On 28 February 2020, a jury acquitted three former Barclays executives – Roger Jenkins, Tom Kalaris and Richard Boath – of criminal fraud charges brought by the Serious Fraud Office (“SFO”).  The charges were founded on allegations that the three had conspired to make secret payments to Qatar in exchange for the state’s provision of financial assistance to Barclays during 2008.  The acquittal concludes the SFO’s investigation in the matter which began in 2012 but also, however, allowed the release of previous judgments that, among other things, shed light on the difficulties in imposing corporate criminal liability.

On 3 July 2017, the SFO charged Barclays PLC with both conspiracy to commit fraud by false representation for failing fully to disclose to the stock market deals it had reached with Qatari investors and unlawful financial assistance by providing a $3 billion loan to the Qatari state’s sovereign wealth fund.  On 12 February 2018 Barclays Bank PLC also was charged with providing unlawful financial assistance.  On 21 May 2018 the charges against both Barclays entities were dismissed by the Crown Court, prompting a subsequent application by the SFO to reinstate all of the charges.  On 26 October 2018, the High Court dismissed the SFO’s application.  Any greater understanding regarding the reasons as to why the charges were dismissed and the Court’s approach to the imposition of corporate criminal liability, however, was put on hold as both Crown Court and High Court judgments remained subject to reporting restrictions until the conclusion of the trial of the individual Barclays executives.  These restrictions were lifted by Lord Justice Popplewell following the acquittal of the three executives in February 2020.


Continue Reading The Elusive “Directing Mind and Will”

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?

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