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10 September 2021

Business crime investigations: understanding negotiated settlements

4 mins

Business crime investigations and prosecutions can be brought in respect of individual people and corporate persons like companies. They can cover a wide range of allegations, such as financial crimes like fraud and bribery, breach of government regulations, or corporate manslaughter.

There are many different investigators and prosecutors. As well as the police and Crown Prosecution Service, there are others with specific regulatory oversight or ambit, like the Financial Conduct Authority (FCA) and the Serious Fraud Office (SFO).

During an investigation, prosecutors will gather evidence and interview witnesses and suspects. Early representation for any suspect is essential to ensure correct choices are made about how to engage with the investigation and deal with interviews. The nature of engagement and information provided may influence whether charges will be brought and also the eventual outcome of court proceedings, especially as normally much of the material gathered, including interviews, may be used in court if any charge is brought.

Charges will be brought if the prosecutor believes that there is a realistic prospect of conviction and it is in the public interest. In some cases, it may be possible to persuade a prosecutor that either there is insufficient evidence for a realistic prospect of a conviction or that criminal proceedings are not in the public interest at all, or that there is a suitable alternative.

A corporate wishing to avoid conviction for fraud, bribery, or some other type of serious financial crime may wish to enter into a Deferred Prosecution Agreement (DPA). The director of the SFO and the director of Public Prosecutions may authorise a DPA, which is also subject to scrutiny and oversight by the court. A DPA will only be available if the director considers that the corporate has provided full cooperation (usually initiated by corporate self-reporting) and there are often very stringent requirements, and financial conditions. They are not easy by any means but the corporate may prefer to opt for negotiation about a DPA as a way of managing the risks of otherwise protracted criminal litigation and so they can start to move on.

If any charges are brought, the evidence on which charges are founded will be summarised and served on the defendant. The evidence must be considered very carefully to establish if the case can be proved by the prosecutor and also whether there is any form of legal defence. Evidence that will help prove the defendant’s case will be gathered and individual and corporate defendants who have a good legal defence to charges will typically fight on, which in the Crown Court will involve a trial by jury. If the jury finds the elements of the offence cannot be proved, the defendant will be acquitted.

In some cases, the defendant may recognise that the evidence poses a significant risk of conviction and they may admit to some or all of the charges and wish to take advantage of the sentencing discount for guilty pleas. Depending on the evidence, those defendants may be able to negotiate pleading guilty to fewer or less serious charges or the prosecutor may agree to a specific basis of plea. This is not an advisable option for those who are innocent but for those who accept some or all of the charges, it can be a way of managing the sentencing consequences.

Katie Wheatley, Partner and Joint Head of Crime, Fraud and Regulatory, comments:

We are fearless fighters and have decades of experience of investigations, interviews and jury trials. We never lose sight of the evidence and work closely with our clients to understand their priorities. However, in some cases, defendants are looking for negotiated settlements and these can sometimes be a way of avoiding the risk of a worse outcome and achieving certainty and a conclusion of proceedings at an earlier stage than might otherwise be possible.

Rarely is a speedy or risk-free conclusion to be found to a probe into serious forms of business crime, but with cool-headed consideration of all the relevant evidence and circumstances, it is possible to pick the best solution and develop a clear strategy to achieve it.

Our criminal defence lawyers are recognised for expertly defending clients facing allegations of fraud, financial, and business crime. Find out more about our services here.

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