fraud sentencing getting tougher ?

Getting tougher on fraud

Fraud has become a bigger problem worldwide according to Blackhawk Investigations and in a time when we are all far more conscious of the overall societal impacts of economic excess and cult of the individual, Governments and Judges worldwide are starting to get tougher on economic crime.

Whilst in the unprecedented Madoff case due to the sheer scale of the fraud, the number of people affected and the political nature of the case, a huge sentence was handed down, in many cases of fraud, a criminal can expect a sentence of less than 5 years which in reality can mean as little as 2 years in prison. This does not seem a big deterrent to someone seeking financial ill gotten gain of commonly millions.

In a recent case in Australia, based on a Ponzi scheme fraud (the same type as the Madoff case), the defendant, Simon Finnigan received a tough sentence of 10 years in jail for defrauding investors of $1.8 million.

The sentence is one of the toughest imposed for the offence in Australia, especially as the defendant pleaded guilty.

Limited liability Partnerships

Limited Liability Partnerships.

When most people want to start a business they will either trade through their own name (a sole trader), with others (a partnership) or through a company. There is however another way to trade or own assets which is not so common but should really be looked at.

Limited Liability Partnerships (LLP) are a reasonably new form of legal structure through which to either trade as a business or hold property or other assets. As the name suggests they are a cross between partnership and a limited liability company.

Before we explore what a LLP is let us look at the main differences between a partnership and company:

Company

  • Shareholders of a company have limited liability to third parties. A company is its own legal entity which means it can own property, enter into contracts sue and be sued. The liability of its shareholders is limited to the amount of money they paid for their shares. Unless a shareholder personally guarantees the obligations of a company they will not need to pay any more money than this to any third party creditors.
  • A company must be run in accordance with the Companies Act 200 and any other statutory provisions. This means filing forms, holding meetings and preparing accounts.
  • All accounting and other legal information relating to the company and its ownership will be held at Companies House. Companies House is a public registrar and all information filed at Companies House is open to inspection by all member of the public.

Partnership

  • Each member of the partnership has joint and several unlimited liability to third parties dealing with the partnership. That means if the partnership owes a debt of

More social media legal issues

Social media posts are increasingly a source of employers finding out about potential employee misconduct and provide a fruitful source of evidence in this regard.

The number of employment law cases where social media postings are deeply involved is escalating rapidly.

In another reported case in the last few weeks, which has not yet reached the Employment Tribunal, staff employed by the Duke of Bedford at Woburn have been dismissed for an overzealous send off for a departing member of staff.

Whilst the misdemaenour appears to be relatively minor, with the departing employee bveing dunked in a  fountain and then had some cakes thrown at him, it would appear that the defence to the unfair dismissal claim will be that the Duke has very strict employment policies and procedures. On the basis that the employees were fully aware of the very high standards required, it is more than possible that the Duke’s defence may fall within the “range of reasonable responses” test for a fair dimissal.

Oh and by the way, the high jinx described above were videoed and posted online.

Complaints against the local authority

Local Authority Complaints

The number of complaints made to the Local Government Ombudsmen have significantly increased during the last year to nearly 22,000, which represents a 21% rise from 2009-2010.

Approximately 50% of the complaints result in investigations and in terms of types of complaints, education and children’s services now forms the largest category of complain. Another area with a significant increase is in relation to adult social care complaints which have risen 15% in the last year.

Employment claims – some employers never learn

Employment law wakey wakey !

We suppose that with all laws, there will always be plenty of people who will break the law quite deliberately, some who just don’t care, some who don’t know what the law is and others who, putting it politely, have no common sense.

Matters relating to relations between men and women at work will always lead to a proportion of legal cases, but surely most employers know that some things are not permissible these days – it appears not

In a recent case, a sales administrator claimed against her employer for sex discrimination. Some of her claims were successful at Tribunal others not. Among the allegations made, some of which were accepted as proven, others not, were :-

  • The complainant alleged that her boss spanked a female colleague
  • That he had a policy of deciding which women to employ based on bra
  • That staff had circulated cartoons of her entitled fat, fat face.
  • men watched pornography in the office.
  • That the company’s managing director had stated that the company

Bribery Act

Bribery Act – ever heard of it ?

A recent survey indicates that 1 in 3 businesses are still partially unaware of the Bribery Act and there is only just over a month until the Act finally comes into force after a delay of some months from its initial implementation date.

120 directors were interviewed in the UK by a major law firm. The headline results of that survey were :-

  • 11% had not heard of the Bribery Act at all
  • 33% of businesses asked are unaware of the detail of the Act
  • 22% do not have any plans to change their policies or procedures as a result of the Act and the potentially very onerous sanctions it creates
  • 16% only at this stage have trained staff on the Bribery Act
  • Over 50% of those asked believed that their business had lost contracts due to a competitor spending more than them on corporate hospitality

The above shows a confused position. On the one hand, small businesses, especially given the updated guidance on the Act now issued (which states that small business are not expected top take the same degree of preventative measures as large ones) are perhaps forming the view that the Act really relates top big multinationals and that any very big fines will be against them. On the other hand, the Act contains tough procedures and sanctions, on a strict liability basis, for failing to prevent bribery. It would therefore be wise even for small businesses not to simply ignore the Act and operate as though it has no effect on them whatsoever.

Credit card protection loophole

Dangers of buying online

It seems that when buying online, the protection for consumers under the consumer credit legislation do not apply, in terms of losing the right to claim against the credit card company for faulty goods.

In normal circumstances, a consumer buying goods for over £100.00 by credit card will have the same rights against the credit card company as the seller and this is a valuable protection, especially as it tends to be easier to get redress via the credit card company.

The loophole in the law is because the rights only apply if you deal with the store directly and many online shops now use a separate company to deal with payments.

This means the credit agreement has shifted to the payments company, rather than being with the store. So if your purchase breaks, you cannot claim against your card issuer.

Small signs of improvement in the mortgage market

Conveyancing and conveyancers have faced the most challenging conditions for decades and it looks as though there is a long way to go before real recovery takes place in the housing market. So, any small signs of improvment in terms of relaxation of credit for home loans are a good sign, although there remains a high degree of nervousness generally for consumers considering moving home.

So, the good news is that, according to the Council of Mortgage lenders, lending increased by 21% in March taking into account home purchase and remortgage applications.

Reforms to civil legal costs

Lord Justice Jackson recommendations to be implemented

Justice Secretary Ken Clarke confirmed last week that the government will be implementing the controversial Jackson reforms which will result in conditional fee arrangements (CFA) otherwise known as no win no fee

What is legal trespass ?

Civil Trespass

Trespass is traditionally seen as entering someone else’s property. If anyone strays onto land without the owner’s permission, this is trespass, unless there is a public right of access. Parks allow a public right of access, but if the park closes at a particular time, accessing the park after these hours is trespass. If people are allowed onto property and trouble occurs, they may be asked to leave. If they refuse to leave the premises, they are committing trespass.

Land includes subsoil, airspace and buildings, so it is trespass to throw something onto someone else’s land. One foot on land which does not belong to the individual and is not a public right of way is trespass. Abandoned or parked vehicles on private property is a civil trespass.

Most forms of trespass are a civil wrong, where no harm or physical damage is being caused to the property. Examples of criminal trespass includes squatters, raves and hunt saboteurs. Criminal trespass offences are committed under Sections 61 & 62 Criminal Justice and Public Order Act 1994. For criminal trespass, the landowner will need to bring an injunction against the trespassers and the police may also need to get involved.

In respect of civil trespass, whether intentional or not, the landowner is entitled to sue for the hypothetical value of the benefit from trespassing. Substantial damages are only likely to be paid if physical damage is suffered and legal action may be costly.

Civil trespass can even apply to a neighbour. Permission should be sought before accessing neighbouring land. Often, access is required on neighbouring property in order to carry out repairs on their own premises. This right may be detailed in the title deeds to the property, but if there is no such mention in the title deeds, accessing neighbouring property is governed by the Access to Neighbouring Land Act 1992. This Act gives limited rights to enter neighbouring property to carry out basic preservation work. Under the Act, written notification of access must be given to the neighbour. If access is then denied, a court order may be issued. If someone constantly enters neighbouring land for no specific reason and without permission, it is not unreasonable to explain to them that they are trespassing and request they do not enter the land again. If the neighbour rents their property, the landlord may be able to assist in stopping the trespass. If this does not work, the next step is to obtain an injunction by court action.

The landowner must not leave the property in a dangerous position. If the trespasser is injured on the land, he is entitled to sue the landowner for damages. Also, if a ball lands on neighbouring property, the owner of the ball is entitled to it back. If the landowner keeps the ball he is committing theft.

One way of preventing trespass is to build walls and gates around the property. The property owner must ensure, however, that appropriate planning rules are complied with, as Local Authorities will have restrictions on the height of such barriers. Property owners must also ensure that public rights of way are not being blocked.

If there are persistent problems with trespass, keep a record of activity. Ask friends and neighbours to make witness statements. A letter threatening court action may prevent the trespass. In addition to bringing a suit for civil trespass, a claim may also be brought for nuisance and for any damage suffered.

So far, trespass has been referred to in respect of land. There are however 2 other forms of trespass. These are trespass to the person and trespass to chattels.

Trespass to the person involves assault, battery and false imprisonment. To secure a claim of trespass to the person, there must be intent. If there is no intent, the action is one of negligence and not trespass. Assault can be either a criminal trespass or a civil trespass. Battery and false imprisonment are both considered to be civil trespass. False imprisonment must be complete imprisonment. It does not have to be for a long length of time. Imprisonment of a child as a means of punishment is acceptable so long as it was reasonably necessary. Surgeons walk a very fine line regarding trespass to the person. Self defence and protection of property is an acceptable defence so long as no excessive force was used.

Trespass to chattels is the interference with possession of property. Injury should also result from the trespass. For a civil action to be brought in respect of trespass to chattels, 3 elements must be established. The first of these is that there was no consent. Actual harm must then have taken place. Finally, there must be an intention of trespass.