Business Crime Newsletter | Spring 2018
Published on 21st May 2018
Welcome to the spring 2018 Osborne Clarke Business Crime Newsletter.
It had been hoped and anticipated that we would in this edition be able to report on the appointment of a new Director of the Serious Fraud Office, and provide an opinion on what that appointment might mean for the SFO going forward. In the event the government has to date only announced an interim appointment (SFO Chief Operating Officer Mark Thompson) and somewhat surprisingly also indicated that a permanent appointment has been found, without naming the successful candidate.
However, the text of the announcement in terms made it clear that the new Director would be an external candidate. This effectively ruled out Alun Milford, the current SFO General counsel, who had been tipped as the potential successor to David Green and viewed as a sensible choice who would ensure continuity at the agency, in particular in relation to its many long running and significant on-going cases.
There has been much speculation as to the identity of the new Director: at present the front-runner to take over later this year is Lisa Osofsky, a US national who has formerly worked at the FBI and Goldman Sachs. If that is correct, a more US-style approach may be anticipated, potentially represented by increased deals with corporates and increased prosecution of individuals.
Two interesting questions are also posed. Under David Green, the SFO took an increasingly firm line that the co-operation from a corporate, necessary to avoid prosecution, required a waiver of legal privilege and also restricted its view on what could be covered by privilege in any event. Our article on AL v SFO, which is included in this Newsletter, expands on this issue. That narrowing approach is, however, at odds with the US position on privilege, which takes a very much wider view that is more favourable to companies conducting internal investigations. How that difference plays out if Ms Osofsky is appointed will be followed with interest.
Likewise, Ms Osofsky has previously expressed a view that the SFO might benefit from being merged into the National Crime Agency, a position that has long been a pet project of Prime Minister Theresa May. Following recent SFO successes it had, however, been believed that the debate over the future of the SFO was in the past, and it would be a concern if this appointment casts the SFO's long term future into doubt once more.
We will provide a further update once the position has been confirmed. In the interim, this Newsletter contains articles from our French and German colleagues, looks at criminal developments in the field environmental law and also explores Unexplained Wealth Orders.
As always, if we can assist further with any of the issues covered in the Newsletter, or with any other Business Crime related matter, please do not hesitate to contact me.
Legal privilege and investigations | SFO criticised for not challenging privilege over interview notes
The decision in R (AL) v SFO provided the latest judicial consideration on the extent of legal privilege in internal investigations, with the High Court again adopting a restrictive view of privilege consistent. The case is likely to lead to the SFO taking a more aggressive position in relation to companies that seek to claim privilege over internal interview notes.
French Anti-Corruption Authority issues precise and detailed guidelines on compliance programs
The French anti-corruption law issued in December 2016 (Sapin II) requires companies with more than 500 employees and a turnover of more than EUR 100 million to have implemented anti-corruption programs as from 1 June 2017.
Last December, the French Anti-Bribery Agency released guidance on these compliance duties. These guidelines – although non-binding – provide some welcome clarification on the measures to be implemented.
New German government | Planning a corporate criminal law in Germany?
The coalition treaty, which the new German federal government finally agreed on 14 March 2018, provides for changes in the sanctioning of companies for economic crimes.
Environment Agency updates its Enforcement and Sanctions Policy | What does it mean for businesses?
Following a consultation the Environment Agency has updated its Enforcement and Sanctions Statement and Enforcement and Sanctions Guidance so that the two documents are now combined into a single Enforcement and Sanctions Policy.
The new ESP provides much sought-after clarity in relation to the EA's approach to enforcement and, in particular, in relation to Enforcement Undertakings. The EA's move to a more open and transparent enforcement system also means that businesses should be able to assess their 'enforcement risk' more easily.
Unexplained Wealth Orders | The government's new tool against McMafia?
The new Unexplained Wealth Order regime came into force in January 2018 and was used for the first time in February. Whilst initially likely to be targeted at individuals, their potential use against corporates should not be overlooked.