BCL partner, Richard Sallybanks has been quoted in Law360‘s recent article ‘The Biggest UK Corporate Crime Decisions Of 2021 So Far’.
Here’s an extract from the article in which Richard provides comment on two of the four cases identified by Law360 as the biggest UK corporate crime decisions of 2021 so far:
“One of the biggest miscarriages of justice in recent British legal history, a U.K. Supreme Court ruling that clipped the Serious Fraud Office’s international investigatory powers and a calamitous mid-trial collapse for the agency were among the cases that caught the attention of white-collar defense attorneys this year.
The Supreme Court in London has been the setting for one of the big corporate crime cases of 2021, where the Serious Fraud Office suffered a blow when justices ruled that investigators cannot force foreign companies to hand over documents held overseas. (U.K. Government.)
Disclosure Debacle Sinks SFO Serco Trial
Rougher ground lay ahead for the SFO in April, when the trial on fraud charges of two former executives of Serco, a contractor for government services such as prisons, collapsed. The enforcer had mishandled evidence, delivering a self-inflicted blow to its credibility.
Simon Marshall and Nicholas Woods faced charges of artificially reducing Serco’s profit margins on its contract with the government for electronic tagging of offenders, but were ultimately acquitted because the SFO failed to disclose some evidence to the defendants.
In a chastening defeat for the agency, the judge instructed the jury at Southwark Crown Court to acquit the defendants midway through the prosecution case because the SFO’s failures had undermined the process of disclosure to the extent that the trial could not safely proceed.
The agency was more successful in its pursuit of corporate suspects.
Airbus subsidiary GPT Special Project Management was ordered to pay £30 million ($41 million) in April after pleading guilty to bribing senior Saudi Arabian officials in an agreement to supply the Middle Eastern country’s national guard with communications and electronic warfare equipment.
Then, in July, the SFO inked a £103 million deferred prosecution agreement with Amec Foster Wheeler, part of a Scottish engineering conglomerate, for “brazen” bribery spanning five countries — Nigeria, Saudi Arabia, Malaysia, India and Brazil — and taking place over 18 years.
But the Serco case marked another failed attempt to prosecute individuals for conduct ostensibly admitted in a DPA.
“There is a growing concern that DPAs represent a convenient outcome for the SFO and the corporate, and that the agreed narrative — which necessarily implicates individuals — does not stand up to scrutiny when the evidence is put before a jury in subsequent prosecutions of those individuals”, Richard Sallybanks of BCL Solicitors LLP said. “There is a danger that the acquittal of the individuals damages the credibility of the DPAs and the DPA regime more generally.”
The case is R v. Marshall and another, case number T20207029, at Southwark Crown Court.
Assange And Lynch Extradition Rulings
The reach of U.S. justice is in the spotlight following two of the most high-profile extradition rulings to have been heard in the U.K. The attempted extradition of Julian Assange has ramifications for freedom of speech and the case of British technology entrepreneur Mike Lynch has sent tremors through the business community.
In January, a London court blocked the extradition of the WikiLeaks founder to the U.S. on charges of espionage and computer misuse, citing the risk that he might kill himself in an American prison. Campaigners characterize the case as the most significant battle over freedom of speech in history. Assange avoided extradition on mental health grounds, but the judge dismissed claims that the prosecution is politically motivated and an attack on journalism.
Equally significant was the decision in July to extradite entrepreneur Mike Lynch to the U.S. to face fraud and conspiracy charges arising from the $11.7 billion sale of his software firm to Hewlett-Packard. Lynch is wanted on wire fraud, securities fraud and conspiracy charges over allegations that he artificially inflated the value of his company, Autonomy, to make it more attractive to HP before it was acquired by the U.S. technology firm in 2011.
District Judge Michael Snow said at Westminster Magistrates’ Court that Lynch should be extradited because that is where the harm caused by his alleged conduct could be felt, even though he was largely based in Britain and the acquisition was conducted under U.K. takeover rules.
The outcome will have wider implications for business executives in Britain and could set a precedent for those facing criminal prosecution in the U.S. for conduct that ostensibly happened at home.
“The decision has reopened the debate, if it ever closed, about U.S. overreach in financial crime cases, and the extent to which the U.S.-U.K. extradition arrangements operate in practice in a manner akin to a one-way street,” Sallybanks of BCL Solicitors said.””
This article was published by Law360 on 26/08/21. If you wish to read the full length article please visit the Law360 website* here.
*Please be aware the full content is behind a paywall so you will require a Law360 subscription to access it.