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Law > 11: Criminal Law > Flashcards

11: Criminal Law Flashcards

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1
Q

What is whistleblowing?

A

A qualifying disclosure of information
In the public interest
To the appropriate person

Provisions:
- public interest disclosure act 1998
- ERRA 2013

Wrong doing can be employer or employee

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2
Q

What is a qualifying disclosure?

A

A disclosure of which in the reasonable belief of the worker, shows one of:
- criminal offence
- person not complying with legal obligation
- miscarriage of justice
- H&S of someone endangered
- environment damaged
- info showing above deliberately concealed

All can be past, present or future

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3
Q

What is a ‘reasonable belief’?

A

Means there must be more than an unfounded suspicion or rumour, in order for protection to be afforded to them

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4
Q

Define the ‘public interest’?

A

Not been defined by the Act!

If disclosure is not made in good faith, compensation may be reduced by 25%

Good faith - intention is honest

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5
Q

Who are the ‘appropriate persons’ who can obtain protection after disclosing?

A

Internally

Legal adviser

Minister of the crown

Prescribed person/regulator
- such as HMRC
- prescribed persons have to report annually on disclosures received

Wider
- media
- police
- MPs
- non-government regulator

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6
Q

When will reporting to ‘wider’ get you protection?

A

Only if the disclosure was not made for personal gain

And whisteblower reasonably felt they would be victimised if made internally or to prescribed person, or

They believed cover up was likely, or

Already raised matter

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7
Q

What makes a disclosure reasonable?

A

Number of factors including:

The seriousness of the matter

Whether matter is ongoing

Person to whom disclosure has been made

Any duties of confidentiality

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8
Q

What protection is awarded a protection disclosure?

A

Ensures worker cannot be subjected to ‘any detriment by any act or deliberate failure to act’ by employer as a consequence of making disclosure

Extends to indirect detriment including:
- being overlooked for promotion
- change in working practices
- changes in training of worker

Worker may get awarded damages of a just and equitable amount if gets this!

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9
Q

Can confidentiality clauses be in place regarding whistleblowing?

A

No!

Any clause that limits a workers right to make a disclosure will be void

Act does not cover subjects of The Official Secrets Act and members of the armed forces

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10
Q

What does prosecution need to prove with fraud? Penalty?

A

Prove:
- dishonestly
- intention to make a gain or cause a loss to another

Under Fraud Act 2006, which recognised the specific offence of fraud

Max penalty - 10 years imprisonment and unlimited fine

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11
Q

3 ways the single offence of fraud can be committed?

A

False representation

Failing to disclose information

Abuse of position

Also commits an offence if they make, possess or supply an ‘article’ used in fraud

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12
Q

What is fraud by false representation?

A

Individual makes false statements
of fact or law

Main a gain / cause a loss?

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13
Q

What is fraud by failing to disclose information?

A

Individual has legal duty to disclose info but doesnt

Make a gain / cause a loss

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14
Q

What is fraud by abuse of position?

A

When an individual was in the position where they were expected to safeguard the interests of another, but abuses that

Make a gain / expose other to a loss

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15
Q

Cyber threats identified by National Crime Agency?

A

Phishing
Webcam manager
File hijacker
Key logging
Screenshot manager
Ad clicked

‘Articles’ - any program or data held in electronic form

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16
Q

Fraud activity determined by Computer Misuse Act 1990?

A

Unathorised access:

Intention to commit further offences

Intent to impair online material

Damage or risk of

Making, possessing or supplying articles to facilitate above

Prison or fine

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17
Q

What is fraudulent trading?

A

Business is carried on with intent to defraud creditors

Criminal offence - under CA2006
- can be committed even while the company is a going concern

Civil liability
- only arises when the company is in liquidation
- only liquidator can apply for this
- liquidator can make individual contribute to company’s assets

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18
Q

Who can commit fraudulent trading?

A

Any person who knowingly participates in fraudulent trading

Normally directors

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19
Q

Penalties for fraudulent trading?

A

Disqualify that person from being director or involved in management of companies for up to 15 years

Criminal offence, so can also be given unlimited fine or be imprisoned for up to 10 years

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20
Q

What is insider dealing?

A

Covers three offences

Involves information about securities that is not commonly available and which would affect the price of those securities where it commonly known

Covered in Criminal Justice Act 1993

21
Q

Three insider dealing offences?

A
  1. Dealing in securities on which they have insider information
  2. Encourages someone else to deal on securities on which they have insider info
  3. Discloses inside information
22
Q

Explain ‘dealing’?

A

Acquiring or disposing of, relevant securities, directly or through an agent or nominee

23
Q

Explain ‘securities’?

A

Shares, debts securities and warrants traded on a regulated market

24
Q

Explain ‘insider information’?

A

Relates to particular securities or issuer of securities

Is specific or precise

Had not been made public

Would have significant effect on price

25
Q

Explain ‘insider’?

A

Someone who has insider information

Through being an employee, shareholder or officer of the company

Or has access to info

Or gains info

Either way, insider must know they have inside information!

26
Q

What defences are there to insider dealing?

A

Can show that:

  • did not expect the dealing to result in profit
  • had reasonable grounds to believe the info had been widely disclosed
  • would have done the same without the info

No offence committed if info is disclosed in regular course of employment

27
Q

Penalties for insider dealing?

A

Criminal offence - difficult to obtain conviction as guilt must be beyond reasonable doubt

Max: seven years imprisonment and unlimited fine

Transaction itself remains valid and enforceable

If individual is director, may be liable to account to company for any profit made

28
Q

How is market abuse different to inside dealing?

A

Civil law
- lower standard of proof
- more likely to bring individuals to account

Wider ranging offence
- covers any situation where the person has failed to observe the standard of behaviour that could be reasonably expected of a person in their position in market

29
Q

Three main bribery offences, and legislation?

A

Bribery Act 2010 (came into effect July 2011)

Bribing another person
- when one person offers or accepts an inducement to a person to perform a relevant function improperly

Being bribed
- a person accepts or requests an inducement to perform a relevant function improperly

Bribing a foreign official
- person promises or offers to give inducement to foreign official with intention that it will influence their professional capacity and will allow person a business advantage

30
Q

What can a ‘relevant function’ mean??

A

Function of a public nature

Or

Any function of a business nature

Where the person performing it is in a position of trust and is expected to perform it in goods faith or impartially

31
Q

Defence for bribery?

A

Needs to prove that conduct was necessary for proper exercise of an intelligence service

Or of any function of the armed forces when engaged on active service

32
Q

Penalty for bribery?

A

Maximum penalty: ten years prison

Unlimited fine

33
Q

How does corporate liability work with bribery?

A

Commercial organisations can be sued for failure to prevent bribery
- happens when an employee commits a bribery offence

Orgs can have defence if they prove they had adequate procedures in place to prevent bribery

Potential risks should be considered when deciding if procedures are adequate

34
Q

What is money laundering? Regulations?

A

Any activity by which

The apparent source and ownership of the proceeds of crime

Are changed in such a way that the cash and assets appear to have been obtained legitimately

Proceeds of Crime Act 2002 - sets out three separate offences
Money Laundering Regulations 2017

35
Q

What are the three phases of money laundering?!

A

Placement

Layering

Integration

36
Q

Offence: money laundering?

A

Offence to conceal, disguise, convert, transfer or remove criminal property

Offence when a person enters into or becomes concerned in arrangement which they know or suspect will facilitate criminal property

Offence when person acquires, uses of has possession of criminal property

Offence to incite another person to commit money laundering

37
Q

Defence and penalty for money laundering?

A

Defences:
- report was made to NCA or MLRO
- intended to report, but there was reasonable excuse for not having done so

Max penalty: 14 years prison, unlimited fine

38
Q

Offence: failure to report? Defence and penalty?!

A

Only relates to individuals who are acting in the course if business in the regulated sector

Offence to fail to disclose to NCA or MLRO any knowledge or suspicion of money laundering
- must have reasonable grounds for knowing or expecting

Defense:
- reasonable excuse for not making report
- person did not know or suspect money laundering, did not get appropriate training

Max penalty: five years prison, unlimited fine

39
Q

Offence: tipping off? Defence and penalty?!

A

Offence to disclosure that a report has been submitted if this may prejudice a money laundering investigation

Defences
- person did not know or suspect that the disclosure would prejudice investigation
- person had lawful authority to disclose

Max pen: two years prison, unlimited fine

40
Q

What does knowledge and suspicion mean?

A

Knowledge
- person has actual knowledge
- where a person deliberately fails to make enquiries which an honest and reliable person would have made

Suspicion
- less than actual knowledge
- more than unsubstantiated rumour

41
Q

Exception to being able to breach confidentially for money laundering?

A

Where professional adviser is protected by legal privilege, defence for non disclosure.

Applies to provision of legal advice and acting in respect of litigation

Can be provided by professionals other than lawyers

42
Q

Two purposes of MLR 2017?

A

Enable suspicious transactions to be recorded and reported

Ensure that if a client comes under investigation in the future, an audit trail can be provided

43
Q

Who does MLR apply to?

A

Relevant persons

Includes many business types and professions

44
Q

3 requirements of MLR 2017?

A

Firm needs to:

  • carry out whole firm risk assessment to analyse business’s exposure to risk
  • put policies and controls in place to mitigate risks. Cover terror financing and money laundering
  • customer due diligence measures to be carried out by relevant persons
45
Q

How to carry out customer due diligence?

A

Verify identify of customers and agents

Verify identity of companies through their registered number

Identify beneficial owners

Obtain info on purpose and nature of business relationships

Identify politically exposed persons and their associates

  • must keep records
  • carried out for occasional transactions as well as for relationships
46
Q

Penalty for no due diligence?

A

Max penalty: 2 years prison

Fine

47
Q

What is ethical behaviour?

A

Goes beyond obeying laws

Commitment to do what’s right

We have to act ethically and in the public interest

48
Q

Steps when accountant uncovers crime?

A
  • consider whether the need for disclosure overrides duty of confidentiality
  • carefully investigate the matter
  • consult/report with any person in accordance with legal requirements
  • refer to ICAEW guidance
  • obtain legal advice
  • discuss matter with line manager
  • seek advice from ICA Ethics Advisory Service

Law (13 decks)

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