United Kingdom

Topic: Investigations and enforcement

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ESMA advises the Commission on the application of sanctions under MiFID II/MiFIR

On 29 March 2021, the European Securities and Markets Authority (ESMA) published its advice to the European Commission concerning the application of administrative and criminal sanctions under MiFID II/MiFIR. The legislative background to the advice is Article 90 of MiFID II which provides that the Commission, after consulting with ESMA, will present a report to … Continue Reading

Regulation Tomorrow Plus – The FCA’s whistleblowing publications

Another episode of our reactive spin off podcast, Regulation Tomorrow Plus, is available to stream and download. In this episode of Regulation Tomorrow Plus, Jonathan Herbst and Katie Stephen discuss this week’s whistleblowing publications by the FCA and what this might mean for financial services firm. Regulation Tomorrow Plus and the Regulation Tomorrow Podcast are … Continue Reading

‘In confidence, with confidence’ – new FCA whistleblowing campaign

Culture and governance remains a key focus for the FCA and line with this, the FCA has today launched a new whistleblowing campaign called ‘In confidence, with confidence’ to encourage more reporting of potential misconduct to the FCA by those working in financial services. To support the campaign the FCA has produced: materials for firms … Continue Reading

OFSI’s revised guidance on the imposition of monetary penalties may signal a more aggressive approach to sanctions enforcement – Five takeaways

On 10 March 2021, the UK Office of Financial Sanctions Implementation (OFSI) published its revised guidance on Monetary Penalties for Breaches of Financial Sanctions (Guidance), which replaces the prior 2018 version and comes into force on 1 April 2021. From this date, the new Guidance will apply to all cases where OFSI becomes aware of … Continue Reading

Production of information to government authorities: a combined US and UK review

Information requests from regulators can raise a host of complex legal and practical issues for entities and individuals. Our experts in this field have set out the key considerations around the production of information to UK and US regulators, including information-gathering powers, privilege issues and increased global data sharing. Information-gathering powers Many UK regulators have … 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

Conducting an ABC risk assessment: 4 key steps

Anti-bribery and corruption (ABC) risk assessments are the cornerstone of an effective compliance programme, ensuring that compliance resources are focused on the most significant ABC risks faced by the business. A genuinely risk-based compliance programme helps to achieve both the primary objective of a compliance programme (preventing ABC issues occurring), the secondary objective (providing a … 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

Misuse of the furlough scheme: an emerging risk in M&A

More than one in four UK employees (over 9 million people) have been furloughed during the course of the Government’s Coronavirus Job Retention Scheme (the Scheme). HMRC considers that as much as £3.5 billion has been paid out in wrong or fraudulent claims and it has received over 20,000 reports of fraudulent furlough claims from … 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

FCA confirms speculative mini-bond mass-marketing ban

On 10 December 2020, the FCA published Policy Statement 20/15: High-risk investments: Marketing speculative illiquid securities (including speculative mini-bonds) to retail investors (PS20/15). In PS20/15 the FCA confirms that from 1 January 2021 there will be a permanent ban on the mass-marketing of speculative illiquid securities – including speculative mini-bonds – to retail investors. A … Continue Reading

Interim funding for APP scam victim compensation to continue to 30 June 2021

On 9 December 2020, UK Finance issued a press release stating that a group of seven signatories to the voluntary Authorised Push Payment (APP) Contingent Reimbursement Code have agreed to extend until 30 June 2021 the interim funding to compensate eligible victims of APP scams where the customer, sending and recipient banks have met the … Continue Reading

NCA publishes 2020 SARs Annual Report highlighting 81% increase in requests for a defence against money laundering

On 19 November 2020, the National Crime Agency’s (NCA) UK Financial Intelligence Unit (UKFIU) published their 2020 Suspicious Activity Reports (SARs) Annual Report. The Report provides that: Between April 2019 and March 2020, the UKFIU received a record number of SARs: 573,085 SARs were submitted, which is almost a 20% increase on the previous year. … 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

Heightened risk of market abuse in a remote working context: another warning from the FCA

The resurgence of COVID-19 in the UK and a corresponding change in government guidance around remote working has caused many firms to rethink plans for a gradual return to the office in the near term.   Earlier this year we wrote about the FCA’s focus on the heightened risk of market abuse in a remote working … 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

CMA and SFO to join forces on cartel cases

The Serious Fraud Office (SFO) and the Competition and Markets Authority (CMA) have signed a Memorandum of Understanding (MoU) enabling the two regulators to investigate criminal cartel offences, either jointly or independently. The criminal cartel offence under English law was enshrined in the Enterprise Act 2002, which criminalised the most serious and damaging forms of … 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

NCA emphasises the importance of SARs in combatting modern slavery and provides pointers on information that should be included

In the latest episode of the UK Financial Intelligence Unit (FIU) podcast, panellists from the FIU and the National Crime Agency (NCA) discuss the unique importance of Suspicious Activity Reports (SARs) in combatting modern slavery and human trafficking – and how to make these SARs more helpful. SARs are essential in identifying potential modern slavery … Continue Reading

Legal Professional Privilege in Investigations: Two New High Court Decisions

The High Court recently handed down two notable rulings that impact on the application of legal professional privilege to investigations (see here for a previous article on privilege in investigations): In A v B and another[1] (see further details below), the court held that it is for auditors – and not their audit client – … Continue Reading

Operational resilience and key learnings from operational incidents across the financial services industry

Operational incidents show no signs of abating: in recent years, there have been a number of high profile cyber-attacks by third parties, as well as IT incidents such as those resulting from system updates and migrations. Certain of these have attracted regulatory attention and in this final part of our three part series on operational … Continue Reading

FCA confirms that its investigation into London Capital and Finance is to be further extended

Following publication of a letter dated 21 August between Dame Elizabeth Gloster and Charles Randell, FCA Chair, about the investigation into the FCA’s regulation of London Capital & Finance plc (LC&F), the FCA has confirmed that the revised date for the completion of the investigatory report has moved from 30 September 2020 to 23 November … 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

OFSI publishes financial sanctions compliance guidance for the maritime shipping sector

In July 2020, the UK Office of Financial Sanctions Implementation (OFSI) published guidance for entities and individuals operating within the maritime shipping sector. The size and scale of the UK shipping sector is large and thus may be particularly susceptible to criminals seeking to deploy tactics to confuse or conceal the identities of vessels, cargo, … Continue Reading
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