A popular question we are asked is: ‘just how much information flows between the SFO, FSA and the DoJ and SEC.’

In our recent meeting with David Green QC, Director of the SFO, he was happy to confirm that there is substantial contact and flow of information both too and from the US.

The Director of Public Prosecutions Keir Starmer QC has issued Crown prosecution Service Interim Guidelines designed to cover cases with shared jurisdiction with overseas authorities such as the DoJ.

It is worth reading them.

They point to the forming of a unified approach between the UK prosecuting authorities to the problems of investigating and prosecuting multi-jurisdictional cases of corruption and fraud. Recognising as they do the significance of issues such as ‘funding’ and the ability to gather evidence so as to be able to satisfy the disclosure obligations under the Criminal Procedure and Investigations Act  1996 and the Code of Practice issued by the Secretary of State.

The CPS are not acting alone.

True, they are the only prosecuting agency to have used the Bribery Act 2010 to secure a conviction. However, the prosecution of a Magistrates Court Clerk was not what the OECD or Parliament had in mind when the Bribery Act was passed in 2010.

From our discussions it is clear that the CPS are articulating a view held also by the SFO.

The purpose of the Guidelines

Inevitably in cases of corruption, investigations will commonly begin in more than one jurisdiction.

This is the issue the Guidelines seeks to address

In the UK, the focus on information and intelligence, now being brought into sharp focus by David Green QC at the SFO, is bound to lead to closer links with the SFO and DoJ.

It is clear that the new Director is viewed as a serious player by the DoJ being described by Chuck DuRoss, Deputy Chief, Foreign Corrupt Practices Act (FCPA) Unit, United States Department of Justice, as a ‘prosecutor’s prosecutor’.

It is highly likely that this relationship will continue and strengthen.

The position faced by the DoJ and SFO in Innospec is bound to repeat itself with increasing frequency.

The criticisms made by Lord Justice Thomas in Innospec have been taken on board by the SFO and its new Director, David Green. We have that first hand from our meetings with Mr Green.

In Innospec, due to the nature of the investigation and the agreements reached between the US and UK authorities Lord Justice Thomas was constrained to limit the financial penalty imposed, he made his displeasure clear to all:

“There will be no reason for any such limitation in any other case and the court will not consider in any way restricted in its powers by any such agreement.”

The Guidelines

Background

There will be early sharing of information, facts and evidence between prosecutors in  jurisdictions concerned.

Information, facts and evidence received as a result of co-operation will not be disclosed to a third state without the permission of the originating state.

There will be consultation between prosecutors in the engaged jurisdictions to co-ordinate the strategy of the investigations, specifically, with a clear nod to the criticisms of Innospec, providing that a co-ordinated strategy is to ‘respect the independence of the individual jurisdictions’.

The aim

There is to be detailed discussion and consideration of where and how prosecutions should be brought.

This may include aspects being pursued in different jurisdictions.

The governing principles

The start point is that the jurisdiction in which most of the criminal behaviour occurred should prosecute.

The fact that it is often difficult or protracted for one country to produce and provide evidential material to another country, in a form and of sufficient quality to sustain a prosecution, has been specifically recognised. This factor will be taken into account when deciding jurisdiction.

Where possible all relevant prosecutions are to take place in one jurisdiction.

Other factors to be considered

The location of witnesses and the accused.

In cases involving individuals, the prospects of success in extradition proceedings.

In cases where there is a fine balance as to jurisdictional claims, the comparative resource of the engaged jurisdictions is to be considered.

Generally

If proceedings have commenced in one jurisdiction it will be rare for the forum to be switched to another jurisdiction.

The receipt of an Extradition Request will not trigger an investigation in the UK.

Comment

These Guidelines evidence the second major response to the criticisms within Innospec.

The first response was Deferred Prosecution Agreements which are expected next year and will see judicial oversight of negotiations as between corporations and prosecutors.

It will be interesting to see how the Guidelines work with the US authorities.

The US have no principle of ‘double jeopardy’. This has led to forum shopping as corporates may remain at risk in the US even where a resolution is achieved in the UK.

It may be 3460 miles from Land’s End to Washington, but given the closer and closer ties between the US and the UK authorities it will be no surprise to find the US saying:

‘If it mainly happened in the UK and it is appropriately prosecuted, you deal with it!’

We expect that this will increasingly be the shape of the very near future.