Elizabeth Robertson, Skadden, Arps, Slate, Meagher & Flom (UK) LLP
This is an extract from the third edition of GIR's The Practitioner’s Guide to Global Investigations. The whole publication is available here.
30.1 Individuals: criminal liability
The Serious Fraud Office (SFO) has agreed to a total of four deferred prosecution agreements (DPAs) with corporates since their introduction in February 2014. The introduction of DPAs reflects a long-standing practice in the United States of granting corporates amnesty from prosecution on criminal charges, either through the use of non-prosecution agreements or DPAs, in exchange for the fulfilment of certain requirements. However, it has been argued that ‘[a]n increased focus on corporate criminal liability should not result in the culpability of offending individuals within a corporation being overlooked.’ Terms of a DPA will likely require the company to co-operate on an ongoing basis, which may include co-operation in the prosecution of individuals. For example, the Rolls-Royce DPA requires Rolls-Royce to ‘co-operate . . . in any investigation or prosecution of any of its present or former officers, directors, employees’.
In addition to the signals given by the SFO that individual penalties will become increasingly important in the years to come, recent changes in the test for ‘dishonesty’ in criminal law may also have the effect of encouraging prosecutors to pursue individuals for offences involving dishonesty, such as fraud or theft.
Under the test for dishonesty in R v. Ghosh, the jury was first asked to consider whether the defendant’s acts were dishonest by the ordinary standards of reasonable honest people. If the answer to that question was ‘yes’, the jury would then consider whether the defendant must have realised that their conduct was dishonest by those standards. In the recent case of Ivey v. Genting Casinos t/a Crockfords, the Supreme Court held that the second limb of the Ghosh test no longer represents the law and that directions based on it should no longer be given to juries. The defendant’s conduct, in light of his or her (subjective) knowledge or belief of the facts, must be judged as honest or dishonest by the (objective) standards of ordinary decent people alone. The defendant’s (subjective) appreciation of whether his or her conduct would be dishonest according to those standards is not relevant. This change will make it more difficult for defendants to escape liability on the basis of their own moral compass, and potentially easier for prosecutors to secure a conviction.
The fact that ‘the most serious cases of bribery generally involve companies’ renders the maximum custodial sentences for financial crimes somewhat obsolete as individuals escape the maximum sentences for these serious corruption cases, which instead are borne by corporate entities and their shareholders in the form of unlimited fines. As Richard Alexander comments, ‘any kind of agreement that penalises the company concerned, but does not deal with the individuals who were actually behind the commercial bribery, whether by paying the bribes or by arranging for others to do so, fails to recognise the essential nature of what took place.’
Individual penalties are important because they deter offending in the first place. Further, in instances where the individuals alone are punished, it ensures that innocent parties, such as the shareholders, pension funds and other stakeholders in the company, are not punished indirectly; and where the corporate also faces a penalty, the stakeholders can rest assured that the wrongdoing within the company has almost certainly been dealt with.
While DPAs in the United Kingdom are not available for individuals – with no indication that they will be any time soon – there is an increasing emphasis on incentivising individuals to enter an early plea. Enshrined in section 144 of the Criminal Justice Act 2003 (CJA 2003) is the statutory authority that compels the courts to consider a reduction in the sentence of an offender who has pleaded guilty to an offence. Subsection 1 obliges the court to take into account the stage in the proceedings that the offender indicated an intention to plead guilty; and the circumstances in which this indication was given. The Reduction in Sentence for a Guilty Plea: Definitive Guideline (Definitive Guideline) guides the courts in establishing an appropriate level of reduction for the offender in question. Unless, on the facts, there is a sufficiently good reason for a lower amount, there is a presumption that for each of the following categories, the recommended reduction will be given. If the offender pleads guilty (1) at the first stage of proceedings, he or she can expect the sentence to be reduced by a maximum of one-third; (2) after the trial date has been set, the offender may receive a maximum of a quarter reduction in the sentence, which could be reduced on a sliding scale to one-tenth; or (3) after the trial has begun, the offender may see the sentence reduced by one-tenth and on occasions, to zero, if the guilty plea is entered during the course of the trial. The Serious Organised Crime and Police Act 2005 contains several provisions that can benefit an offender who assists in the investigation or prosecution of a crime. For example, if an offender provides or offers assistance in the investigation of prosecution of others, the court in return may reduce the offender’s sentence; or a defendant, already serving a prison sentence, that provides or offers assistance in this regard could benefit by having a sentence reviewed.
Pursuant to section 11 of the Bribery Act 2010 (Bribery Act), the maximum sentence for an individual convicted on indictment of an offence by virtue of sections 1, 2 or 6 of the Bribery Act is 10 years’ imprisonment. An individual tried and convicted summarily of any of the aforementioned offences is liable to a maximum prison sentence of 12 months. The maximum sentence for individuals under the Bribery Act is identical for any of the fraud offences both at common law and under the Fraud Act 2006 but is far greater (up to a maximum of 14 years’ imprisonment) for any of the money laundering offences pursuant to sections 327 to 329 of the Proceeds of Crime Act 2002 (POCA).
Historically, under the corruption regime that persisted until the later part of the 20th century, individuals were liable to three years’ imprisonment on conviction of corruption charges. This was subsequently increased to seven years under the Criminal Justice Act 1988 and increased again under the current regime. The shift in policy in relation to the penalties imposed on individuals who commit financial crime can largely be attributed to the distrust and anger felt by the public towards misconduct in big business; particularly following the financial crisis of 2008. Nowhere is this so apparent than in the case of Tom Hayes. Mr Hayes is currently serving an 11-year prison sentence (which was cut on appeal from an original sentence of 14 years), one of the longest prison terms on record for UK white-collar crime for his role in the manipulation of the London Interbank Offered Rate while he worked as a derivatives trader at UBS and Citigroup. The case is currently being reviewed by the Criminal Cases Review Commission. It is widely accepted that the hefty sentence was handed down to serve as a warning to other individuals who may be tempted by the allure of profit to participate in such practices; in passing sentence, the court said that it ‘must make clear to all in the financial and other markets in the City of London that conduct of this type, involving fraudulent manipulation of the markets, will result in severe sentences of considerable length which, depending on the circumstances, may be significantly greater than the present total sentence.’ Additionally, on 19 July 2018, Christian Bittar and Philippe Moryoussef were sentenced to a total of 13 years and 4 months’ imprisonment for manipulating the Euro Interbank Offered Rate.
In cases of financial crime, it is rare for defendants to be charged with one count, and in the most serious of cases, and as was the case for Mr Hayes, a judge can order the sentences for each individual count of which a defendant has been convicted to run consecutively: ‘Hayes was sentenced consecutively for the conspiracies he was found guilty of while at UBS and those while at Citigroup between 2006 and 2010. Had the market rigging been seen as one offence, Hayes would have faced a maximum 10-year sentence.’ Whether a judge perceives a concurrent or consecutive sentence as appropriate on the facts will be decided by reference to the same factors that judges tend to consider when deciding on the severity of a sentence, such as whether the defendant has any previous convictions, the magnitude of the offence (in the Fraud, Bribery and Money Laundering Offences Definitive Guideline, it expressly states that ‘consecutive sentences for multiple offences may be appropriate where large sums are involved’) or where it can be established that the defendant failed to respond to warnings about his or her behaviour. Magnus Peterson was sentenced on eight counts, with 13 years in prison on 23 January 2015. Jane de Lozey, the SFO’s joint head of fraud commented: ‘The length of sentence handed down reflects the damaging and extended nature of Mr Peterson’s crime.’
Despite the current prominence of financial crime cases in the media and the apparent fervour of prosecutors and courts to ensure that convicted individuals receive long custodial sentences, suspended sentences may well be considered appropriate in some cases. In R v. Dougall, an employee heading a company’s corrupt Greek practice who had failed to convince other employees to end the practice of making payments to medical professionals to persuade them to buy the company’s goods, had his 12-month custodial sentence suspended on appeal after Mr Dougall’s level of criminality, ‘combined with a guilty plea, and full co-operation with the authorities investigating a major crime involving fraud or corruption’ were taken into account.
The Attorney General’s Guidelines on Plea Discussions in Cases of Serious or Complex Fraud (Attorney General’s Guidelines) set out a process by which a prosecutor may discuss an allegation of serious or complex fraud with a suspect. The implementation of the Attorney General’s Guidelines, with the support of the judiciary and prosecuting authorities, has garnered a quasi-plea discussion system that can be advantageous to defendants. Although the Attorney General’s Guidelines do not make any provision for a defendant to receive a greater discount on the sentence than is available for simply entering a guilty plea (as set out above), in a case brought by the Financial Services Authority (FSA) against Paul Milsom, a senior equities trader, for disclosing inside information between October 2008 and March 2010, Judge Pegden QC indicated, in passing sentence on 18 March 2013 at Southwark Crown Court, that he had given Mr Milsom full credit for pleading guilty at the earliest opportunity (i.e., a discount of one-third) and extra credit for entering into a plea agreement with the FSA. The sentencing remarks of Judge Pegden QC convey the ‘clearest articulation to date that an individual can reasonably expect to receive in excess of one third discount on sentence in circumstances where he enters into early plea discussions with a prosecutor.’In the Bittar case, when sentencing, the judge also took into consideration Bittar’s early guilty plea.
Another case worthy of note, and one that again highlights how co-operation with the authorities can really pay dividends when it comes to sentencing after conviction, was that of Bruce Hall. On 22 July 2014, Mr Hall, CEO of Aluminium Bahrain BSC from September 2001 to June 2005, received a 16-month custodial sentence for conspiracy to corrupt (having allegedly received £2.9 million in bribes). However, were it not for Mr Hall’s co-operation and early plea, Judge Loraine-Smith stated that his prison sentence would have been far longer. According to the SFO website, Judge Loraine-Smith said: ‘Mr Hall had co-operated with numerous authorities throughout the investigation. If he had not been so co-operative, Mr Hall could have faced around six years in prison, close to the maximum sentence for conspiracy to corrupt, the judge said. Due to his co-operation, Mr Hall was entitled to a 66 per cent reduction in his sentence. He was also entitled to a further reduction of one-third due to entering a guilty plea.’
Fines for individual perpetrators of financial crime can be unlimited and are handed down either separately or in conjunction with a custodial sentence. Section 164 of the CJA 2003 regulates the fixing of fines in criminal cases. The Sentencing Council’s Fraud, Bribery and Money Laundering Offences Definitive Guideline states that as a general principle in the setting of a fine for fraud, bribery or money laundering: ‘The court should determine the appropriate level of fine in accordance with section 164 of the Criminal Justice Act 2003, which requires that the fine must reflect the seriousness of the offence and requires the court to take into account the financial circumstances of the offender.’
30.1.3 Unexplained wealth order
The Criminal Finances Act 2017 (CFA 2017) came into force on 30 September 2017 and created a new High Court power to make an unexplained wealth order (UWO), which can require a person who is suspected of involvement in or association with serious criminality or is a politically exposed person (PEP) to explain the origin of assets that appear to be disproportionate to their known income. A failure to provide a response will give rise to a presumption that the property is recoverable, in order to assist any subsequent civil recovery action. UWOs are intended to alleviate the burden on enforcement authorities and will have a wide-ranging scope to gather evidence in other jurisdictions and potentially support parallel enforcement actions. The powers to make UWOs under the CFA 2017 commenced on 31 January 2018, with the National Crime Agency announcing its first UWOs on two properties in England on 28 February 2018. These are being challenged in UK courts.
The CFA 2017 creates a new process for a number of UK regulators and enforcement agencies, namely the SFO, the National Crime Agency, HM Revenue and Customs, the FCA and the Director of Public Prosecutions, to apply to the High Court for a UWO, regardless of whether civil or criminal proceedings have been initiated against the respondent to the order or whether the respondent is located in the UK or another jurisdiction.
There must be reasonable cause to believe that the respondent holds the property and that the value of the property is greater than £50,000. There must also be reasonable grounds for suspecting that the known sources of the respondent’s lawfully obtained income would have been insufficient for the purposes of enabling the respondent to obtain the property. Respondents must also either be (1) a PEP or (2) someone for whom there are reasonable grounds for suspecting that they have been involved in serious crime. Under the CFA 2017, a person is considered to be involved in serious crime in the United Kingdom or another jurisdiction if the person would be so involved for the purposes of Part 1 of the Serious Crime Act 2007. This widens the category of potential respondents significantly to include persons who: (1) have committed a serious offence; (2) have facilitated the commission of an offence; or (3) who conducted themselves in a way that was likely to facilitate the commission by themselves – or another person – of a serious offence, whether or not the offence was committed. The CFA 2017 widens the category of respondents even further to include anyone who is connected with a person who is or has been involved in serious crime, whether in the United Kingdom or in another jurisdiction.
Respondents are required by a UWO to provide certain information about the specified property, including the nature and extent of the respondent’s interest, how it was obtained and any other information specified in the order. Aside from contempt of court proceedings, the failure to respond to a UWO creates a presumption that the property is recoverable in civil proceedings, which reduces the burden imposed on enforcement authorities under the current POCA regime, to prove that property derives from criminal conduct or constitutes the proceeds of crime. Section 362S of POCA provides that when a UWO is issued, where the enforcement authority believes that the property is outside the United Kingdom, it may send a request for assistance in relation to the property to the Secretary of State, who in turn may forward the request to the government of the receiving country. The request for assistance is a request that any person be prohibited from dealing with the property or assisting with dealing with the property.
Where a respondent complies or purports to comply, the enforcement authority must determine what enforcement or investigatory proceedings, if any, it considers ought to be taken in relation to the property within 60 days starting with the date of compliance.
POCA also provides that a criminal offence is committed if a respondent gives a false or misleading statement in response to a UWO, with a maximum penalty of two years’ imprisonment. The CFA 2017 amends POCA so that the FCA and HMRC have civil recovery powers to recover property in cases where there has not been a conviction but where it can be shown on the balance of probabilities that property has been obtained by unlawful conduct. Such proceedings would be brought in the High Court to recover criminal property without the need for the owner of the property to be convicted of a criminal offence.
30.1.4 Compensation order
Like a confiscation order, a compensation order is an ancillary court order and is designed to compensate a victim for personal injury or any loss or damage that may have resulted from the offence committed by the defendant and is made in addition, or instead of, other sentencing options under section 130 of the Powers of Criminal Courts (Sentencing) Act 2000.
In both a magistrates’ court and the Crown Court, the amount that can be awarded as compensation is now unlimited but is restricted to an amount that can feasibly be paid by the defendant. The court must have regard to the evidence of the defendant’s financial means when deciding the level of compensation to award the victim and must prioritise the payment of compensation over any other financial penalty.
30.1.5 Confiscation order
It is becoming more common for courts to address the confiscation of the assets of a convicted individual, especially when the court satisfies itself that the defendant was said to be living a ‘criminal lifestyle’. The FCA secured £1.9 million in confiscation orders on 11 May 2018, as part of Operation Tabernula, and £2.2 million in confiscation orders in May 2017, as part of Operation Cotton.
Confiscation orders are available only after a defendant has been convicted, and are debts to the Crown. Where a confiscation order is not paid, the defendant will serve a period of imprisonment in default. This mechanism is highlighted in the cases of (1) Phillip Boakes, who, after failing to satisfy the full value of a confiscation order determined by the courts, was ordered to serve 730 days’ imprisonment in addition to the 10 years he was already serving after pleading guilty, inter alia, to two counts of fraudulent trading; and (2) Alex Hope was sentenced to 603 days’ imprisonment for failing to pay the full value of a confiscation order made against him, in addition to the seven years he was serving for being convicted of defrauding investors.
Confiscation orders derive from section 6 of POCA and are intended to deprive the defendant of the benefit of any proceeds of his or her crimes; they are not, however, intended to act as a fine or further punishment. They do not always involve the sequestration of the defendant’s personal property. Instead they usually entail the payment of a sum of money: ‘[w]here, however, a criminal has benefited financially from crime but no longer possesses the specific fruits of his crime, he will be deprived of assets of equivalent value, if he has them.’ In accordance with the decision in R v. Waya, prosecutors should ensure that the confiscation is proportionate, which entails an assessment of the ability of the defendant to pay the order in full.
In determining the amount of £165,731 that Mr Boakes was required to pay under his confiscation order, the court was able to take into account how the money that he had acquired was spent. The court determined that much of the proceeds that Mr Boakes had benefited from was spent on a lavish lifestyle and unsuccessful financial trading that was indicative of a criminal lifestyle, which the courts will take into account when determining the recoverable amount.
The Attorney General’s Guidelines are silent as to confiscation orders – they provide no framework to regulate the discussions and agreement of confiscation orders as part of plea discussions. Should the prosecution and the defendant reach any form of agreement in relation to a confiscation order, this agreement would not bind a court. In Mr Milsom’s case, however, the judge agreed to make a confiscation order at the sentencing hearing in the value of Mr Milsom’s personal benefit from his offending, which had been agreed between the prosecution and the defence within the basis of the plea and joint sentencing submission. This suggests that prosecutors could be willing to negotiate the terms of a confiscation order as part of a plea negotiation, and that the courts may be willing to accept the joint submission which ‘provid[es] a defendant with greater certainty and control over his financial liabilities.’
The burden of proof in criminal confiscation orders rests with the defendant, who must show, on the balance of probabilities, that his or her assets are not derived from criminal conduct.
Where it is reasonably foreseeable that a court will make a confiscation order, the prosecution may take steps in the High Court to ensure that the defendant’s assets will remain available to meet the terms of the order. Such steps include, inter alia, an order requiring the defendant to disclose where assets are kept, an order appointing a receiver and an order restraining assets.
30.1.6 Disqualification order
Directors of companies are fiduciaries and there is consequently a high level of probity expected of them by the law. It is therefore expected that ‘[t]hose who are involved in bribery, whether as individuals or as part of their role as directors, are very likely to be disqualified from acting as a director for a lengthy period of time.’
Directors disqualification orders (DDOs) are designed to help protect creditors and the public from those individuals who may act dishonestly. DDOs can be made where the defendant director of a company has been convicted of an indictable offence which, by virtue of the decision in R v. Creggy, must have some relevant factual connection with the management of the company.
A director is disqualified pursuant to section 2 of the Company Directors Disqualification Act 1986 (CCDA). This is a general disqualification that prohibits the former director from conducting various activities as set out in sections 1 and 2 CCDA. Directors can be disqualified for a maximum of 15 years.
As in all criminal cases, cost orders are usually made against a convicted defendant, who will be required to pay the prosecution’s costs as well as any court fees that materialise during the criminal proceedings.
The legislative authority enabling a court to award costs in criminal proceedings is primarily contained in Part II of the Prosecution of Offences Act 1985 (sections 16 to 19B), the Access to Justice Act 1999 (in relation to funded clients) and in regulations that have since been made pursuant to these statutes, including the Costs in Criminal Cases (General) Regulations 1986, as amended.
30.2 Individuals: regulatory liability
The FCA has continued the FSA’s legacy of adopting a robust enforcement stance, underpinned by its ‘credible deterrence’ strategy. In furtherance of its policy of ‘credible deterrence’, the FSA had signalled a willingness to pursue criminal actions through the courts and to seek custodial sentences. For the FCA, the pursuit of criminal prosecutions, where appropriate, remains high on its agenda, particularly for market misconduct offences. This is supported by the FCA’s Annual Business Plan for 2018/2019, in which it states that tackling financial crime and money laundering remain a priority. The FCA has also recently appointed Vincent Coughlin QC as the new chief criminal counsel. In addition, the FCA has introduced further changes to the Senior Managers & Certification Regime, which are due to come into force on 9 December 2019, to make senior managers more responsible and accountable for their actions.
Under the Financial Services and Markets Act 2000 (FSMA) as amended by the Financial Services Act 2012, the FCA has many tools at its disposal to punish non-criminal offences and breaches. This includes the issuing of public censures or statements, and imposing unlimited financial penalties.
Other sanctions available to the FCA include varying or cancelling a firm’s permission under Part 4A of FSMA; intervening against an incoming EEA or EU Treaty firm; suspending or restricting a firm’s Part 4A permissions; suspending or restricting the approval given to an approved person; prohibiting an individual from performing regulated functions; withdrawing the approval of an approved person; and imposing a penalty on a person who has performed a controlled function without approval.
There will always be an element of publicity along with the imposition of such sanctions; however, public sanctions are certainly not the only way of dealing with cases of regulatory non-compliance. Taking into consideration the severity of an offence, it may be satisfactorily addressed by using other remedial measures (for example, through the use of private warnings).
Chapter 6 of the FCA’s Decision Procedures and Penalties Manual (DEPP 6) contains the FCA’s statement of policy in relation to the imposition and amount of penalties under FSMA. DEPP 6A sets out its policy in relation to imposing suspensions or restrictions on firms and on approved persons. Chapter 7 of the FCA’s Enforcement Guide sets out specific guidance on the FCA’s powers in relation to financial penalties and public censures. Further, in April 2017, the FCA published an Enforcement Information Guide, which should be read in conjunction with DEPP and the Enforcement Guide.
30.3 Other issues: UK third-party rights
Section 393 FSMA gives third parties certain rights in relation to warning and decision notices given to another person in respect of whom the FCA is taking regulatory action. Where a warning notice has been given, section 393(1) provides that a third party prejudicially identified in the notice must be given a copy and a reasonable period to make representations on it.
Section 393(4) gives third-party rights in relation to a decision notice. It provides that a third party prejudicially identified in the notice must be given a copy of it and a reasonable period to make representations on it. Section 393(11) provides that a person who alleges that a copy of the notice should have been given to him or her may refer that alleged failure to the Upper Tribunal.
The scope of the rights conferred by section 393(4) was revisited recently in Macris v. FCA. On 19 May 2015, the Court of Appeal held that Mr Macris had been prejudicially identified in the FCA’s settlement notices issued to the firm JP Morgan Chase & Co, which although they did not name him, referred to him as ‘CIO London management’ and stated that ‘CIO London management’ had deliberately misled the FCA in a telephone call with the regulator in April 2012.
On 22 March 2017, the majority of the Supreme Court overturned the Court of Appeal’s decision. Lord Sumption, writing for the majority, stated that someone is identified in a notice if ‘he is identified by name or by a synonym for him, such as his office or job title.’ Such a synonym would, in the view of Lord Sumption, need to be ‘apparent from the notice itself that it could apply to only one person and that person must be identifiable from information which is either in the notice or publicly available elsewhere.’ Information from other sources can only be used to interpret the language of the FCA’s notice, rather than to supplement it, and must be easily ascertainable.
In concluding that it was not permissible to rely on information publicly available elsewhere, Lord Sumption stated that he was influenced by the deliberate drafting of section 393 FSMA with regard to fairness and the requirement for the material identifying the individual to come from the notice itself, as well as concern over the impact on the FCA’s effectiveness if section 393 were to be interpreted differently. Lord Sumption also stated that the envisaged constituency, namely the audience of notices, was the public at large and not just those familiar with a particular industry.
While agreeing with Lord Sumption, Lord Neuberger stated that an individual is identified in a document if ‘(1) his position or office is mentioned, (2) he is the sole holder of that position or office, and (3) reference by members of the public to freely and publicly available sources of information would easily reveal the name of that individual by reference to his position or office.’
In dissenting, Lord Wilson stated that the majority unfairly prioritised protecting regulatory efficiency over individual reputation. Lord Wilson expressed concern about the majority’s analysis that the general public are the constituency for FCA notices, and stated that it failed to reflect how the most serious damage of wrongly being identified for a third party would be within the market in which they operate, as being so identified would damage their employment prospects. Lord Wilson considered that the decision failed to strike a balance between protecting the rights of individuals and regulatory efficiency. However, the restrictive approach to third-party rights has now been confirmed by the Court of Appeal in R v. Grout.
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