Since the UK Bribery Act (the Act) came into force on 1 July 2011, companies have grappled with a number of key questions arising under the Act. These questions have included the extent of cooperation required from a corporation to benefit from any credit from the Serious Fraud Office (SFO) and also the basis on which a company’s compliance programme might be deemed adequate in order that the company can avail itself of the “adequate procedures” defence to any charge under section 7 of the Act.

Compliance officers and in-house counsel received further guidance in the first of these areas – i.e., what steps must be taken in order to receive credit from the SFO for doing so – in summer 2019 when the SFO published its Corporate Co-Operation guidance. Illumination with regards the latter area, however, has mostly been found in the Ministry of Justice’s 2011 guidance (the MOJ Guidance) regarding such procedures as well as the limited information that can be gleaned from the handful of prosecutions and DPAs under the Act and occasional public comments from people including Lisa Osofsky (the current Director of the SFO) and Sara Lawson QC (the SFO’s General Counsel).

Continue Reading The UK Bribery Act: Adequate Procedures but Inadequate Guidance?

In November 2016, a tram in Croydon, England derailed on a sharp bend and resulted in the death of seven passengers and injuries to a further 62.  The tram was travelling in excess of the speed limit when it derailed and the tram driver was initially arrested by British Transport Police on suspicion of manslaughter before subsequently being released on bail.  While a subsequent report from the Rail Accident Investigation Branch concluded that driver error was the cause of the accident, on 31 October 2019 the U.K. Crown Prosecution Service (CPS) declined to pursue charges against the driver.

According to the CPS, the evidence did not support prosecution of the driver for the offence of gross negligence manslaughter.  Additionally, the CPS declined to pursue charges of corporate manslaughter against Transport for London or the tram operator, Tram Operations Ltd.

Families of the victims have vowed to fight for further answers and commentators have noted that the decision of the CPS not to pursue any prosecution does not prevent a private prosecution being pursued by those affected by the crash.
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Earlier this year, a committee of the UK House of Lords criticized the UK Serious Fraud Office (SFO) and Crown Prosecution Service (CPS) for the slow pace of its investigations, noting also that “the evidence we have received suggests that there are excessive delays even in the majority of more straightforward domestic bribery investigations”.  The Committee implored the SFO and CPS to do “everything in their power” to ensure cases progress as quickly as possible.  The HM Crown Prosecution Service Inspectorate (HMCPSI) recently picked up on this issue again, noting that the SFO has at times struggled to appropriately staff cases and process digital materials.

An SFO investigation can take several years to complete (with periods in excess of 3 years not being unusual), with long periods of time where the subject under investigation receives no updates and is in a period of legal limbo.  This says nothing of the immense stress that an investigation can cause and the disruption to daily life including damaged reputations, restrictions on travel and restricted access to assets.

Figures recently published by the UK Ministry of Justice (MOJ) show that the slow pace of investigations by the SFO and CPS also infects other UK law enforcement agencies.  Figures for the first quarter of 2019 showed that a contested Financial Conduct Authority (FCA) case took almost six years to reach a resolution.

Continue Reading The Speed of (In)Justice