Individual Penalties Third-Party Rights: The UK Perspective

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39.1 Individuals: criminal liability

The Serious Fraud Office (SFO) has agreed to a total of 12 deferred prosecution agreements (DPAs)[2] with corporates since their introduction in February 2014.[3] On 5 December 2023, the Crown Prosecution Service (CPS) entered into its first DPA with Entain plc, the global online sports betting and gaming group, to settle an investigation conducted by HM Revenue and Customs (HMRC) into alleged bribery offences related to its Turkish-facing business. As part of the DPA, Entain agreed to pay a financial penalty of £585 million (including disgorgement of profits), a charitable donation of £20 million and a contribution of £10 million to the CPS’s and HMRC’s costs.[4]

Terms of a DPA will likely require the company to cooperate on an ongoing basis, which may include cooperation in the prosecution of individuals. To date, the SFO has had limited success in prosecuting individuals involved in the conduct related to a DPA and has dropped a number of its larger investigations into individuals. Two individuals, who had been charged in relation to conduct connected to the Serco Geografix DPA, were acquitted following evidence-disclosure errors by the SFO.[5] Similarly, in March 2023, the SFO closed its near decade-long case against three individuals, who had been charged in relation to conduct connected to the G4S DPA, after failing to resolve outstanding disclosure issues.[6] Despite these setbacks, also in March 2023, the SFO obtained its first successful DPA-related conviction in relation to conduct connected to the Bluu Solutions Limited and Tetris Projects Limited DPAs.[7]

Unconnected to DPAs, the SFO has encountered a number of recent setbacks in its prosecution of individuals. Between December 2021 and July 2022, the convictions of two former Unaoil executives and a former SBM Offshore executive were overturned by the Court of Appeal, primarily on the basis that the SFO had failed in its disclosure obligations. The convictions were originally obtained in connection with a conspiracy to make corrupt payments to secure lucrative oil contracts in Iraq.[8] In July 2022, a report into the SFO’s handling of the Unaoil case found that there had been ‘fundamental failures’ by the SFO, including in connection with the agency’s resourcing, culture and decision-making.[9]

Against this backdrop of mixed results, the SFO reiterated its commitment to securing a conviction rate of at least 60 per cent in its prosecution of defendants – including individuals – in its Strategic Plan, published in April 2022.[10]

SFO guidance also indicates that the agency will continue to focus on the prosecution of individuals, while protecting the rights of third parties. The SFO’s August 2019 Corporate Co-operation Guidance, which forms part of its Operational Handbook, outlines what the SFO expects of corporates seeking to gain cooperation credit when providing information in respect of individuals. On 23 October 2020, the SFO updated its Operational Handbook, publishing a new chapter on DPAs. The guidance emphasises the protection of the identity of individuals connected to the company entering the DPA, noting that consideration must be given to the ‘necessity for and impact of the identities of third parties being published’. The SFO also notes that consideration should be given as to whether identifying a third party would comply with the Data Protection Act 2018 and the European Convention on Human Rights. Although the new guidance does not prohibit naming individuals in a DPA, it is a change to the DPA Code of Practice, which stood silent on the matter.

Potential reform of corporate criminal liability in England and Wales could lead to an increase in the prosecutions against individuals involved in corporate wrongdoing. In 2019, the acquittal of a former chief executive of Barclays by the Court of Appeal on the basis that he was not the directing mind of the bank[11] contributed to the renewed debate regarding the scope of corporate criminal liability in England and Wales. In June 2021, the Law Commission launched a consultation on corporate criminal liability,[12] which led to the Commission publishing an options paper in June 2022 outlining the possibility of expanding the ‘failure to prevent’ corporate criminal offences to fraud.[13]

The Economic Crime and Corporate Transparency Act, which received royal assent on 26 October 2023, includes a ‘failure to prevent fraud’ offence under which a corporation will be guilty of a crime if it fails to prevent fraud by an ‘associated person’ (i.e., an employee, agent, subsidiary, an employee of a subsidiary or a person who otherwise performs services on behalf of the organisation), unless it can prove that it had reasonable procedures in place to prevent fraud. The Act also includes a reform to corporate criminal liability that could make it easier to attribute an individual’s misconduct to the company. Companies in England and Wales are liable for the actions of individuals conducted by its ‘directing mind and will’, but the Act now brings senior managers[14] within the scope of who can be considered a company’s directing mind and will.

While DPAs in the United Kingdom are not available for individuals – and there is no indication that they will be any time soon – there is an increasing emphasis on incentivising individuals to enter an early plea. Section 73 of the Sentencing Act 2020 contains the statutory authority that compels the courts to consider a reduction in the sentence of an offender who has pleaded guilty to an offence. Subsection 2 obliges the court to take into account the stage in the proceedings at which the offender indicated an intention to plead guilty; and the circumstances in which this indication was given. The Reduction in Sentence for a Guilty Plea: Definitive Guideline guides the courts in establishing an appropriate level of reduction for offenders.[15] Unless, on the facts, there is a sufficiently good reason for a lower amount, there is a presumption that for each of the following categories, the recommended reduction will be given. If the offender pleads guilty, the sentence should be reduced as follows:

  • at the first stage of proceedings, by a maximum of one-third;
  • after the first stage, by a maximum of a one-quarter; or
  • after the trial has begun, by a maximum of one-tenth.[16]

The Sentencing Act 2020 also contains several provisions that can benefit an offender who assists in the investigation or prosecution of a crime. For example, if an offender provides or offers assistance in the investigation or prosecution of others, the court in return may reduce the offender’s sentence.[17]

39.1.1 Imprisonment

The maximum sentence for an individual convicted on indictment of an offence by virtue of section 1, 2 or 6 of the Bribery Act 2010 is 10 years’ imprisonment.[18] Furthermore, where a corporate commits an offence under section 1, 2 or 6, if the offence is proved to have been committed with the consent or connivance of a senior officer (or person purporting to act in such a capacity), that officer or person can also be punished.[19] An individual tried and convicted summarily of any of the aforementioned offences is liable to a maximum prison sentence of 12 months. An individual convicted following summary trial will (if the offence merits more severe sanction) be committed to the Crown Court for sentence.[20]

In cases of financial crime, it is rare for defendants to be charged with only one count, and in the most serious cases, a judge can order the sentences for each individual count of which a defendant has been convicted to run consecutively.

Whether a judge perceives a concurrent or consecutive sentence as appropriate on the facts will be decided by reference to the same factors that judges tend to consider when deciding on the severity of a sentence, such as whether the defendant has any previous convictions, the magnitude of the offence[21] or where it can be established that the defendant failed to respond to warnings about his or her behaviour.

Despite the continued prominence of financial crime cases in the media and the apparent fervour of prosecutors and courts to ensure that convicted individuals receive long custodial sentences, suspended sentences may well be considered appropriate in some cases. In R v. Dougall,[22] an employee heading a company’s corrupt Greek practice who pleaded guilty to conspiracy to corrupt, and who was a cooperating defendant under section 73 of the Serious Organised Crime and Police Act 2005,[23] had his 12-month custodial sentence suspended on appeal.[24] This case also demonstrates the risks individuals face when conduct spans multiple jurisdictions, and no settlement or amount of cooperation provides an absolute guarantee against further proceedings being pursued in any jurisdiction.

The Attorney General’s Guidelines on Plea Discussions in Cases of Serious or Complex Fraud (Attorney General’s Guidelines) set out a process by which a prosecutor may discuss an allegation of serious or complex fraud with a suspect.[25] The implementation of the Attorney General’s Guidelines, with the support of the judiciary and prosecuting authorities, has garnered a quasi-plea discussion system that can be advantageous to defendants. Although the Attorney General’s Guidelines do not make any provision for a defendant to receive a greater discount on the sentence than is available for simply entering a guilty plea (as set out above), in a case brought by the Financial Conduct Authority’s (FCA) predecessor, the Financial Services Authority (FSA),[26] against Paul Milsom, a senior equities trader, for disclosing inside information between October 2008 and March 2010, His Honour Judge Pegden KC indicated, in passing sentence on 18 March 2013 at Southwark Crown Court, that he had given Mr Milsom full credit for pleading guilty at the earliest opportunity (i.e., a discount of one-third) and extra credit for entering into a plea agreement with the FSA.[27] The sentencing remarks of HHJ Pegden KC convey the ‘clearest articulation to date that an individual can reasonably expect to receive in excess of one third discount on sentence in circumstances where he enters into early plea discussions with a prosecutor’.[28]

39.1.2 Fines

Fines for individual perpetrators of financial crime can be unlimited and are handed down either separately or in conjunction with a custodial sentence. Sections 124 to 126 of the Sentencing Act 2020 regulate the fixing of fines in criminal cases. Those sections require that any fine imposed must reflect the seriousness of the offence and require the court to take into account the financial circumstances of the offender.

39.1.3 Unexplained wealth orders

The Criminal Finances Act 2017 (CFA 2017) came into force on 30 September 2017 and created a new High Court power to make an unexplained wealth order (UWO), which can require a person who is suspected of involvement in, or association with, serious criminality or who is a politically exposed person (PEP) to explain the origin of assets that appear to be disproportionate to their known income.[29] Changes to the UWO regime in 2022 mean that, where the respondent to the order is a corporate, a UWO can designate a ‘responsible officer’ (i.e., a director, manager or partner) in or outside the United Kingdom to comply with the UWO.[30] A failure to provide a response will give rise to a presumption that the property is recoverable, in order to assist any subsequent civil recovery action. UWOs are intended to alleviate the burden on enforcement authorities and come with wide-ranging powers to gather evidence in other jurisdictions and potentially support parallel enforcement actions.

The powers to make UWOs under the CFA 2017 commenced on 31 January 2018, and they enable a number of regulators and enforcement agencies, namely the SFO, the National Crime Agency (NCA), HM Revenue and Customs, the FCA and the Director of Public Prosecutions, to apply to the England and Wales High Court for a UWO, regardless of whether civil or criminal proceedings have been initiated against the respondent to the order or of where the respondent is located.

It was initially expected that UWOs would be widely used by regulators and enforcement agencies to combat financial crime. The Home Office’s impact assessment regarding the CFA 2017 noted that the UWO regime would ‘enable more effective law enforcement of identifying and seizing the proceeds of crime’.[31] However, UWOs have seldom been used, with the NCA obtaining just nine[32] in connection with four cases since the CFA 2017 came into force. The NCA is the only enforcement agency to have obtained UWOs to date,[33] and none have been issued since 2019.[34] In 2022, the House of Commons Foreign Affairs Committee described the regime as ‘spectacularly unsuccessful’,[35] pointing to the limited number of UWOs obtained, as well as the significant legal costs that followed a successful challenge against three in 2019.[36]

In contrast, the use of account freezing orders (AFOs), another tool introduced by the CFA 2017, has proved far more effective in tackling financial crime, particularly because of the comparative ease with which they can be obtained. AFOs allow enforcement agencies to freeze bank accounts to investigate the provenance of the funds they hold, provided that the enforcement agency has reasonable grounds to suspect that the funds have been obtained through unlawful conduct or are intended to be used for unlawful conduct.

The NCA has made extensive use of this tool. On 14 August 2019, it announced that AFOs had been obtained at Westminster Magistrates’ Court over eight bank accounts holding more than £100 million.[37] More recently, the NCA’s Combating Kleptocracy Cell has secured a number of AFOs over accounts held by individuals closely linked to sanctioned Russians.[38] AFOs may also be followed by an account forfeiture order providing enforcement agencies with civil recovery powers to recover property in cases where there has been no conviction but where it can be shown, on the balance of probabilities, that property has been obtained by, or is intended to be used for, unlawful conduct.[39]

To obtain a UWO, there must be reasonable cause to believe that the respondent holds the property and that the value of the property is greater than £50,000. There must also be reasonable grounds for suspecting that the known sources of the respondent’s lawfully obtained income would have been insufficient for the purposes of enabling the respondent to obtain the property, or that the property has been obtained through ‘unlawful conduct’ within the definition in section 242 of the Proceeds of Crime Act 2002 (POCA).[40] Respondents must also either be (1) a PEP or (2) someone for whom there are reasonable grounds for suspecting that they have been involved in serious crime. Under the CFA 2017, a person is considered to be involved in serious crime in the United Kingdom or another jurisdiction if the person would be so involved for the purposes of Part 1 of the Serious Crime Act 2007.[41]

The first UWO, obtained in February 2018, was made against properties connected to Mrs Zamira Hajiyeva, the wife of Mr Jahangir Hajiyev, a former banker imprisoned for fraud and embezzlement in Azerbaijan. Following an unsuccessful challenge in the High Court, Mrs Hajiyeva applied to the Court of Appeal on the basis that the lower court had, inter alia, erred in relying on Mr Hajiyev’s conviction in Azerbaijan for fraud and corruption offences as evidence that his lawful income was insufficient to purchase the properties.[42] The Court of Appeal dismissed the appeal, finding that Mr Hajiyev’s conviction was one of a number of grounds put forward by the NCA and was entitled to be relied upon by the High Court. The consistent approach taken by both courts demonstrates that a respondent seeking to discharge a UWO on the basis that the ‘income test’ is not satisfied will have to demonstrate evidence of lawful income sufficient to have purchased the property in question.

On 9 June 2023, the NCA obtained a UWO, its first since 2020, against Yaqub Younis and his company Regal Capital UK Limited. On 14 September 2023, the High Court refused an application brought by Mr Younis’ son to vary the UWO to replace his father as respondent and obtain a further six weeks to respond to the UWO. Mr Younis and his company failed to comply with the requirements of the UWO, which, for the first time, gave rise to a statutory presumption that the assets subject to the UWO may be recoverable property.[43]

Interim freezing orders can also be granted by the High Court with each UWO, under section 362J of POCA, meaning that the assets subject to the UWOs cannot be sold, transferred or dissipated for the duration of the order.

Respondents are required by a UWO to provide certain information about the specified property, including the nature and extent of the respondent’s interest, how it was obtained and any other information specified in the order. Aside from contempt of court proceedings, the failure to respond to a UWO creates a presumption that the property is recoverable in civil proceedings, which reduces the burden imposed on enforcement authorities under the current POCA regime, to prove that property derives from criminal conduct or constitutes the proceeds of crime. Section 362S of POCA provides that when a UWO is issued, where the enforcement authority believes that the property is outside the United Kingdom, it may send a request for assistance in relation to the property to the Secretary of State, who in turn may forward the request to the government of the receiving country.

The Economic Crime (Transparency and Enforcement) Act 2022 introduced significant reforms to the UWO regime in an attempt to combat some of these concerns. In particular, enforcement agencies now have up to 186 days to review material received in response to a UWO before the underlying interim freezing order is discharged,[44] and they are also protected from unlimited liability to pay costs in legal proceedings related to UWOs.[45]

39.1.4 Confiscation orders

It is becoming more common for courts to address the confiscation of the assets of a convicted individual, especially when the court is satisfied that the defendant was said to be living a ‘criminal lifestyle’.[46] Furthermore, Step 6 of the Sentencing Council Guidelines on Fraud, Bribery and Money Laundering Offences states that the court must proceed with a view to making a confiscation order if it is asked to do so by the prosecutor or if the court believes it is appropriate to do so.[47] From 2022 to 2023, £179 million was recovered through confiscation orders – a 16 per cent increase from 2021 to 2022.[48] In particular, in November 2022, the SFO obtained its largest confiscation to date, of £93.5 million, against a UK subsidiary of Glencore in connection with bribery offences related to its operations in Africa.[49]

Despite these successes, the Law Commission described the confiscation regime as ‘inefficient, complex and ineffective – with weak enforcement mechanisms’.[50] It published a report on the regime in November 2022 that highlighted a number of recommendations, including accelerating confiscation proceedings, introducing enhanced abilities to enforce against assets if not paid within a set time and ensuring orders are based on more realistic data as to defendants’ ability to pay. The Law Commission is working with the Office of the Parliamentary Counsel on a draft bill to accompany these recommendations.

Confiscation orders, which are debts to the Crown, are available only after a defendant has been convicted. Where a confiscation order is not paid, the defendant will serve a period of imprisonment in default. This mechanism is highlighted in the case of Jolan Saunders, whose default prison sentence of 3,236 days (just under nine years) was activated in August 2021 after he failed to pay a confiscation order of £5,262,301.03, despite the SFO showing evidence of £4.5 million in hidden assets emanating from his fraud.[51] In May 2022, the default prison sentence of Spencer Steinberg, Jolan Saunders’s co-conspirator, was activated after he too failed to pay his confiscation order. Steinberg was committed to prison for 2,420 days.[52]

In 2018, the Supreme Court clarified the position regarding the reduction of default sentences for partial repayment of sums ordered under a confiscation order. In R (on the application of Gibson) v. Secretary of State for Justice,[53] the Supreme Court held that the calculation of reductions in default terms should not take into consideration accrued interest. The ruling confirms that there is a continued incentive for individuals subject to confiscation orders to continue making contributions even after a default sentence has been triggered.

Confiscation orders derive from section 6 of POCA and are intended to deprive the defendant of the benefit of any proceeds of his or her crimes; they are not, however, intended to act as a fine or further punishment. They do not always involve the sequestration of the defendant’s personal property. Instead, they usually entail the payment of a sum of money: ‘Where, however, a criminal has benefited financially from crime but no longer possesses the specific fruits of his crime, he will be deprived of assets of equivalent value, if he has them.’[54] In accordance with the decision in R v. Waya,[55] prosecutors should ensure that the confiscation is proportionate, which entails an assessment of the ability of the defendant to pay the order in full.

The Attorney General’s Guidelines provide no framework to regulate the discussions and agreement of confiscation orders as part of plea discussions. Should the prosecution and the defendant reach any form of agreement in relation to a confiscation order, that agreement would not bind a court. In Paul Milsom’s case, however, the judge agreed to make a confiscation order at the sentencing hearing in the value of his personal benefit from his offending, which had been agreed between the prosecution and the defence within the basis of the plea and joint sentencing submission. This suggests that prosecutors could be willing to negotiate the terms of a confiscation order as part of a plea negotiation, and that the courts may be willing to accept the joint submission that ‘provid[es] a defendant with greater certainty and control over his financial liabilities’.[56]

The burden of proof in criminal confiscation orders rests with the defendant, who must show, on the balance of probabilities, that his or her assets are not derived from criminal conduct.

Where it is reasonably foreseeable that a court will make a confiscation order, the prosecution may take steps in the High Court to ensure that the defendant’s assets will remain available to meet the terms of the order. Such steps include, inter alia, an order requiring the defendant to disclose where assets are kept, an order appointing a receiver and an order restraining assets.[57]

39.1.5 Compensation orders

Like a confiscation order, a compensation order is an ancillary court order and is designed to compensate a victim for personal injury or any loss or damage that may have resulted from the offence committed by the defendant and is made in addition, or instead of, other sentencing options under section 133 of the Sentencing Act 2020.

In both a magistrates’ court[58] and the Crown Court, the amount that can be awarded as compensation is now unlimited but is restricted to an amount that can feasibly be paid by the defendant. The court must have regard to the evidence of the defendant’s financial means when deciding the level of compensation to award the victim and must prioritise the payment of compensation over any other financial penalty.

39.1.6 Disqualification orders

Directors of companies are fiduciaries and there is consequently a high level of probity expected of them by the law. It is therefore expected that ‘[t]hose who are involved in bribery, whether as individuals or as part of their role as directors, are very likely to be disqualified from acting as a director for a lengthy period of time’.[59]

Directors disqualification orders (DDOs) are designed to help protect creditors and the public from those individuals who may act dishonestly and can bar a person from acting as a director of any UK company for up to 15 years. DDOs can be made where the defendant director of a company has been convicted of an indictable offence which, by virtue of the decision in R v. Creggy,[60] must have some relevant factual connection with the management of the company.

39.1.7 Costs

As in all criminal cases, cost orders are usually made against a convicted defendant, who will be required to pay the prosecution’s costs as well as any court fees that materialise during the criminal proceedings.[61]

39.2 Individuals: regulatory liability

The FCA has continued the FSA’s legacy of adopting a robust enforcement stance, underpinned by its ‘credible deterrence’ strategy. In furtherance of its policy of ‘credible deterrence’, the FSA had signalled a willingness to pursue criminal actions through the courts and to seek custodial sentences. For the FCA, the pursuit of criminal prosecutions, where appropriate, remains high on its agenda, particularly for market misconduct offences. This is supported by the FCA’s Annual Business Plan 2023/24, which lists tackling financial crime, including fraud, as one of its principal commitments.[62] The UK government’s Economic Crime Plan 2023–26 also includes a focus on strengthening the capabilities of law enforcement, particularly in relation to the pursuit and prosecution of the use of cryptoassets to launder illicit finance.[63] In March 2023, the FCA launched a review[64] aimed at improving the functioning of its Senior Managers and Certification Regime, which came into force on 9 December 2019, and was later extended to FCA solo-regulated firms,[65] to make senior managers more responsible and accountable for their actions.[66]

Under the Financial Services and Markets Act 2000 (FSMA) as amended by the Financial Services Act 2012, the FCA has many tools at its disposal to punish non-criminal offences and breaches. This includes the issuing of public censures or statements, and imposing unlimited financial penalties. A number of other sanctions are available to the FCA.[67]

Chapter 6 of the FCA’s Decision Procedure and Penalties manual (DEPP) contains the FCA’s statement of policy in relation to the imposition and amount of penalties under the FSMA.[68] DEPP 6A sets out its policy in relation to imposing suspensions or restrictions on firms and on approved persons. Chapter 7 of the FCA’s Enforcement Guide sets out specific guidance on the FCA’s powers in relation to financial penalties and public censures. Further, in April 2017, the FCA published an Enforcement Information Guide, which should be read in conjunction with DEPP and the Enforcement Guide.

39.3 Other issues: UK third-party rights

Section 393 of the FSMA gives third parties certain rights in relation to warning and decision notices given to another person in respect of whom the FCA is taking regulatory action. Where a warning notice has been given, section 393(1) provides that a third party prejudicially identified in the notice must be given a copy and a reasonable period to make representations on it.[69] No equivalent regime exists in the criminal sphere, where the DPA process (which involves the agreed statement of facts detailing the conduct of individuals) enables individuals to respond prior to the DPA being entered into.

Section 393(4) gives third-party rights in relation to a decision notice. It provides that a third party prejudicially identified in the notice must be given a copy of it. Section 393(11) provides that a person who alleges that a copy of the notice should have been given to him or her may refer that alleged failure to the Upper Tribunal.[70]

The scope of the rights conferred by section 393(4) was reconsidered in Macris v. FCA.[71] On 22 March 2017, the majority of the Supreme Court stated that someone is identified in a notice if ‘he is identified by name or by a synonym for him, such as his office or job title’. Such a synonym would need to be ‘apparent from the notice itself that it could apply to only one person and that person must be identifiable from information which is either in the notice or publicly available elsewhere’. Information from other sources can only be used to interpret the language of the FCA’s notice, rather than to supplement it, and must be easily ascertainable.

A recent Upper Tribunal (UT) case[72] could lead to third-party references delaying the FCA’s ability to issue final notices. In May 2023, the FCA issued decision notices to Banque Havilland and three individuals – Edmund Rowland (former chief executive officer), Vladimir Bolelyy and David Weller – for failing to act with integrity by ‘creating and disseminating a document which contained manipulative trading strategies aimed at creating a false or misleading impression as to the market in, or the price of, Qatari bonds’.[73] Banque Havilland, Edmund Rowland and Vladimir Bolelyy challenged their decision notices in the UT, but David Weller did not bring any challenge. Around the same time, Banque Havilland’s honorary president, David Rowland, made a third-party reference of all four decision notices to the UT on the basis that the notices contained statements that were prejudicial to him.

Although the third-party reference had been made by David Rowland, the FCA proceeded to issue David Weller with a final notice. David Rowland argued that it was unlawful for the FCA to issue a final notice until it had determined his third-party reference against the decision notices. The UT held that the publication of the final notice did not interfere with the UT’s ability to determine David Rowland’s third-party reference because a final notice can be published with a note recording that the FCA’s findings have not been considered judicially and are the subject of consideration in respect of the third party.

The UT ultimately determined that it had no jurisdiction over the matter because only the Administrative Court has statutory power in relation to a final notice; however, the UT nevertheless expressed its view that the FSMA does not envisage the issue of a final notice to the subject of a decision notice until any related third-party reference has been determined. In its decision, the UT suggested that the FCA either lobby Parliament for the law to be clarified or test the matter in the Administrative Court.


[1] Elizabeth Robertson is a partner, Vanessa McGoldrick is European counsel and Jason Williamson is an associate at Skadden, Arps, Slate, Meagher & Flom (UK) LLP.

[2] Deferred prosecution agreements (DPAs) are only available to corporate organisations.

[8] Ziad Akle, a former Unaoil Group manager, had his conviction overturned in December 2021 (R v. Akle (Ziad) [2021] EWCA Crim 1879), Paul Bond, a former SBM Offshore senior sales manager, had his conviction overturned in March 2022 (R v. Bond (Paul) [2022] EWCA Crim 427), and Stephen Whiteley, a former Unaoil territory manager, had his conviction overturned in July 2022 (R v. Whiteley (Stephen) [2022] EWCA Crim 1143).

[11] R v. Varley and others [2019] EWCA Crim 1074.

[13] According to the Law Commission’s option paper, the fraud offences would include fraud by false representation, obtaining services dishonestly, the common law offence of cheating the public revenue, false accounting, fraudulent trading, dishonest representation for obtaining benefits, and fraudulent evasion of excise duty.

[14] The Economic Crime and Corporate Transparency Act defines a ‘senior manager’ as an individual who plays a significant role in ‘(a) the making of decisions about how the whole or a substantial part of the activities of the body corporate or (as the case may be) partnership are to be managed or organised, or (b) the actual managing or organising of the whole or a substantial part of those activities’.

[15] The Reduction in Sentence for a Guilty Plea: Definitive Guideline applies regardless of when the offence was committed, but where the first hearing was held on or after 1 June 2017. Prior to this, the Sentencing Guidelines Council guideline applies.

[16] Where the guilty plea is entered during the trial, the reduction should normally be decreased further, even to zero.

[17] Sentencing Act 2020, s.74. See also ibid., s.388. A defendant, already serving a prison sentence, who provides or offers assistance in this regard could also benefit by having a sentence reviewed.

[18] See Bribery Act 2010, s.11. An individual cannot be convicted of an offence under s.7 of the Bribery Act because the offence refers only to a ‘commercial organisation’ for which the only sentence available is an unlimited fine.

[19] See ibid., s.14.

[20] The maximum sentence for individuals under the Bribery Act 2010 is identical for any of the fraud offences both at common law and under the Fraud Act 2006 but is far greater (up to a maximum of 14 years’ imprisonment) for any of the substantive money laundering offences pursuant to the Proceeds of Crime Act 2002 (POCA), ss.327 to 329. Furthermore, an individual convicted of the tipping-off offence under POCA, s.333A is liable to a maximum of two years’ imprisonment or a fine, or both.

[21] In the Fraud, Bribery and Money Laundering Offences Definitive Guideline, it expressly states that ‘[c]onsecutive sentences for multiple offences may be appropriate where large sums are involved’,, p. 10.

[22] [2010] EWCA Crim 1048.

[23] Since 1 December 2020, sentence reductions for cooperating defendants are governed by the Sentencing Act 2020, s.74. Such reductions previously fell under the Serious Organised Crime and Police Act 2005 (SOCPA), s.73.

[24] The Court of Appeal held that ‘where the appropriate sentence for a defendant whose level of criminality, and features of mitigation, combined with a guilty plea, and full cooperation with the authorities investigating a major crime involving fraud or corruption, with all the consequent burdens of complying with his part of the SOCPA agreement, would be 12 months’ imprisonment or less, the argument that the sentence should be suspended is very powerful’. [2010] EWCA Crim 1048, at para. 36.

[25] The Attorney General’s Guidelines came into force on 5 May 2009.

[26] As of 3 April 2013, the FSA became two separate regulatory bodies – the Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA).

[29] Under the Criminal Finances Act 2017, Part 1 ss.1–9, which amends POCA s.362.

[30] Economic Crime (Transparency and Enforcement) Act 2022, s.45.

[32] A House of Commons Library Research Briefing on Unexplained Wealth Orders (UWOs), published on 14 April 2022, noted that, as at February 2022, the National Crime Agency (NCA) had obtained nine UWOs relating to four cases. In April 2020, three UWOs obtained by the NCA were discharged by the High Court in National Crime Agency v. Baker & Ors [2020] EWHC 822 (Admin). Recognising the impact the judgment would have in subsequent UWO applications, the NCA immediately sought to appeal the decision, but the Court of Appeal refused the application.

[33] As at September 2023 and according to publicly available information, only the NCA has applied for UWOs.

[36] National Crime Agency v. Baker & Ors [2020] EWHC 822 (Admin).

[38] Question for Home Office, Freezing of Assets: Russia (UIN 106303, tabled on 8 December 2022);

[39] This is a lower threshold than that required for restraint proceedings under the POCA where a criminal investigation or proceedings must have been commenced.

[40] Economic Crime (Transparency and Enforcement) Act 2022, s.47.

[41] This widens the category of potential respondents significantly to include persons who (1) have committed a serious offence, (2) have facilitated the commission of an offence or (3) conducted themselves in a way that was likely to facilitate the commission by themselves – or another person – of a serious offence, whether or not the offence was committed. The Criminal Finances Act 2017 (CFA 2017) widens the category of respondents even further to include anyone who is connected with a person who is or has been involved in serious crime, whether in the United Kingdom or in another jurisdiction.

[42] National Crime Agency v. Hajiyeva [2020] EWCA Civ 108. It was also submitted that the High Court had erred in applying the statutory test to identify a politically exposed person and that the UWO itself conflicted with the rules against spousal privilege and self-incrimination.

[44] Economic Crime (Transparency and Enforcement) Act 2022, s.49.

[45] Economic Crime (Transparency and Enforcement) Act 2022, s.52.

[46] Pursuant to POCA, s.75, ‘(1) a defendant has a criminal lifestyle if (and only if) the following condition is satisfied. (2) The condition is that the offence (or any of the offences) concerned satisfies any of these tests – (a) it is specified in Schedule 2; (b) it constitutes conduct forming part of a course of criminal activity; or (c) it is an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence’.

[53] [2018] UKSC 2.

[54] R v. May [2008] UKHL 28, at para. 9.

[55] [2012] UKSC 51.

[56] Chris Dyke, ‘The Benefits of Early Plea Discussions’ (supra note 28).

[57] Senior Courts Act 1981, s.37(1).

[58] Before 12 March 2015, the amount that a magistrate could award as part of a compensation order was £5,000 but, under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, s.85, this limit has been removed.

[59] Eoin O’Shea, The Bribery Act 2010, A Practical Guide, Jordans, at p. 238.

[60] [2008] EWCA Crim 394.

[61] The legislative authority enabling a court to award costs in criminal proceedings is primarily contained in Part II of the Prosecution of Offences Act 1985 (ss.16 to 21); the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (in relation to funded clients); and in regulations that have since been made pursuant to these statutes, including the Costs in Criminal Cases (General) Regulations 1986, as amended.

[65] ‘Solo-regulated firms’ are firms that are regulated exclusively by the FCA rather than dually regulated by the FCA and Prudential Regulatory Authority. The regime commenced for benchmark administrators on 7 December 2020 to allow the FCA to carry out a dedicated consultation for benchmark administrators before making final rules for the sector.

[67] Other sanctions available to the FCA include varying or cancelling a firm’s permission under the Financial Services and Markets Act 2000 (FSMA), Part 4A; intervening against an incoming European Economic Area or EU Treaty firm; suspending or restricting a firm’s Part 4A permissions; suspending or restricting the approval given to an approved person; prohibiting an individual from performing regulated functions; withdrawing the approval of an approved person; imposing a penalty on a person who has performed a controlled function without approval; and issuing a private warning.

[68] In July 2022, the FCA issued a new version of the FCA’s Decision Procedure and Penalties manual.

[69] Unless he or she has been given a separate warning notice in relation to the same matter.

[70] In April 2010, the Financial Services and Market Tribunal, established by the FSMA, s.132 as an independent judicial body to hear decision notices issued by the FSA, was abolished and its functions transferred to the Upper Tribunal.

[71] [2015] EWCA Civ 490; [2017] UKSC 19.

[72] Banque Haviland, Edmund Lloyd Rowland, Vladimir Bolelyy and David John Rowland 3rd Party [2023] UKUT 00136 (TCC).

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