UK Economic Crime Group Enforcement Update

In this edition of the UK Enforcement newsletter, we provide an update on recent anti-corruption, fraud and bribery developments in the UK. We focus on enforcement actions by the Financial Conduct Authority, Serious Fraud Office, National Crime Agency, and European Commission and look at recent legislative changes and guidance published by HMRC and the Serious Fraud Office. We also consider a number of litigation developments including both criminal and civil trials.

Government Policy

• the publication of Tesco's deferred prosecution agreement;
• the Crime (Overseas Production Orders) Bill which received Royal Assent in February;
• HM Revenue and Custom's (HMRC) guidance on the new failure to prevent tax evasion;
• the Serious Fraud Office's (SFO) revised guidance for Section 2 interviews; and
• the contents of the House of Lords' report on the Bribery Act 2010.

Litigation Developments

• shareholder litigation that has been threatened against Petrofac following a guilty plea by their former Global Head of Sales;
• Royal Dutch Shell announcing that they were facing prosecution in the Netherlands;
• Eurasian Natural Resource Corporation (ENRC) suing the SFO over its conduct during their investigation of the company
• the discharge of the jury in the trial of former Barclays' senior executives; and
• the abandonment of a case where an expert witness who was giving evidence at a carbon credit fraud trial was found to be unqualified and unsuitable.

Enforcement Actions

• the Office of Financial Sanctions Implementation (OFSI) issued their first financial penalties for breaching sanctions against two companies;
• four individuals were arrested in connection with an SFO investigation into London Capital & Finance;
• the Financial Conduct Authority (FCA) fined UBS and Goldman Sachs for failing to provide accurate and timely transaction reporting;
• sentencing of two former Barclays' traders in respect of Euribor rigging;
• the National Crime Agency (NCA) announced that it had used account freezing orders for the first time and was granted property freezing orders and unexplained wealth orders against other individuals; and
• the European Commission announced that five major banks had been fined a total of €1.07 billion for colluding in the trade of large sums in foreign exchange markets.

Government Policy News

Tesco Deferred Prosecution Agreement published following acquittal of third executive

On 23 January 2019, following the acquittal of two former senior executives of Tesco, as reported in our previous update, the SFO offered no evidence at the trial of a third former senior executive. This brought to an end the criminal trials associated with the SFO's investigation into accounting irregularities at Tesco, and allowed for reporting restrictions to be lifted on the previously withheld full terms of the Deferred Prosecution Agreement (DPA) between the SFO and Tesco Stores Ltd that had been entered into in April 2017.

Under the terms of the DPA, Tesco was required to pay a financial penalty of £128 million and £3 million in investigation costs, as well as to implement remedial actions including commissioning a review of its systems and processes by external auditors, who would then implement any recommendations.

As with the earlier DPAs, the cooperation offered by Tesco was a key element of the reasoning for entering into a DPA. Tesco was said to have provided an "exemplary standard of cooperation", including: (i) refraining from conducting interviews; (ii) agreeing to a limited wavier of privilege over relevant material; (iii) making voluntary disclosures of other material; (iv) providing entire email accounts of current and former employees without filtering for privileged materials; (v) agreeing to an independent counsel review for privilege; (vi) scheduling more than 1,600 evidence bags of hard copy material to facilitate the SFO's review of that material; (vii) helping to arrange interviews with current and former employees; and (viii) generally helping to facilitate a swift conclusion to the investigation. Additionally Tesco was commended for its swift action in self-reporting.

Crime (Overseas Production Orders) Bill receives Royal Assent

On 12 February 2019, the Crime (Overseas Production Orders) Bill received Royal Assent to become the Crime (Overseas Production Orders) Act 2019 (the Act). The purpose of the Act is to assist law enforcement agencies to speed up the process by which they can obtain disclosure of electronic data stored outside the UK for use in criminal and regulatory investigations and prosecutions in the UK. The previous method of using mutual legal assistance treaties to access this data was slow and cumbersome. Under the new legislation, law enforcement agencies will be able to apply to the Crown Court for an Overseas Production Order (OPO) to require a person based overseas to produce or give access to electronic data.

Although the Act is in force, it is not yet able to be used by law enforcement agencies because it requires designated international cooperation arrangements which provide for mutual assistance from the relevant other country. These arrangements will need to be ratified and designated by the Secretary of State. It is understood that the first such arrangement is likely to be with the United States.

HMRC has issued guidance regarding self-reporting of failure to prevent facilitation of tax evasion

HMRC issued guidance on 21 February 2019 in relation to the corporate criminal offence under the Criminal Finances Act 2017 of failure to prevent criminal facilitation of tax evasion. The guidance explains how and when a representative of a company should self-report the organisation's failure to prevent the criminal facilitation of UK tax evasion.

The guidance emphasises that self-reporting is voluntary and that companies have the right to remain silent. It notes the benefits of self-reporting, explaining that a self-report (i) may be used as part of the organisation's "reasonable procedures" defence if they are subsequently charged; (ii) be taken into account when prosecutors are making charging decisions, for example, whether to offer a Deferred Prosecution Agreement; or (iii) be reflected in any penalties that are imposed.

The online form for self-reporting is intended for self-reporting of UK tax evasion. It should not be used for reporting the behaviour of other organisations, for which the HMRC Fraud Hotline should be contacted, or for reporting foreign tax offences, which instead should be reported to the SFO.

Serious Fraud Office Publishes Revised Guidance for Section 2 Interviews

On 28 February 2019, the SFO amended their guidance in relation to interviews conducted pursuant to Section 2 of the Criminal Justice Act 1987. The SFO publish guidelines for defence lawyers who act for those subject to a Section 2 Notice, which is a tool used by the SFO to compel an individual to answer questions which it considers relevant to an investigation it is undertaking.

The previous guidance, which had been published in June 2016, allowed for a single lawyer to attend a Section 2 interview with their client, under the condition that the SFO believed that it would assist the purpose of the interview or investigation, or that they would provide essential assistance to the interviewee by means of legal advice. Permission for an additional lawyer was at the SFO's discretion and was rarely exercised.

The updated guidance now permits a second lawyer who also represents the interviewee to be present at the interview, but for the sole purpose of note-taking. A further revision is that this does not require the SFO's express agreement. However, the prohibitions on recording or transcribing the interview remain in place.

House of Lords Bribery Act 2010 Committee Publishes Post-Legislative Scrutiny

On 14 March 2019, the House of Lord Select Committee on the Bribery Act 2010 published its post-legislative scrutiny report (the Report). The Committee was tasked with reviewing whether the Bribery Act has been achieving its intended purposes since its enactment in 2010.

Having gathered evidence from 23 oral sessions and 61 written submissions, the Report concluded that "the Act is an excellent piece of legislation which creates offences which are clear and all-embracing" and that it is an example to other countries, especially developing countries, of what is needed to deter bribery. In particular, the Report considered that the new offence of corporate failure to prevent bribery is regarded as particularly effective.

However, the Report does suggest that improvement is required regarding the information and advice provided to small and medium enterprises (SMEs) and it is suggested that the Ministry of Justice Guidance on the Bribery Act should provide more information on matters such as the point at which hospitality exceeds what a reasonable member of the public might think was acceptable.

The Report also proposes that the Crown Prosecution Service (CPS) and the SFO should prioritise the speed and efficiency of bribery investigations, as well as cooperation with other authorities.

Although not derived from the Bribery Act, the Report also considered the impact of Deferred Prosecution Agreements (DPAs). It was noted that when the DPA regime commenced there was some anxiety that the DPA may be seen as an "easy way out" for companies. The Report concluded that this has not proven to be the case and instead that the discounts to financial penalties are appropriate to encourage companies to self-report, but not so large as to deprive the penalty of its effectiveness. The Report also emphasised that a DPA with a company is not a substitute for the prosecution of any individuals involved in corrupt conduct.

Litigation News

Petrofac faces shareholder litigation following guilty plea

On 7 February 2019, the SFO announced that as part of its ongoing investigation into Petrofac, the company's former Global Head of Sales, David Lufkin, had pleaded guilty to eleven counts of bribery contrary to sections 1(1) and 1(2) of the Bribery Act 2010. The offences related to the making of corrupt offers to influence the award of contracts to Petrofac worth in excess of $730 million in Iraq and in excess of $3.5 billion in Saudi Arabia.

The investigation into Petrofac PLC, its subsidiaries and their officers, employees and agents formally commenced in May 2017. The SFO has announced that they are investigating Petrofac's use of agents in multiple jurisdictions, including Iraq and Saudi Arabia. As matters stand neither the company nor any other individuals have been charged in relation to the investigation. However, the co-founder of Petrofac, Maroun Semaan, who died two years ago, was alleged to have been complicit in six counts of the alleged bribery admitted by David Lufkin.

Following the announcement of David Lufkin's guilty plea, shareholder litigation has been threatened against Petrofac. Shareholders are intending to issue proceedings in England in respect of the losses they have suffered following the bribery allegations, SFO investigation and guilty plea, each of which have caused significant falls in Petrofac's share price. The potential litigation was announced by litigation funder, Innsworth Litigation Funding, who said that they were preparing to fund the litigation against Petrofac on behalf of a group of institutional shareholders, including UK and US pension funds.

Royal Dutch Shell Plc facing prosecution in the Netherlands over deal in Nigeria

On 1 March 2019, Royal Dutch Shell plc (Shell) announced that the company was facing prosecution in the Netherlands in relation to the settlement of disputes over Oil Prospecting License (OPL) 245 for the Gulf of Guinea. In 2011, Shell and Eni SpA paid $1.3 billion to the Nigerian government to settle a dispute over drilling rights to the offshore tract OPL 245.

Shell and four former senior executives, together with Eni SpA, are already on trial in Italy over alleged international corruption offences relating to the OPL 245 matter. It is alleged that a large proportion of the settlement funds were used to pay bribes to Nigerian government officials and kickbacks to executives at Eni and Shell.

Separately the Nigerian government issued a civil claim in London in December 2018 against Shell, Eni and other companies. The Nigerian government claims that Shell and Eni are partly responsible for the behaviour of corrupt Nigerian officials and seeks to recoup some of the money allegedly paid as bribes and kickbacks.

ENRC lodges £70m damages claim against the SFO

In March 2019, ENRC issued a claim against the Serious Fraud Office (SFO) for damages of £70 million over its conduct during a probe into alleged corruption at the company. The SFO has been investigating ENRC since April 2013 in relation to allegations of fraud, bribery and corruption in connection with the acquisition of substantial mineral assets in Kazakhstan and Africa.

This follows a lengthy dispute between the SFO and ENRC about whether privilege should attach to documents created in the course of an internal investigation. The dispute resulted in a unanimous Court of Appeal decision in September last year, which found that documents in three categories, including interview notes, and material relating to a review by forensic accountants had the benefit of litigation privilege.

ENRC has also filed a separate negligence claim against its former law firm, Dechert. ENRC alleged that the firm had significantly overcharged ENRC during the course of the internal investigation into allegations of wrongdoing in Kazakhstan and Africa.

Judge criticises SFO during Barclays trial

On 8 April 2019, the jury was discharged in the trial of four senior Barclays executives, John Varley, Richard Boath, Roger Jenkins and Tom Kalaris, who had been facing charges over alleged payments to Qatar linked to the 2008 financial crisis. Reporting restrictions remain in place in respect of the judgment.

During the course of the trial of the individuals, the jury was informed that before trial the Hon. Mr Justice Jay had ruled that the SFO had "failed to take reasonable and appropriate steps" to obtain key documents from Latham & Watkins who represented Qatar. Moreover, the jury was informed that the SFO had not interviewed or investigated as a suspect either Qatar Holding, the sovereign wealth fund, or Sheikh Hamad bin Jassim bin Jabr al-Thani. Sheikh Hamad had been the prime minister of Qatar at the time that the Gulf state had invested £4 billion in Barclays in two emergency fundraisings in 2008.

Separately it has been reported recently that in 2017 the Bank of England questioned whether a corporate criminal charge against the bank would be in the public interest as officials believed it would present a small but not insignificant threat to Barclays' safety and soundness. Nonetheless, the SFO charged the corporate in relation to its 2008 capital raising arrangements with Qatar Holding LLC and Challenger Universal Ltd. However, as reported in our previous update, the charges against Barclays PLC and Barclays Bank PLC were dismissed in May 2018.

Carbon Credit Fraud trial abandoned due to expert witness not being an expert

On 29 May 2019, eight men were acquitted of fraud at the Crown Court at Southwark, following a cross examination of the prosecution's expert witness which established that he was not an expert on carbon credits, had no academic qualifications and could not recall whether he had passed his A-levels.

The case related to the sale of investment opportunities in carbon credits between November 2011 and February 2014, where members of the public were persuaded to make investments, including in the purchase of carbon credits. The eight men were alleged to have engaged in fraud directly or engaged in laundering the proceeds of fraud in respect of those investments.

The conclusion that the expert witness was not an expert of suitable calibre has thrown into question the safety of 20 other fraud prosecutions in which he was used as an expert witness. The Metropolitan Police had referred the matter to the National Crime Agency.

Enforcement News

OFSI issued their first financial penalties

On 21 January 2019, OFSI fined Raphaels Bank for a contravention of the financial sanctions imposed in relation to Egypt. The penalty imposed was £5,000 which had been discounted by 50% based on Raphaels Bank's disclosure of the breach and cooperation with the investigation. The transaction in question related to funds of £200 belonging to a person designated under the Egypt sanctions.

On 8 March 2019, OFSI announced a further penalty had been issued to Travelex and that this was linked to the penalty against Raphaels Bank. Travelex was fined for dealing with funds of £204 belonging to a person designated under the Egypt sanctions. Travelex were fined £10,000 and no discount was applied for voluntary disclosure.

In both instances, the fines were issued as a result of each company dealing with funds belonging to a designated person. The companies' actions allowed a designated person to utilise funds that should have been frozen. It is clear from these fines that OFSI is treating breaches of sanctions seriously, regardless of the monetary value.

Four arrested in SFO inquiry into London Capital & Finance

On 18 March 2019, the SFO announced that, following a referral from the FCA, it had launched an investigation into a £236 million mini-bond scam carried out by London Capital & Finance. This followed four arrests made on 4 March 2019. Following the arrests, the SFO was also granted restraint orders, freezing certain assets of the four individuals and their spouses.

The SFO's investigation follows a probe earlier this year by the FCA into London Capital & Finance arising from allegations that London Capital & Finance had falsely marketed mini-bond products as eligible for ISAs and promising up to eight percent return. The FCA's investigation confirmed that the products were not eligible for ISAs and that the promotion of the bonds by London Capital & Finance was "misleading, not fair and unclear". In December 2018, the FCA froze London Capital & Finance's assets because of "serious concerns about the way the firm was conducting its business". The company went into administration on 30 January 2019.

Following the FCA's investigation, the government has ordered the FCA to launch an independent review into its handling of the collapse of London Capital & Finance. This independent investigation, which is being conducted by Dame Elizabeth Gloster, will examine the FCA's supervision of London Capital & Finance and the lack of regulation of the "mini-bonds". Concerns had been raised with the FCA about London Capital & Finance as early as 2015, however they did not intervene until December 2018.

Two banks fined by FCA for failing to provide accurate and timely transaction reporting

On 19 March 2019, the FCA fined UBS AG £27.6 million for transaction reporting failures. The FCA identified 135.8 million transaction reports during the period of November 2007 and May 2017 which either lacked complete and accurate information or which were reported when they were not reportable.

Mark Steward, FCA Director of Enforcement commented that "firms must have proper systems and controls to identify what transactions they have carried out, on what markets, at what price, in what quantity and with whom. If firms cannot report their transactions accurately, fundamental risks arise, including the risk that market abuse may be hidden".

UBS agreed to resolve the case with FCA and so qualified for a 30% discount to the overall penalty.

On 28 March 2019, the FCA levied its largest fine to date for transaction-reporting breaches. Goldman Sachs International was fined £34.3 million for similar failings relating to provision of accurate and timely reporting for 220.2 million transactions between November 2007 and March 2017. As with UBS, Goldman Sachs agreed to resolve the case and qualified for a 30% discount to the overall penalty.

Former Barclays' traders sentenced to combined nine years in prison in Euribor rigging trial

The trial of two former Barclays' traders – former Vice President of Euro Rates, Carlo Palombo, and former Managing Director, Colin Bermingham – took place during March 2018, culminating in their convictions for manipulating the Euribor benchmark during the peak of the financial crisis. On 1 April 2019, Mr Palombo and Mr Bermingham were sentenced to four and five years in prison respectively. The jury unanimously acquitted junior trader Sisse Bohart, who worked for Mr Bermingham and made the Euribor submissions.

Jurors at the Crown Court at Southwark were told that between January 2005 and December 2009, the defendants conspired to submit false or misleading estimates to the process for setting Euribor, in order to gain substantial profits from their dishonest submissions. This conspiracy was in conjunction with former Principal Trader at Deutsche Bank, Christian Bittar and former Barclays Director Philippe Moryoussef, both of whom were convicted last year in relation to manipulation of Euribor.

At the sentencing, His Honour Judge Gledhill QC said that in addition to punishing the wrongdoing committed by Mr Palombo and Mr Bermingham, he wanted to send a message of deterrence to those in banking and finance, warning them that "those convicted of manipulating interest rates will face substantial custodial sentences

NCA uses freezing and forfeiture powers over various assets

On 7 February 2019, the NCA announced that it had successfully used its new powers of account freezing orders (AFOs) for the first time, with an AFO having been granted in May 2018. An AFO will be granted if there are reasonable grounds for suspecting that money held in an account with a bank is "recoverable property" or is intended "for use in unlawful conduct".

In this instance, the AFO froze funds held in three bank accounts belonging to Vlad Luca Filat, the son of the former Prime Minister of Moldova who is currently serving a nine year prison sentence for his part in a $1 billion banking fraud. Following an investigation, the NCA found that Mr Filat had no registered income in the UK and that his extravagant lifestyle was funded by large deposits from overseas companies. On 5 February 2019, forfeiture was granted over £466,000 held in the three bank accounts, with the District Judge being "satisfied on the balance of probabilities that the cash was derived from his father's criminal conduct in Moldova"

In another successful use of its powers, the NCA was able to freeze and subsequently take possession of funds held by a niece of Syria's President Bashar al-Assad. In November 2018, her UK bank account was made subject to an AFO, with the successful forfeiture application being granted on 21 May 2019. In this instance the forfeiture was as a result of breach of international sanctions.

Similarly on 8 May 2019, the NCA, working as part of the Paramilitary Crime Task Force, obtained a property freezing order (PFO) over nine residential properties in County Down and County Antrim, with a combined estimated value of around £2 million.

On 29 May 2019, the NCA also announced its second successful grant of unexplained wealth orders (UWOs). The three UWOs have been secured over three residential properties in London, preventing any sale of the properties. The properties were originally bought for more than £80 million and are held by offshore companies. The NCA has not named the relevant politically exposed person, but they are understood to be involved in serious crime and the investigation is ongoing.

EU fines five banks €1.07 billion for rigging FX Trades

On 16 May 2019, the European Commission announced that five major banks (Barclays PLC, Royal Bank of Scotland Group (RBS), Citigroup Inc., JP Morgan Chase and Mitsubishi UFJ Financial Group) had been fined a total of €1.07 billion for colluding in the trade of large sums in foreign exchange markets.

This involved two settlements relating to two separate cartels. The first known as the "Forex - Three Way Banana Split", resulted in a €811 million fine for Barclays, RBS, Citigroup and JP Morgan Chase. The second cartel known as the "Forex – Essex Express", resulted in a €257 million fine for Barclays, RBS and Mitsubishi. The collusive behaviour occurred between traders in chatrooms and took place between 2007 and 2013. Each of the banks acknowledged their part in the cartels, earning a 10% discount on the fines that would otherwise have been levied. A sixth bank, UBS AG was also involved in both cartels but avoided a fine itself because it acted as a whistleblower, revealing the cartels to the authorities.

© Arnold & Porter Kaye Scholer LLP 2019 All Rights Reserved. This newsletter is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.