The Legal 500

In February 2010 the Sentencing Guidelines Council (the SGC) issued definitive guidelines to courts on imposing appropriate sentences for corporate manslaughter and health and safety offences causing death. The SGC states that fines imposed on companies found guilty of corporate manslaughter should not fall below £500,000, while fines in respect of health and safety offences that are a significant cause of death should be at least £100,000. Crucially, the SGC declined to provide for a fixed link between the imposed fine and the turnover or profitability of the offending company.


The existence of a mandatory exclusion from public procurement on a permanent and Europe-wide basis presents a real threat to the Serious Fraud Office (SFO)’s new culture of self-reporting.

Neil Gerrard (left) and Robert Wardle (right) outline the main features of the new legislation, discuss what changes it will bring and assess whether companies are ready to comply, explaining how legal teams must raise internal awareness

The Bribery Act 2010 (the 2010 Act) is expected to come into force in October, but it is clear that many companies and their in-house legal teams still have a lot of work to do before they are ready to comply with the new law. 


The new zealous and robust approach adopted by the Serious Fraud Office (SFO) to combat corporate fraud and corruption offences has been increasingly described as the Americanisation of the organisation. The US Department of Justice (DoJ) and Securities and Exchange Commission (SEC) (equivalent to the SFO and Financial Services Authority (FSA) here) have made anti-corruption enforcement history – the biggest of scalps being Siemens who lost out financially to the tune of €2.5bn.

In principle, there can be no argument that someone who commits an offence in one country should be able to avoid justice by fleeing to another. Generally, it is likely to be in the interests of justice for the trial to take place in the country where the crime was committed. Provided that fundamental human rights are guaranteed, that there is a fair trial and that the offence is not motivated by political, racial or other improper considerations, the offender ought to be returned to face justice. Extradition reform over the past 25 years has sought to put such principles into effect, culminating in the Extradition Act 2003 (the 2003 Act).

As an increasing number of criminal offences are now covered by the confiscation regime, Caroline Lee (left) and James Moss (right) look at how the legislation has been used and provide guidance for in-house lawyers who may face the consequences

Many jurisdictions have legislation that permits regulators to confiscate assets obtained by those convicted as a result of their criminal conduct. Since being introduced in England and Wales in the late 1980s, the confiscation regime has expanded to cover a wider range of criminal offences. This tool has been given to a large number of prosecutors, who have used it with vigour.

It is a well-established practice that companies carry out merger and acquisition (M&A) due diligence using a suite of questions and documentary information requests aimed at establishing legal, financial and reputational risks. However, as enforcement trends in corruption are a relatively recent phenomenon, proper and thorough anti-corruption due diligence is often overlooked.

The year-end audit process can bring headaches for in-house lawyers. With the financial year for most companies ending on 31 December, the first few months of the New Year bring the deepest scrutiny by external auditors of a company’s transactions and dealings, in addition to year-end procedures being run by internal audit. This increased scrutiny can lead to the discovery of evidence pointing to improper or even illegal conduct by employees or management during the financial year.

Hot on the heels of securing convictions and a custodial sentence for insider dealing in R v McQuoid [2009], further signs of the Financial Services Authority (FSA)’s renewed vigour for combating market abuse continue to emerge.

An e-trader, or merely a business which uses its website as a shop window, may be conducting an otherwise honest, lawful and legitimate business but unless they comply with domestic and European regulations properly identifying the name and address of the trader or trading enterprise, they could find themselves at the wrong end of a criminal prosecution.

An article on the Consumer Protection from Unfair Trading Regulations 2008.

When the Government’s new draft Bribery Bill reaches the statute book, the obligation on companies to avoid bribery and corruption in business will become an essential element of good corporate governance. Critically, if corruption occurs, a company and its directors and officers will have the burden of showing they exercised due diligence to prevent it. If they cannot, their prosecution and imprisonment will be a real danger. In house counsel may think it important to have an audit trail of the steps taken to ensure due diligence.