What You Need to Know About the U.K.’s Criminal Finances Act

GUEST BLOGGER

Jordan Underhill, J.D.
Research Specialist

On April 27, the U.K. officially passed the Criminal Finances Act 2017. This law represents the most significant development in U.K. corporate criminal liability since the passage of the Bribery Act in 2010. The Act also strengthens the government’s ability to combat money laundering, terrorist financing and tax evasion. The various provisions of the Act are expected to come into force later this year and will affect both U.K.-based firms and foreign firms conducting business in the U.K.

Tax Evasion
One of the most important sections of the Act expands corporate criminal liability for tax evasion. This expansion represents the U.K.’s latest effort to combat domestic and global tax evasion and to increase its coordination with foreign governments. The Act creates two new strict liability criminal offenses:

1. Failure to prevent the facilitation of U.K. tax evasion offenses
2. Failure to prevent the facilitation of foreign tax evasion offenses

These new offenses are modeled after Section 7 of the Bribery Act, which created a strict liability offense for the failure of commercial organizations to prevent bribery on their behalf. Like Section 7, these new “failure to prevent” offenses have potentially broad applications because no intent is required. A corporation can be held liable for the actions of employees who, in their professional capacity, encourage or assist the tax evasion of others. This is true regardless of whether upper management had knowledge of or directed the actions of the facilitator.

However, the Act does provide a defense for firms that have reasonable prevention measures in place. To successfully assert this defense, the corporation must show that, at the time of the offense, it had reasonable prevention procedures in place to prevent employees from facilitating tax evasion. Alternatively, the corporation can show that it was not reasonable in all circumstances to expect the corporation to have any prevention procedures in place.

Unexplained Wealth Orders
Chapter 1 of the Act creates the “unexplained wealth order” (UWO), which is a new investigatory tool that authorities can use to expose corruption, tax evasion and other illicit activities. UWOs require individuals to explain the origin of funds that appear disproportionate to their reported income. These orders can be issued by a High Court at the request of an enforcement authority to a “politically exposed person” (e.g. public official) or a respondent that the court has reasonable grounds to suspect is involved in a serious crime or is associated with someone involved in a serious crime.

A UWO can be issued to someone not based in the U.K. and may relate to property outside of the U.K. If an individual makes false or misleading statements in response to a UWO, they can be convicted of a criminal offense that carries a maximum penalty of two years’ imprisonment.

Anti-Money Laundering and Terrorist Financing
The Act also enhances the abilities of law enforcement to investigate suspected money laundering and terrorist financing in three key ways:

1. The Act empowers law enforcement to issue disclosure orders during money laundering investigations. These orders compel individuals that authorities suspect may have relevant information to answer questions and disclose documents. Individuals who fail to comply with disclosure orders can be fined up to £5,000.
2. The Act allows for information sharing between various firms when there is suspicion of money laundering. This includes the ability for firms to submit joint suspicious activity reports (rather than a single report for each firm), which combines information from each firm into a single, cohesive document to create a more streamlined investigation for authorities.
3. The Act gives the National Crime Agency (NCA) more time to investigate suspicious activity reports. Ordinarily, when a business submits a suspicious activity report, it requests consent from the NCA to proceed with the reported transaction or activity. The NCA can deny consent, creating a 31-day moratorium period during which investigators can gather evidence on the reported activity and determine if further action is required. However, this window is often too short for a thorough investigation. The Act allows the NCA to petition a court for up to six 31-day extensions to the moratorium period, providing more time for a careful analysis of the suspicious activity.

The Criminal Finances Act represents another step in the fight against fraud. Affected businesses should conduct risk assessments to ensure that they are in compliance with the Act before it comes into force later this year. In particular, special attention should be paid to procedures designed to prevent employees from facilitating tax evasion. Likewise, employees should be educated about the Act and any changes in internal policies.

How One Man Exposed His Fellow FBI Agent as a Russian Spy

FROM THE PRESIDENT

James D. Ratley, CFE
ACFE President

Here’s the situation. You’re a new FBI undercover field operative. But the bureau has called you into headquarters, put a suit and tie on you, and ordered you to take a desk job as the assistant to a longtime FBI special agent and computer systems expert. You’ll be locked in a soundproof, two-office vault to do one thing: covertly surveil this man suspected of being a master spy for the Russians.

That’s where Eric O’Neill found himself in 2001. He became a loyal assistant to Robert Hanssen — an intimidating, demanding and suspicious boss. The FBI had its eye on Hanssen, but they just needed a smoking gun.

O’Neill, who will be a keynote speaker at the 28th Annual ACFE Global Fraud Conference, June 18-23 in Nashville, watched Hanssen for months, but couldn’t find anything incriminating.

Finally, O’Neill was able to get to Hanssen’s Palm Pilot. O’Neill rushed it to the FBI techies on another floor who decrypted it and found Hanssen’s drop date and location of classified material to the Russians. They had him.

Hanssen was arrested on Feb. 18, 2001, at Foxstone Park, near his home in Vienna, Virginia, where he’d made his last drop. He was charged with selling U.S. secrets to the Soviet Union and then the Russian Federation for more than $1.4 million in cash and diamonds in 22 years.

He pleaded guilty to 15 counts of espionage and was sentenced to 15 life terms without the possibility of parole. The U.S. Department of Justice described his spying as “possibly the worst intelligence disaster in U.S. history.”

I’m impressed that O’Neill was able to gather information on Hanssen, who prided himself on being able to detect any hint of deception.

The story was so dramatic that Hollywood transformed it into the 2007 movie, “Breach,” starring Ryan Phillipe as O’Neill, Chris Cooper as Hanssen and Laura Linney as “Kate Burroughs,” O’Neill’s handler. O’Neill was an onsite advisor for the film.

During the 28th Annual ACFE Global Fraud Conference, O’Neill — who now runs an investigative and security consulting firm, and works for a security protection software company — will be addressing recent changes in fraud and cyberespionage through the eyes of sophisticated attackers.

“I will use elements of the Hanssen investigation as a framework and also to tell an entertaining story,” O’Neill says. “The audience will understand why I say that there are no hackers; there are only spies.”

Clare Rewcastle Brown to Discuss Money-Laundering Controls Learned from 1MDB Scandal

GUEST BLOGGER

Sarah Hofmann
ACFE Public Information Officer

“I think this whole offshore financial structure that’s been allowed to grow like a canker … the whole thing’s got out of control,” said investigative journalist Clare Rewcastle Brown in an interview with the Association of Certified Fraud Examiners (ACFE). 

Rewcastle Brown founded The Sarawak Report and Radio Free Sarawak in 2010 to disseminate news that concerned the Sarawak region of Malaysia and eventually, news surrounding the emerging 1MDB (1Malaysia Development Bhd) scandal. In August 2015, a warrant for her arrest was issued by a Malaysian court for "activities detrimental to parliamentary democracy" and the "dissemination of false reports."

“I think we’re seeing a swing of the pendulum and I think 1MDB’s just kind of cropped up perhaps at the right place at the right time … governments across the world have started to realize that they’ve lost control and populations have lost patience,” she said.

Rewcastle Brown will address anti-fraud professionals from across Europe at the 2017 ACFE Fraud Conference Europe in London, March 19-21. Despite having an arrest warrant issued for her by a Malaysian court, Brown remains optimistic that corruption on a global scale can be defeated. She said, “I do think we’re seeing a lashback and 1MDB is going to be just one example of enforcement agencies hitting back.”

Despite not being able to attend the 2016 ACFE Fraud Conference Asia-Pacific last November in Singapore due to safety concerns, she is committed to speaking in-person at the conference in London. She plans to lay out the intricate timeline of the 1MDB scandal that allegedly began in 2009 and runs through present day.

1MDB is currently being investigated by Swiss, Singh and U.S. authorities. In a question-and-answer session after her prepared remarks in Singapore, Rewcastle Brown addressed what controls she thought could help prevent this type of large-scale money laundering. “I think this case is really an opportunity to hold banks and players in these actions seriously to account. And to make the actors who have broken the rules pay the penalty, seriously. [They should be] absolutely exposed, shamed and embarrassed because we need to put off future, potential situations like this arising again,” she said. “I think that’s the best we can hope to come out of this. By showing at last, that the financial regulators have teeth and that they’re catching up to the global criminal element who have been using our offshore system and far-too compliant financial organizations. If we can get ahead of them, maybe that’s the best way to deal with this particular problem.”

Find out more about the upcoming 2017 ACFE Fraud Conference Europe, and register by February 17 for early registration discounts, at FraudConference.com/Europe.

Bringing Down FIFA: 'The dogged obsession of a single reporter'

FROM THE PRESIDENT

James D. Ratley, CFE
ACFE President

Sports are an obsession for many fans around the globe. Team owners, promoters and gear manufacturers know their customers are loyal (sometimes rabid), unpaid publicists. So we're talking about boatloads of cash coursing through sport systems — and sometimes surreptitiously into fraudsters' pockets.

Andrew Jennings, an independent investigative journalist, has spent more than 15 years laboriously examining the economic intricacies of FIFA (Fédération Internationale de Football Association). His reporting of entrenched FIFA corruption — bribes, kickbacks, vote rigging and ticket scandals — eventually caught the attention of the FBI. In 2015, the U.S. Department of Justice indicted scores of FIFA-related officials under the U.S. Racketeer Influenced and Corrupt Organizations (RICO) Act and the U.S. Travel Act. As of publication, the U.S. had convicted 21 on various racketeering and corruption charges with 42 defendants publicly charged.

Simon Jenkins of the Guardian newspaper wrote that credit for the routing of FIFA "should go to the dogged obsession of a single reporter, Andrew Jennings."

Jennings has been chasing bad guys around the globe for decades. He's investigated corruption in Scotland Yard, the Sicilian Mafia and the International Olympic Committee, among many others.

The inscription on the ACFE's Guardian Award reads: "For Vigilance in Fraud Reporting." That phrase defines Jennings's work. And that is why we're presenting him with the award at the 28th Annual ACFE Global Fraud Conference, June 18-23 in Nashville.

Jennings says that from his teen years, he wanted to become an investigative reporter. He attended university for a couple of years, but he was chomping at the bit to get to his investigations. He worked for some of the U.K. national newspapers, but he was bored. He went to the BBC where he worked on a TV documentary about corruption in Scotland Yard, but the BBC pulled it at the last moment. He quit and went home to write a book about it. And then a public-affairs TV show — "World in Action" — called him and he re-made the film.

From there he made several documentaries and wrote a couple of award-winning books on Olympic corruption, which prepared him for rooting out "the rot," as he calls it, in FIFA.

Even today, at 73, he's still sniffing for bad smells in large institutions. Read more about Jennings in the latest issue of Fraud Magazine.

And, sign up for the 28th Annual ACFE Global Fraud Conference to hear this fascinating man and many other fraud fighters.

Naughty or Nice: Who Made the List in 2016?

GUEST BLOGGER

Emily Primeaux, CFE
Assistant Editor, Fraud Magazine

He sees you when you're sleeping. He knows when you're awake. He knows when you've been bad or good...

"He," or "she," of course, is the ever present fraud fighter. And in 2016, fraud fighters saw a slew of unsavory characters who clearly ignored the elf on the shelf and instead stole, bribed or colluded to illegally line their own pockets. But for every bad apple, there are unsung heroes — the whistleblowers, journalists, investigators ... the list goes on and on. These heroes go to battle in the trenches every day to root out the crooks and thieves.

In honor of the holiday season, let's ruminate on the past year and the characters that made it onto either the naughty or the nice list.

Naughty

1. Wells Fargo: On Sept. 9, 2016, Wells Fargo negotiated a deal to settle a lawsuit filed by the U.S. Consumer Financial Protection Bureau, the Office of Comptroller of Currency, and the City and County of Los Angeles. Though Wells Fargo didn't admit to any wrongdoing, it did confirm that employees had opened more than two million checking, savings and credit card accounts without customer approval. And in a stunning turn of events, former employees then came forward to say they had called the ethics hotline to report dubious sales practices. However, according to these accounts, some whistleblowers claimed that the bank's strategy for dealing with whistleblowers was to find ways to fire them in retaliation. Though the case is ongoing, John Stumpf has stepped down as the bank's chief executive.
    
2. Andrew Caspersen: On Nov. 4, 2016, this disgraced scion of a wealthy Wall Street family was sentenced to four years in prison for robbing his friends, family and a large hedge-fund foundation in a Ponzi-like scheme. The judge who sentenced him? None other than the ACFE's 2016 Cressey Award winner, Senior U.S. District Judge Jed S. Rakoff. Looks like Caspersen most likely received coal in his stocking this year.
    
3. The Panama Papers: A giant leak of more than 11.5 million financial and legal records from the world's fourth biggest offshore law firm, Mossack Fonseca, detailing financial and attorney-client information for more than 214,488 offshore entities ... otherwise known as the Panama Papers. According to the papers, the leak "exposes a system that enables crime, corruption and wrongdoing, hidden by secretive offshore companies." The leaked documents outed scores of politicians, business leaders and celebrities for fraudulent business practices, including Iceland's Prime Minister, Sigmundur David Gunnlaugsson. He stepped down after documents revealed that he and his wealthy wife had sheltered money offshore.

Nice

1. The Panama Papers: The papers themselves were a great feat of international cooperation when the International Consortium of Investigative Journalists, the German newspaper Süddeutsche Zeitung and more than 100 news organizations released the Panama Papers. These are the good guys.
    
2. Tyler Schultz: When he discovered that Theranos, a health technology and blood-testing company, was using proprietary Edison machines that frequently failed quality-control checks and produced widely varying results, Schultz (an employee of the company at the time) decided to speak up. He drafted an email to founder Elizabeth Holmes to complain that Theranos had doctored research and ignored failed quality-control checks. What makes this move even more incredible is that Schultz is the grandson of George Schultz, a Theranos board member. Since then, a major investor has sued Theranos for fraud and the company has had to stop blood tests, shut down labs and cut jobs. 
    
3. Clare Rewcastle Brown: In 2010, Rewcastle Brown founded The Sarawak Report and Radio Free Sarawak to disseminate news that concerned the Sarawak region of Malaysia and eventually, news surrounding the emerging 1MDB (1Malaysia Development Bhd) scandal. 1MDB is currently being investigated by Swiss, Singh and U.S. authorities. And she's not backing down, despite a Malaysian court issuing a warrant for her arrest for "activities detrimental to parliamentary democracy" and the "dissemination of false reports." She'll be speaking about the scandal at the 2017 ACFE Fraud Conference Europe in London, March 19-21.

The naughty list may never be empty, but at least we have those on the nice list to turn to. And while 2016 saw some pretty egregious schemes, we can enter 2017 knowing that there are those willing to investigate and speak up. Here's to the new year!