Welcome to the 4th edition of the Osborne Clarke Business Crime Newsletter.
Since the last newsletter published in February, the decision in SFO v ENRC, which on its face greatly restricts the scope of litigation privilege within the context of an investigation, has generated much comment and concern. Certainly at this juncture, great care will be needed when framing the parameters of an internal investigation, and it would be prudent to assume that only limited privilege will be available. Whilst we expect the judgement will be appealed, we in any event analyse the decision in this edition and will continue to update you as and when any developments arise.
In May, the Conservative party manifesto in effect proposed the abolition of the SFO, with a plan to merge that agency with the National Crime Agency. We described that proposal as “retrograde” in an article published in The Times online publication The Brief. We were also pleased to be one of a number of leading practitioners in the area invited to sign a letter to the Prime Minister submitted by Corruption Watch, that urged reconsideration. Whether, in the light of the election result, the proposal is carried into effect remain to be seen, but we will again keep you updated as events unfold.
Continuing to reflect the breadth and international nature of the OC business crime practice, in this edition in addition to our analysis of the ENRC decision we also feature articles on:
- Latest privilege decision limits scope of litigation privilege.
- The new tax evasion provisions of the Criminal Finance Bill 2017.
- An update on the new sanctioning powers granted to the Office of Financial Sanctions Implementation.
- Analysis of the £30m fine imposed on Thames Water resulting from sewage pollution.
- An overview of the anti-corruption framework for defence procurement in India provided by our relationship firm BTG Legal in Mumbai.
As always, if we can provide further assistance on any of the areas covered, or more generally, please do not hesitate to contact me or any of my colleagues featured in this newsletter.
The next edition will follow after the summer, and in the interim we wish you all happy and safe holidays.
Latest privilege decision limits scope of litigation privilege
In a significant High Court decision, Mrs Justice Andrews has sought to recalibrate the scope of litigation privilege. The ruling will be of particular importance to those facing criminal or regulatory investigation, and their professional advisors, but will also be relevant to any business that is involved in a commercial dispute.
Criminal Finances Bill 2017 passes through Parliament
The calling of the snap election on 8 June 2017 resulted in the Criminal Finances Bill being accelerated through Parliament. With the House of Commons having agreed a number of amendments proposed by the House of Lords, the Bill has now been passed through Parliament and has received royal assent, becoming the Criminal Finances Act 2017.
Sanctions: new monetary penalties for breaches of financial sanctions
The Office of Financial Sanctions Implementation (OFSI) was established on 1 April 2016 (see our previous article here). Exactly a year later, Part 8 of the Policing and Crime Act 2017 came into force, which creates powers for HM Treasury to impose monetary penalties for breaches of financial sanctions. OFSI will apply these powers.
Increasing fines for environmental offenders
In March 2017, Thames Water Utilities Ltd pleaded guilty to six charges under the Environmental Permitting (England and Wales) Regulations 2010, relating to pollution at five of their sewage facilities in the middle and lower Thames Valley during 2013 and 2014, which had a serious impact on residents, farmers and wildlife.