Introduction

As an introduction to Volume I of the Guide, this chapter addresses UK and US law regarding two critical concepts that a company facing an investigation in either or both jurisdictions will often need to consider at the outset: corporate criminal liability and double jeopardy. This chapter also sets out in summary the priorities and challenges companies face at each stage of an investigation – topics that are explored in more detail in the chapters that follow. One topic not explored, but likely to affect chapters in this guide with a European dimension, is the United Kingdom’s decision to leave the European Union. (At the time of writing, neither the date of any departure nor the precise basis on which any departure will occur is clear.) Considerable uncertainty still remains surrounding the consequences, legal and otherwise, of exit arrangements, which we hope will have become clearer by the next edition. Whatever the United Kingdom’s relationship with the European Union, co-operation between UK and US law enforcement is likely only to increase.

1.1Bases of corporate criminal liability

When corporate misconduct that potentially implicates multiple jurisdictions is uncovered, a critical preliminary question is: what is the test, in each jurisdiction, for corporate criminal liability? Not all countries have regimes for the criminal liability of companies, but for those jurisdictions that do, it typically rests on the premise that the acts of certain employees can be attributed to the corporation. However, the category of employees that can trigger corporate liability differs between jurisdictions – in some, it is limited to those with management responsibilities, whereas in others the category of employees who can trigger corporate liability is much broader. Generally speaking, the act triggering corporate liability must occur within the scope of the person’s activities as an employee. The act must also generally be done in the interest of, or for the benefit of, the corporation. The difference between theories of liability across jurisdictions inevitably poses challenges and complicates a company’s strategy for dealing with a global investigation, and in some instances can determine the outcome.

1.1.1Corporate criminal liability in the United Kingdom

In the United Kingdom, there are two main techniques to attribute to a corporate the acts and states of mind of the individuals it employs.

The first is by use of the ‘identification principle’ – or identification doctrine –whereby, subject to some limited exceptions, a company may be held liable for the criminal acts of those who represent its directing mind and will, and who control what it does. The relevant test is set out in the leading case of Tesco Ltd v. Nattrass:

Where a limited company is the employer difficult questions do arise in a wide variety of circumstances in deciding which of its officers or servants is to be identified with the company so that his guilt is the guilt of the company.
I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company’s servant or agent.^[2]

It is for the judge to decide, as a matter of law, whether there is evidence on which a jury could be sure that a particular individual was a ‘directing mind’ within the Tesco principles; and, if there is such evidence, the jury must then be sure that the particular individual was in fact a directing mind for the purposes of his or her particular actions. A directing mind is not necessarily limited to board directors; it may also be found in a delegate who has full discretion to act independently of instructions from the directors. In short, under the identification principle, before a corporate can be found guilty of a criminal offence, someone who represents its directing mind and will must also be found guilty. There cannot be an aggregation of acts or omissions to attribute criminal conduct to the company; rather, the criminal act or omission must be performed by a single person who can be identified with the corporate for it to be liable.

The second technique of attributing liability to a company under English law is through vicarious liability. Although, in general, in the United Kingdom a corporate entity may not be convicted for the criminal acts of its inferior employees or agents, there are some exceptions, the most important of which concerns statutory offences that impose an absolute duty on the employer, even where the employer has not authorised or consented to the criminal act.^[3]

Most significantly, statutory developments in the United Kingdom, starting with the offence of corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007, but more significantly the introduction of the Bribery Act 2010 and more recently Part 3 of the Criminal Finances Act 2017, represent a policy shift by introducing the offences of failure to prevent by an ‘associated person’ committed on behalf of the company, unless the company can demonstrate that it had adequate (or reasonable) procedures in place to prevent such offences occurring. These statutes have broad jurisdictional reach. Under the Bribery Act, for example, a corporate falling within the definition of a commercial organisation could be guilty even where no conduct occurred in, and where the associated person has no connection with, the United Kingdom.

The policy of the legislation to improve corporate governance is clear: Ministry of Justice guidance for the Bribery Act refers to the need for a corporate to create an ‘anti-bribery culture’.^[4] Similarly, a corporate is guilty of the offence of corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007 if the way in which its activities are managed or organised causes a person’s death where a duty of care was owed. Guidance issued for the corporate offences of failure to prevent the criminal facilitation of tax evasion, which closely mirrors the Bribery Act guidance, also refers to the culture of the organisation. For example, commitment from top-level management should foster ‘a culture within the relevant body in which activity intended to facilitate tax evasion is never acceptable’.^[5] Each piece of legislation and accompanying guidance invites consideration of the company’s culture – its attitudes, policies, systems and practices. The test for liability is closer to the test in the regulatory context where liability is based on broad principles and considers governance, and systems and controls.

It may be that this model of corporate criminal liability expands, in due course, to all economic crimes; on 13 January 2017 the government issued a Call for Evidence (which concluded in March 2017) to examine whether the law on corporate criminal liability in the United Kingdom needs reform. The government said that it was seeking to establish whether there is evidence of corporate crime going unpunished because of the current impediments presented by the identification doctrine, as well as evidence on the costs and benefits of further reform, bearing in mind the significant changes made in certain sectors to tackle misconduct. This, it indicated, would inform government decisions over whether to make further reforms.^[6] It set out five options for reform: amendment of the identification doctrine; a strict (vicarious) liability doctrine; a strict (direct) liability offence – effectively a widening of the current offence under section 7 of the UK Bribery Act (section 7 offence); incorporation of the failure-to-prevent wording into substantive offences, but with the burden on the prosecution to establish that the company had not taken adequate steps to prevent the unlawful conduct; and possible sector-by-sector regulatory reform (implementation in other sectors of arrangements similar to the new individual accountability regimes introduced for financial services). It is yet to be seen what impact political uncertainty in the United Kingdom will have on this thinking and whether the government decides to make fundamental changes once the more immediate challenges arising from the departure from the European Union have been addressed.

There are signs that there may be broad support for applying the approach taken with the section 7 offence to other economic offences. The clearest indication of this to date has been in the report published in March 2019 by a committee of the House of Lords examining the effectiveness of the UK Bribery Act. Reflecting evidence received from lawyers, NGOs and enforcement authorities (including on the practical challenges presented by the identification principle), it concluded that the section 7 offence is an effective tool and called on the UK government to expedite the decision on whether to apply the approach to other offences.^[7]

In the deferred prosecution agreement (DPA) context, the current high threshold for establishing corporate criminal liability in the United Kingdom is a problem inherent in the DPA regime: to enter into a DPA, a prosecutor must satisfy the evidential test, which requires either that the evidential stage of the Full Code Test in the Code for Crown Prosecutors is satisfied,^[8] or that:

there is at least a reasonable suspicion based upon some admissible evidence that [the company] has committed the offence, and there are reasonable grounds for believing that a continued investigation would provide further admissible evidence within a reasonable period of time, so that all the evidence together would be capable of establishing a realistic prospect of conviction in accordance with the Full Code Test.^[9]

For that reason many expected DPAs to be used principally for section 7 offences, where the identification principle does not present an obstacle to satisfying the evidential test. So too is the prospect of DPAs being used for the failure to prevent the facilitation of tax evasion offence specifically laid out in the government’s guidance.^[10] With all that said, two of the five DPAs concluded to date relate to fraud offences (Tesco Stores Ltd^[11] and Serco Geografix Ltd^[12]) where both sides of the negotiation have had to grapple with the identification principle and the need for agreement on the existence of a ‘directing mind and will’. To some extent this has also been the case in two of the three DPAs concerned with bribery. Sarclad Limited,^[13] in addition to section 7 culpability, also accepted primary liability in relation to conspiracies to corrupt and to bribe. Sarclad was, however, a small company and, as Sir Brian Leveson, then President of the King’s Bench Division, found, ‘there is no question but that [Sarclad] spiralled into criminality as a result of the conduct of a small number of senior executives bending to the will of agents.’^[14] In other words, the identification principle did not, in that case, present a problem. However, in Rolls-Royce, the DPA spanned three decades, and dealt with conduct much of which pre-dated the introduction of the Bribery Act 2010 and which formed the basis of seven counts of conspiracy to corrupt and false accounting. The remaining five counts related to section 7 offences. We can conclude that in that case, despite being considerably larger than Sarclad, the identification principle did not present evidential hurdles in reaching a settlement although the Serious Fraud Office (SFO) closed its related investigation of individuals.

The Call for Evidence recognised that ‘the effectiveness of the DPA as an alternative disposal depends on there being a realistic threat of prosecution’, which, they conclude, ‘lends weight to the suggestion that the “failure to prevent” model would offer a more realistic threat of successful prosecution than a case built on the application of the identification doctrine’.^[15] The failure-to-prevent model as enacted in the Bribery Act and now the Criminal Finances Act is described in the Call for Evidence as having ‘some clear advantages’. Apart from being readily applicable to offending by organisations of any size, the government is explicit in the power of the model to effect corporate cultural change by acting as ‘an incentive to companies to include the prevention of economic crime as an integral part of corporate governance and, should it afford a more realistic threat of prosecution, it might enhance the effectiveness of DPAs as an alternative to criminal prosecution’.^[16]

1.1.2Corporate criminal liability in the United States

The United States has long recognised principles of corporate liability based on common law and statutory bases.^[17] The application of these concepts, however, has evolved over time and was most recently shaped by the global financial crisis of 2007–2008, where the spectre of industry and market collapse loomed large. Today, increasing emphasis on individual liability and corporate culture continues to shape and refine this area of law.

In the United States, the common law of agency plays an important role. Specifically, under principles of respondeat superior, a company may be held vicariously liable for the illegal acts of any of its agents (including employees and contract personnel) so long as those actions were within the scope of the agents’ duties and were intended, even if only in part, to benefit the corporation.^[18] An act is considered ‘within the scope of an agent’s employment’ if the individual commits the act as part of his or her general line of work and with at least the partial intent to benefit the corporation.^[19] The corporation need not receive an actual benefit and may be liable for these offences even if it directs its agent not to commit the offence.^[20]

Moreover, even where no single employee has the requisite intent or knowledge to satisfy the scienter element of a crime, courts have recognised a ‘collective knowledge doctrine’ – where several employees collectively know enough to satisfy the intent or knowledge requirement, courts can impute this collective intent and knowledge to the corporation.^[21] While historically courts have used the doctrine to establish knowledge on the part of a corporation, in recent years the doctrine has also been used to establish a corporation’s intent (i.e., to establish whether the corporation acted wilfully).^[22] This doctrine is not universally accepted and some courts have limited it to circumstances where the company was flagrantly indifferent to the offences being committed.^[23]

Additionally, beyond the common law principle of respondeat superior, some legislation imposes criminal liability for companies, including in the fields of environmental and antitrust law.^[24] Such statutes have the dual effects of forcing companies to internalise the costs of their wrongdoing and of increasing the deterrent effect of the law or regulation. For example, in a field such as environmental law, where misconduct can have tremendous collateral and long-term consequences, the imposition of liability on the company acts as a strong incentive for corporate monitoring of employees and thorough due diligence and risk assessment.

Although corporate criminal liability has been a feature of US law since the nineteenth century,^[25] the criminal prosecution of corporations slowed abruptly and significantly – although temporarily – following the ill-fated prosecution of Arthur Andersen in 2002; the conviction (subsequently overturned by the US Supreme Court) resulted in the firm’s collapse and job losses for many thousands of innocent employees.^[26] In the aftermath of the Arthur Andersen case, prosecutors became far more hesitant to unleash the brute force of criminal charges against companies.^[27] Although limited prosecutions continued following Arthur Andersen, they were further reduced in number when, in the wake of the financial meltdown of 2007–2008, many feared that prosecuting big banks and large employers might lead to further economic turmoil.^[28] This idea, that an entity might be ‘too big to fail’, is now widely rejected by both prosecutors and the public, and there has since been a marked uptick in prosecutions. Today, prosecutors are generally less willing to accept the prospect of dire collateral consequences as justification for not pursuing criminal charges against corporations and have required guilty pleas from large corporations, previously considered ‘too big to jail’. As corporations survive – and even thrive – in the wake of guilty pleas, the spectre of the Arthur Andersen case recedes and the rigour with which prosecutors pursue companies continues to increase.^[29]

In recent years, the United States has increasingly placed emphasis on an organisation’s compliance culture and internal controls. The result is that self-reporting, full acceptance of responsibility and the disclosure of all relevant facts concerning culpable individuals (regardless of seniority) now form the basis on which the government awards co-operation credit. The Department of Justice’s (DOJ) Justice Manual, the Security and Exchange Commission’s (SEC) Seaboard factors, US Sentencing Guidelines and the ‘Yates Memorandum’, each of which is discussed in detail in later chapters, all reflect this pronounced shift in enforcement priorities. As a recent example, in late 2017 the DOJ introduced the Corporate Enforcement Policy, which creates a rebuttable presumption that the DOJ will grant a declination to a company in regard to Foreign Corrupt Practices Act (FCPA) violations where the company satisfies the requirements for voluntary self-disclosure, co-operation and remediation. The DOJ has also announced that it will use the Corporate Enforcement Policy as non-binding guidance in criminal cases outside the FCPA context.

Although the price of attaining corporate co-operation credit is often painfully high, most companies have no choice but to tolerate it; co-operation typically provides the best prospect for a company to prevent a criminal charge, minimise financial penalties and avoid other harsh collateral consequences, such as the imposition of a monitor. Still, co-operation is not for the faint of heart, and any company operating in the United States or subject to US jurisdiction should carefully consider the far-reaching consequences – both good and bad – of setting off down the often treacherous path of co-operation. Once a company voluntarily discloses misconduct to the government, the ability to defend the case and control the process is effectively relinquished, and a company will find it very difficult to withhold sensitive, embarrassing or even harmful information. Given the highly uncertain alternative to co-operation, however, most companies accept and embrace this new reality from the start of an internal investigation and understand that factual findings far more often than not – if they involve potential criminal misconduct – will be presented to law enforcement.^[30]

1.2Double jeopardy

Another key question in any global investigation – where misconduct crosses borders and where more than one enforcement authority may seek to assert jurisdiction – is the extent to which different authorities can sanction the same or similar conduct. While domestic constitutional provisions on double jeopardy are similar between nation states, no universally accepted international norm exists, and the protection afforded by the laws in one country may offer no protection in another. This can present a major difficulty to achieving a satisfactory global settlement for a client.

The doctrine of double jeopardy is that a person should not be tried twice for the same offence.^[31] Its underlying objective is to bring finality to criminal proceedings against individuals and companies in specific circumstances. Double jeopardy applies to criminal proceedings, but has been held by the European Court of Human Rights (ECtHR) to encompass an administrative penalty, in circumstances where that penalty was classified as a criminal penalty because of the nature of the charges and the severity of the punishment.^[32]

In the United Kingdom, there are two essential conditions for the doctrine to apply. First, the case must be ‘finally disposed of’ and second, any penalty imposed must actually have been enforced or be in the process of being enforced. The rationale for the doctrine is that it confers protection on the person (individual or corporate) from the risk of repeated prosecution by the State with its greater resources.^[33] Reflecting similar concerns, the concept of double jeopardy in the United States is rooted in the Fifth Amendment to the US Constitution, which reads in relevant part: ‘nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb’.^[34] These twenty words have generated tens – if not hundreds – of thousands of pages of case law and are worthy of a treatise in themselves. Distilled to its essence, however, double jeopardy in the United States applies to prohibit subsequent prosecution or multiple punishments of an individual or corporation for the same conduct.^[35] Nevertheless, the doctrine of double jeopardy is complicated by the question of dual sovereignty, which holds that double jeopardy’s bar against successive prosecution for the same conduct does not apply when the prior prosecution was brought by a separate sovereign, for example, the US government is not barred from bringing a case where a state or another country has already prosecuted the defendant for the same conduct and vice versa.

1.2.1Double jeopardy in the United Kingdom

In England, the principle of double jeopardy is well established and has its origins in 12th-century common and ecclesiastical law. The modern principle of double jeopardy in English law was set out by the Divisional Court in Fofana v. Deputy Prosecutor Thubin, Tribunal de Grande Instance de Meaux, France:

The authorities establish two circumstances in English law that offend the principle of double jeopardy:

(1) Following an acquittal or conviction for an offence, which is the same in fact and law – autrefois acquit or convict; and

(2) following a trial for any offence which was founded on ‘the same or substantially the same facts’, where the court would normally consider it right to stay the prosecution as an abuse of process and/or unless the prosecution can show ‘special circumstances’ why another trial should take place.^[36]

The Divisional Court referred expressly to the United Kingdom’s adoption of Article 54 of the Schengen Convention and its underlying rationale.^[37 This is particularly important, as Article 54 states that a person (or company) whose case has been ‘finally disposed of’ by one Contracting Party may not be prosecuted by another for the ‘same acts’, provided that any penalty imposed has been enforced or is being enforced.^[38]

Throughout the judgment, the Court stressed the need to look at the under­lying acts behind each charge, rather than the label of the charge itself. In the event, the Court stayed the extradition proceedings on the basis that, although the extradition offence specified in the warrant was not based exactly, or solely, on the same facts as those charged in the UK indictment, there was such significant overlap between them as to require the proceedings to be stayed.^[39]

In the case of DePuy International Limited, the SFO applied the double jeopardy principle and confirmed that it will likely arise where there is or has been an investigation into the defendant’s conduct by another authority overseas and the essence of a criminal offence in England and Wales is the same offence for which the defendant already faces trial, or has been acquitted or convicted. DePuy was a UK subsidiary of Johnson & Johnson, a US company that self-reported to the DOJ and the SEC bribery of foreign officials by DePuy, as well as other offences that did not involve the company, under the FCPA. Johnson & Johnson agreed to a DPA with the DOJ covering the FCPA violations and a civil sanction with the SEC that encompassed criminal and civil fines amounting to US$70 million.

The DOJ informed the SFO of the criminal conduct and the SFO commenced an investigation into DePuy and Mr Dougall, the company’s marketing manager. The SFO took the view that the DPA agreed by the parent company with the DOJ had the legal character of a formally concluded prosecution that punished the same conduct that had formed the basis of the SFO investigation. It determined that the rule against double jeopardy prevented any further criminal sanction being applied in the United Kingdom and instead pursued the company using a civil route to obtain the proceeds of crime. The civil sum obtained by the SFO took into account the global settlement in the United States, including the civil fines paid and recovered of £4.8 million.

Whether a DPA under the United Kingdom’s regime would qualify for double jeopardy protection remains an open question. Although entry into a DPA does not constitute a criminal conviction, it does become the final disposal of specific intended criminal proceedings on its expiry and is almost certain to include the enforcement of a fine against the corporate subject. Furthermore, prosecution may follow in the event of a breach of the DPA.

The DePuy case developed further in July 2019 with proceedings being brought in Greece against three UK nationals, Michael Dormer, Johnson & Johnson’s former company group chairman, Gary Fitzpatrick, former vice president for finance at DePuy, and John Coppack, DePuy’s former company secretary, as well as a number of Greek nationals. The three UK nationals were convicted of fraud and money laundering offences and sentenced to seven years in prison. As at the date of publication, these sentences are under appeal.

In addition to the convictions, the court acquitted six defendants of the charges, including DePuy’s former legal director, Irene Kyriakides, and its former vice president, Robert John Dougall. Dougall was acquitted of the charges on double jeopardy grounds having already been convicted of taking part in the same bribery scheme in the United Kingdom in 2010. Some of the evidence Greek prosecutors sought to rely on to build a case against Dougall had come from the SFO following Dougall’s co-operation under a section 73 Serious Organised Crime and Police Act 2005 agreement. At the Greek trial, the SFO’s associate general counsel, Raymond Emson, testified to say that the agency had not consented to the use of its evidence to prosecute Dougall in Greece and that its continued use could harm UK public interest.^[40]

1.2.2Double jeopardy in the United States

As noted above, the Fifth Amendment to the US Constitution contains a double jeopardy clause. Generally speaking, the double jeopardy clause prohibits the US federal government, or any individual state, from twice prosecuting someone for the same conduct if that person has already been acquitted or convicted (or after certain mistrials once a jury has been empanelled and ‘jeopardy has attached’).^[41] It also prohibits courts from imposing multiple punishments for the same conduct, which may be covered in multiple charges in an indictment.^[42] The double jeopardy clause of the Fifth Amendment – unlike its privilege against self-incrimination – applies to both individuals and corporations.^[43]

The US Supreme Court, however, has long recognised a significant exception to the double jeopardy clause, known as the ‘dual sovereignty’ doctrine. Pursuant to this, double jeopardy does not prohibit the federal government from prosecuting a person previously convicted or acquitted by a state, or vice versa, or one state from prosecuting a person convicted or acquitted by another.^[44] In other words, under this doctrine the US federal government can prosecute individuals and entities for the exact same conduct that they have previously been tried for in one of the states, regardless of whether they were convicted or acquitted in that prior case.^[45]

In 2019, the Supreme Court, in Gamble v. United States, once again reaffirmed the dual sovereignty doctrine in upholding successive prosecutions of an individual by the state of Alabama and then by the United States for the same essential conduct.^[46] Although Gamble involved purely US domestic conduct, the Court highlighted that the dual sovereignty doctrine helped ensure the United States retained authority to prosecute extraterritorial conduct – regardless of a foreign prosecution – to vindicate US interests. In arriving at this conclusion, the Court observed:

There are other reasons not to offload all prosecutions for crimes involving Americans abroad. We may lack confidence in the competence or honesty of the other country’s legal system. Less cynically, we may think that special protection for US nationals serves key national interests related to security, trade, commerce, or scholarship. Such interests might also give us a stake in punishing crimes committed by US nationals abroad – especially crimes that might do harm to our national security or foreign relations.^[47]

The Court’s cynicism aside, this decision clearly underscores the prudence of pre-resolution engagement with US authorities for companies and individuals facing investigations in a foreign jurisdiction where US interests might be implicated.

Nevertheless, while the law clearly allows successive prosecutions in such instances, to blunt the potentially harsh impact of the dual sovereignty exception, the DOJ has adopted a policy that precludes the initiation of federal prosecution following a prior state (or federal) prosecution based on substantially the same facts. The Dual and Successive Prosecution Policy (the Petite Policy) seeks:

to vindicate substantial federal interests through appropriate federal prosecutions, to protect persons charged with criminal conduct from the burdens associated with multiple prosecutions and punishments for substantially the same act(s) or transaction(s), to promote efficient utilization of Department resources, and to promote coordination and cooperation between federal and state prosecutors.^[48]

To overcome this policy, federal prosecutors must not only comply with the standards applicable for commencing any federal prosecution (i.e., that the defendant’s conduct constitutes a federal offence and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact), but they must also obtain the approval of the appropriate Assistant Attorney General and establish that (1) the matter involves a substantial federal interest; and (2) the prior prosecution left that federal interest ‘demonstrably unvindicated’. It is the second of these two factors that provides the greatest protection against successive prosecutions, as, under this policy, the DOJ ‘will presume that a prior prosecution, regardless of result, has vindicated the relevant federal interest’.^[49] While this presumption can, of course, be overcome (and the policy lists the factors relevant to make such an assessment),^[50] federal prosecutors traditionally reserve such challenges for those cases where it perceives the preceding result to have been manifestly unjust.

Notably, the Petite Policy does not expressly preclude the DOJ from bringing criminal charges based on the same conduct previously prosecuted by a foreign sovereign. Nevertheless, similar, if not identical, principles are at play whether the prior prosecution was brought by a state or federal government, or a foreign sovereign. Counsel endeavouring to persuade the DOJ to defer to the foreign result certainly should be prepared to demonstrate why a successive prosecution would contravene that policy. The DOJ will, of course, consider if US interests have been sufficiently redressed by the foreign prosecution.^[51] And, in the cases of corporate criminal activity, it is likely that the DOJ will seek to exact a penalty based on the harm to its interests.

Still, if a prior prosecution by a foreign sovereign has resulted in adequate penalties proportionate to the conduct, the DOJ may well decline or defer the prosecution or, perhaps, offset any US fines or penalties by the amounts paid abroad, particularly in the corporate context. This is particularly likely in the wake of the DOJ’s new policy, announced in May 2018 and since incorporated into the DOJ’s Justice Manual, to discourage the ‘piling on’ of multiple penalties by the DOJ and foreign and domestic agencies when they are investigating the same corporate misconduct.^[52] The policy articulates certain factors to be used when determining whether the imposition of multiple penalties would nevertheless serve the interest of justice, and therefore there is no certainty that prior prosecution by a foreign sovereign will result in no or lenient punishment by the United States.

The double jeopardy clause generally does not restrict the ability of the US government to pursue successive criminal and administrative remedies for the same conduct.^[53] Indeed, while it is more common for administrative investigations to run in parallel with DOJ investigations, double jeopardy is not offended when a criminal prosecution follows the imposition of an administrative sanction (or vice versa). As the Supreme Court held in Hudson v. United States, the double jeopardy clause does not apply to non-criminal penalties.^[54] Though the Court in Hudson recognised that criminal charges following in the wake of stinging administrative penalties could potentially implicate double jeopardy concerns, a defendant mounting such a challenge must establish by the ‘clearest proof’ that the administrative penalty was so punitive as to render it criminal for double jeopardy purposes – a very high hurdle indeed.^[55]

1.2.3The application of double jeopardy in the EU and under the ECHR

Increased focus on combating overseas corruption following the signing of the Organisation for Economic Co-operation and Development’s Convention on Combating Bribery of Foreign Public Officials in International Business Transactions has resulted in a rise in multiple prosecutions. A person or company engaging in overseas corruption faces the prospect of prosecution in any signatory country where he, she or the company may have sufficient involvement, either by citizenship or place of incorporation, or as a place where relevant acts took place.

The picture is evolving on both the supranational and national levels, and this is discussed below. The double jeopardy principle is set out in Article 54 of the 1985 Schengen Agreement.^[56] On 29 May 2000, the United Kingdom adopted Article 54 of the Schengen Convention and so it presently forms part of the domestic law.^[57] The rationale for the application of the principle across the European Union was made clear in R v. Gozutok and Brugge,^[58] as permitting finality in criminal proceedings and also engendering mutual trust in national criminal justice systems by requiring that each Member State recognise the criminal laws in force in the others even when the outcome would be different if its own national law had been applied.

The Council Framework Decision 2009 on the prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings (the EU Framework Decision)^[59] sets out measures to prevent situations where the same person is subject to parallel criminal proceedings in different Member States in respect of the same facts that might lead to the final disposal of those proceedings in two or more Member States.

The EU Framework Decision is constitutionally binding on the United Kingdom as a Member State and as such must be taken into account by the SFO in its decision whether to open a criminal investigation. The double jeopardy principle is not a bar to a criminal investigation, however, and the SFO has very wide discretion in deciding whether to carry out an investigation.^[60]

1.2.4European human rights jurisprudence

1.2.4.1European Court of Human Rights (ECtHR)

Article 4 of Protocol 7 to the European Convention on Human Rights (ECHR) specifically recognises the double jeopardy principle.^[61]

The importance of the principle was emphasised in the ECtHR’s Chamber judgment in the case of Grande Stevens and Others v. Italy.^[62] Here, the applicants received an administrative penalty from Consob, the Italian Companies and Stock Exchange Commission, in respect of providing false or misleading information concerning financial instruments. The penalty took the form of substantial fines and various banning orders. Subsequently, the applicants were committed for trial before the Turin District Court in respect of criminal allegations of market abuse arising out of the same facts.

The applicants argued before the ECtHR that the subsequent criminal proceedings were in breach of Article 4 as the applicants had already been subject to a penalty that was akin to a criminal penalty, even though it was imposed in an administrative context. The court accepted their argument and ruled that the administrative penalty should be considered a criminal penalty for the purposes of the ECHR and that Article 4 prevented the criminal proceedings from taking place on the grounds of double jeopardy.^[63]

1.2.4.2The Court of Justice of the European Union (CJEU)

2018 saw three further cases arising in Italy where the principle of double jeopardy was considered, again in relation to administrative penalties imposed by Consob which were severe enough to be considered criminal in nature. All these cases were referred to the CJEU by Italy’s Supreme Court of Cassation for a preliminary ruling considering Article 50 of the Charter of Fundamental Rights of the European Union and Article 4, Protocol 7 ECHR.

In the Ricucci matter,^[64] the defendant had been fined €10.2 million by Consob, as well as being convicted in criminal proceedings resulting in a sentence of four years’ imprisonment for alleged market manipulation. The Rome District Court subsequently pardoned Ricucci in a final judgment.

Ricucci challenged Consob’s fine in Rome’s Court of Appeal, which reduced it to €5 million in 2009. He then took his appeal to Italy’s Supreme Court of Cassation, where he argued that his 2008 criminal conviction and subsequent pardon should negate any Consob proceedings. The Court of Appeal asked the CJEU whether the ne bis in idem principle in Article 50 gives individuals a direct right that can be applied to negate dual proceedings. The Court also asked the CJEU whether the ne bis in idem principle precludes Italy’s law allowing administrative proceedings to be brought for market manipulation after a defendant has been finally convicted.

The CJEU held that dual proceedings can be pursued if they meet ‘an objective of general interest’ – in this case, to protect the European Union’s financial interests. However, the national legislation must also ensure that proceedings and the severity of penalties are limited to ‘what is strictly necessary’ where dual proceedings are to be pursued. Italy’s market manipulation law did not respect the principle of proportionality, and the CJEU ruled that, if a criminal penalty already punishes misconduct in an ‘effective, proportionate and dissuasive manner’, administrative proceedings of a criminal nature are gratuitous and so go beyond ‘what is strictly necessary’.

In two other cases, Di Puma and Zecca,^[65] appeals were made against Consob fines, with the defendants arguing that they should not face administrative charges for insider trading when a criminal court had found no misconduct. The appeals court asked the CJEU whether, in light of ne bis in idem, a court would violate an EU directive that requires Member States to provide ‘effective, proportionate and dissuasive penalties’ for insider trading if it did not bring administrative sanctions after a criminal court found no wrongdoing.

The CJEU determined in its preliminary ruling that not bringing administrative sanctions after a criminal court has found no misconduct is in accordance with EU law because of the principle of res judicata. It ruled that a defendant who is cleared of a criminal charge should not be the subject of administrative proceedings for the same matter.

The CJEU has considered the application of the double jeopardy principle to the Schengen Agreement in the context of an individual under investigation in Poland and Germany for allegations of extortion.^[66] In this case it upheld the German prosecutor’s decision that the double jeopardy principle did not apply. The matter had not been finally disposed of as no detailed investigation had taken place.

On 15 November 2016, the CJEU rejected an appeal brought by two applicants who were penalised by the Norwegian Tax Authority for failing to pay tax in 2008 and then convicted of aggravated tax fraud in 2009 by the National Authority for Investigation and Prosecution of Economic Crime. The applicants claimed they were being prosecuted twice for the same misconduct in violation of double jeopardy rules. Rejecting the application, the court held that ECHR double jeopardy rules are not violated where the contracting party could satisfy the court that dual proceedings are sufficiently connected in time and space so as to represent a coherent whole, rather than two sets of proceedings.^[67]

1.2.5Double jeopardy in France

Recent developments in France continue to warrant a special mention as the issue of double jeopardy and its application has come before the courts on a number of occasions in recent years. The appellate courts have considered the extent to which domestic law will recognise convictions in the United States as a bar to prosecution, as well as the status of US DPAs in domestic proceedings. On 18 June 2015, a criminal court in Paris acquitted four French companies that were accused of paying bribes in connection with the United Nations’ Oil-For-Food Programme on the grounds that they (or their corporate parents) had already signed DPAs with the DOJ. The rationale given was that it was inconsistent with French international obligations to prosecute the companies for a second time on what the Court found to be the same facts. The prosecutor’s appeal against the acquittal was successful and in February 2016 a Paris court fined Total SA €750,000 for corrupting foreign officials.

Separate criminal proceedings were successfully pursued in France against Total for corruption of a foreign public agent (a senior energy official in Iran) resulting in a €500,000 fine being imposed in December 2018. The prosecution unsuccessfully sought confiscation €250,000 it had argued were the proceeds of the corruption. In relation to the same matters, Total entered into a US$245.2 million, three-year DPA with the DOJ and disgorged US$153 million in an SEC cease-and-desist order. The DPA expired in November 2016.

On 26 February 2018, the Court of Cassation in Paris upheld a decision to fine Swiss energy company Vitol €300,000 for making corrupt payments to the Iraq government as part of the United Nations Oil-For-Food programme.^[68] The Court rejected Vitol’s argument that it was protected from criminal proceedings in France because it had already been punished in the United States. The Court found that double jeopardy did not apply because the company had pleaded guilty to a different charge in US proceedings^[69] and stated that France must maintain its right to punish companies that break French law. In its ruling, the Court of Cassation considered double jeopardy protections enshrined in both France’s Penal Code and the Charter of Fundamental Rights of the European Union. It concluded that both those protections fail to immunise a company from being prosecuted twice if part of the offence occurred within France and if the misconduct is prosecuted by a country that is not bound by French or EU law, such as the United States.^[70] This significantly weakens the double jeopardy defence, in circumstances where some of the misconduct occurred in France.

These cases demonstrate the potential unfairness to a corporate that has effectively admitted the offence in another jurisdiction to obtain a DPA and then finds those admissions being used against it in a jurisdiction that does not recognise the DPA under the double jeopardy doctrine.

1.2.6Conclusion

At first sight, the doctrine of double jeopardy appears to be a substantial protection against repeated prosecution in respect of the same conduct. However, although the doctrine may in some circumstances protect against a similar prosecution within the state, or member group such as the European Union, it may well fail to protect against a prosecution brought by a separate state. France’s decision not to apply the principle in circumstances where part of the offence occurred within its sovereign territory is a significant restriction on its scope.

As many countries do not recognise a foreign conviction for the purposes of double jeopardy, it is not possible to reassure a corporate client that a criminal settlement in one jurisdiction will qualify as a settlement in others as well. Further, entering into a DPA in one jurisdiction may risk damaging the client’s interests in another if the DPA is not recognised as a bar to prosecution, but the admissions it made to secure the DPA are admissible against it in other jurisdictions.

The picture is uncertain and many questions remain unanswered. These include:

• Should there be international recognition of criminal convictions for the purposes of double jeopardy, to encourage global settlements?
• Should DPAs be given the status of a criminal conviction for the purposes of double jeopardy?
• Should regulatory sanctions qualify for the purposes of double jeopardy?

Until these issues are resolved, a corporate client will only be able to place very limited reliance on the double jeopardy principle as a bar to further prosecution in respect of the same conduct. At present, the only safe course will be to seek to negotiate a global settlement with all the states most likely to take an interest in the conduct, before admitting guilt in any state. Whether this is practicable will vary from case to case.

In relation to individuals, an issue of note was recently referred to the CJEU stemming from a dispute between Hungary and Croatia in the case of AY.^[71] The Croatian court had sought a preliminary ruling on whether the double jeopardy principle under EU law means Member States may refuse to enforce European arrest warrant (EAW) requests in cases where its investigations treated individuals as witnesses and not suspects. Specifically, Croatia asked whether Hungary could refuse to enforce two EAW requests it issued for an individual, named only as AY, to prevent damage to reputation, after AY was treated as a witness rather than a suspect in an investigation conducted by the Hungarian prosecutor’s office. In its judgment of July 2018, the CJEU stated that execution of an EAW cannot be refused on the ground that a prosecutor had closed a criminal investigation where, during that investigation, the requested person was interviewed as a witness only. The Court stated that the judicial authorities of the Member States must adopt a decision on any EAW communicated to them.

1.3The stages of an investigation

Issues that at first glance may appear to be isolated or technical can quickly spread across borders and escalate into multifaceted threats to businesses, reputations and careers. Even within jurisdictions, different enforcement authorities operate within their own, often complex, legal and technical frameworks. Any investigation, whether an internal fact-finding inquiry aimed at establishing the size and nature of a problem or one commenced by an enforcement authority, is inevitably a dynamic process. There can be no ‘one-size-fits-all’ approach and the scope of an investigation can change significantly as it progresses.

Nonetheless, it is possible to identify three broad, and often overlapping, phases to an investigation, namely the commencement, information-gathering and disposal phases. Particular challenges arise, and sometimes recur, at each of these.

Conducting and handling investigations, limiting the damage they cause and bringing them to as swift and efficient a conclusion as possible is an art rather than a science. It requires advisers to anticipate, balance and respond to a wide variety of challenges, and to appreciate the potential ramifications of every interaction with a diverse cast of characters.

1.3.1Commencement

When deciding whether or how to commence an investigation, or how best to respond to one already commenced by an enforcement authority, it is axiomatic that the very first task to be carried out must be to establish as precisely as possible the size and shape of the problem. Which corporate entities and individuals are regarded as subjects of the investigation? Which offences are they thought to have committed, and which regulatory provisions might they have infringed? Are any other local or foreign agencies investigating (or likely to investigate) this misconduct?

In some cases (typically those involving alleged breaches of regulatory requirements), the answers will be self-evident from notices from authorities confirming the commencement of an investigation or the appointment of investigators, and there may be opportunities to seek to establish more detail through scoping discussions. However, in other cases (typically those involving alleged criminal misconduct), the investigators will not necessarily provide details or opportunities for discussion. In some cases, the first indication an individual or entity receives of an investigation by an enforcement authority will be a requirement to attend an interview or provide documents, or, worse still, a knock at the door from investigating officers. In all cases – whether or not enforcement authorities are already aware of alleged misconduct – steps must be taken immediately upon discovery of the alleged misconduct to preserve and to avoid the destruction or deletion (inadvertent or otherwise) of documents that are, or could become, relevant. In large multinational organisations, identifying the custodians of these documents, drafting and disseminating appropriately inclusive document-retention notices, gathering the material and suspending automatic deletion policies is a substantial undertaking in itself.

Where authorities are not already aware of apparent misconduct, considering whether, when and how to disclose matters to them will be an immediate priority. In some cases, specific regulatory obligations will require disclosures. In others, it may be appropriate to voluntarily report matters to maximise the prospects of a consensual resolution on favourable terms. Both types of disclosures require careful handling. Consideration must be given to potential consequences, both for those individuals or corporates already implicated in alleged misconduct, and for those that may become so. Where information is disclosed voluntarily, wider considerations about whether co-operation will be appropriate and would be likely to encourage the relevant enforcement authority to curtail its investigation (and on which terms) should be borne in mind. Identifying the potential risks and benefits will typically involve assessing the enforcement policy and posture of each agency involved (and often of individual investigators) and its ability and propensity to pass information to other investigating or prosecuting authorities (both within and between jurisdictions).

These assessments will inform the answers to a number of practical questions:

• Should an initial notification be made before a full internal investigation has been undertaken?
• What should be disclosed at the end of the internal investigation and to whom?
• Should information be disclosed to the authorities orally rather than in writing?
• Will investigators regard anything less than unfettered access to witnesses’ first accounts and other underlying documents as true co-operation enabling them to contemplate a negotiated outcome?
• Is it feasible to maintain claims to legal professional privilege or challenge investigators’ actions or demands while still seeking to claim that the subjects of the investigation are co-operating?

Some of these questions have been addressed in the SFO’s Corporate Co-operation Guidance, published in August 2019.^[72] This provides greater clarity on the circumstances in which the SFO will be prepared to commence discussions with a view to potentially concluding investigations by way of DPAs.

Choices made at this stage about how much information and control to relinquish over the investigative process and the robustness of the line to be taken with investigators in relation to issues such as privilege can be crucial in setting the tone for the rest of the investigation, and any proceedings that flow from it. It is critical for companies, when deciding which stance to take at the commencement stage, to anticipate what enforcement authorities and courts may require at later stages and what the collateral effect of decisions about how much information to provide and how proactively to assist those authorities may be. The DPA agreed between the SFO and Sarclad illustrates this point. Following the conclusion of the DPA, former senior executives being prosecuted by the SFO sought to compel the SFO to obtain and disclose to them copies of notes of interviews relevant to the SFO’s decision to enter into a DPA with the company.^[73] The notes had not been previously provided to the SFO during DPA negotiations as Sarclad declined to waive privilege and the SFO agreed to proceed on the basis of summaries of the interviews prepared on the basis of ‘oral proffers’ delivered by Sarclad’s lawyers. Although the High Court, hearing the challenge brought by the former senior executives being prosecuted (and who were subsequently acquitted in July 2019) declined to order the SFO to obtain and disclose the additional documents, it deprecated the approach taken by the SFO. As a consequence, as is confirmed in its Corporate Co-operation Guidance, the SFO is likely to take a more stringent approach when deciding which documents it requires during DPA negotiations.

Before the publication of the third edition of this text, the Court of Appeal allowed ENRC’s appeal against the first-instance decision, upholding its claim to litigation privilege over the disputed documents, including notes of witness interviews.74] Under the leadership of the Director of the SFO, Lisa Osofsky, the SFO decided not to appeal that decision. Given the importance of privilege in the context of global investigations, the decision was welcomed by lawyers across the globe – the Court of Appeal’s judgment aligned the law more closely with the law of privilege in the United States and its clear articulation of the applicability of litigation privilege in the context of a criminal investigation is likely to mean that the SFO will be less aggressive in making assertions that privilege claims by companies over documents created during the course of internal investigations are ill-founded than it was before the ruling. However, it is unlikely that the SFO will be any less willing to request waivers of privilege, particularly since the Court of Appeal judgment was clear that its decision should not ‘impact adversely’ on the deferred prosecution regime in the United Kingdom, and emphasising the relevance of waiver to an assessment of a company’s co-operation in reaching resolutions.^[75] The SFO’s Corporate Co-operation Guidance addresses this point but does not provide a definitive answer. It acknowledges (as is evident from the DPAs concluded to date) that declining to waive privilege is not necessarily fatal to a settlement subsequently being agreed and simply states that a company declining to waive privilege does not attain the corresponding benefit set out in the DPA Code of Practice, but will not be penalised by the SFO. In practice, this superficially neutral stance is likely to translate into significantly more difficult discussions, both with the SFO about whether it is appropriate to commence DPA negotiations, and in due course with the SFO and the court about whether any proposed DPA should be concluded and approved. Decisions as to the approach taken by a company to privilege, regardless of whether privilege can properly be asserted or not, will continue to be crucial decisions that set the tone and, possibly, direction of an investigation and any proceedings flowing from it.

In cases involving allegations made by or against directors or employees, early determinations need to be made as to whether any specific whistleblower protection legislation or rules have been engaged and whether action should be taken to suspend or dismiss those individuals, or at least limit their involvement in decision-making in relation to investigations.

1.3.2Information gathering

Once the scope of an investigation has been determined, the process of gathering and analysing relevant information, whether in documentary or electronic form or in the form of witnesses’ accounts, commences. Since the advent of the European investigation order (introduced in England and Wales in 2017), the process of gathering information across borders has been a much simpler and quicker process for enforcement authorities in Europe.^[76] In October 2019, the SFO’s (and other agencies’) powers were further extended as new legislation came into force enabling them to apply to the court to secure access to electronic data held by communications services providers overseas (provided certain inter­national co-operation agreements are in place in the jurisdiction concerned).^[77]

In substantial cross-border investigations, the task of collating relevant ­material, ascertaining whether it is responsive to requirements to produce documents or provide information (or whether it should otherwise be produced to demonstrate a co-operative stance), and filtering it to remove material exempt from disclosure is time- and resource-intensive. It often requires specialist technical input and expertise. Information should not be treated as a readily portable commodity, and careful consideration should be given to applicable data protection and other confidentiality constraints before information is transferred between jurisdictions during internal investigations or produced to investigating authorities.^[78]

Witness interviews during internal investigations raise no fewer questions. When should interviews take place? Who should be present? What material and questions is it appropriate to put to them during such interviews? Should they be represented (and, if so, at whose expense)? Taking a wider view across all jurisdictions in which action could be taken, and from the individual’s perspective, is it in the interests of subjects of the investigation to provide information voluntarily, or should they insist on being compelled to do so?

Of course, where investigations by the authorities have already begun, investigating authorities will be keen to interview individuals who are suspects. Depending on the nature of the investigation and the allegations against them, it may be open to individuals to remain silent in response to questions (although this course of action may limit their options in any proceedings flowing from the investigation). Conversely, it may serve such individuals’ interests to proactively volunteer information to secure more lenient treatment by authorities, or ultimately the courts.

1.3.3Disposal

As the information gathering progresses, and evidence is assimilated and understood, a decision will need to be reached as to whether this may be resolved through negotiation, or whether the individual or company disputes the allegations entirely or is unprepared to reach any resolution or enter into any settlement that requires admissions of misconduct.

Where settlement is an option, from economic, commercial and reputational standpoints, settling with as many investigating authorities as quickly and on the most favourable terms possible is likely to be preferable. Particularly in regulatory enforcement investigations involving companies, it is often clear from the commencement phase that this will be the most likely outcome, and dialogue throughout the investigation will have to be directed towards this outcome.

It should not be assumed that the process leading to a negotiated disposal is a smooth or simple one. Even in cases involving only one enforcement authority, the legislation and rules governing settlement and the calculation of penalties are complex. Although the discounts available for early settlement are potentially significant, the processes leading to them can involve successive rounds of proposals, counterproposals, representations and negotiations. In criminal investigations, in jurisdictions where it is possible to achieve negotiated outcomes as an alternative to prosecution, although the degree of scrutiny varies depending on which jurisdiction is concerned, such settlements will also be examined by a judge.

Complexity is multiplied where multiple authorities or jurisdictions are involved, or where it is possible that a finding, even if it does not involve any admission of liability, may fuel subsequent litigation from third parties such as erstwhile customers, employees or shareholders.

Although major investigations are unlikely to have progressed to the disposal stage without attracting at least some publicity, it is at this stage that press and political interest will peak. Enforcement authorities usually must make the outcomes of investigations public (and indeed corporate entities themselves may be obliged to do so if their securities are listed).

Other difficult questions arise with negotiated disposals. What will be the size of the fines, if any? For individuals, is there the prospect of imprisonment or other career-threatening penalties? Will it be possible to settle with all interested investigating authorities? For the corporate to bring matters to a close, will it be necessary to assist authorities in their pursuit of individuals? Will the disposal of the investigations mark the end of the matter, or simply the start of a new phase of litigation or the commencement of a long process of reporting to a monitor and heightened levels of regulatory scrutiny or supervision? What can be said publicly by the subjects of the investigations?

With these themes in mind, we turn now to a detailed consideration of each stage in the chapters that follow.

Footnotes