Despite a poor past record for investigation and prosecution, the regulatory and prosecutorial authorities in the UK are rapidly catching up to their US counterparts as far as corporate crime and regulatory breaches are concerned.
The Bribery Act 2010, Deferred Prosecution Agreements, the increasing importance of self-reporting, renewed rigour and focus in the SFO, increased formal and informal co-operation across agencies and with other jurisdictions, and a more aggressive approach by the FCA and HMRC - all mean that the regulatory and prosecutorial landscape is moving fast in the UK.
We can also help you if the company has fallen under suspicion and is subject to an investigation, whether criminal or regulatory.
Handling Business Investigations - Criminal & Regulatory
Here we provide a brief overview of some of the issues businesses may want to consider when seeking to prevent, or achieve a positive outcome in, a regulatory or criminal investigation. At Lewis Nedas, we understand the complex legal framework relevant to financial crime and regulatory breaches. This allows us to take a strategic and robust approach to every stage of the investigation process while seeking to mitigate any potential damage an investigation may cause.
If you suspect some internal misconduct or an impending investigation or prosecution by a regulator or law enforcement agency, an immediate internal investigation may be necessary. An internal investigation can:
- help avoid an external investigation;
- help deal with and control reputational issues;
- provide immediate remedies for any compliance defects;
- assist you, the Board, General Counsel and the compliance team to prepare your strategy for dealing with the authorities and potentially your defence.
However, internal investigations must be undertaken with great care. At Lewis Nedas, we can help you manage an internal investigation, identify relevant issues and devise the best approach for dealing with regulators should you need to contact them.
If a problem is discovered, it may be in the best interests of the business to report it to a regulator or law enforcement agency. Self-reporting, as part of a genuine proactive approach to address misconduct within a business, will be taken into account by the authorities when determining whether it is in the public interest to prosecute. Self-reporting can also lead to a reduced penalty or perhaps a Deferred Prosecution Agreement.
Before contacting the relevant regulator or law enforcement agency, you will need to determine:
- whether the problem is a regulatory breach or that should be reported to the relevant authority;
- whether you are in a position to make a full report, i.e. come with clean hands and not mislead the regulator, intentionally or otherwise.
If the circumstances require undertaking this proactive approach, it is also necessary to be aware of the information you should supply to a regulator or prosecutor. Some documentation may need to be kept private and confidential because it is covered by privilege (legal or otherwise). Yet, if given freely or in response to a notice under section 2 of the Criminal Justice Act 1987, it may be subsequently disclosed to a third party in the event of potential civil proceedings.
Our expert business regulatory and criminal investigation team can help you identify and manage all the relevant documentation should you self report, and help you to demonstrate that your business has been genuinely proactive to address any misconduct.
Deferred Prosecution Agreements
A Deferred Prosecution Agreement (DPA) suspends and eventually terminates the criminal prosecution of a business, provided the terms of the agreement are met. It is a voluntarily arrangement subject to judicial oversight that is specifically made in relation to the prosecution of financial crimes involving companies including fraud, money laundering and bribery. Importantly, a business cannot suggest a DPA but must be invited to enter into DPA negotiations before criminal proceedings have been commenced.
The terms of a DPA largely depend on the alleged offence and the particular circumstances of the case, although they usually include measures that seek to achieve redress, such as requiring the business to pay compensation, as well as a penalty for misconduct, such as a fine and to pay the prosecutor’s costs. The business is also likely to have to agree to co-operate if individuals are to be prosecuted.
DPA negotiations can involve substantial disclosure of information and documentation, and they may be suggested by a prosecutor even if there is insufficient evidence to prosecute, so it is very important for a business to carefully decide whether to accept an invitation to enter into negotiations.
The negotiations themselves can also be complex, requiring the legal, financial and practical consequences of proposed terms to be clearly predicted and understood. At Lewis Nedas, we can help throughout the DPA process. We provide advice and assistance about: whether to accept an invitation to negotiate; whether there should be an admission of guilt; what terms you should negotiate, including advice about the financial penalty your company could be facing; and making representations to the prosecutor and before the court.
Dawn Raids & Confiscation
Dawn raids and confiscation carried out as part of an external investigation into alleged or suspected financial crime can place considerable pressure on a business. It is therefore vitally important to be aware of the rights and obligations of investigators and to have an internal strategy in place for responding to an unexpected visit from the authorities.
At Lewis Nedas, our specialist business investigations lawyers can attend the company's premises if you are subject to a dawn raid, accompany either you or your staff to interviews with the authorities, and negotiate and protect the interests of the company as documents and computers are taken away. We can also negotiate and make representations to the relevant authorities throughout this process.
Regulatory and Criminal Defence Lawyers - Over 35 yearsExperience Advising and Assisting Businesses
Many of our competitors boast that they have former staff from the respective agencies recruited to their team, and claim that it gives them an additional advantage. It really doesn't, mainly because this is a rapidly changing landscape and what you really need is a team that has over thirty years' experience of dealing successfully with these agencies, who are capable of robustly defending your corner, and of securing the best result for your company. You need a team that really knows the strengths and weaknesses of the agencies concerned and who will not be intimidated by them.
We can do all of this without charging 'City firm' eye-watering fees.