Michael Drury and Tom McNeill write for Lexology’s Government Investigations: Global Overview

Michael Drury and Tom McNeill write for Lexology’s Government Investigations: Global Overview

BCL partner Michael Drury and senior associate Tom McNeill author the England & Wales chapter of Lexology’s Getting The Deal Through – Government Investigations: Global Overview exploring the mechanisms that are available to resolve a government investigation.

Getting the Deal Through provides international expert analysis in key areas of law, practice and regulation for corporate counsel, cross-border legal practitioners, and company directors and officers.

Here is a short extract from the England & Wales chapter*, which you can read in full on the Lexology website here:

Resolution

Resolution mechanisms

What mechanisms are available to resolve a government investigation?

There are numerous potential outcomes of a government investigation, depending upon which agency conducts the investigation.

If the investigation is criminal in nature, the business or employee could be charged and prosecuted through the criminal courts. This could result in a guilty plea or, in the event of a not guilty plea, a trial. Of course, it may be that once the investigation is completed there is insufficient evidence or it is not in the public interest to prosecute according to the test set out in the Code for Crown Prosecutors. There are also circumstances in which the Serious Fraud Office (SFO) may decide to pursue a civil settlement rather than a criminal prosecution.

The Crown Prosecution Service (CPS) and SFO are also able to enter into deferred prosecution agreements (DPA) with businesses, thus allowing the business an opportunity to resolve the issue without being prosecuted (but effectively admitting wrongdoing of a criminal nature at a corporate level).

As a regulator, the Financial Conduct Authority (FCA) has mechanisms for resolving investigations that include the imposition of a financial penalty through the FCA disciplinary process. It also has a range of sanctions at its disposal, including suspending or prohibiting businesses and employees from undertaking regulated activities.

Admission of wrongdoing

Is an admission of wrongdoing by the target business required? Can that admission be used against the target in other contexts, such as related civil litigation?

An admission of wrongdoing is required if the business wants to plead guilty to a criminal offence or regulatory breach, and effectively to enter into a DPA. The position is the same if the business wants to pursue immunity with the SFO or CPS, or leniency with the Competition and Markets Authority.

 

*This article was first published by Lexology  on 22 July 2022. If you wish to read the Government Investigations: Global Overview in full, please visit Lexology website.

Please note that you will need a subscription with Lexology to access the article.

Michael Drury is a partner at BCL with a diverse practice, ranging from extradition, where he has successfully represented senior Ministers and others in former Soviet Union states and a number of significant Turkish businessmen (falsely alleged to be terrorists and part of the 2016 coup attempt) defeating extradition claims and securing the removal of and preventing the issue of Red Notices; representing individuals in regulatory proceedings brought by the FCA (in LIBOR and other matters); acting in criminal investigations by the SFO (including for corporates and individuals in bribery and corruption cases, and in LIBOR), as well as in fraud investigations by a variety of police forces in England and Wales; to achieving successful outcomes for clients in investigations by the Information Commissioner’s Office, in the spin off from National Crime Agency (‘NCA’) investigations into ‘blagging’.

Tom McNeill is a solicitor specialising in corporate crime, regulatory crime, and financial crime. His expertise includes corporate and director liability, corporate manslaughter, gross negligence manslaughter, health and safety, environmental protection, fire safety, all types of fraud, bribery and money laundering. Tom is experienced in conducting privilege-protected internal investigations on behalf of a range of corporate clients in relation to suspected financial crime and following fatal accidents and other serious regulatory breaches.