Neil O’May (UK)

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UK CPS, HMRC and NCA show their teeth on the Bribery Act

Three recent cases act as a reminder that the CPS, HMRC and NCA, as well as the SFO, are actively enforcing the UK Bribery Act and conducting cross-border investigations. Two of the cases summarised below also show a focus on the demand side of bribery (i.e. suspected offences of individuals receiving or requesting a bribe … Continue Reading

The Corporate Criminal Liability Options Paper

Following an 18-month consultation process, on 10 June 2022, the UK Law Commission published a lengthy options paper (here with a summary here) for the UK Government on how it can improve the law to ensure that corporates are effectively held to account for committing serious crimes (the Options Paper). This article sets out the … Continue Reading

New SFO Investigation into Arena Television Limited

On Wednesday 23 February, the Serious Fraud Office (SFO), in conjunction with the National Crime Agency (NCA), conducted a ‘dawn raid’ culminating in two arrests and searches of three properties as part of its criminal investigation into the collapsed broadcaster, Arena Television Limited (Arena). The investigation centres on questions raised by administrators regarding the validity … Continue Reading

UK Supreme Court confirms expectation of privacy for individuals under criminal investigation

Executive Summary The UK Supreme Court recently confirmed in Bloomberg LP (Appellant) v ZXC (Respondent) [2022] UKSC 5 that in the UK a person under criminal investigation has a reasonable expectation of privacy prior to being charged. Background The claimant, an individual anonymised as ZXC, had been under criminal investigation by UK law enforcement.  Bloomberg … Continue Reading

High Court emphasises the need for strong contemporaneous evidence when asserting litigation privilege

The High Court has recently held that a forensic report prepared as part of an internal investigation was not protected by litigation privilege. In The State of Qatar v Banque Havilland  [2021] EWHC 2172 (Comm), David Edwards QC ordered the report and associated working papers within the defendant’s control to be disclosed on the basis … Continue Reading

Updated CPS guidance on s330 POCA prosecutions where money laundering cannot be proven

On 2 June 2021, the Crown Prosecution Service (CPS) updated its guidance on prosecuting failure to report cases under s330 Proceeds of Crime Act 2002 (POCA). Prior to the update, the CPS did not charge failure to report offences under s330 POCA where there was insufficient evidence to establish that money laundering was in fact … Continue Reading

Post script: Airbus subsidiary pleads guilty to corruption offence

On 28 April 2021, Airbus’ UK subsidiary GPT Special Project Management Ltd (GPT) was convicted of corruption and sentenced to pay penalties of over £30m by the Crown Court in London. This case preceded the wider investigation into Airbus culminating in its US$3.9 billion global deferred prosecution agreement in 2020 (see our previous article here). … Continue Reading

SFO publishes Serco Statement of Facts

On 28 April 2021, the SFO published the statement of facts relating to the DPA that it agreed with Serco Geografix Limited (SGL) back in July 2019. The publication was made possible as a result of the ending of the trial of two former Serco directors, which collapsed this week as a result of issues … Continue Reading

The trial of SFO’s case against former Serco executives collapses

The prosecution of two former Serco executives by the UK Serious Fraud Office (SFO) collapsed earlier today after failures in the SFO’s disclosure process. The SFO applied to adjourn the trial – which began on 30 March – in order to resolve those issues, but the application was refused and the jury was directed to … Continue Reading

Pension Schemes Act 2021: Increased potential for criminal liability and how companies can mitigate this risk

The Pension Schemes Act 2021 (the Act) has introduced broad new criminal offences going far beyond the ‘reckless’ and ‘unscrupulous’ behaviour which the offences were originally envisaged to deter[1]. Whilst the Pensions Regulator (TPR) has today released a draft policy on how it will use its new criminal sanction powers (the TPR policy), some uncertainty … Continue Reading

Immunity for criminal conduct in undercover investigations to be granted to a wide range of UK authorities

The Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (the Act) received royal assent on 1 March 2021 but is yet to come into force. It will enable criminal conduct by a covert human intelligence source (a CHIS) in the course of covert intelligence gathering to be authorised (a Criminal Conduct Authorisation or CCA) by … Continue Reading

UK Supreme Court overturns controversial decision on extraterritorial effect of Section 2 Notices

Today, 5 February 2021, the UK Supreme Court has handed down the long-awaited judgment on the extra-territoriality of the Serious Fraud Office’s powers to obtain documents. The Supreme Court held that Section 2 Notices do not have extra-territorial effect against a foreign company that does not carry on business in the UK. (R (on the … Continue Reading

SFO recovers £1.2 million from London property connected with Brazilian bribery

The Serious Fraud Office (SFO) has announced that it has secured almost £1.2 million from Julio Faerman, owner of a luxury London flat which the SFO suspected to have been partly purchased with the proceeds of his criminal conduct in Brazil. According to the SFO’s press release, during ‘Operation Car Wash’, the investigation by Brazilian … Continue Reading

SFO Guidance on Deferred Prosecution Agreements: what’s new?

The Serious Fraud Office (SFO) last Friday published its first specific guidance on DPAs (the Guidance). Lisa Osofsky, Director of the Serious Fraud Office, said that ‘publishing this guidance will provide further transparency on what we expect from companies looking to co-operate with us’. Inevitably, the new Guidance remains high-level with little detail on the … Continue Reading

SFO publishes a chapter from its handbook offering guidance on DPAs

The Serious Fraud Office (SFO) on Friday published a chapter from its handbook, which offers “comprehensive guidance” on Deferred Prosecution Agreements (DPAs). This is the first set of guidance specific to the SFO, and sets out how the agency will approach its use of DPAs and engage with companies where a DPA “is a prospective … Continue Reading

SFO receives approval for DPA with G4S Care & Justice (UK) Limited

The UK’s eighth deferred prosecution agreement (DPA) has been approved in relation to the UK Serious Fraud Office’s (SFO) investigation into G4S Care & Justice (UK) Ltd (G4S). The SFO’s investigation into G4S began in 2013 in relation to G4S’s provision of electronic monitoring services for the Ministry of Justice (MoJ)  between 2005 and 2013, … Continue Reading

New US DOJ compliance guidance: six key points from a UK perspective

On 1 June 2020, the US Department of Justice (DOJ) released the latest update to its ‘Evaluation of Corporate Compliance Programs’ policy, which was first released in 2017 (DOJ Guidance). The DOJ Guidance provides companies with detailed guidance on how the DOJ will review the adequacy and effectiveness of compliance programmes when making charging and … Continue Reading

Ghosh laid to rest: Court of Appeal confirms that the objective test for dishonesty applies in criminal law, rather than the problematic Ghosh test

 On 30 April 2020, the Court of Appeal handed down a judgment confirming that the test for dishonesty in criminal law is that set out by the Supreme Court in Ivey v Genting Casinos, as opposed to the much criticised Ghosh test. In practical terms, this decision means that it should prove easier to prove … Continue Reading

NCA loses Unexplained Wealth Order: High Court overturns UWOs against members of the former Kazakh president’s family

Last week, the National Crime Agency (NCA) saw its Unexplained Wealth Orders (UWOs) against the daughter and grandson of a former president of Kazakhstan overturned by the High Court. UWOs are an extension to prosecutors’ powers which were introduced by the Criminal Finances Act 2017. They require a person to disclose to the NCA details of how … Continue Reading

Airbus’ Sky High Settlement – Focus on Global Reach and Collaboration in Anti-Corruption Prosecutions

On January 31, 2020, France, the United Kingdom, and the United States announced a settlement with Airbus SE (“Airbus”), the French aircraft manufacturer, in relation to bribery allegations and, in the US and France, export controls violations. The combined penalties total $3.9 billion, which is the largest anti-corruption settlement in history. The settlement offers insight … Continue Reading

The SFO publishes Cooperation Guidance: expecting too much and offering too little?

Earlier this month, the UK Serious Fraud Office (SFO) published its Corporate Cooperation Guidance (the Guidance), providing a list of “good practices” it expects from companies seeking to obtain a deferred prosecution agreement (DPA). The Director of the SFO has said that the Guidance would provide “added transparency about what [companies] might expect if they … Continue Reading

Court approves first-of-its kind “Group” DPA: five key points

On 4 July 2019, the UK’s fifth Deferred Prosecution Agreement (DPA) was approved. The DPA is between the Serious Fraud Office (SFO) and Serco Geografix Limited (SGL), a subsidiary of Serco Group PLC, and relates to fraud and false accounting offences. The offences relate to a scheme to dishonestly mislead the Ministry of Justice (MoJ) … Continue Reading

UK Supreme Court grants KBR Inc. leave to appeal against controversial decision on extraterritorial effect of Section 2 Notices

On 8 April 2019, the UK Supreme Court granted KBR Inc. leave to appeal against a decision that allows the SFO to compel certain foreign companies to hand over documents held overseas. The Supreme Court’s decision was published on 23 May 2019 (see here). KBR Inc. is appealing the judgment in R (on the application … Continue Reading

SFO to hit back on privilege in new cooperation guidance

In a speech earlier this week  Lisa Osofsky announced that the SFO will shortly publish guidance on its expectations in relation to self-reporting and cooperation. The speech suggested that waiver of privilege over internal investigations material will be seen by the SFO as a strong indicator of, if not a precondition to, cooperation for the purposes … Continue Reading
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