UK: UK Economic Crime Group: Enforcement Update

Executive Summary

In this edition of the UK Enforcement newsletter, we provide an update on recent economic crime matters in the UK. We consider the recent regulatory and enforcement actions by the Serious Fraud Office (SFO), the Financial Conduct Authority (FCA) and the Financial Reporting Council (FRC). We also report on recent updates in relation to sanctions and the growth of cryptoasset-related regulation.

In respect of enforcement, governmental matters and legislative reform, we consider the following topics:

• Change on the horizon in the UK enforcement sphere
• Economic Crime and Corporate Transparency Bill 2022
• Government's regulatory "call in" power amendment faces delays
• A successful summer for the SFO with a focus on prosecution of individuals
• Regulators concluding the HBOS investigation with no further action against senior managers
• The FCA publishing decision notices against Carillion and three of its former directors
• KPMG fined £18.4 million for misleading its regulator, the FRC
• Sanctions update, focusing on the announcement of new sanctions and recent enforcement action
• Cryptoasset update, focusing on new legislation relating to stablecoins and the Law Commission report on digital assets

As part of our social commentary, we look at:

• The publication of the Law Society's Diversity and Inclusion framework for law firms
• Human rights protections in the UK

Change on the horizon in the UK enforcement sphere

The individual developments discussed in this newsletter have taken place against a backdrop of potentially significant impending changes in the UK enforcement sphere. This year the UK has seen the formation of a new government that has introduced substantial spending cuts and the announcement of leadership changes at both the FCA and the SFO, two of the UK's most important economic crime agencies.

In October 2022, Rishi Sunak became the UK's latest Prime Minister, forming a new government and introducing a fresh package of financial measures. This included the introduction of £28 billion in public spending cuts, which will impact almost every aspect of public services in the UK, including its enforcement agencies. As discussed further in relation to specific developments in this newsletter, the reduction in resources available to law enforcement will likely have an effect on the ability of the UK to tackle economic crime and on the practical impact of any enhanced powers granted to these enforcement agencies.

Alongside this, it was announced in July 2022 that Ashley Alder has been appointed as the new FCA Chair and will be officially taking up the role in January 2023. In November 2022, Lisa Osofsky confirmed that she will stand down as Director of the SFO in August 2023, at the end of her five-year tenure. Her successor has not yet been identified. New leadership at the FCA and the SFO creates the possibility of a significant shift in the landscape of the UK's economic crime enforcement. For example, under the directorship of Lisa Osofsky, the SFO has continued to promote the benefits of deferred prosecution agreements with companies and lobby for the extension of the "failure to prevent" principle to cover other economic crimes, such as fraud. Traditionally, a change in leadership brings a degree of refocusing, as the new leader looks to shape their agency and new ideas are implemented. However, what we do know is that, given the spending cuts discussed above, the new leadership at the FCA and SFO will have more limited resources available to them, and this is likely to impact their tenure and ability to implement changes at their respective agencies.

This time next year, we should have a clearer picture of the direction the UK enforcement space is moving in, as the effect of the public spending cuts becomes clearer and the priorities of the newly appointed leadership at the SFO and FCA are outlined. Until then, these impending changes should be kept in mind when considering other developments in the economic crime sphere, including those discussed in this newsletter.

Economic Crime and Corporate Transparency Bill 2022

Earlier this year, the Economic Crime (Transparency and Enforcement Act) was enacted into law (see our Summer 2022 Enforcement Update for further details). Following this, on 22 September 2022, the UK government published the new Economic Crime and Corporate Transparency Bill 2022 (the ECCT Bill), which promises to improve transparency over corporate entities and assist in the fight against economic crime.

With these goals in mind, the ECCT Bill, if enacted in its current form, will provide significant reforms to Companies House. Firstly, the ECCT Bill will introduce identity verification for all new and existing company directors, People with Significant Control and those delivering documents to the Registrar, with the intention of improving the accuracy of data captured by Companies House, to support both business decisions and law enforcement investigations. Secondly, Companies House will be given enhanced "gatekeeper" powers, allowing them to check, remove or decline information submitted to, or already on, the register. Thirdly, Companies House will be granted enhanced investigation and enforcement powers, including the power to cross-check data with other bodies and to proactively share anomalous filings or suspicious behaviour with law enforcement bodies.

Companies House is not the only organisation that will benefit from increased powers if the ECCT Bill is enacted. The ECCT Bill also extends the SFO's powers to compel individuals to attend interviews and answer questions in cases involving fraud and domestic corruption. Meanwhile, the Solicitors Regulation Authority sees an extension of its powers to impose unlimited fines, where the prevention or detection of economic crime or professional misconduct is at play.

Another headline change that would be introduced if the ECCT Bill is enacted, relates to the treatment of cryptoassets. The ECCT Bill will amend the Proceeds of Crime Act 2002 (POCA) to allow law enforcement agencies to more quickly and easily seize and recover cryptoassets which are the proceeds of crime or otherwise associated with illicit activity, such as money laundering. Key changes include amending search, seize and detention powers to clarify that officers have the authority to transfer cryptoassets into law enforcement-controlled wallets, enabling law enforcement agencies to take control of and recover cryptoassets discovered when executing a search warrant and providing for the destruction of cryptoassets in exceptional circumstances. This provides further recognition that cryptoassets are becoming increasingly mainstream and demonstrates the government's intention that cryptoassets should be treated in the same way as traditional assets.

The ECCT Bill also introduces additional changes to POCA to more generally assist in the fight against economic crime. For example, the ECCT Bill enables businesses, in certain situations, to share information without incurring liability for confidentiality breaches, where such sharing is for the purposes of preventing, investigating or detecting economic crime.

The changes included in the ECCT Bill signal that the UK government is serious about fighting "dirty money" within its borders and that the government is willing to empower authorities to meet this end. The ECCT Bill will now progress through Parliament and the effectiveness of the ultimate legislation will be dependent on the extent to which the ECCT Bill is amended prior to its Royal Assent and entry into law. Moreover, the effectiveness of these changes will rely on authorities having adequate resourcing to perform the extra powers they are being given. Given the significant spending cuts announced as part of the recent autumn statement, the prospect of the reforms set out in the ECCT Bill being accompanied by an increase in funding seems remote and so it remains to be seen what practical impact these extra powers will have.

Government's regulatory "call in" power amendment faces delays

In July 2022, the landmark Financial Services and Markets Bill (the FSM Bill) was introduced to Parliament. The FSM Bill aims to create a more competitive financial services sector in the UK following Brexit and proposes major reforms with this target in mind.

Notably absent from the FSM Bill was a proposed regulatory "call in" power, enabling the Treasury to direct a regulator to make, amend or revoke rules where there are matters of significant public interest at play. The call in power has been teased by Ministers but, as of yet, has not been presented before Parliament. In late October, the government announced that it does not plan to use the next Committee stage of the Bill's passage to introduce an amendment relating to the regulatory call in power, but confirmed that it intends to push forward with the plans at a later date.

This announcement sparked concern from the Treasury Committee, which has emphasised the need for proper review of any proposed call in power and argued that delaying its introduction to the FSM Bill risks denying Parliament the opportunity to effectively scrutinise the proposal.

The concerns expressed by the Treasury Committee add to the concerns already expressed by a number of stakeholders about the proposed call in power. The Bank of England has argued that the power would introduce uncertainty to the UK's regulatory landscape, which could result in foreign companies avoiding the UK's financial services sector and may hamper the growth of the UK overall. The FCA, whilst not explicitly criticising the proposal, has made clear that it is important that the independence and agility of the FCA is not compromised by any proposed call in power.

In its latest announcement, the government attempted to alleviate some of these concerns, by making clear that the intervention power would only ever be used in exceptional circumstances and would be accompanied by appropriate safeguards. The government has also reiterated its belief that it is right for a democratically elected government to be able to intervene in financial services rulemaking in the public interest.

Until an amendment relating to the call in power is tabled before Parliament, it is unlikely that the government will provide further detail on what the exceptional circumstances referred to by the government will be, or what safeguards will be put in place to prevent its misuse. We will continue to monitor the journey of the FSM Bill through Parliament and provide updates on the proposed call in power, as and when they arise.

Successful summer for the SFO with a focus on prosecution of individuals

Following increasing scrutiny of the SFO's poor track record against individuals, this summer saw a flurry of successful prosecutions for the SFO in three of its long-running cases against individual defendants.

As discussed in our Summer 2022 Enforcement Update, the SFO began the summer by securing two fraud convictions against the directors of Global Forestry Investments, Andrew Nathaniel Skeene and Junie Conrad Omari, after they defrauded over 2,000 investors out of approximately £37 million, by convincing them to invest in sham green investment schemes. The pair were both sentenced in June 2022 to 11 years' imprisonment and disqualified from acting as directors for 10 years.

In August 2022, David Ames was convicted of two counts of fraud by abuse of position, after he used his position as Chairman of the Harlequin business to convince over 8,000 victims to part with their pensions and life savings, believing that their money would be invested in holiday properties in the Caribbean. In reality, almost no properties were ever constructed and 99 percent of those who invested made no return. Ames was sentenced to 12 years in prison and disqualified as a company director for 15 years.

In the same month, Timothy Schools was convicted of fraudulent trading, fraud by abuse of position and money laundering, after using millions of pounds of investors' money to fund his luxury lifestyle. Investors were told that their loans would be provided to a panel of high-quality law firms to fund legal cases with a high likelihood of success when, in actual fact, the funds were paid to just three law firms, all of which Schools had an interest in. Schools was sentenced to 14 years in prison.

Whether these cases demonstrate a trend of the SFO focusing on individuals, rather than corporations, is too early to tell. Alongside these individual successes, this year the SFO has continued its streak of securing corporate convictions and has not, as of yet, signalled any shift in its position on the value of agreeing to deferred prosecution agreements with corporate defendants. In trying to predict future trends for the SFO, a bigger indicator is likely the kinds of cases the SFO is choosing to pursue currently, rather than convictions resulting from charging decisions which were made a number of years ago. With this in mind, it will be interesting to see how next year unfolds for the SFO and whether it looks to open more cases against individuals, considering its successes this past summer.

Regulators conclude HBOS investigation with no further action against senior managers

In August of this year, the Prudential Regulation Authority (PRA) and the FCA concluded a joint investigation into former senior managers at HBOS, reaching independent decisions to take no further action against any of the individuals involved.

The investigations considered whether the performance of certain senior managers at HBOS, in the years before the bank's failure, warranted the imposition of prohibition orders, preventing them from undertaking positions in the financial services industry.

This wasn't, however, the first time the matter had been considered by regulators. In 2009, the Financial Services Authority (FSA), the predecessor to the FCA and PRA, launched an investigation in connection with the failure of HBOS, which resulted in enforcement action being taken against the Bank of Scotland and the Chief Executive Officer of HBOS's Corporate Division, Peter Cummings. Six years later, in 2015, the PRA and FCA published a report on the failure of HBOS. This further review, conducted by Andrew Green KC, recommended that fresh consideration be given to whether further enforcement action should be taken against other senior managers at HBOS at the time of the collapse. In particular, Andrew Green KC concluded that the FSA's decision not to investigate ten senior managers, including Chief Executive, Andy Hornby, and Chairman, Lord Stevenson, was "materially flawed".

Following this, the FCA and PRA investigations were launched in early 2016, which saw the authorities gather more than two million documents, interview former HBOS senior managers and undertake "substantial analysis of contemporaneous documentary evidence".

In announcing that no further action was being taken, the PRA and FCA did not provide reasons for their decisions, but made clear that a "rigorous and forensic" investigation had taken place. Despite the absence of enforcement action, the FCA drew attention to the fundamental change to the regulatory landscape since the failure of HBOS, particularly in terms of holding senior managers accountable through the introduction of the Senior Managers and Certification Regime in 2016.

It is also worth noting that, due to time limits imposed by the Financial Services and Markets Act 2000, the PRA and FCA were only able to investigate whether any prohibition proceedings should be commenced against individuals. They were not able to consider opening investigations to determine whether any disciplinary proceedings for misconduct and the imposition of any fines should be commenced against individuals. Given the high bar for imposing prohibition orders, it is possible that the PRA and FCA would have imposed fines or commenced other, less severe, disciplinary action against certain of the HBOS former senior managers, had that option been available.

The authorities' announcement marks the end of a long-running saga, arising out of the failure of HBOS. However, the decision, and the resulting public reaction, may call into question the effectiveness and independence of the FCA and PRA, at a time when they have been under increasing scrutiny, both following Liz Truss's short-lived plan to examine the roles of the country's financial regulators and the proposal for the government to be able to intervene in regulatory decisions where the public interest is at play, which is discussed in further detail above.

FCA publishes decision notices against Carillion and three of its former directors

On 28 July 2022, the FCA imposed a public censure on Carillion plc (Carillion) and fined three of its former executive directors for failing to take reasonable steps to establish and maintain adequate procedures, systems and controls to enable it to comply with its obligations under the UK's listings rules and for publishing misleading announcements to the market. The individuals were fined a combined total of £870,200 and, had it not been for the fact that Carillion is in liquidation, the FCA would have imposed a further fine against the company of just under £37 million.

Carillion was a construction business operating in the UK, Canada and Middle East, which had its shares listed on the London Stock Exchange. It entered into liquidation in January 2018 following a deterioration in cash flows in respect of several of its projects and an earlier announcement of an expected provision of £845 million in June 2017, causing its share price to fall significantly.

The FCA considered that Carillion recklessly published announcements on 7 December 2016, 1 March 2017 and 3 May 2017 that were misleading and did not accurately or fully disclose the deterioration in the expected financial performance of the company's UK construction business. Specifically, the FCA considered that Carillion's procedures and controls were not sufficiently robust to ensure that contract accounting judgments made in its UK construction business were appropriately made, recorded and reported internally to the Board and the Audit Committee, and as such, the Audit Committee was unable to provide proper oversight. Additionally, the FCA found that the three former directors acted recklessly and were knowingly concerned in the company's contraventions.

While Carillion has chosen to accept the FCA's enforcement action, the former directors have each referred this decision to the Upper Tribunal, an independent forum which will ultimately determine what the appropriate action is for the FCA to take, if any.

This decision serves as a reminder for firms, particularly those with listed shares in the UK, of expectations around the adequacy of internal systems and controls designed to prevent false or misleading information being disseminated to the market. In addition, it is worth noting the emphasis that is placed on the role of the audit and accounting functions relating to a company, whether that be internally, or externally through regulation, as we explain further below, in relation to the linked fine against KPMG by the FRC.

KPMG fined £18.4 million for misleading its regulator, the FRC

On 25 July 2022, the FRC announced sanctions against KPMG LLP (KPMG), a former KPMG partner and four former KPMG employees, for providing false and misleading information during inspections of the firm's audits of the accounts of Carillion and a UK IT company, Regenersis.

Following a five-week tribunal, it was found that KPMG staff misled the FRC during the latter's routine inspections of the audit of Carillion's accounts for 2016 and the accounts of Regenersis for 2014. In respect of Regenersis, the tribunal found that KPMG made false representations about certain work it performed in its audit function. In respect of Carillion, it was found, inter alia, that certain KMPG employees connived in making false or misleading representations as to the creation of false or misleading meeting minutes, intended to mislead. As a result of this misconduct, KPMG was fined £14.4 million, a discount from £20 million to account for KPMG's cooperation with the FRC and its admissions of misconduct, and a further £3.95 million in costs.

The quality and propriety of the audits that KPMG performed are currently subject to a separate FRC investigation. Carillion, in turn, is taking legal action against KPMG for having missed "red flags" that Carillion's accounts were misstated and that the company had been insolvent for some time prior to its collapse in January 2018. As noted above, Carillion was recently sanctioned by the FCA separately for failings which ultimately led to its collapse.

The fine against KPMG is the largest the accounting firm has ever received from any regulatory body and just short of the largest fine ever imposed by the FRC. As the FRC continues to transition into the Auditing, Reporting and Governance Authority (ARGA), a topic that we wrote about in our previous newsletter, it is clear that the UK government and regulators are continuing to focus on restoring confidence in the financial system. A crucial part of this shift is to ensure that companies' audits are effective both at an external regulatory level, and, going forward, at an internal level. The onus for ensuring the efficacy of audit functions, and wider corporate governance frameworks, will shift to a company's board under new proposals, and ARGA will be given powers of civil enforcement in respect of directors' duties relating to reporting and audit.

Sanctions Update

Following the flurry of new sanctions relating to Russia earlier this year, the summer saw a relative slowdown in the roll out of new sanctions. With the recent Russian annexation of Ukrainian land accompanied by illegal referenda, further sanctions have now been announced, with the UK government moving largely in unison with the European Union and the US.

The most recent sanctions look to build on prior sanctions which impacted the professional services provided by UK companies to Russian individuals and entities. The government has announced new sanctions that will prohibit the provision of IT consultancy services, architectural services, engineering services, advertising services, transactional legal advisory services and auditing services. A large proportion of these kinds of services which are provided to Russia are done so by UK businesses and individuals. With this in mind, the intent behind the prohibitions is to prevent Russia accessing these professional services. In addition, the new sanctions will incorporate further export bans in relation to nearly 700 items crucial to Russia's industrial and technological capabilities, particularly their manufacturing sector.

As matters stand, we are awaiting the legislation that will implement these new sanctions. As such, details of the specific items that will be subject to the export ban and the definitions of each of the services are yet to be set out in detail. Similarly, the date for implementation of these sanctions is unknown. Notwithstanding this, UK businesses which provide these types of services should start considering whether they are providing such services to Russia and the impact a ban on the provision of those services might have on their business.

Maintaining the focus on Russia-related sanctions, the Office of Financial Sanctions Implementation (OFSI) announced in September 2022 that it fined Hong Kong International Wine and Spirits Competition Ltd (HKIWSC) for violations in respect of the 2014 Ukraine Regulations. These Regulations were implemented following Russia's annexation of the Crimea in 2014, at a time when the UK was still part of the EU.

Between September 2017 and August 2020, HKIWSC received three payments and 78 wine bottles from a designated entity, Massandra (State Unitary Enterprise of the Republic of Crimea Production-Agrarian Union), with this amounting to tangible economic resources of £3,919.62. HKIWSC was fined £30,000 for these breaches.

OFSI used the announcement of this fine to emphasise the need for companies to consider their sanctions risks and to not rely on the banking sector to conduct their due diligence to avoid receipt of payments from designated entities. Moreover, OFSI noted that HKIWSC did not voluntarily disclose these breaches and that had it done so, this may have been a mitigating factor that OFSI could consider when assessing the case.

While this case was under the prior Russia-related sanctions, it appears to demonstrate OFSI's appetite for enforcement and should be considered a warning sign to any companies not giving their sanctions compliance the necessary attention. Given this year's large extension of the Russia-related sanctions and the political support given to those sanctions, we expect to see further enforcement actions by OFSI in the near future, particularly against those breaching the Russia sanctions.

The focus on Russia sanctions, as well as being clear from OFSI's enforcement action, is also apparent from OFSI's Annual Review, which was published in November 2022. The Annual Review reported that 1,271 people and entities were designated under the Russia regime between February and August 2022 and £18.39 billion in frozen funds were reported to OFSI as being held by or on behalf of people designated under the UK's Russia sanctions between February and October 2022. This £18.39 billion was up from £44.5 million in September 2021, demonstrating the impact and the speed of the Russian sanctions implementation. OFSI also announced that it has received 642 licence applications in the first six months of the Russian invasion and that it will prioritise licence applications where there are issues of personal basic needs or which are deemed to be of particular strategic, economic or administrative significance.

Looking forward, the Annual Review noted that, in order to deal with the increase in workload resulting from the new Russia sanctions, OFSI plans to increase its staff numbers to 100 by the end of 2022. It will be interesting to see the impact of this increase in manpower and whether, as well as reducing OFSI's response time for matters such as licencing, it may also lead to an increase in enforcement actions for sanctions breaches.

Cryptocurrency Update

In recent months, there have been a number of developments in the crypto sector which move forward the question of how the Government will approach cryptocurrency in the future and take additional steps to bring cryptoassets further into the mainstream.

As discussed above, in July 2022, the Government introduced the FSM Bill to Parliament. This provides for substantial legislation in the financial services sector, including in relation to the powers of the Bank of England and the FCA. In the cryptoasset sphere, it provides for the extension of existing payments and electronic money legislation to cover stablecoins. Stablecoins are cryptoassets which are "tethered" to the value of real-world government issued currency, such as the UK pound, with the intention that they should be more stable in value than other types of cryptocurrency.

The inclusion of stablecoin within UK financial regulation under the FSM Bill includes the establishment of FCA authorisation and supervision for issuers of stablecoin and paves the way for further regulation by the Bank of England, should stablecoin become systemic within the UK. The FSM Bill still has a way to go before it makes its way into law, but this heralds another incremental step towards the regulation of cryptocurrency in the UK.

Separately, in July 2022, the Law Commission published its consultation report on further reforms needed to recognise and categorise digital assets and ensure that such digital assets have consistent legal recognition. The Law Commission conducted public consultations on its report through October 2022, with the full report now expected to be published in 2023.

The Law Commission report identifies that certain digital assets, such as cryptocurrency, have already been recognised under English law as property to which existing personal property law applies, but notes that other digital assets may not so easily fall within traditional definitions of "property". As such, the report recommends reforms that would provide a third category of personal property covering "data objects", to provide certainty when dealing with digital assets.

It seems clear from these actions that the Government is keen to ensure that the UK is a hub for the crypto-sector and that the legal position in the UK continues to evolve and provide greater certainty and regulatory oversight for digital assets. With this a focus for the UK government, we will keep abreast of the changes in this sector and continue to report on this interesting and innovative sector.

SOCIAL COMMENTARY

Law Society publishes a Diversity and Inclusion framework for law firms

We have written extensively about the various initiatives that have been recommended in recent times for financial firms to engender a diverse and inclusive workforce. Now, for the first time, the UK's Law Society has published a Diversity and Inclusion (D&I) framework, designed to establish meaningful and long-lasting changes across the legal profession through a systematic, strategic approach.

The D&I framework is premised upon current statistics which reveal that, while there has been some improvement with increasing diversity in the legal profession, there is still much room for improvement. Figures released from the Law Society's Annual Statistics Report 2021 found that solicitors from Black, Asian and minority ethnic backgrounds reached 18 percent, while Black, Asian and minority ethnic solicitors working in private practice increased by 6 percent. However, nearly a third of sole practitioners are from Black, Asian and minority ethnic backgrounds. These solicitors often transition to sole practice due to barriers to progression to senior levels at larger law firms.

In response to these statistics, the Law Society's roadmap sets out three steps aimed at assisting firms to: 1) establish a purpose and determine why D&I action is required; 2) develop a plan identifying tangible action that is required going forward; and 3) ensure performance and action lead to lasting change. A template action plan has also been published with the aim of steering firms into either considering the first steps that are required to embark upon this roadmap, or if action is already being taken, to perform a gap analysis for ongoing enhancement.

While we are fortunate to belong to a generation where D&I is increasingly a priority across professions, it is crucial that this commitment translates to more than lip-service. Firms, such as ours, are taking active steps to address the imbalance that is apparent throughout the legal service, and it is encouraging that strategic and tangible resources are now available across the profession.

Human rights protections in the UK

Earlier this year it appeared that the UK government was poised to replace the Human Rights Act 1998 with a new Bill of Rights, which sought to ensure the primacy of British law over rulings from the European Court of Human Rights (ECHR) and would have restricted the ways in which human rights could be used in claims against the government. This was in part a response to the long-held view that the ECHR was overriding Britain's sovereignty and the ECHR's role had been under increasing scrutiny as a result of the prevention of the UK government's plan to deport asylum seekers to Rwanda.

However, during Liz Truss's brief tenure as Prime Minister, the Bill of Rights was pulled from Parliament. This was met with relief from various sources, including a number of Conservative Parliamentarians who objected to portions of the Bill and expressed concerns about amendments proposed to it. Numerous legal commentators also expressed relief at a change of course away from the proposed Bill of Rights. As we previously explained in our Summer 2022 Enforcement Update, the proposals seemed to be contrary to the findings of the Independent Human Rights Act Review, which had been commissioned by the UK government and which found that the Human Rights Act 1998 is largely operating well and did not require a radical overhaul.

However, such relief was seemingly short-lived. The appointment of Rishi Sunak as Prime Minister saw Dominic Raab return to his role as Justice Minister where, as one of his first orders of business, he announced the revival of the proposed Bill of Rights.

Although no date has been confirmed for the proposal to be presented to Parliament, it is understood that the plans for the Bill of Rights may once again be put on hold while the government focuses on other issues. In mid-December 2022, Dominic Raab appeared before the Joint Committee on Human Rights to discuss the Bill of Rights, while that Committee is undertaking legislative scrutiny of the Bill of Rights. As we have to date, we will continue to follow the evolution of this issue and monitor the proposal closely.