- Increased use of civil asset recovery powers by law enforcement authorities. Just over £200 million was recovered by law enforcement authorities utilising their civil asset recovery powers during the financial year 2021 to 2022. As these quasi-civil proceedings avoid the need for law enforcement authorities to prove matters to the criminal standard, they are fast becoming a preferred tool of recovering alleged proceeds of crime. Given the increased use of civil recovery powers, it further remains important to ensure that courts are correctly applying the relevant tests, as demonstrated by the October 2022 High Court decision of R (National Crime Agency) v Westminster Magistrates’ Court & Others.
- Increased level of enforcement against Directors by Companies House. Companies House is stepping up its use of enforcement powers and hauling an increasing number of directors before the courts for offences, including failing to file accounts. Notably, Companies House reform and enforcement powers, if created via the Economic Crime and Corporate Transparency Bill (which is expected to become law by Spring 2023), will increase its capabilities as an enforcement authority.
- Increased focus by the UK Legislature on economic crime enforcement. The Economic Crime and Corporate Transparency Bill has been heralded as forming part of the government’s strategy to combat economic crime, including extending the Serious Fraud Office’s (SFO) pre-investigative powers to compel the provision of information when deciding whether to open investigations into all SFO cases (i.e. both cases of suspected fraud and international bribery and corruption). There are continuing calls for the creation of a “failure to prevent” fraud / economic crime offence, following on from the Law Commission’s June 2022 options paper on corporate criminal liability. The Law Commission is further working with the Office of Parliamentary Counsel on a draft bill to reform the post-conviction confiscation regime, which is expected to be published in 2023.
- Increase in UK sanctions implementation and enforcement. The implementation and enforcement of sanctions will remain in the spotlight, and we expect to see increased levels of enforcement against sanctions evaders. Greater cooperation and coordination between authorities, and adopting the lessons learned over the past 12 months, should see a more consistent scope of implementation when tackling threats to the principles of global security.
- Increased focus on ESG compliance and heightened corporate risk. The material uplift in the volume of obligatory reporting of Environmental, Social and Governance (ESG) metrics adds to the ever-increasing array of data requests, including from investors, made of companies. The recent High Court judicial review proceedings concerning UK companies importing cotton goods allegedly produced by forced labour in China emphasises the vigour with which global supply chains will be scrutinised; a significant consideration as the Modern Slavery (Amendment) Bill continues its progress through the House of Lords (which seeks to introduce a number of criminal offences, including the failure to file an accurate Modern Slavery statement).
About the Authors
About Greenberg Traurig’s White Collar Defense & Special Investigations Practice: Greenberg Traurig’s White Collar & Special Investigations Practice comprises over 60 experienced and knowledgeable global practitioners prepared to tackle whatever new challenges may arise, whenever they may arise. The team includes a number of former prosecutors from U.S. and non-U.S. enforcement agencies, with a wide array of experience and intimate knowledge of the highest levels of federal and state government.