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August 2023
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Forensic Evidence2/26/2020 The Forensic Science Regulator regulates forensic scientists in England and Wales. The Regulator ensures that the provision of forensic science evidence across the criminal justice system is subject to appropriate standards.
The Regulator has recently said that there are gaps in quality that need to be resolved in order to prevent the use of unreliable evidence in court. In its annual report, it was said that technology has moved on, but some scientists are sticking to the ways the work has always been done. Solicitors in Sheffield Particular mention was made of DNA and how the 'old' way to take anti-contamination precautions was no longer fit for purpose. In terms of technology and digital forensics, data volume and complexity have massively increased with a substantial amount of data in the cloud. Investigators may be without the tools and methods that are necessary to interrogate the data effectively. One of the largest commercial providers of forensic services was recently the victim of a cyber-security attack. The company was infected with a ransomware computer virus which disrupted its IT systems. The attack led to the police suspending work with the company. There have been other problems in the industry too, another provider, Key Forensics Services, entered into administration and there was a criminal investigation into alleged irregularities at another company. More on the Randox Scandal These issues alone are concerning, and yet the Regulator also says that "forensic science has been operating on a knife-edge for years, with particular skills shortages in digital forensics and toxicology". What is being done? The government committed to investing around £28 million over a year in order to improve forensic science. There is also a policy to introduce legislation to provide the Regulator with statutory enforcement powers. At the moment, the Regulator does not have any legal power to enforce compliance. No definite plan has yet been put into place although a Private Member's Bill has been proposed. This delay is said by the Regulator to have resulted in slower progress towards compliance with quality standards, particularly in very small companies and police forces. An Anonymous Reporting Line has also been launched for the reporting of quality concerns. The annual report sets out priorities for the forthcoming year, issues include:
How could this affect me? Forensic science covers a wide range of criminal evidence such as DNA and fingerprints though to the testing of blood for alcohol and drugs. We will always ensure that prosecution evidence is properly considered and will instruct appropriate experts on your behalf when evidence needs to be obtained or challenged. If the chain of evidence is not followed correctly this could severely affect the outcome of the trial. In fact if due process has not taken place then the case could be thrown out of court immediately. At Ashmans Solicitors these are the small important details we also focus. Always ensuring that we represent our clients at the height of our skills and dedication. Leeds Criminal Law Solicitors How can we help? If you need specialist advice, then get in touch with Ashmans Solicitors and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.
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Jury Trail - Is 14 Too Many2/25/2020 If you ask most people how many people are selected to sit on a jury hearing a criminal case, the answer from most if not all will be 12.
It can, therefore, come as something of a surprise to people facing trial at a crown court (and sometimes lawyers not well versed in crown court procedure) when 14 people are sworn in, not 12. The purpose of swearing in 'alternate jurors' is to to allow for the discharge of jurors up until the point that the prosecution call evidence. This means that if a juror, during the prosecution opening, discovers that there is a reason why they cannot serve, perhaps because they know someone involved in the case, they can be replaced without the entire jury having to be discharged. In many cases, a prospective jury panel will be asked questions beforehand to identify any potential difficulties, but this procedure, used in longer trials, is an added protection. The Court of Appeal endorsed this novel approach in M [2012] EWCA Crim 2056. What is the procedure? The jury the court selects -- (a) must comprise no fewer than 12 jurors; (b) may comprise as many as 14 jurors to begin with, where the court expects the trial to last for more than 4 weeks. Where the court selects a jury comprising more than 12 jurors, the court must explain to them that --
(c) the court will discharge any extra juror or jurors remaining by no later than the beginning of the prosecution evidence. Each of the 12 or more jurors the court selects – (a) must take an oath or affirm and (b) becomes a full jury member until discharged. The court may exercise its power to discharge a juror at any time -- (a) after the juror completes the oath or affirmation; and (b) before the court discharges the jury. No later than the beginning of the prosecution evidence, if the jury then comprises more than 12 jurors the court must discharge any in excess of 12 in reverse order of their selection from the panel. The Jury Process and Appeals The case of M also served as an important reminder as to the effect of section 18(1) of the Juries Act 1974, namely that unless an objection to the jury panel is taken at the time, no appeal on that basis can succeed. In M the court held: "Generally speaking, it is undesirable for a case which runs into this sort of trouble just after it has started to continue with eleven jurors, rather than to start again with a full complement of twelve. At the same time, it is not in anyone's interests for a trial which has just started to be postponed to enable a new jury panel to be convened. That would inevitably involve a wearisome and unnecessary postponement which of itself might put strain and stress on all those involved in the case. In short, we do not expect purely technical objections to be raised if, as here, the reality is that the jurors were in fact a random group of individuals who had formed part of the jury panel and whose irregular selection as jurors for the second trial followed an entirely regular selection process which led them into the jury box for the purposes of the first trial." All our solicitors and advocates have detailed knowledge as to the detailed mechanics of a jury trial, to ensure that all of our clients receive a fair hearing. How can we help? If you need specialist advice, then get in touch with [name] on [number] and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.
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Matt Hancock, Secretary of State for Health and Social Care, has written to NHS staff voicing his concern in relation to the use of violence against emergency workers. Hancock’s approach mirrors that taken last year by police chiefs worried about the rise in violence used towards police officers.
Last year's NHS Staff Survey revealed that 15% of NHS staff and 34% of ambulance trust staff had experienced physical violence. As a consequence, the NHS, police and Crown Prosecution Service have approved a joint agreement on offences against emergency workers. Solicitors in Sheffield The purpose of the joint agreement is to provide a framework to set out what victims of this crime can expect and to ensure effective investigation and prosecution. The joint agreement is in relation to assault on all emergency workers and there seems to be a renewed focus on this area. What differs from the policy towards other victims of violence? At investigation level, the agreement sets out that the Victims' Code applies and that victims will be offered the opportunity to complete an impact statement This is the same for all victims, but there are substantial differences in other respects.
The charging decision is made in the same way for all offences using a two-stage test. The first question is whether there is sufficient evidence for a realistic prospect of conviction. If the answer is yes, the second question is whether a prosecution is required in the public interest. Leeds Criminal Law Solicitors It is acknowledged that assaults on NHS staff are sometimes committed by those in crisis or with neurological conditions. The CPS must take account of the level of culpability of the suspect, whether he or she was affected by any significant mental or physical health or disability. If that is the case, it may mean that a prosecution is not required. On the other hand, prosecutors are told that a prosecution is more likely if the offence is committed against a person who is serving the public at the time. Challenging a decision is the same for NHS staff as for other victims. An issue can be raised with the police if they decide not to proceed with an investigation, or the victim's right to review can be invoked following a CPS decision. Wherever appropriate we will seek to challenge wrongful charging decisions, particularly where a defendant was suffering from mental or physical disability that could have affected their judgement. Seven-point plan The agreement contains a pledge to emergency workers via a seven-point plan, which can be summarised as:
As can be seen, gone are the days when assaults against emergency workers could be seen as being something to be expected or tolerated as being a part of the job. All our lawyers are trained to ensure prosecution guidance is properly applied and that sentencing guidelines are followed by sentencers. It is a risk, when issues are given substantial publicity, that courts react in an overly harsh way towards defendants. We will ensure that the best result possible is secured on your behalf. How can we help? If you need specialist advice, then get in touch with Ashmans Solicitors and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. Victimless Prosecution’s
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Prosecuting Without A Victim2/17/2020 We often get asked how prosecutions can proceed in the absence of cooperation from the victim or chief witness.
The starting point is that no prosecution can go ahead unless there is a realistic prospect of conviction, but how the prosecution case is formulated remains a matter for the Crown Prosecution to decide. Solicitors in Sheffield These are common issues:
There is a wider public interest in pursuing some prosecutions, even where the immediate victim of the crime does not wish the matter to progress to court or trial. It is therefore essential that you obtain legal representation as soon as possible. There is a right to free legal advice at the police station, and legal aid may be available if you are later charged and have to appear before a court. The legal rules outlined above give only a brief flavour of the legal framework, the legislation and case law is voluminous and seldom as clear cut as some might think. We work hard to ensure that your rights are protected, and the best outcome is secured. Solicitors in Huddersfield How can we help? If you need specialist advice, then get in touch with Ashmans Solicitors and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.
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Does The Camera Lie Speeding and GPS2/12/2020 Peter Marrable was summonsed to court for speeding. The allegation was that he had driven at 72mph in a temporary 50mph zone.
The police produced evidence of the speed from a 'Trucam' device that was approved, calibrated and operating correctly. Mr Marrable produced evidence from a GPS tracker that was fitted to his company vehicle that showed a speed of 53-54mph. The magistrates had to decide if they were satisfied beyond reasonable doubt that Mr Marrable had exceeded the speed limit. They decided that the GPS tracker cast sufficient doubt as to the correct speed, so they did not convict him. Motor Lawyers Is this a new defence? No, there is nothing new in law that is raised by this case. In 1987 the case of Cracknell v Willis was heard. Cracknell was accused of driving while over the limit for alcohol. In the Magistrates' Court, he wanted to produce evidence of the amount of alcohol he had consumed in order to show that the police intoximeter machine was defective. The Magistrates refused to allow him to produce the evidence and convicted him. Cracknell sought an opinion from the High Court. The High Court considered the issue of how far, if at all, and by what evidence, a motorist was entitled to challenge the reliability of the machine. The Magistrates had not heard any technical evidence to say the machine was not working correctly. They said that they were bound to follow the case of Hughes v McConnell and refused to allow Cracknell to give evidence of the alcohol he had consumed. Motoring Offence Solicitors London In Hughes v McConnell the Magistrates had acquitted the defendant of drink driving after he gave evidence that he had only drunk 3 cokes and 3 bitter shandies. The prosecution attacked that decision on the ground that the defence evidence was inadmissible to challenge the accuracy of the breath test. The Divisional Court held that the validity and accuracy of the machine could not be challenged by evidence of the amount of alcohol consumed. The effectiveness could only have been attacked was by way of direct evidence of imperfection. Back in Cracknell's case, the Court considered the evidence that could be given. The Court concluded that no machine is infallible and if a challenge was limited to direct evidence of malfunction, it would mean the machine was treated as being virtually infallible. The Court provided the analogy of a teetotal bishop having dinner with two other bishops. He is stopped on the way home and provides a positive breath sample. The bishop should be allowed the opportunity to call the two bishops as witnesses to give evidence he had not consumed alcohol, and for the magistrates to draw the inference that the machine must be unreliable. They concluded that the decision in Hughes was wrong. Can anyone just give evidence of their speed? Technically yes, but you may not be believed. The Court in Cracknell went on to say that evidence that could reasonably suggest the machine was unreliable was admissible. This did not mean that defendants could challenge a breach analysis by “spurious evidence of their consumption of alcohol". In 1982 in Kent v Stamps the defendant gave evidence that his lorry was not capable of reaching 40mph, as alleged, on the particular road. He was acquitted as the magistrates found there was a doubt, but it was described as a very borderline case by the higher court. The court will use its good sense to consider all of the evidence before it. The case of Marrable does not mean that any evidence from a GPS will always be accepted, simply that such evidence can be considered, as in the case of Cracknell. If you are accused to speeding and know that you were not, get in touch. Your case is not as hopeless as some lawyers would have you believe.Don't get caught out with no entry sign cameras. Sheffield Solicitors How can we help? If you need specialist advice, then get in touch with Ashmans Solicitors and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. Find out if can you go to jail for dangerous driving. Best Solicitors Sheffield
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New sentencing guidelines for public order offences come in to force for adults sentenced on or after 1 January 2020.
In August 2008, the Sentencing Guidelines Council published Magistrates’ Court Sentencing Guidelines (MCSG) guidelines on sentencing the offence of affray and summary offences relating to threatening and disorderly behaviour provided for by section 4, section 4A and section 5 of the Public Order Act 1986. There was also a brief reference to violent disorder offences which may be sentenced in magistrates’ courts. This guidance did not include guidelines for sentencing these offences in the Crown Court, and also did not include guidance on sentencing the public order offences of riot, or offences relating to stirring up racial or religious hatred and hatred based on sexual orientation. The offences covered by the public order guideline are relatively high in volume. There were 18,600 offenders sentenced for the public order offences covered by the guideline in 2018. The volume of some offences is however relatively low, in relation to the offence of riot only 30 offenders have been sentenced in the last decade for which figures are available (2008-2018). Around 300 each year are sentenced for violent disorder, and 2400 for affray, the rest being sentenced for the lesser offences. Solicitors In Dewsbury Will the new guideline affect sentence length? For the offences of riot, violent disorder and affray, it is suggested that sentence length will not be affected. For threatening behaviour and disorderly behaviour with intent, there have been some reductions to sentencing ranges and starting points for the different levels of offence seriousness, compared to the MCSG. It is possible that the decrease to sentence levels in the guideline could lead to a decrease in sentencing severity for these offences, whereby some individuals who currently receive a custodial sentence may now receive a community order. However, it is also possible that much of the decrease in sentencing severity could come from offenders currently receiving suspended sentence orders now receiving community orders. Therefore there is an upper estimate that the guideline will not have an impact on the requirement for prison places or probation resources, and a lower estimate that the guideline could lead to a reduction in the requirement for up to 30 prison places per year and a small increase in the use of community orders. Solicitors in Sheffield For racially or religiously aggravated threatening behaviour and racially or religiously aggravated disorderly behaviour with intent, sentencers are first asked to sentence the basic offence, and then increase the sentence considering the level of racial or religious aggravation involved. This ‘uplift’ approach reflects Court of Appeal guidance on how aggravated offences should be sentenced, and aligns with current practice in relation to assessing the level of aggravation present in offences. This is the same process as used in the Council’s Arson and Criminal Damage guideline, where the consultation stage research found that there was a risk that the guideline could result in slightly higher sentences. It is therefore possible that the guideline could cause an increase to sentencing severity. However, some of the starting points and sentence ranges for the basic offence are lower than under the current guideline, which could offset these potential increases. Therefore there is a lower estimate that the guideline will not have an impact on the requirement for prison places or probation resources, and an upper estimate that the guideline could lead to a requirement for up to 40 additional prison places per year and a small decrease in the use of community orders. For the offences of disorderly behaviour and racially or religiously aggravated disorderly behaviour, the maximum sentence is a fine and therefore the guideline will not have an impact on prison and probation resources. For the offence of disorderly behaviour, the guideline introduces a new higher category of offending with a higher level of fine than in the existing MCSG guidance (a Band C fine). The guideline may therefore increase fine values for this offence. Also, because a fine is included for all levels of offending for racially or religiously aggravated disorderly behaviour - whereas data suggests that around 12 per cent of offenders sentenced for this offence received an absolute or conditional discharge in 2018 (after any reduction for guilty plea) – it is also possible that the guideline could increase the number of offenders sentenced to a fine for this offence. As ever, our advocates will be vigilant to ensure full adherence to the guideline and act to prevent any ‘sentence creep’ which is something that we have observed with other guidelines. (Image credit: Tomasz Iwaniec; https://creativecommons.org/licenses/by/2.0/ ) How we can assist If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with Ashmans Solicitors and let us help. We can advise on all aspects of your case. Criminal defence Solicitors Leeds
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A new series on Netflix, 'The Stranger', is receiving rave reviews, with viewers keen to discover the secret being kept from lawyer Adam Price, as the search continues for his missing wife.
There are many sub-plots along the way, including the blackmail of several individuals keen to suppress unsavoury stories making their way into the public domain. What is 'blackmail'? Section 21 of the Theft Act 1968 defines the offence in the following terms: "A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief: (a) that he has reasonable grounds for making the demand; and (b) that the use of the menaces is a proper means of reinforcing the demand. The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand." In almost all instances the offence involves a threat to reveal information known about a person unless that person, or another on their behalf, pay to keep it a secret. Criminal Solicitor Leeds What is the penalty for blackmail? The offence carries up to 14 years imprisonment, so is one of the most serious crimes on the statute book. In Hadjou 11 Cr App R (S) 29 the offence was described as one of the ugliest and most vicious criminal offences, akin to "...attempted murder of the soul". These are some examples of the general approach to sentencing: Mincher [2016] EWCA Crim 1528 – Two years imprisonment, suspended for two years judged to be unduly lenient and replaced with five years imprisonment. Defendant threatened the complainant that if he did not give her the money she wanted, she would tell the police that he raped her. Defendant took in total £40,000 from the complainant and was described as a socially awkward and vulnerable man. The court held: "Blackmail [is] one of the most serious and vicious offences in the criminal calendar. The authorities suggest that threats to disclose discreditable conduct, whether that conduct occurred or not, are to be taken even more seriously because the injury done to the victim "tends to be enduring fear, ever present anxiety and fear of discovery which gnaws away at the victim for long periods"." MJC [2015] EWCA Crim 1519 – 2 years imprisonment reduced to 8 months imprisonment. The defendant was a 33-year-old married man of good character; his wife's 14-year-old sister became involved in an exchange of sexually explicit images with a 16-year-old boy, the complainant. The defendant, aware of the pictures, threatened to report the complainant to the police unless he was paid £75. The court held: "In the present case, it is evident that there was no sophistication or premeditation in the blackmail. However, for a mature man to make the kind of threats he did to a misguided young man, as the appellant did in this case, albeit over a limited period of time, was plainly deeply unpleasant." While there may be a wide variation in sentencing, the result being very much fact specific and no case having the status of a sentencing guideline, in almost all cases a sentence of imprisonment will result. Solicitors Sheffield How can we help? If you need specialist advice, then get in touch with Ashmans Solicitors and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. Solicitors in Huddersfield
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On Sunday 1st February 2020 Sudesh Amman wore a fake suicide vest and stabbed two people in Streatham. Amman had only recently been released from a prison sentence imposed for spreading extremist material; he had been released after serving half of his sentence. Usman Khan, one of the London Bridge attackers, had also been released early from a prison term.
The government is now proposing emergency legislation to prevent convicted terrorists being released after serving half of their sentence. What is the current situation? Although certain sentences only allow a person's release after the involvement of the Parole Board, many prisoners are automatically released after one half of their sentence has been served. Many terrorist offenders are already serving extended sentences or life imprisonment. They are already subject to Parole Board review so would not be affected by the new proposals. What is being proposed? The government are seeking to prevent the automatic release of convicted terrorists at the half-way point. Such prisoners would only be released after they had served two-thirds of their sentence and after a Parole Board risk assessment. If the risk is too high, the prisoner would only be released after serving the full sentence. When such changes are made, they are usually only applied to sentences imposed on or after a specified future date. In this case, it is said that the changes would apply to existing, as well as future, offenders. This would mean that offenders already serving their sentence could now face years more in prison. The Justice Secretary, Robert Buckland, stated that immediate action was required in respect of changing the rules on automatic release. Is it legal to make the law retrospective? Lord Carlile, the former reviewer of terror legislation, has said that he doubted whether changes to the release conditions of those who have already been sentenced could be applied retrospectively. He believes that challenges would be made to new legislation of this nature. Would a challenge succeed? Article 7 of the Human Rights Act says that you cannot be found guilty of a crime that was not a crime at the time it was committed. If you are convicted of a criminal offence, you cannot receive a heavier penalty than the one that was applicable at the time the crime was committed. It is the second part that is important in this situation. At the time the offence was committed, and at the time of sentence, the offender would have been told that they would be automatically released after they had served half of the sentence. With a change in the law, it would mean they served a longer period in custody, Robert Buckland's counterargument appears to be that the changes relate to the administration of the sentence rather than the length of it. The actual length of the sentence imposed would not be affected. This may mean a focus on whether the proposal would punish the offender or protect the public. If the result is protection rather than punishment, it may be allowed by the Courts. In 2004 the case of Uttley was dealt with in the House of Lords. Uttley had committed a number of historical sex offences and was only prosecuted 12 years later. By that time, the sentencing regime had changed. Under the old regime, he would have served two-thirds of his sentence, under the new one he would also serve two-thirds of his sentence, but he would also be released on licence. The effect of that would mean he was under supervision, and certain restrictions were imposed. He would also be at risk of recall to prison. Uttley argued that his release subject to licence would be incompatible with his rights under Article 7. It is easy to see how the case of Uttley is similar to the argument that could be put forward by a prisoner convicted of terrorism offences who faces a longer time in prison. Uttley was not successful. The Court said that as the maximum sentence for Uttley's offending remained the same, it was impossible to regard a sentence with the new element of a licence as a heavier penalty than that which could have previously been imposed. The case of Uttley is now however directly on point, and there will be uncertainty until the courts rule on this specific provision. We are alive to the possible legal challenges available and any person affected should not hesitate to contact us for early advice. Are there any other proposals? The Justice Secretary also said that the current maximum sentences would be reviewed and the sentencing framework for terrorism offences. This could, for example, mean a mandatory minimum sentence for certain offences, 14 years has been suggested for offences of preparing acts of terrorism or directing a terrorist organisation. As well as reviewing sentences, the government will look to overhaul prisons and probation with tougher monitoring conditions, including lie detector tests to assess risks. An independent review of the Multi Agency Public Protection Arrangements has already been announced to include consideration of pre-release planning and management of offenders upon release into the community. How can we help? If you need specialist advice, then get in touch with [name] on [number] and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.
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Alexa - Witness For The Prosecution2/3/2020 On 29th January 2017, Christine Sullivan and her housemate were found murdered in Farmington, New Hampshire. Their bodies were discovered by the house owner, Dean Smoronk, who was Sullivan’s boyfriend.
Timothy Verrill, an associate of Smornok, was later charged with second-degree murder and has pleaded not guilty. Although the evidence against Verrill is said to be substantial, the police are trying to obtain further information and potentially a recording of what took place at the house. Solicitors In Sheffield How? In the kitchen, where it is believed Christine Sullivan was attacked, there was an Amazon Echo. The police believe the Echo recorded the attack and subsequent events. Alexa is the artificial intelligence behind the Echo. In order to be able to respond to questions, the Echo needs to continually assess what is said within its range. Amazon designates “wake-up” words and when one is detected the device records what is picked up, including a brief period beforehand. The recordings are then saved until they are manually repeated. Strafford County Superior Court granted the State’s application for a search warrant in this case. Amazon.com has been directed to produce “…forthwith to the Court any recordings made by an Echo smart speaker with voice command capability” for the relevant two-day period. As well as the Echo recording Amazon is to provide “any information identifying cellular devices that were paired to that smart speaker during that time period”. Criminal defence Solicitors Leeds How could this impact the UK? In Germany, prosecutors used a Health App to track activity at critical times. Many court cases here have used mobile phone tracking or “cell site analysis” to pinpoint the location of an offender at a particular time, CCTV has also become a crucial tool for prosecutors. There many other voice-activated assistants from companies such as Apple, Microsoft and Google. Most of these devices share recordings with a central-server based artificial intelligence to analyse commands. The number of households with such devices will be increasing every day, and how many of us realise just what is being recorded? Although we are not aware of any cases in this country involving these types of recordings, it is probably not long before the situation arises and a Court finds itself adjudicating on the release of information. In principle there is no reason to believe that the evidence, if obtained, will not be admitted. Fleet St Solicitors How can we help? We will always assess the strength of any evidence against you, and, more importantly, we will consider the admissibility or otherwise of any evidence. If you would like to discuss any aspect of your case, please contact Ashmans Solicitors
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Money Laundering Update2/3/2020 The Money Laundering and Terrorist Financing (Amendment) Regulations 2019 came in to force on 10 January 2020, with the effect of implementing Fifth Money Laundering Directive into UK law.
Money laundering is said to be a key enabler of serious and organised crime, which costs the UK at least £37 billion every year, hence why there is so much government activity in this area. Businesses that are caught by money laundering regulations need to ensure that staff are adequately trained in respect to the core obligations and changes, breach of which is a criminal offence and can in some instances attract further regulatory sanction. Solicitors in Sheffield Key changes: Tax advisers: The definition of tax adviser is expanded to include those who offer material aid or assistance on tax matters. Estate agency: The scope of regulated businesses in the property agency sector is expanded to include the letting agency sector for high value transactions with a monthly rent of EUR 10,000 or more. Art intermediaries: Art market participants for transactions exceeding EUR 10,000, including art galleries, auction houses and freeport operators storing high-value art, are also brought into scope of the legislation. Cryptoassets: Cryptoasset exchange providers and custodian wallet providers are also brought into scope of the MLRs, to ensure the UK meets evolving global standards and fully addresses emerging risks. Regulation 14A within Part 2 of the amended MLRs sets out the definition of custodian wallet providers and cryptoasset exchange providers. The latter includes where the firm or sole practitioner offers exchange services as creator or issuer of any of the cryptoassets involved (often this is referred to as an “initial coin offering” by industry). This is because initial coin offerings are another point of exchange at which those in possession of illicit funds could launder their money into a new, clean cryptoasset, obfuscating the original source or purpose of such funds. The definition of cryptoasset exchange providers also extends to operating a machine which automates such an exchange, commonly known as a cryptoasset automated teller machine (“CATM”). The Amending Directive requires the UK to regulate “virtual currency” exchange providers and wallet providers. The FATF standards refer to “virtual asset” service providers. The UK government has chosen to use the definition of “cryptoasset” in these Regulations instead of the term “virtual currency”. The UK’s Cryptoasset Taskforce previously set out that “cryptoasset” includes exchange, security and utility tokens. The government considers that all relevant activity involving all three types of cryptoassets should be captured in AML/CTF regulation. Respondents to the consultation on the implementation of the Amending Directive agreed with this approach and were of the view that the “virtual currency” definition in the Amending Directive should be broadened in scope. In adopting the UK’s taskforce definition, it also confines the scope of cryptoassets to those using distributed ledger technology, which HM Treasury considers is a more specific and precise definition that still meets the EU’s ultimate intention to regulate this sector for AML/CTF purposes. Enhanced Due Diligence (EDD) The instrument makes amendments to Part 3 of the MLRs in relation to CDD measures to be taken by regulated businesses. Letting agency businesses must apply CDD DExEU/EM/7-2018.2 4 measures in relation to both the tenant and landlord for rental agreements with a monthly rent of EUR 10,000 or more. Art market participants must apply CDD measures when carrying out transactions equivalent to EUR 10,000 or more in relation to the sale of a work of art. CDD measures must also be carried out by cryptoasset exchange providers and custodian wallet providers entering into a business relationship and in other specified cases in line with other relevant persons. CATM operators must also carry out CDD for all exchanges of money for cryptoassets, whatever the amount. The reason for this is that the government has seen evidence that CATMs could be used for illicit purposes, such that setting a value threshold could see repeat business or “smurfing” just below this threshold to circumvent CDD measures. The instrument makes several amendments to regulation 28 of the MLRs on CDD measures. Firstly based on FATF recommendations 10.8 and 22.1, the instrument introduces an explicit CDD requirement for relevant persons to take reasonable measures to understand the ownership and control structure of their customers. Secondly, to require relevant persons to take reasonable measures to verify the identity of senior managing officials when the beneficial owner of a body corporate cannot be identified. Fleet St Solicitors Policies, Controls and Procedures The instrument also makes two further amendments in Part 2 based on the latest FATF recommendation concerning the policies, controls and procedures for regulated businesses. Firstly, based on FATF recommendation 15.2, relevant persons must ensure that they have policies to ensure they undertake risk assessments prior to the launch or DExEU/EM/7-2018.2 5 use of new products or business practices, as well as new technologies. Secondly, based on FATF recommendation 18.2(b), parent undertakings must also ensure they have group-wide policies on the sharing of information about customers, customer accounts and transactions for AML/CTF purposes. Relevant persons must also take appropriate measures to ensure agents used for the purposes of its regulated business receive AML/CTF training, ensuring a first line of defence against illicit finance. Criminal Solicitors Leeds Bank Account Portal The instrument inserts a new Part 5A into the MLRs, which requires the establishment of a mechanism for the FIU and competent authorities to access details pertaining to UK bank accounts, building society accounts, certain credit union accounts and safe-deposit boxes. The details that can be accessed are limited to details about the account/safe-deposit box itself (the IBAN number, roll number or alternative, date of account opening/lease beginning, date of account closing/lease ending, and duration of a lease) as well as details about the account holder and beneficial owner, or safe deposit box owner, lessee, controller or key holder (their name, date of birth, address and ID number provided under regulations 28-29 and 33-37 of the MLRs). This does not impose any additional requirements for institutions to collect data. Law enforcement cannot use this mechanism to access details about transaction history or contents of an account or safe deposit box. How can we help? We are experts in all aspects of money laundering and proceeds of crime legislation. If you need specialist advice, then get in touch with Ashmans Solicitors and let us help. |