Fraud and Regulatory Investigations
A significant amount of our caseload involves offences of fraud and dishonesty. Fraud cases often involve serious financial loss and can be complex both legally and factually. Serious fraud cases almost inevitably create a vast amount of documentation which we are experienced in handling. We will often make papers available to our clients in electronic format.
Our clients in such cases are often professional people who are not familiar with the criminal justice system. We do our best to ensure that our clients are kept fully informed of the progress of their case throughout the often lengthy procedure and that their case receives the level of attention it requires at all times.
We were a member of the Legal Aid Agency's now defunct Serious Fraud Panel for a number of years. Only firms on that Panel could deal with cases designated as Serious Fraud Cases. This panel was replaced by the "Very High Cost Cases Panel" in January 2008 (also now defunct). Only members of this Panel were able to deal with cases which are deemed to fall within the "VHCC" structure. These cases are administered by the LAA's Complex Cases Unit and extend beyond but also include fraud cases.
Any serious fraud case will be handled by a senior solicitor. Most serious fraud cases require work from other members of staff working as a team under the supervision of the senior solicitor to ensure that the case is fully and thoroughly prepared for trial.
Fraud cases do not always fall within the VHCC framework. However, the issues involved are often no less complicated. The police investigation may still have created huge amounts of paperwork. In all such cases, a senior solicitor will have day to day conduct of the case.
Examples of the types of fraud cases in which we have acted include:-
Regulatory Investigations and Compliance Advice
The firm undertakes certain regulatory work involving investigations by regulators such as the Financial Conduct Authority or investigations and prosecutions by other regulatory bodies such as the Health and Safety Executive or the Trading Standards Authority. We are also able to provide advice on compliance with the requirements of the Bribery Act 2010 and the Modern Slavery Act 2015 by commercial organisations.
We were recently involved in the FCA-led international investigation into the setting of LIBOR by the UK banks which was an extremely high profile example of our regulatory work. Charges were not brought against our client and we acted through the internal bank investigation and during interviews with the FCA. We were also involved in an internal bank investigation representing the individual employee on an internal investigation into Foreign Exchange dealing.
We have defended clients for breaches of health and safety legislation (including manslaughter by gross negligence) and offences prosecuted by local authorities and Trading Standards from matters as diverse as building regulation breaches, health and safety breaches in construction, breaches of regulations in the manufacture of soft furnishings and fraud within the sale of telephone equipment and telephone service contracts and fraud in relation to a betting syndicate.
Whether the potential offence investigated is complex such as the wholesale selling of second hand cars which are said to have been "clocked" or more straight forward, we have the ability and expertise to help. As an example, we had the summons withdrawn against a company who sold a sofa in a trading standards test purchase which did not meet to the fire safety regulations for soft furnishings.
Legal aid is occasionally available if individuals are charged or interviewed in certain circumstances but these cases are much more often funded by the employing company or insurance.
Corporate Compliance under the Modern Slavery Act 2015: Transparency in Supply Chains
The introduction of section 54 of the Modern Slavery Act 2015 Act has placed a burden on certain companies to produce and publish an annual slavery and human trafficking statement from the financial year ending on or after 31st March 2016. Any company to which the obligation applies must report on what investigations they have made and steps they have taken in the previous financial year to ensure that slavery and human trafficking is not taking place within its supply chain or any part of its business as soon as reasonably practicable after the end of each financial year.
This is an on-going obligation designed to eradicate modern slavery and human trafficking within the supply chains of large companies. The Government can enforce compliance with the section by the use of injunctive civil proceedings.
The obligation applies to every commercial organisation that supplies goods or services and has a total turnover of not less than £36 million. Commercial organisations include companies or partnerships which carry on business or part of a business in any part of the United Kingdom wherever that company or partnership is incorporated or formed.
The slavery and human trafficking statement must set out the steps that the organisation has taken during the previous financial year to ensure that slavery and human trafficking is not taking place within any part of its business or any part of its supply chain. If nothing has been done to investigate or identify any such issues, a statement to that effect has to be made. Such statements have to be approved by the Board of Directors and signed by a Director or approved by members of a limited liability partnership and signed by a designated member or general partner.
The statement has to be published on the organisation's website with a link in a prominent place on the Home page. In the unlikely event that the organisation does not have a website, a copy of the statement must be provided to anyone who requests a copy within 30 days of that request.
The Government has issued Guidance but has not set out any specific template for the form of such statements. Certain issues must be covered including:
Many companies will not be familiar with these obligations and the ramifications of non-compliance both in terms of the sanctions that may be imposed and the potential damage to the organisation's reputation if they fail to comply with the requirements. The abhorrent practices of modern slavery and human trafficking have come increasingly to the attention of Governments and the general public over the last few years and this is an area where there is likely to be an increased public scrutiny of big organisations.
The Government will be monitoring compliance and any publicity that an individual company of this size is not complying with the obligations to root out such practices is likely to reflect badly for the organisation. On the other hand companies that are compliant and can demonstrate robust policing of policies and procedures to eradicate modern slavery and human trafficking within the supply chain are likely to benefit from the positive public perception of their products or services.
Birds Solicitors can offer assistance and advice to any organisation considering how to deal with these new compliance requirements. The firm has been at the forefront of the increased awareness of modern slavery and human trafficking in the criminal justice system and further afield. We have been responsible for overturning numerous wrongful convictions of victims of human trafficking who should not have been prosecuted given the obligation on the State not to prosecute victims of human trafficking forced into criminality as a result of their trafficked status.
In addition, we advised UNICEF in relation to its representations to Government on elements of the Modern Slavery Act 2015 relating to children as the Bill passed through its various stages into law. We have provided training on behalf of the Law Society on modern slavery and human trafficking and assisted in drafting the Law Society practice note for solicitors to assist them in identifying and dealing with the issues that arise in such cases. We regularly provide training to solicitors, barristers and various NGOs in this area through various lectures and recorded podcasts including the most recent Anti-Trafficking Symposium. We were invited to provide specialist evidence in relation to child victims of trafficking in the criminal justice system to the independent review chaired by Lord Laming published by the Prison Reform Trust in May 2016. Our recommendations for reform were included in the final report.
Our extensive and varied experience in this developing area of law makes us ideally suited to advise organisations on their obligations under the Modern Slavery Act 2015. We can assist any organisation in ensuring that it can identify areas of the business where modern slavery and human trafficking are a risk, advise on the necessary due diligence that the organisation should consider implementing and provide comprehensive training to all relevant staff.
Birds Solicitors can tailor a package of advice and assistance to any organisation depending on its requirements which may include:
Our Modern Slavery Act Compliance team consists of Philippa Southwell, Allan Briddock and Steven Bird. Philippa Southwell is recognised as one of the leading lawyers in the area of modern slavery and human trafficking. Allan Briddock has been providing advice to organisations as to their obligations under the Modern Slavery Act 2015 since the obligations came into force. Steven Bird has experience both in the specific area of modern slavery and human trafficking but also in regulatory and compliance matters across various disciplines including financial investigations by banks and the Financial Conduct Authority.