FCA loses ‘destroying evidence’ case – My concerns

On September 28th 2020, Konstantin Vishnyak was found not guilty at Southwark Crown Court of one count of destroying evidence.

The FCA, on their website, justified the prosecution as follows:

“Under section 177(3)(a) of the Financial Services and Markets Act 2000 (FSMA), a person who knows or suspects that an investigation is being or is likely to be conducted under Part XI of FSMA is guilty of an offence if he falsifies, conceals, destroys or otherwise disposes of a document which he knows or suspects is or would be relevant to such an investigation, unless he shows that he had no intention of concealing facts disclosed by the documents from the investigator. This is a criminal offence punishable, on conviction, by a fine and/or up to 2 years’ imprisonment.”

In response to the verdict, The FCA statement reads:

“The FCA is disappointed with the outcome, but respects the verdict. We will take action whenever evidence we need is tampered with or destroyed.”

I have several concerns in respect to this case and the FCA’s statements.

Is The FCA really disappointed with the outcome? Having read the case details, this case appears to have been ‘un-winnable’ from the outset.

And there are numerous other cases, presented to The FCA by myself and others, where the evidence is unequivocal and clear that banks and bank executives have destroyed, falsified or concealed evidence.

So, why pick this case to prosecute?

I do not necessarily believe that The FCA did not pick this case knowing that they could not possibly achieve a judgement in their favour, and in order to establish a precedent judgement that they could later rely upon as a justification NOT to prosecute other cases. Other cases where the evidence was substantial and unequivocal.

This case centred on the deleted ‘WhatsApp’ application from Mr Vishnyak’s phone in September 2018, and claims by The FCA that this was so as to destroy evidence related to an Insider Dealing investigation (Another FCA investigation that was later dropped).

HOWEVER, The FCA produced no evidence in this case to suggest, let alone prove, that there was any evidence related to Insider Dealing within the app.

WHEREAS, I and countless others have presented evidence to The FCA that unequivocally proves that banks, and/or bank executives, have falsified, concealed and destroyed evidence in respect to numerous cases. Cases where The FCA has gone to extraordinary lengths not to investigate at all, and certainly not to prosecute.

Worse still is the fact that when I or the countless others ask The FCA what, if anything, are they doing or what action they are taking in respect to our reports and evidence, The FCA refer to and rely upon, with zero sense of irony, the very same FSMA to claim they are prevented by this Act from giving any such details.

Perhaps now that The FCA has proclaimed publicly that “We will take action whenever evidence we need is tampered with or destroyed”, that they should be held accountable, and obliged to prove this. Because I, and others, see only evidence of the absolute opposite.

Establishing case law precedents has been a successful tactic used by the banks and their lawyers, so as to deter and intimidate other potential claimants. Often, as with HBOS vs Marz Limited and RBS vs PAG (Property Alliance Group), they have cherry picked the cases to fight, that have been poorly/incorrectly pleaded/argued, and has allowed the banks to present an illusion as to what these products were, how they were sold, and at the same time not having to reveal evidence in respect to the FCA regulated credit lines that were concealed from the claimants (and countless other customers), and the true consequences of these concealed FCA credit lines for the customer.

Given the FCA’s desperation NOT to investigate and prosecute cases where the victims are customers, an invaluable and powerful device for justifying not doing so is a case law precedent such as the one that was established by this judgment on September 28th.

I am more than welcome for The FCA to dispute my opinions expressed here, and will gladly present the evidence from multiple cases where the evidence of destruction, falsification or concealment of evidence by banks and senior managers is unequivocal, and they can perhaps explain why they CHOSE to prosecute this ‘un-winnable’ case instead of those where the evidence was clear and unequivocal.

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