Business Crime Update | June 2016
Published on 9th Jun 2016
Welcome to the first of what will be a regular Business Crime newsletter from Osborne Clarke.
As business faces ever increasing scrutiny from enforcement agencies both nationally and internationally, the development of a dedicated Business Crime offering has been a natural step by Osborne Clarke.
Reflecting this, I joined the partnership at Osborne Clarke in November 2015, having practiced as a Business Crime specialist for over 25 years in both London and Hong Kong. I was delighted to have been asked to spearhead this part of the firm’s offering, which we believe adds real value to our clients. We are already instructed in many of the most complex and high profile investigations currently on-going.
The need for this specialism was further underscored in May when the government reintroduced the possibility of enacting a new corporate offence of failing to prevent economic crime. A consultation on this potential new offence, which is likely to mirror the corporate offence under section 7 of the Bribery Act 2010, is expected to be launched later this year and the Business Crime team will be explaining the detail and possible ramifications of this offence in future newsletters as the consultation progresses.
In this issue, we provide analysis of the following areas:
- Deferred Prosecution Agreements;
- the FCA’s Senior Managers Regime;
- the proposed new offence of failure to prevent tax evasion.
- Sanctions; and
- Directors disqualification.
We also profile some of Osborne Clarke’s experts in areas relating to Business Crime.
Further details of our Business Crime offering can be found here. If we can help by providing further information, please do contact me or one of the team listed below.
Deferred Prosecution Agreements: what are they and what do they mean?
When a business uncovers a potential offence within its organisation, it will typically have very little time in which to make difficult decisions, including whether to self-report to authorities. Understanding whether a DPA might be an option, and if so, what this might involve, can assist when it comes to making those initial tough decisions.
The Senior Manager’s Regime: a new risk environment for senior managers in financial services
The new Senior Manager’s Regime introduces an environment of significantly increased risk for individuals. With the regime extending in 2018 from banks to all authorised firms, all senior managers in the financial services industry should be aware of what the new regime means to them.
A new offence of failing to prevent tax evasion?
As part of its commitment to tackle tax evasion, the government has brought forward plans to introduce a new corporate offence of ‘failure to prevent the criminal facilitation of tax evasion’. The measure, which is due to be included in the upcoming Criminal Finances Bill, forms part of a package of criminal and civil measures that are due to be implemented by 2017.
Sanctions: a new approach to the enforcement of sanctions legislation in the UK?
On 1 April 2016, the OFSI was established within the Treasury to support financial sanctions implementation. The government has said that the OFSI will “provide a high quality service to the private sector, working closely with law enforcement to help ensure that financial sanctions are properly understood, implemented and enforced“.
We take a look at what this will mean in practice.
Directors’ liability: directors facing increased exposure from insolvency events
Following recent changes to the Insolvency Act, directors and others are now exposed to a wider pool of potential claimants seeking compensation following an insolvency event. These new risks press home for all directors the potential risks that the position can hold, particularly when their business is struggling.
In late April the team hosted a seminar addressing the problems posed by cybercrime, not least in the light of the issues emerging from the Mossack Fonseca “Panama Papers” scandal.
Cybercrime is amongst the most pressing risks currently facing all businesses no matter how large or small, and we were delighted to have been able to put on an evening for our clients at which they could hear directly from, and ask questions of, leading officials in this field.
We were very grateful to have secured truly insightful input from Owen Brady of the Financial Conduct Authority, Peter Yapp, Deputy Director Operations at CERT-UK and Detective Superintendent Terry Wilson who is the cybercrime programme lead for the National Police Chiefs’ Council.
A summary of the issues covered in that event is here.
We will be running similar Business Crime client focussed seminars in the future and in the interim hope that this newsletter will be of interest and assistance.
Meet the team
Osborne Clarke’s multi-disciplinary Business Crime team advises clients on all stages of investigations and enforcement, involving a wide range of criminal and regulatory enforcement authorities. The team draws experience from a number of experts in areas relating to Business Crime, including the following:
Investigations: Tom Ellis – Tom is a disputes and investigations Partner with considerable experience of representing major corporates in high-value and complex commercial disputes, corporate investigations and fraud-related matters. He is regularly retained on matters with an international dimension.
Sanctions: Greg Fullelove – Greg is a partner specialising in international disputes and sanctions. Greg advises clients on the UN, EU and US sanctions regimes affecting states across the world, including providing early advice on how the latest developments may affect them and coordinating with various authorities to help clients manage their risks.
Cyber Security: Charlie Wedin – Charlie is a disputes Partner with expertise in contentious cyber security issues, as well as fraud and bribery investigations and litigation. Charlie advises businesses on litigation and risk management strategy in the immediate (and longer-term) aftermath of cyber security incidents, including major cross border data security breaches.
Competition: Simon Neill – Simon is the head of Osborne Clarke’s competition practice. As well as advising clients on EU and UK competition law and handling mergers and investigations before the Competition and Markets Authority and the European Commission, Simon increasingly undertakes contentious work. This includes sector and individual company investigations, private enforcement and follow-on damages claims.
Health & Safety: Mary Lawrence – Mary is the head of Osborne Clarke’s Health & Safety practice. Mary’s practice involves advising and defending large corporates and other organisations in relation to a range of Health & Safety legislation regulated by local authorities, national regulators, trading standards and the police.
Crisis management: Ashley Hurst – In May we welcomed Ashley Hurst to Osborne Clarke. Ashley brings significant expertise in the field of crisis management and media relations which we will focus on in the next edition of the Business Crime Update.
For more information on any of these areas, please use the contact details given below.