R v Reynolds & Farnish [2017] EWCA Crim 1455 which considered the sometimes difficult problem in confiscation proceedings of valuing the benefit to a defendant of criminal proceeds for the purposes of the making of a confiscation order.

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Business crime and the draft Sentencing Code

Abigail Bright looks at the draft Sentencing Code consultation, a current project of the Law Commission, and in particular the effect its implementation may have on businesses.  By way of illustration, she references the response of the Law Reform Committee of the Bar Council, to which she contributed.

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New Case Law
Regina v ALI BAHBAHANI [2018] EWCA Crim 95

The Court of Appeal considered a number of points in this applicant’s application for leave to appeal against the sentence (confiscation order) imposed in the Crown Court and also to quash the conviction in the Magistrates' Court.  As Richard Fisher QC points out, the case is a good illustration of the excoriating effect that POCA confiscation proceedings can have in "criminal lifestyle" cases, and the difficulties the s.10 assumptions cause for an applicant in the Court of Appeal.

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R (on the application of Gibson) (Appellant) v Secretary of State for Justice (Respondent) [2018] UKSC 2

Richard Fisher QC outlines a new Supreme Court authority concerning the enforcement of a confiscation order and the calculation of the default term of imprisonment to be served in circumstances where part-payment of the order had been made and interest had accrued.

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