In response to requests for guidance received from Member States concerning the proper implementation of the asset freeze measures, ON 18TH December, the relevant Sanctions Committee issued updated guidance confirming that –
- Assets owned or controlled, directly or indirectly, by the LIA and LAIP, held outside Libya and frozen as of 16th September 2011, remain frozen;
- A specific exception allows the addition by Member States of interests or other earnings or payments to the LIA and LAIP frozen accounts, but such interests or other earnings or payments remain frozen;
- Interests, other earnings or payments on the LIA and LAIP frozen assets arising after 16th September 2011 are also frozen; and
- Assets owned or controlled, directly or indirectly, by the LIA and LAIP, held in Libya or acquired after 16 September 2011, are not frozen. Interests, other earnings or payments on such assets are not subject to the asset freeze.
Earlier Libya assistance notices are at –
On 18th December, Local Government Lawyer reported that Brent Council has secured confiscation orders totalling £322,282 against a husband and wife landlord team who converted 2 terrace houses into 18 flats without planning permission. This followed the local authority obtained, together with Harrow Council, securing a £1.4 million confiscation orders against another landlord.
Kenneth Rijock in his blog reported on 18th December that the problems involved the UBS brokerage office in San Diego, where many non-resident aliens from Panama, Mexico and Venezuela had accounts. The $15 million was split between the SEC and FinCEN. The FinCEN Director is quoted as saying that broker-dealers providing banking-like services must properly mitigate the AML risks associated with this kind of service. These services enable the flow of funds through mechanisms such as wire transfers, check writing, and ATM withdrawals, creating AML risks that need to be properly addressed. It is said that the company failed to provide sufficient resources to ensure day-to-day AML compliance, and inadequate staffing led to a significant backlog of alerts and decreased its ability to timely file suspicious activity reports.
The BBC on 18th December reported that 8 people have been arrested on suspicion of importing up to £6 million of nitrous oxide for illegal human use. Nitrous oxide, also known as NO2 and laughing gas, is used in the medical and catering industry but also was a so-called “legal high”. Unlawful supply of the gas was made an offence in 2016 by the Psychoactive Substances Act.
Accountancy Daily on 18th December reported that Simon Atkinson, a company director, who funded his hobby racing sports cars across Europe through a £450,000 tax fraud, has been jailed for 3 years and 4 months. He was already under investigation by HMRC for AML offences when officers unearthed the tax fraud.
King & Wood Mallesons on 14th December published an article about changes made to company law by the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2018. The DIN will require all directors to confirm their identity and it will be a unique identifier for each person who consents to being a director.
On 13th November, Reed Smith published an article saying that the recent ENRC case has moved the law of legal professional privilege (LPP) in a realistic and commercial direction, whilst also leaving the door open to an appeal to the Supreme Court. Reviewing the case, the article concludes that challenges to LPP will not disappear and so the issue of privilege remains an important one. The principled justification for LPP is to promote the frank exchange of information with lawyers and so the decision is to be welcomed. It says that privilege now clearly applies in circumstances where there is a genuine concern about future prosecution and there is no longer any artificial distinction between civil and criminal proceedings.
An article from Wilmer Hale on 13th December looked at the suggestion of the increased use of some form of monitor in the UK, and asks if the suggestion is correct, how have we got to this position and what lessons can be learnt from the US? It explains that, a compliance monitor is an independent third party appointed to oversee and report on a company’s internal controls and compliance functions during or after a criminal or regulatory investigation. They may be appointed by a court, agreed between the company and the investigating agency, or hired voluntarily by the company in order to demonstrate co-operation during an investigation. Compliance monitors are often drawn from law firms, accountants, or specialist risk consultancies. Critically, it says, a monitor is expected to act independently and, when a lawyer, does not owe a traditional lawyer-client duty to the company or its shareholders. The article goes on to look the use in the past of such monitors in the US and UK, what US guidance says and lessons from the US. It says that it remains to be seen whether there will be a significant increase in their use under the new Director of the SFO.