Find answers to frequently asked questions about Gherson services. Select a service from the following list and view the FAQ to find answers to frequently asked questions. If you are a new customer of one of the services listed below, we encourage you to read the related questions and articles.
Why has my account been closed? Banks are progressively adopting...
Read MoreBanks are progressively adopting a more risk-averse approach. This has led to us increasingly seeing circumstances where individuals have their bank account(s) frozen and then closed. This is done without explanation, and often with very short (or no) notice, and can cause much inconvenience to the individual concerned.
An account freezing order is a mechanism in UK law that allows enforcement agencies to freeze funds where, on the balance of probabilities, there are reasonable grounds to suspect that they are the proceeds of crime or are intended for use in unlawful conduct.
The purpose of imposing such an order is to facilitate an investigation into the provenance of the funds and prevent them from being disposed of in the meantime. In some circumstances, law enforcement agencies can make the application without notice.
The short answer is ‘very’.
There is a low threshold for law enforcement agencies to impose an account freezing order. There is no requirement of a prior criminal conviction, which involves a much higher standard of proof. In some cases, an order may be imposed in the absence of a criminal prosecution or even a criminal investigation. An account freezing order may be based purely on reasonable suspicion arising from an unusual account activity reported by a bank under its anti-money laundering procedures, even when the activity itself is completely lawful.
The imposition of an account freezing order can have far-reaching consequences. An order may be imposed for up to two years and can have devastating commercial implications, from both the financial and reputational perspectives, even where it is eventually established that there was no wrongdoing.
After a law enforcement agency has completed its investigations, it may apply for some or all of the funds to be forfeited. This can be done either by issuing an account forfeiture notice, where it is believed that forfeiture is likely to be contested, or by applying for an account forfeiture order.
Such an application must be made on notice to the affected party and will be heard in the magistrates’ court. Before granting the order, the magistrates’ court must be satisfied that the funds are the proceeds of crime or are intended for use in unlawful conduct. Although a magistrates’ court trial resembles criminal proceedings, there is no prerequisite that a criminal conviction has been secured, and the standard of proof is the balance of probabilities.
At this stage, it is highly recommended to have legal representation. Should you have any questions or require assistance, please do not hesitate to contact us.
What is Money Laundering? Money laundering is the process where...
Read MoreMoney laundering is the process where criminals hide the origins of their illegally gained funds. According to the Law Commission, money laundering is estimated to cost every household in the UK £255 a year; and it allows criminals to profit from their crimes.
The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (as amended by The Money Laundering and Terrorist Financing (Amendment) Regulations 2019), impose a raft of duties on businesses to ensure that they are not embroiled in money laundering activities.
The current law has a system for reporting suspicious financial activity which provides enforcement agencies with the means to investigate and gather intelligence to protect honest businesses from inadvertently committing a crime.
All businesses are required to comply with the obligations set out by the regime. Those who offer legal services, or services that make them a tax adviser, insolvency practitioner, trust provider, or company service provider can be more at risk of falling foul of these.
In the same vein, businesses should also be careful to avoid committing criminal offences under the Proceeds of Crime Act 2002.
To comply with this regime, businesses must understand their obligations and ensure they have the relevant systems in place, including “Customer Due Diligence” and “Know Your Customer” checks. It is also recommended to provide regular training to your staff to ensure they stay abreast of the constantly changing rules and guidance.
Biometric Residence Permit (“BRP”) / Home Office Visa Processing Delays...
Read MoreThere are often delays in the production and delivery of BRPs. The Home Office advise that once an application is approved, the BRP should be delivered within 7 working days, but recently some BRPs have taken much longer to arrive. The BRP would usually be sent to the nominated postal address for in-country applications or to the Post Office/ Alternative Collection Locations for out-of-country applications. If your BRP has not arrived after 10 working days, you can submit an online report to the Home Office and request an update. You can report that your BRP has failed to arrive here. The Home Office is expected to respond to a report within 5 working days; however, lately it has been announced that they are experiencing a high volume of requests, and it may take up to 40 working days to reply.
It imposes strict obligations on businesses at risk of bribery to implement preventative procedures. It also provides for harsh penalties to be handed out for non-compliance, including imprisonment of up to ten years, an unlimited fine, and an EU-wide ban on tendering for public work.
When you receive your BRP card, make sure to check it carefully. If you find a mistake in any of the details listed on it, such as your name, gender or date of birth, you should report it here. Equally, you should report if your BRP has arrived damaged. The Home Office will email you to tell you what to do next. You will usually get a response within 5 working days. If the Home Office make a mistake in regard to the duration or conditions of your stay, provided your visa was granted in the UK, you will have to apply for Administrative review to have it rectified.
If your BRP was lost or stolen, your next steps will depend on whether it had happened in our outside of the UK
You must first report it here >> https://www.biometric-residence-permit.service.gov.uk/lost-stolen/where?hof-cookie-check. It is important to double-check that you BRP is indeed missing prior to reporting it to the Home Office, as this process will invalidate your existing BRP. It means that if your BRP is found or returned to you later, you will not be able to use it for travel, as the Home Office cannot revalidate BRPs that have been reported as lost or stolen. Once reported, you have to make an application to the Home Office for a replacement BRP. This must be done within 3 months of reporting your BRP as lost or stolen. The Home Office can issue a fine of up to £1,000 if this deadline is missed. Applying to replace your BRP will not extend or alter your visa status: it is simply an application for a new physical BRP, and it will state the same expiry date of your leave in the UK as before. You should not travel outside of the UK without a valid BRP, as it is the only valid immigration document which will allow your entry back into the UK. Therefore, you must wait until your new BRP is delivered to you prior to making any travel plans. The processing times for BRP replacement applications vary depending on the type of leave you hold. For those with temporary grants of leave, BRP replacement applications can be processed in up to 8 weeks. But if you hold Indefinite Leave to Remain (“ILR”), your application may take up to 6 months to be decided. At present, the Home Office does not offer a priority service for such applications.
If you must report it online and apply for a replacement BRP visa, by submitting the relevant online application form >> https://www.biometric-residence-permit.service.gov.uk/lost-stolen/where. In addition to completing the form, you will have to pay an application fee and, thereafter, attend your nearest visa application centre to provide your biometrics. These applications usually take between 15-20 working days to process. If you require a quicker turnaround, it may be possible to opt for priority services (at an additional cost), depending on the country of submission of your application. After receiving your temporary entry vignette, you must travel to the UK within its validity period and, once back in the UK, apply for a replacement BRP. The temporary entry vignette can only be used once, which means that you will not be able to travel until you receive a replacement BRP. The processing times for BRP replacement applications vary depending on the type of leave you hold. For those with temporary grants of leave, BRP replacement applications can be processed in up to 8 weeks. But if you hold Indefinite Leave to Remain (“ILR”), your application may take up to 6 months to be decided. At present, the Home Office does not offer a priority service for such applications.
All UK BRPs have an expiry date, and if your BRP has been issued recently, it may show the expiry date of up to 31 December 2024. If your visa validity goes beyond this date, there is no need to worry. The Home Office plans to introduce a fully digital immigration system, which means that all physical documents denoting an individual’s immigration status will be replaced by eVisas. Ahead of the introduction of this new system, the Home Office have been issuing physical documents valid until 31 December 2024 in the hope that a fully implemented system will be in place by 1 January 2025. Further announcements will be made soon, and we recommend to follow our blogs to stay up-to-date.
For ILR status holders, the expiration of BRP does not mean that your UK immigration status is expiring, as long as your ILR has not lapsed as a result of you being outside of the UK for 2 consecutive years or more. However, your BRP is proof of your UK immigration status. Thus, if your BRP has expired, this may prevent you from re-entering the UK or proving your right to work. If your BRP is near expiry, you can apply to the Home Office to renew your BRP. You will need to apply online, upload evidence of your ILR status and supporting documents, and attend a biometric appointment. The Home Office’s published processing time is 6 months (subject to delays). Unfortunately, no priority service available for such applications at present; therefore, it is best to apply as soon as possible.
While the UK immigration system strives for efficiency, Home Office delays may still occasionally cause disruption to the plans of applicants. There is a multitude of reasons as to why these delays may occur, for example, due an increase in application volumes, complex case reviews, or unforeseen administrative issues. Such delays can be frustrating, especially when they impact important life decisions or hinder one's ability to work or study as planned. The Home Office would normally contact you by email, if your application is unlikely to meet the service standards in respect of the processing times. On some occasions, you may receive an email stating “your application has not been straight forward”. We elaborate below, what this would mean in general.
When UKVI use the term “not straightforward”, it may mean that your application requires additional scrutiny and consideration. This can be due to a variety of factors, including but not limited to: • The need to verify your supporting documents; • A request to attend an interview; or • Your personal circumstances (for example, if you have a criminal conviction or a history of immigration violations). If your application is deemed not straightforward, this does not necessarily mean that it will be refused. You should, however, expect longer processing times than published, and be prepared to provide additional documentation or attend an interview to clarify any questions or concerns UKVI may have about your application. You can reduce the chances of falling into this category by providing clear and comprehensive documentation and addressing any concerns that UKVI may have in your application on the outset.
What is the Bribery Act 2010? The Bribery Act 2010 is an Act of...
Read MoreThe Bribery Act 2010 is an Act of the Parliament of the United Kingdom that covers the criminal law relating to bribery.
It imposes strict obligations on businesses at risk of bribery to implement preventative procedures. It also provides for harsh penalties to be handed out for non-compliance, including imprisonment of up to ten years, an unlimited fine, and an EU-wide ban on tendering for public work.
The short answer is “yes”.
The jurisdiction covered by the Act is extremely wide. Any person, including any company, can be prosecuted for their acts or omissions that took place in the UK, or even if they have a “close connection” with the UK.
Whilst bribery and corruption allegations can be wholly centred within the UK, it is perhaps more likely that allegations will span multiple jurisdictions, depending on the geographic area where the business has been conducted. As a result, international investigative agencies are increasingly involved in proceedings.
Constantly evolving, the Act created Section 7, the offence of failure to prevent bribery, which imposes quasi-strict liability on businesses. It means that, if someone associated with a business – such as an employee or agent – commits a bribery offence, the business itself may be criminally liable even if it was unaware of the offending behaviour.
The territorial scope of the “failure to prevent” offence is especially wide – there is no restriction regarding the jurisdiction where the business is incorporated, nor the place of residence of the associated person, nor where the alleged bribery took place. Therefore, if a company carries on business in any part of the UK, it must be alert to the risk of prosecution under Section 7.
To comply with this regime, businesses must understand their obligations and ensure they have the relevant systems in place to spot any potential incidents of bribery. We would also recommend regular training for your staff to ensure they stay abreast of the constantly changing rules and guidance.
Other legislative and regulatory frameworks also need to be considered, which may lead to specific potential issues, such as the FCA reporting requirements. You would therefore be well advised to have comprehensive compliance procedures in place.
What is a Confiscation Order? A confiscation order is an order...
Read MoreA confiscation order is an order made against a convicted defendant requiring them to pay the amount of their benefit from crime. Unlike a forfeiture order, a confiscation order is not directed towards a particular asset, and it does not deprive the defendant or anyone else of title to any property.
The purpose of such an order is to prevent a convicted person from benefitting from their criminal behaviour. If it happens, this will occur at the sentencing stage – after the investigation is complete and the defendant has either pleaded guilty to or been convicted of a criminal offence.
If you have been convicted of a crime, the prosecuting authorities may petition the Crown Court to issue a confiscation order, which requires you to pay a sum of money to HMCTS immediately or within a fixed period.
The Crown Court will determine how much a defendant has to repay and will also impose a period of imprisonment to be served if the defendant does not pay in accordance with the confiscation order. The length of the sentence is determined by reference to the amount of money.
The Crown Court must determine whether the defendant benefited from their criminal conduct and by how much. This is referred to as the “benefit figure”. When making this calculation, the court may take into account assets that do not relate to the offence for which the defendant was convicted, though this is subject to certain restrictions.
Yes. After the court has decided on a “benefit figure”, it will then consider what the defendant can afford to pay. This is referred to as the “realisable asset figure” or simply the “available amount”.
Very often, defendants believe that these amounts are inaccurate and wholly unfair. Prosecutors may fail to account for depreciation in value and/or third-party interests in the assets.
You may prepare a defence against a confiscation order, which will require a carefully devised strategy and thorough analysis of the evidence with regards to the benefit figure and available amount.
What is a Deferred Prosecution Agreement (DPA)? A DPA is an agreement...
Read MoreA DPA is an agreement reached between a prosecutor and an organisation which could be prosecuted, under the supervision of a judge.
The agreement allows a prosecution to be suspended for a defined period of time provided the organisation meets certain specified conditions.
The potential for a DPA will often follow circumstances where a company has conducted an internal investigation which uncovered potentially contentious issues.
If your business is suspected, or has uncovered evidence, of carrying out, or being party to, certain criminal offences you may be able to use a DPA.
A DPA can apply in relation to the likes of conspiracy to defraud, money-laundering, fraud, bribery, and the failure to prevent facilitation of foreign tax evasion offences.
Our team of experts will tailor any guidance to your individual needs. We understand that whilst certain instances may require a DPA, there may be better options for other circumstances.
Extradition Extradition is a complex area of law, and it...
Read MoreExtradition is a complex area of law, and it may be difficult to secure the necessary local expertise depending on where you have been arrested. Our expert team is always on hand to assist, no matter which jurisdiction you are in.
Extradition is the formal legal process, by which one country asks another country for the return of an individual to face a criminal trial in the requesting state.
Extradition can also be requested for an individual who is wanted abroad following conviction in the requesting state.
Yes. Being the target of an extradition request is a very stressful and harrowing experience for both the subject and their family, and it may cause reputational damage that will severely impact an individual’s livelihood.
Yes. Even if you merely suspect that an extradition request may be on its way, it pays to be prepared. Taking pre-emptive action may also help avoid an unexpected arrest and put in place procedures to maximise your chances of bail.
Bail in extradition cases is covered by the Bail Act 1976.
Where the requested person is wanted to face an accusation, the starting point is that there is a ‘presumption in favour’ of bail.
In conviction cases, where the requested person has been convicted of the offences which are the subject of the request, there is no presumption in favour of bail.
In deciding to grant bail in extradition cases, the court may consider whether to impose stringent bail conditions. These typically include, but are not confined to:
Although in the UK extradition proceedings are considered exclusively by Westminster Magistrates’ Court, where a person is brought to another court for a breach of bail, there is jurisdiction to deal with the breach in the usual way.
Persons refused bail at the Magistrates’ Court may apply for bail to the High Court, but this can only be done after the Magistrates’ Court has refused bail twice. It is also possible to appeal against the granting of bail in extradition cases.
If you, or someone you know, have been, or are likely to be, arrested, contact our team, and we will put together a bail package to secure the best chance of release.
What are Financial Sanctions? Financial sanctions are Orders imposed by...
Read MoreFinancial sanctions are Orders imposed by governments prohibiting a firm from carrying out transactions with a person or organisation (known as the target). In some cases, the order will prohibit a firm from providing any financial services to the target.
These measures vary from prohibiting the transfer of any funds to a sanctioned country and freezing the assets of the government, corporate entities and residents of the target country, to targeted asset freezes on individuals or entities.
Financial sanctions may apply to governments, businesses, entities, and individuals, who may be resident in the UK or abroad.
What is Fraud and Financial Crime? Fraud is a type...
Read MoreFraud is a type of financial crime. Financial crime is any crime that is economically motivated, the prevalence of which is a substantial threat to the development of economies and their stability.
Financial crime can be divided into two essentially different, though closely related, types of conduct.
Firstly, there are those activities that dishonestly generate wealth for those engaged in the conduct in question. For example, the exploitation of insider information or the acquisition of another person’s property by deceit will invariably be done with the intention of securing a material benefit. Alternatively, a person may engage in deceit to secure material benefit for another.
Secondly, there are those that do not involve the dishonest taking of a benefit, but that protect a benefit that has already been obtained or facilitate the taking of such benefit. An example of such conduct is where someone attempts to launder criminal proceeds of another offence in order to place the proceeds beyond the reach of the law.
What is INTERPOL? The International Criminal Police Organisation (INTERPOL) is...
Read MoreThe International Criminal Police Organisation (INTERPOL) is an international organisation that facilitates worldwide police cooperation and crime control. The largest such organisation in the world with over 190 member states, it is not a police force in itself and does not physically arrest people.
INTERPOL is a system for sharing information and resources between the police forces of member states. Notices are published on their system and circulated throughout the member states.
A Red Notice is a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action.
It contains two main types of information:
Red Notices are published by INTERPOL at the request of a member country and must comply with INTERPOL’s Constitution and Rules. A Red Notice is not an international arrest warrant.
Individuals at risk of extradition are most frequently affected by INTERPOL Red Notices. A Red Notice severely restricts an affected person’s ability to travel and do business.
Interpol diffusions are more informal than a notice, but still carry the risk of triggering an arrest. Member states are able to circulate diffusions throughout the system without recourse to a formal Red Notice.
Yes. Being the target of a Red Notice or extradition request is a very stressful and harrowing experience for both the subject and their family.
Red Notices often appear on background checks conducted by banks and businesses. A person subject to an INTERPOL Red Notice is likely to be stopped, searched and is liable to be arrested and face extradition. The Gherson LLP team is also able to advise those who fear that they may be subject to INTERPOL Red Notices on associated reputational issues, such as bank account closure.
What powers does the Government have to investigate? The Chancellor...
Read MoreThe Chancellor recently announced a £100m fund for a Taxpayer Protection Taskforce (TPT) to combat and recoup monies that were claimed fraudulently from the various schemes open to businesses to keep them afloat during the extenuating circumstances brought on by the pandemic.
The TPT will be staffed by over 1,000 HMRC officers, who will look into suspected wrongful claims and investigate allegations of fraud.
There will be a focus on fraud schemes said to be operated by organised crime groups, targeting a systematic assault on public funds.
However, we will also likely see an increase in investigations carried out into suspected wrongdoing, relating to claims made under the various schemes by innocent individuals and small businesses.
Individuals and businesses being investigated are likely to receive a letter from HMRC as a first port of call.
However, it also feasible that they could receive a more direct ‘knock on the door’ from officers looking to gather evidence.
In short: yes. Even though there has been much criticism of the regulation and guidance of the government schemes for eligible claims, any criminal investigation into finances can have long-serving consequences.
In many cases, HMRC will simply be investigating whether monies were unintentionally over-claimed, or, where provable, whether there are mitigating circumstances giving rise to the funds being claimed.
In the worst-case scenario, a company may find itself the subject of a dawn raid, which is much more serious.
As an alternative to a criminal investigation, HMRC may consider, where relevant, issuing a notice under their civil procedures, known as a COP9.
As guardians of the public purse, HMRC will investigate and prosecute many cases involving allegations of fraud or wrongdoing. From VAT reclaims to allegations of cheating the revenue, HMRC have a wide ambit when looking into allegations of revenue irregularities.
Code of Practice 9 investigation procedure (“COP9”) is a procedure that HMRC can choose to adopt when carrying out either a criminal investigation or a civil procedure against those suspected of tax fraud.
COP9 allows for a one-time offer from HMRC, which is known as the Contractual Disclosure Facility (“CDF”), and provides the recipient with immunity from criminal investigation and/or prosecution.
In return for immunity, the subject must admit to acting dishonestly in deliberately failing to declare income, gains, or duties. In addition, they must also agree to fully disclose all omissions and irregularities which may have arisen over the previous 20 years.
Most interviews by the authorities are conducted under caution via the provisions of the Police and Criminal Evidence Act 1984 (PACE).
However, interviews may also be conducted under other compulsory powers in place and available to various prosecuting and regulatory agencies. And, in certain circumstances, interviews may be conducted with the assistance of an overseas prosecuting agency.
Furthermore, there are occasions where a subject will be invited to attend a voluntary interview.
There are occasions where companies become aware of potentially contentious issues, whether through the actions of employees, or from information elsewhere that may need to be addressed before they develop into a formal investigation by the authorities.
Where issues arise or are suspected – information is key. Having the ability to understand and review where weaknesses could develop is crucial in forming a strategy to resolve problems and help strengthen compliance procedures as the company moves forward.
If you are made aware of any potentially damaging issues within your business, you should take steps to conduct an internal investigation before relevant enforcement agencies catch wind.
The day-to-day running of your company will be of paramount importance.
To ensure the smooth running of your business is upheld, a credible third-party will be able to conduct a discreet and focused investigation. This will ensure that the company is able to continue conducting business normally, and any reputational concerns can be minimised.
In allocating you a personalised team of experts to conduct your investigation, we will provide a detailed report of the findings, together with recommendations for potential actions to be taken. This will guarantee that all matters have been addressed and the company can look towards putting any problems behind it and moving forward with confidence.
Unfortunately, there are circumstances when an investigation will uncover dubious activity.
When this occurs, the company may be required to report discrepancies found to the authorities. Alternatively, they may wish to self-report an issue before the authorities conduct their own enquiries.
In certain circumstances, a Deferred Prosecution Agreement may be a consideration.
Whatever the scenario, your bespoke team will be able to advise and guide you on the most appropriate steps for you to take.
What is Mutual Legal Assistance? Mutual legal assistance (MLA) is...
Read MoreMutual legal assistance (MLA) is a method of cooperation between states for obtaining assistance in the investigation or prosecution of criminal offences.
The treaty, by which it is governed, is an agreement between two or more countries for the purpose of gathering and exchanging information in an effort to enforce public or criminal laws.
The international nature of many criminal investigations has seen a rise in these kinds of requests, and they are now a common feature in many multi-jurisdictional criminal and regulatory investigations.
Indeed, a request for MLA could come prior to a country issuing a formal extradition request and, as such, it is therefore advised to be well prepared and represented by expert lawyers.
What is the Proceeds of Crime Act 2002 (POCA)? The...
Read MoreThe Proceeds of Crime Act 2002 (“POCA”) gives public bodies, including the police, HMRC and the UK Border Agency the power to freeze the assets of a person they reasonably suspect of criminal activity. It also provides for confiscation of those assets where they are found to be the proceeds of a criminal offence.
A number of criminal offences are encompassed under POCA. These offences fall into three primary categories: concealing, arranging and acquiring.
Concealing is where someone knows or suspects that money laundering has taken place, but attempts to cover up its existence, for example, by disguising, transferring, converting or removing the proceeds.
Arranging involves people who launder money on behalf of others, often by moving the “dirty” money around with “clean” money in an attempt to hide the illegal source of the funds. See Money Laundering.
The final category may encompass anyone who benefits from money laundering by acquiring, possessing or using criminal property.
For the purposes of POCA, “criminal conduct” is conduct which constitutes an offence in any part of the UK or would constitute an offence in any part of the UK if it occurred there.
Under POCA, property can include money, stocks and shares, jewellery, art, cars and even homes.
These things will be regarded as “criminal property” if they constitute a person’s benefit from criminal conduct, or if they represent such a benefit, and the alleged offender knew or suspected that it constituted or represented such a benefit.
Under this definition, there is no distinction between the proceeds of the defendant’s own alleged crimes and the crimes allegedly committed by others.
In short: Yes. As well as having your assets seized or confiscated, a conviction under POCA can result in up to 14 years’ imprisonment.
Where it is alleged that money or other assets fall to be considered as criminal property, a person can find themselves accused even though they did not have specific knowledge that they were dealing with criminal property, but merely suspected that it was criminal in nature.
In some cases, the authorities do not have to specify what the original offence was that caused the property to be deemed criminal proceeds in the first place.
These factors can make it very difficult to defend against allegations under POCA, and seeking legal advice is highly recommended.
What is a Private Prosecution? A private prosecution is a prosecution...
Read MoreA private prosecution is a prosecution started by a private individual or entity not acting on behalf of the police or other prosecuting authority.
With demands on public funding having been stretched prior to the pandemic, there are increasing instances of investigative authorities simply not having the resources to investigate and prosecute.
This is especially concerning in relation to allegations of fraud, as investigations can often be lengthy and particularly detailed.
Many find that despite a strong evidential case, authorities decline to act. In these circumstances, an individual or entity may look to engage in a private prosecution to seek redress.
As with any prosecution which is brought before the courts, a careful analysis of the evidence will need to take place, along with the application of the Full Code Evidential test and the Public Interest test. Assuming these are satisfied, an application can be made to the Magistrates’ Court for a summons to be issued, which will contain details of the charges being alleged.
Many cases involving private prosecutions will find themselves in the Crown Court due to the nature and seriousness of the allegations to be tried. Where allegations of financial loss are made, consideration may be given to applying for a restraint order in order to preserve assets of the accused which may be at risk of dissipation.
Where the prosecution case ends with a conviction, potential sanctions will include a custodial sentence, where relevant, and the Court may be asked to consider whether a confiscation and/or a compensation order should be made.
Whilst a private prosecution will need to be funded by the person or entity bringing the action, there is provision for recovering the costs, whether or not a conviction is secured, under s17 of the Prosecution of Offences Act 1985.
Further, the decision in the recent costs case of Fuseon Ltd v Senior Courts Costs Office and The Lord Chancellor [2020] EWHC 126 (Admin) clarified the position with regards to the recovery of costs and the considerations the private prosecutor should weigh up in bringing an action.
What is a Restraint Order? A Restraint Order is an order under...
Read MoreA Restraint Order is an order under the Proceeds of Crime Act 2002 (POCA) ,which has the effect of freezing the assets and bank accounts.
If you are suspected of criminal activity, the authorities can apply to have your assets frozen under a restraint order, which is a tool used by prosecuting bodies to freeze the assets. Prosecuting bodies may want to freeze your assets to preserve them for a potential confiscation hearing in the future, in which they will seek to take the assets away from you.
Once a restraint order is imposed, it applies not only to an individual’s current assets, but also to any asset that is received after the order comes into effect.
If you are suspected of being in possession of assets which are the proceeds of crime, a prosecuting agency has a low threshold by which to issue an order against you.
These orders can be issued before any arrest takes place if the prosecutor has proven, on the balance of probabilities, that a criminal investigation has commenced against you in England or Wales, and that there is reasonable cause to believe that you have benefited from criminal conduct.
Restraint orders are usually made ex parte, which means that you may not be aware that an application has been made to the Court.
Yes. If you are subject to a restraint order, you will not be able to sell, transfer or otherwise dispose of the assets subject to the order until it is lifted.
In recent years, restraint orders have been imposed in respect of money, stocks and shares, jewellery, art, cars and even homes.
The authorities also have the power to freeze your assets in foreign jurisdictions. Your bank account will probably be frozen, and this can obviously make life extremely difficult, not only for you, but also for anyone else who shares ownership of the affected assets.
Despite the low threshold, restraint orders are open to challenge.
For example, you can apply to have the order set aside or varied if the prosecutor misled the Court when obtaining the order, or if there have been significant delays.
Am I at risk of receiving an Unexplained Wealth Order?...
Read MoreYou may want to consider the following hypothetical scenarios:
UWOs are obtained in secret and without notice. The order will require an individual to respond to a detailed list of questions and to provide whatever documents are requested of them. The timescale for preparing this response is incredibly short.
The High Court may grant an UWO if the following conditions are satisfied:
Failure to comply with the order will lead to a legal presumption that the property is the ‘proceeds of crime’. The authorities will then seek to confiscate that property. Providing false or misleading information constitutes a criminal offence punishable by imprisonment.
Just a few years ago it would have been utterly unthinkable to have a situation where – with no proof of criminal activity – an individual could be compelled to provide the authorities with detailed information as to their finances. This, however, is now the reality.
The timescales involved in responding to an order are incredibly short and the requests for information and documents will be extensive. For families with complex financial arrangements simply assembling the documents in time can be challenging, if not impossible.
Yes, there is a lot that can be done to prepare in advance.
Families may want to consider a precautionary review of their assets and documentation to assess the level of risk they may face, and to consider the potential work that could be done to improve their position.
Similarly, those who are contemplating acquiring assets in the UK may want to consider taking advice in advance with regards to any purchase.
Why has my account been closed? Banks are progressively adopting...
Read MoreBanks are progressively adopting a more risk-averse approach. This has led to us increasingly seeing circumstances where individuals have their bank account(s) frozen and then closed. This is done without explanation, and often with very short (or no) notice, and can cause much inconvenience to the individual concerned.
An account freezing order is a mechanism in UK law that allows enforcement agencies to freeze funds where, on the balance of probabilities, there are reasonable grounds to suspect that they are the proceeds of crime or are intended for use in unlawful conduct.
The purpose of imposing such an order is to facilitate an investigation into the provenance of the funds and prevent them from being disposed of in the meantime. In some circumstances, law enforcement agencies can make the application without notice.
The short answer is ‘very’.
There is a low threshold for law enforcement agencies to impose an account freezing order. There is no requirement of a prior criminal conviction, which involves a much higher standard of proof. In some cases, an order may be imposed in the absence of a criminal prosecution or even a criminal investigation. An account freezing order may be based purely on reasonable suspicion arising from an unusual account activity reported by a bank under its anti-money laundering procedures, even when the activity itself is completely lawful.
The imposition of an account freezing order can have far-reaching consequences. An order may be imposed for up to two years and can have devastating commercial implications, from both the financial and reputational perspectives, even where it is eventually established that there was no wrongdoing.
After a law enforcement agency has completed its investigations, it may apply for some or all of the funds to be forfeited. This can be done either by issuing an account forfeiture notice, where it is believed that forfeiture is likely to be contested, or by applying for an account forfeiture order.
Such an application must be made on notice to the affected party and will be heard in the magistrates’ court. Before granting the order, the magistrates’ court must be satisfied that the funds are the proceeds of crime or are intended for use in unlawful conduct. Although a magistrates’ court trial resembles criminal proceedings, there is no prerequisite that a criminal conviction has been secured, and the standard of proof is the balance of probabilities.
At this stage, it is highly recommended to have legal representation. Should you have any questions or require assistance, please do not hesitate to contact us.
What is Money Laundering? Money laundering is the process where...
Read MoreMoney laundering is the process where criminals hide the origins of their illegally gained funds. According to the Law Commission, money laundering is estimated to cost every household in the UK £255 a year; and it allows criminals to profit from their crimes.
The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (as amended by The Money Laundering and Terrorist Financing (Amendment) Regulations 2019), impose a raft of duties on businesses to ensure that they are not embroiled in money laundering activities.
The current law has a system for reporting suspicious financial activity which provides enforcement agencies with the means to investigate and gather intelligence to protect honest businesses from inadvertently committing a crime.
All businesses are required to comply with the obligations set out by the regime. Those who offer legal services, or services that make them a tax adviser, insolvency practitioner, trust provider, or company service provider can be more at risk of falling foul of these.
In the same vein, businesses should also be careful to avoid committing criminal offences under the Proceeds of Crime Act 2002.
To comply with this regime, businesses must understand their obligations and ensure they have the relevant systems in place, including “Customer Due Diligence” and “Know Your Customer” checks. It is also recommended to provide regular training to your staff to ensure they stay abreast of the constantly changing rules and guidance.
What is the Bribery Act 2010? The Bribery Act 2010 is an Act of...
Read MoreThe Bribery Act 2010 is an Act of the Parliament of the United Kingdom that covers the criminal law relating to bribery.
It imposes strict obligations on businesses at risk of bribery to implement preventative procedures. It also provides for harsh penalties to be handed out for non-compliance, including imprisonment of up to ten years, an unlimited fine, and an EU-wide ban on tendering for public work.
The short answer is “yes”.
The jurisdiction covered by the Act is extremely wide. Any person, including any company, can be prosecuted for their acts or omissions that took place in the UK, or even if they have a “close connection” with the UK.
Whilst bribery and corruption allegations can be wholly centred within the UK, it is perhaps more likely that allegations will span multiple jurisdictions, depending on the geographic area where the business has been conducted. As a result, international investigative agencies are increasingly involved in proceedings.
Constantly evolving, the Act created Section 7, the offence of failure to prevent bribery, which imposes quasi-strict liability on businesses. It means that, if someone associated with a business – such as an employee or agent – commits a bribery offence, the business itself may be criminally liable even if it was unaware of the offending behaviour.
The territorial scope of the “failure to prevent” offence is especially wide – there is no restriction regarding the jurisdiction where the business is incorporated, nor the place of residence of the associated person, nor where the alleged bribery took place. Therefore, if a company carries on business in any part of the UK, it must be alert to the risk of prosecution under Section 7.
To comply with this regime, businesses must understand their obligations and ensure they have the relevant systems in place to spot any potential incidents of bribery. We would also recommend regular training for your staff to ensure they stay abreast of the constantly changing rules and guidance.
Other legislative and regulatory frameworks also need to be considered, which may lead to specific potential issues, such as the FCA reporting requirements. You would therefore be well advised to have comprehensive compliance procedures in place.
What is a Confiscation Order? A confiscation order is an order...
Read MoreA confiscation order is an order made against a convicted defendant requiring them to pay the amount of their benefit from crime. Unlike a forfeiture order, a confiscation order is not directed towards a particular asset, and it does not deprive the defendant or anyone else of title to any property.
The purpose of such an order is to prevent a convicted person from benefitting from their criminal behaviour. If it happens, this will occur at the sentencing stage – after the investigation is complete and the defendant has either pleaded guilty to or been convicted of a criminal offence.
If you have been convicted of a crime, the prosecuting authorities may petition the Crown Court to issue a confiscation order, which requires you to pay a sum of money to HMCTS immediately or within a fixed period.
The Crown Court will determine how much a defendant has to repay and will also impose a period of imprisonment to be served if the defendant does not pay in accordance with the confiscation order. The length of the sentence is determined by reference to the amount of money.
The Crown Court must determine whether the defendant benefited from their criminal conduct and by how much. This is referred to as the “benefit figure”. When making this calculation, the court may take into account assets that do not relate to the offence for which the defendant was convicted, though this is subject to certain restrictions.
Yes. After the court has decided on a “benefit figure”, it will then consider what the defendant can afford to pay. This is referred to as the “realisable asset figure” or simply the “available amount”.
Very often, defendants believe that these amounts are inaccurate and wholly unfair. Prosecutors may fail to account for depreciation in value and/or third-party interests in the assets.
You may prepare a defence against a confiscation order, which will require a carefully devised strategy and thorough analysis of the evidence with regards to the benefit figure and available amount.
What is a Deferred Prosecution Agreement (DPA)? A DPA is an agreement...
Read MoreA DPA is an agreement reached between a prosecutor and an organisation which could be prosecuted, under the supervision of a judge.
The agreement allows a prosecution to be suspended for a defined period of time provided the organisation meets certain specified conditions.
The potential for a DPA will often follow circumstances where a company has conducted an internal investigation which uncovered potentially contentious issues.
If your business is suspected, or has uncovered evidence, of carrying out, or being party to, certain criminal offences you may be able to use a DPA.
A DPA can apply in relation to the likes of conspiracy to defraud, money-laundering, fraud, bribery, and the failure to prevent facilitation of foreign tax evasion offences.
Our team of experts will tailor any guidance to your individual needs. We understand that whilst certain instances may require a DPA, there may be better options for other circumstances.
What is Fraud and Financial Crime? Fraud is a type...
Read MoreFraud is a type of financial crime. Financial crime is any crime that is economically motivated, the prevalence of which is a substantial threat to the development of economies and their stability.
Financial crime can be divided into two essentially different, though closely related, types of conduct.
Firstly, there are those activities that dishonestly generate wealth for those engaged in the conduct in question. For example, the exploitation of insider information or the acquisition of another person’s property by deceit will invariably be done with the intention of securing a material benefit. Alternatively, a person may engage in deceit to secure material benefit for another.
Secondly, there are those that do not involve the dishonest taking of a benefit, but that protect a benefit that has already been obtained or facilitate the taking of such benefit. An example of such conduct is where someone attempts to launder criminal proceeds of another offence in order to place the proceeds beyond the reach of the law.
What powers does the Government have to investigate? The Chancellor...
Read MoreThe Chancellor recently announced a £100m fund for a Taxpayer Protection Taskforce (TPT) to combat and recoup monies that were claimed fraudulently from the various schemes open to businesses to keep them afloat during the extenuating circumstances brought on by the pandemic.
The TPT will be staffed by over 1,000 HMRC officers, who will look into suspected wrongful claims and investigate allegations of fraud.
There will be a focus on fraud schemes said to be operated by organised crime groups, targeting a systematic assault on public funds.
However, we will also likely see an increase in investigations carried out into suspected wrongdoing, relating to claims made under the various schemes by innocent individuals and small businesses.
Individuals and businesses being investigated are likely to receive a letter from HMRC as a first port of call.
However, it also feasible that they could receive a more direct ‘knock on the door’ from officers looking to gather evidence.
In short: yes. Even though there has been much criticism of the regulation and guidance of the government schemes for eligible claims, any criminal investigation into finances can have long-serving consequences.
In many cases, HMRC will simply be investigating whether monies were unintentionally over-claimed, or, where provable, whether there are mitigating circumstances giving rise to the funds being claimed.
In the worst-case scenario, a company may find itself the subject of a dawn raid, which is much more serious.
As an alternative to a criminal investigation, HMRC may consider, where relevant, issuing a notice under their civil procedures, known as a COP9.
As guardians of the public purse, HMRC will investigate and prosecute many cases involving allegations of fraud or wrongdoing. From VAT reclaims to allegations of cheating the revenue, HMRC have a wide ambit when looking into allegations of revenue irregularities.
Code of Practice 9 investigation procedure (“COP9”) is a procedure that HMRC can choose to adopt when carrying out either a criminal investigation or a civil procedure against those suspected of tax fraud.
COP9 allows for a one-time offer from HMRC, which is known as the Contractual Disclosure Facility (“CDF”), and provides the recipient with immunity from criminal investigation and/or prosecution.
In return for immunity, the subject must admit to acting dishonestly in deliberately failing to declare income, gains, or duties. In addition, they must also agree to fully disclose all omissions and irregularities which may have arisen over the previous 20 years.
Most interviews by the authorities are conducted under caution via the provisions of the Police and Criminal Evidence Act 1984 (PACE).
However, interviews may also be conducted under other compulsory powers in place and available to various prosecuting and regulatory agencies. And, in certain circumstances, interviews may be conducted with the assistance of an overseas prosecuting agency.
Furthermore, there are occasions where a subject will be invited to attend a voluntary interview.
There are occasions where companies become aware of potentially contentious issues, whether through the actions of employees, or from information elsewhere that may need to be addressed before they develop into a formal investigation by the authorities.
Where issues arise or are suspected – information is key. Having the ability to understand and review where weaknesses could develop is crucial in forming a strategy to resolve problems and help strengthen compliance procedures as the company moves forward.
If you are made aware of any potentially damaging issues within your business, you should take steps to conduct an internal investigation before relevant enforcement agencies catch wind.
The day-to-day running of your company will be of paramount importance.
To ensure the smooth running of your business is upheld, a credible third-party will be able to conduct a discreet and focused investigation. This will ensure that the company is able to continue conducting business normally, and any reputational concerns can be minimised.
In allocating you a personalised team of experts to conduct your investigation, we will provide a detailed report of the findings, together with recommendations for potential actions to be taken. This will guarantee that all matters have been addressed and the company can look towards putting any problems behind it and moving forward with confidence.
Unfortunately, there are circumstances when an investigation will uncover dubious activity.
When this occurs, the company may be required to report discrepancies found to the authorities. Alternatively, they may wish to self-report an issue before the authorities conduct their own enquiries.
In certain circumstances, a Deferred Prosecution Agreement may be a consideration.
Whatever the scenario, your bespoke team will be able to advise and guide you on the most appropriate steps for you to take.
What is the Proceeds of Crime Act 2002 (POCA)? The...
Read MoreThe Proceeds of Crime Act 2002 (“POCA”) gives public bodies, including the police, HMRC and the UK Border Agency the power to freeze the assets of a person they reasonably suspect of criminal activity. It also provides for confiscation of those assets where they are found to be the proceeds of a criminal offence.
A number of criminal offences are encompassed under POCA. These offences fall into three primary categories: concealing, arranging and acquiring.
Concealing is where someone knows or suspects that money laundering has taken place, but attempts to cover up its existence, for example, by disguising, transferring, converting or removing the proceeds.
Arranging involves people who launder money on behalf of others, often by moving the “dirty” money around with “clean” money in an attempt to hide the illegal source of the funds. See Money Laundering.
The final category may encompass anyone who benefits from money laundering by acquiring, possessing or using criminal property.
For the purposes of POCA, “criminal conduct” is conduct which constitutes an offence in any part of the UK or would constitute an offence in any part of the UK if it occurred there.
Under POCA, property can include money, stocks and shares, jewellery, art, cars and even homes.
These things will be regarded as “criminal property” if they constitute a person’s benefit from criminal conduct, or if they represent such a benefit, and the alleged offender knew or suspected that it constituted or represented such a benefit.
Under this definition, there is no distinction between the proceeds of the defendant’s own alleged crimes and the crimes allegedly committed by others.
In short: Yes. As well as having your assets seized or confiscated, a conviction under POCA can result in up to 14 years’ imprisonment.
Where it is alleged that money or other assets fall to be considered as criminal property, a person can find themselves accused even though they did not have specific knowledge that they were dealing with criminal property, but merely suspected that it was criminal in nature.
In some cases, the authorities do not have to specify what the original offence was that caused the property to be deemed criminal proceeds in the first place.
These factors can make it very difficult to defend against allegations under POCA, and seeking legal advice is highly recommended.
What is a Private Prosecution? A private prosecution is a prosecution...
Read MoreA private prosecution is a prosecution started by a private individual or entity not acting on behalf of the police or other prosecuting authority.
With demands on public funding having been stretched prior to the pandemic, there are increasing instances of investigative authorities simply not having the resources to investigate and prosecute.
This is especially concerning in relation to allegations of fraud, as investigations can often be lengthy and particularly detailed.
Many find that despite a strong evidential case, authorities decline to act. In these circumstances, an individual or entity may look to engage in a private prosecution to seek redress.
As with any prosecution which is brought before the courts, a careful analysis of the evidence will need to take place, along with the application of the Full Code Evidential test and the Public Interest test. Assuming these are satisfied, an application can be made to the Magistrates’ Court for a summons to be issued, which will contain details of the charges being alleged.
Many cases involving private prosecutions will find themselves in the Crown Court due to the nature and seriousness of the allegations to be tried. Where allegations of financial loss are made, consideration may be given to applying for a restraint order in order to preserve assets of the accused which may be at risk of dissipation.
Where the prosecution case ends with a conviction, potential sanctions will include a custodial sentence, where relevant, and the Court may be asked to consider whether a confiscation and/or a compensation order should be made.
Whilst a private prosecution will need to be funded by the person or entity bringing the action, there is provision for recovering the costs, whether or not a conviction is secured, under s17 of the Prosecution of Offences Act 1985.
Further, the decision in the recent costs case of Fuseon Ltd v Senior Courts Costs Office and The Lord Chancellor [2020] EWHC 126 (Admin) clarified the position with regards to the recovery of costs and the considerations the private prosecutor should weigh up in bringing an action.
What is a Restraint Order? A Restraint Order is an order under...
Read MoreA Restraint Order is an order under the Proceeds of Crime Act 2002 (POCA) ,which has the effect of freezing the assets and bank accounts.
If you are suspected of criminal activity, the authorities can apply to have your assets frozen under a restraint order, which is a tool used by prosecuting bodies to freeze the assets. Prosecuting bodies may want to freeze your assets to preserve them for a potential confiscation hearing in the future, in which they will seek to take the assets away from you.
Once a restraint order is imposed, it applies not only to an individual’s current assets, but also to any asset that is received after the order comes into effect.
If you are suspected of being in possession of assets which are the proceeds of crime, a prosecuting agency has a low threshold by which to issue an order against you.
These orders can be issued before any arrest takes place if the prosecutor has proven, on the balance of probabilities, that a criminal investigation has commenced against you in England or Wales, and that there is reasonable cause to believe that you have benefited from criminal conduct.
Restraint orders are usually made ex parte, which means that you may not be aware that an application has been made to the Court.
Yes. If you are subject to a restraint order, you will not be able to sell, transfer or otherwise dispose of the assets subject to the order until it is lifted.
In recent years, restraint orders have been imposed in respect of money, stocks and shares, jewellery, art, cars and even homes.
The authorities also have the power to freeze your assets in foreign jurisdictions. Your bank account will probably be frozen, and this can obviously make life extremely difficult, not only for you, but also for anyone else who shares ownership of the affected assets.
Despite the low threshold, restraint orders are open to challenge.
For example, you can apply to have the order set aside or varied if the prosecutor misled the Court when obtaining the order, or if there have been significant delays.
Am I at risk of receiving an Unexplained Wealth Order?...
Read MoreYou may want to consider the following hypothetical scenarios:
UWOs are obtained in secret and without notice. The order will require an individual to respond to a detailed list of questions and to provide whatever documents are requested of them. The timescale for preparing this response is incredibly short.
The High Court may grant an UWO if the following conditions are satisfied:
Failure to comply with the order will lead to a legal presumption that the property is the ‘proceeds of crime’. The authorities will then seek to confiscate that property. Providing false or misleading information constitutes a criminal offence punishable by imprisonment.
Just a few years ago it would have been utterly unthinkable to have a situation where – with no proof of criminal activity – an individual could be compelled to provide the authorities with detailed information as to their finances. This, however, is now the reality.
The timescales involved in responding to an order are incredibly short and the requests for information and documents will be extensive. For families with complex financial arrangements simply assembling the documents in time can be challenging, if not impossible.
Yes, there is a lot that can be done to prepare in advance.
Families may want to consider a precautionary review of their assets and documentation to assess the level of risk they may face, and to consider the potential work that could be done to improve their position.
Similarly, those who are contemplating acquiring assets in the UK may want to consider taking advice in advance with regards to any purchase.
What are Financial Sanctions? Financial sanctions are Orders imposed by...
Read MoreFinancial sanctions are Orders imposed by governments prohibiting a firm from carrying out transactions with a person or organisation (known as the target). In some cases, the order will prohibit a firm from providing any financial services to the target.
These measures vary from prohibiting the transfer of any funds to a sanctioned country and freezing the assets of the government, corporate entities and residents of the target country, to targeted asset freezes on individuals or entities.
Financial sanctions may apply to governments, businesses, entities, and individuals, who may be resident in the UK or abroad.
Extradition Extradition is a complex area of law, and it...
Read MoreExtradition is a complex area of law, and it may be difficult to secure the necessary local expertise depending on where you have been arrested. Our expert team is always on hand to assist, no matter which jurisdiction you are in.
Extradition is the formal legal process, by which one country asks another country for the return of an individual to face a criminal trial in the requesting state.
Extradition can also be requested for an individual who is wanted abroad following conviction in the requesting state.
Yes. Being the target of an extradition request is a very stressful and harrowing experience for both the subject and their family, and it may cause reputational damage that will severely impact an individual’s livelihood.
Yes. Even if you merely suspect that an extradition request may be on its way, it pays to be prepared. Taking pre-emptive action may also help avoid an unexpected arrest and put in place procedures to maximise your chances of bail.
Bail in extradition cases is covered by the Bail Act 1976.
Where the requested person is wanted to face an accusation, the starting point is that there is a ‘presumption in favour’ of bail.
In conviction cases, where the requested person has been convicted of the offences which are the subject of the request, there is no presumption in favour of bail.
In deciding to grant bail in extradition cases, the court may consider whether to impose stringent bail conditions. These typically include, but are not confined to:
Although in the UK extradition proceedings are considered exclusively by Westminster Magistrates’ Court, where a person is brought to another court for a breach of bail, there is jurisdiction to deal with the breach in the usual way.
Persons refused bail at the Magistrates’ Court may apply for bail to the High Court, but this can only be done after the Magistrates’ Court has refused bail twice. It is also possible to appeal against the granting of bail in extradition cases.
If you, or someone you know, have been, or are likely to be, arrested, contact our team, and we will put together a bail package to secure the best chance of release.
What is INTERPOL? The International Criminal Police Organisation (INTERPOL) is...
Read MoreThe International Criminal Police Organisation (INTERPOL) is an international organisation that facilitates worldwide police cooperation and crime control. The largest such organisation in the world with over 190 member states, it is not a police force in itself and does not physically arrest people.
INTERPOL is a system for sharing information and resources between the police forces of member states. Notices are published on their system and circulated throughout the member states.
A Red Notice is a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action.
It contains two main types of information:
Red Notices are published by INTERPOL at the request of a member country and must comply with INTERPOL’s Constitution and Rules. A Red Notice is not an international arrest warrant.
Individuals at risk of extradition are most frequently affected by INTERPOL Red Notices. A Red Notice severely restricts an affected person’s ability to travel and do business.
Interpol diffusions are more informal than a notice, but still carry the risk of triggering an arrest. Member states are able to circulate diffusions throughout the system without recourse to a formal Red Notice.
Yes. Being the target of a Red Notice or extradition request is a very stressful and harrowing experience for both the subject and their family.
Red Notices often appear on background checks conducted by banks and businesses. A person subject to an INTERPOL Red Notice is likely to be stopped, searched and is liable to be arrested and face extradition. The Gherson LLP team is also able to advise those who fear that they may be subject to INTERPOL Red Notices on associated reputational issues, such as bank account closure.
What is Mutual Legal Assistance? Mutual legal assistance (MLA) is...
Read MoreMutual legal assistance (MLA) is a method of cooperation between states for obtaining assistance in the investigation or prosecution of criminal offences.
The treaty, by which it is governed, is an agreement between two or more countries for the purpose of gathering and exchanging information in an effort to enforce public or criminal laws.
The international nature of many criminal investigations has seen a rise in these kinds of requests, and they are now a common feature in many multi-jurisdictional criminal and regulatory investigations.
Indeed, a request for MLA could come prior to a country issuing a formal extradition request and, as such, it is therefore advised to be well prepared and represented by expert lawyers.
Biometric Residence Permit (“BRP”) / Home Office Visa Processing Delays...
Read MoreThere are often delays in the production and delivery of BRPs. The Home Office advise that once an application is approved, the BRP should be delivered within 7 working days, but recently some BRPs have taken much longer to arrive. The BRP would usually be sent to the nominated postal address for in-country applications or to the Post Office/ Alternative Collection Locations for out-of-country applications. If your BRP has not arrived after 10 working days, you can submit an online report to the Home Office and request an update. You can report that your BRP has failed to arrive here. The Home Office is expected to respond to a report within 5 working days; however, lately it has been announced that they are experiencing a high volume of requests, and it may take up to 40 working days to reply.
It imposes strict obligations on businesses at risk of bribery to implement preventative procedures. It also provides for harsh penalties to be handed out for non-compliance, including imprisonment of up to ten years, an unlimited fine, and an EU-wide ban on tendering for public work.
When you receive your BRP card, make sure to check it carefully. If you find a mistake in any of the details listed on it, such as your name, gender or date of birth, you should report it here. Equally, you should report if your BRP has arrived damaged. The Home Office will email you to tell you what to do next. You will usually get a response within 5 working days. If the Home Office make a mistake in regard to the duration or conditions of your stay, provided your visa was granted in the UK, you will have to apply for Administrative review to have it rectified.
If your BRP was lost or stolen, your next steps will depend on whether it had happened in our outside of the UK
You must first report it here >> https://www.biometric-residence-permit.service.gov.uk/lost-stolen/where?hof-cookie-check. It is important to double-check that you BRP is indeed missing prior to reporting it to the Home Office, as this process will invalidate your existing BRP. It means that if your BRP is found or returned to you later, you will not be able to use it for travel, as the Home Office cannot revalidate BRPs that have been reported as lost or stolen. Once reported, you have to make an application to the Home Office for a replacement BRP. This must be done within 3 months of reporting your BRP as lost or stolen. The Home Office can issue a fine of up to £1,000 if this deadline is missed. Applying to replace your BRP will not extend or alter your visa status: it is simply an application for a new physical BRP, and it will state the same expiry date of your leave in the UK as before. You should not travel outside of the UK without a valid BRP, as it is the only valid immigration document which will allow your entry back into the UK. Therefore, you must wait until your new BRP is delivered to you prior to making any travel plans. The processing times for BRP replacement applications vary depending on the type of leave you hold. For those with temporary grants of leave, BRP replacement applications can be processed in up to 8 weeks. But if you hold Indefinite Leave to Remain (“ILR”), your application may take up to 6 months to be decided. At present, the Home Office does not offer a priority service for such applications.
If you must report it online and apply for a replacement BRP visa, by submitting the relevant online application form >> https://www.biometric-residence-permit.service.gov.uk/lost-stolen/where. In addition to completing the form, you will have to pay an application fee and, thereafter, attend your nearest visa application centre to provide your biometrics. These applications usually take between 15-20 working days to process. If you require a quicker turnaround, it may be possible to opt for priority services (at an additional cost), depending on the country of submission of your application. After receiving your temporary entry vignette, you must travel to the UK within its validity period and, once back in the UK, apply for a replacement BRP. The temporary entry vignette can only be used once, which means that you will not be able to travel until you receive a replacement BRP. The processing times for BRP replacement applications vary depending on the type of leave you hold. For those with temporary grants of leave, BRP replacement applications can be processed in up to 8 weeks. But if you hold Indefinite Leave to Remain (“ILR”), your application may take up to 6 months to be decided. At present, the Home Office does not offer a priority service for such applications.
All UK BRPs have an expiry date, and if your BRP has been issued recently, it may show the expiry date of up to 31 December 2024. If your visa validity goes beyond this date, there is no need to worry. The Home Office plans to introduce a fully digital immigration system, which means that all physical documents denoting an individual’s immigration status will be replaced by eVisas. Ahead of the introduction of this new system, the Home Office have been issuing physical documents valid until 31 December 2024 in the hope that a fully implemented system will be in place by 1 January 2025. Further announcements will be made soon, and we recommend to follow our blogs to stay up-to-date.
For ILR status holders, the expiration of BRP does not mean that your UK immigration status is expiring, as long as your ILR has not lapsed as a result of you being outside of the UK for 2 consecutive years or more. However, your BRP is proof of your UK immigration status. Thus, if your BRP has expired, this may prevent you from re-entering the UK or proving your right to work. If your BRP is near expiry, you can apply to the Home Office to renew your BRP. You will need to apply online, upload evidence of your ILR status and supporting documents, and attend a biometric appointment. The Home Office’s published processing time is 6 months (subject to delays). Unfortunately, no priority service available for such applications at present; therefore, it is best to apply as soon as possible.
While the UK immigration system strives for efficiency, Home Office delays may still occasionally cause disruption to the plans of applicants. There is a multitude of reasons as to why these delays may occur, for example, due an increase in application volumes, complex case reviews, or unforeseen administrative issues. Such delays can be frustrating, especially when they impact important life decisions or hinder one's ability to work or study as planned. The Home Office would normally contact you by email, if your application is unlikely to meet the service standards in respect of the processing times. On some occasions, you may receive an email stating “your application has not been straight forward”. We elaborate below, what this would mean in general.
When UKVI use the term “not straightforward”, it may mean that your application requires additional scrutiny and consideration. This can be due to a variety of factors, including but not limited to: • The need to verify your supporting documents; • A request to attend an interview; or • Your personal circumstances (for example, if you have a criminal conviction or a history of immigration violations). If your application is deemed not straightforward, this does not necessarily mean that it will be refused. You should, however, expect longer processing times than published, and be prepared to provide additional documentation or attend an interview to clarify any questions or concerns UKVI may have about your application. You can reduce the chances of falling into this category by providing clear and comprehensive documentation and addressing any concerns that UKVI may have in your application on the outset.
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