United Kingdom

Topic: Investigations and enforcement

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ESMA publishes fourth annual report on use of sanctions for UCITS

On 20 July 2021, the European Securities and Markets Authority (ESMA) issued its latest report in the use of supervisory sanctions by Member State competent authorities (NCAs) under the UCITS IV Directive. The report has been prepared in accordance with Article 99e(1) of the UCITS IV Directive and covers the period from 1 January 2020 … Continue Reading

ESMA publishes second report on sanctions under AIFMD

On 20 July 2021, the European Securities and Markets Authority (ESMA) issued its second annual report on the use by Member State competent authorities (NCAs) of sanctions under the Alternative Investment Fund Managers Directive (AIFMD). The report has been prepared in accordance with Article 48(3) AIFMD. It contains information on the penalties and measures imposed … Continue Reading

ESMA finds NCAs imposed sanctions of €8.4 million for MiFID II breaches in 2020

On 19 July 2021, the European Securities and Markets Authority (ESMA) published its third report on the use of sanctions and measures by Member State competent authorities (NCAs) under MiFID II. Overall, in 23 (out of 30) EU/EEA Member States, NCAs imposed a total of 613 sanctions and measures in 2020 for an aggregated value … 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

Top practical tips on the preservation, collection and review of mobile data in investigations.

Remote working has accelerated the merger of work and private data, particularly on mobile phones and instant messaging services such as WhatsApp. While employees are performing their jobs, mobile access may be putting their employers at risk – because work-related communications on unapproved platforms are frequently not preserved in accordance with regulatory requirements (where applicable), … Continue Reading

The Regulation of Investigatory Powers (Criminal Conduct Authorisations) (Amendment) Order 2021

On 25 May 2021, there was published on legislation.gov.uk The Regulation of Investigatory Powers (Criminal Conduct Authorisations) (Amendment) Order 2021 together with an explanatory memorandum. The statutory instrument makes consequential amendments to various Orders and Regulations made under the Regulation of Investigatory Powers Act 2000. These amendments are necessary to reflect changes made to the … Continue Reading

EU Blocking Regulation Opinion

On 12 May 2021, Advocate General Hogan issued his opinion in the first case by the Court of Justice of the European Union (CJEU) considering the Blocking Regulation. The Opinion, in Case C-123/20 Bank Melli Iran v Telekom Deutschland GmBH [2018], sets out proposals for how the CJEU should respond to a reference from the Regional … 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

UK launches new anti-corruption sanctions regime

On 26 April 2021, the UK government announced a number of designations under its new global anti-corruption sanctions regime, which is designed to stop “those involved in serious corruption from entering and channelling money through the UK” (see press release). Under the Global Anti-Corruption Sanctions Regulations 2021 (SI 2021 No. 488) the UK government has … 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

FCA reviewing how its Regulatory Decisions Committee functions

In a speech yesterday by the FCA’s CEO, Nikhil Rathi, to FinTech Week the FCA has said that it is currently reviewing how the Regulatory Decisions Committee (RDC) functions. The RDC  is  a Committee of the FCA Board which makes certain key decisions including in the context of contested enforcement matters and supervisory and authorisation … Continue Reading

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
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