Which crimes are considered ‘white collar’?
Although it is not an official legal definition, so-called ‘white collar’ crimes derive their name from the fact that they are usually committed by professionals working within a financial services capacity.
Sometimes the terms ‘economic crime’ or ‘corporate crime’ are used; whatever the terminology, the case will tend to involve dishonesty for personal gain.
Offences considered under this heading include, but are not limited to:-
- Money Laundering
- Banking Fraud
- Bribery and Corruption
- Accountancy Fraud
- Health and Safety Prosecutions
- Tax Evasion/Fraud
- Environmental Crime
Offences are prosecuted under a wide range of legislation- the list is somewhat exhaustive. Key laws include:-
- Money Laundering Regulations 2007;
- Bribery Act 2010;
- Fraud Act 2006;
- Companies Act 2006;
- Proceeds of Crime Act 2002;
- Financial Services and Market Act 2000;
- Value Added Tax Act 1994;
- Companies Act 1985;
- Forgery and Counterfeiting Act 1981;
- Customs and Excise Management Act 1979;
- Theft Act 1968.
What are the penalties?
Fines and prison sentences will commonly result when a prosecution is successful. Then there is the reputational damage that may result, both to a brand and to the individuals concerned. Both companies and individuals may be subject to action.
What is a Deferred Prosecution Agreement?
Gaining increasing prominence, a Deferred Prosecution Agreement means that a prosecution is suspended for a fixed period as long as certain conditions are met. They are available only in very narrow, defined circumstances:-
- They are only available for cases such as bribery, fraud and other ‘economic’ offences;
- They may only apply to a company, never an individual;
- They must be supervised by a judge, whom has to agree that it is in the interests of justice for a DPA to apply, and that its terms are ‘fair, reasonable and proportionate.’
What type of solicitor do I need in these types of cases?
Put simply, you need a specialist solicitor whom is able to deal with both criminal and regulatory matters as there is frequently a great deal of crossover between the two areas.
Ideally, a firm which also features specialists in corporate/commercial law and even employment law will be a wise option. At Ison Harrison, we have specialists across all of the above areas to give you the informed, cohesive and confidential representation you require. We also have access to a host of highly skilled experts across all sectors, as well as first-class barristers.
How do Trading Standards prosecutions begin?
Local Trading Standards offices will conduct investigations (often as a result of a referral from a member of the public) and bring prosecutions as they deem appropriate.
The relevant office will usually ask those it believes to be responsible to attend an interview under caution. If charges are brought, there will often be a voluminous amount of evidence to review and assess.
Prosecutions are brought against the relevant individuals, no matter what their status in the company.
Which offences tend to be charged?
Given the nature of the offences, fraud and conspiracy to defraud are the most common.
What are the usual penalties?
Sentences of imprisonment (both immediate and suspended) are the norm. Substantial fines will often result, either as stand-alone penalties or in addition to a custodial term.
HMRC Tax Investigations
HMRC is a government department characterised by a willingness to take legal action
The rules in this area are complicated. Their starting point is to pursue civil recovery methods, but criminal proceedings are turned to when it is deemed necessary.
Civil actions are undertaken utilising the so-called ‘Code of Practice 9’ investigations. These are carried out by the Fraud and Avoidance section of the Specialist Investigations directorate.
‘COP9’ investigations can be useful in that they provide a resolution without the need for criminal proceedings to be commenced.
HMRC has an official Criminal Investigation Policy, which has a clear emphasis upon taking action in cases of fraud, the making of false statements, the use of false documents and abuse of position.
What happens once HMRC have decided to investigate?
As with any other type of investigation, evidence is collated and then assessed. HMRC may decide to invite a person subject to investigation to an interview under caution, and make a decision following it.
The Serious and Organised Crime and Police Act 2005 enables HMRC to request information and documentation, as well as putting questions to people it deems to have useful information.
Under the Police and Criminal Evidence Act 1984, HMRC officers are also permitted to search premises, seize materials and effect arrests.
How far back can the investigation go?
This will be case dependent. The more serious the conduct, the further back they are likely to go. Simple and innocent mistakes are usually subject to a four year time limit, but if it is felt that deliberate deception has occurred then HMRC can go back as much as 20 years.
An ‘aspect enquiry’ examines a particular part of a tax return; a full enquiry will look into the entirety of it. HMRC generally request submission of all records maintained by the business for the year of enquiry, including but not limited to:
- Bank statements/credit card statements;
- Chequebooks and paying in slips;
- Invoices / Till rolls;
- VAT records;
- Job quotes or estimates;
- Purchase invoices and expense receipts;
- Payroll records
HMRC are looking into my affairs- what do I do?
If you are subject to proceedings in this area, or have received correspondence about a COP9 investigation, get in touch with us. Such cases require very careful handling, and incorrect or inappropriate advice can have severe repercussions.