Criminal law insights: November 2020

Serious Fraud Office launches bribery investigation into Bombardier

On 5 November 2020 the Serious Fraud Office (SFO) announced that it is investigating Canadian aircraft manufacturer Bombardier over suspected bribery involving contracts with Garuda, Indonesia's national airline. The investigation follows the conviction of Garuda's former chief executive in May 2020 for receiving bribes from Bombardier, as well as Rolls-Royce, Airbus and others. Rolls-Royce and Airbus each accepted liability in relation to bribes paid to Garuda in multi-jurisdictional settlements agreed in January 2017 and January 2020, respectively. It is unclear whether prosecutors in other jurisdictions, such as Canada and the US, will bring their own investigations into Bombardier. The manufacturer is also being investigated in Sweden for alleged bribes to secure a contract to upgrade Azerbaijan's train-signalling systems.

Sanctions round-up

When the Brexit transition period ends on 31 December, the UK's autonomous sanctions regime will replace existing EU derived sanctions in the UK. New UK sanctions will be laid out in individual statutory instruments for each regime. Most of these regulations have already been published but more are due before the end of the year. The UK regulations do not simply reproduce the equivalent EU sanctions, there are some differences between the two regimes. For example, the new UK regulations include prescriptive definitions for determining ownership and control of entities whereas the EU approach is to issue non-binding guidance on such points. UK Finance published a detailed review on 4 November which provides a helpful summary of the key differences between the new UK regulations and the EU derived legislation on a regime by regime basis.

We have previously mentioned the first autonomous sanctions regime to take effect in the UK: the global human rights regime. The EU looks set to follow suit with the implementation of its own global human rights regime. A Joint Proposal for a Council Regulation concerning the implementation of restrictive measures against serious human rights violations and abuses worldwide was announced on 19 October. This and related measures will need to be agreed by member states, something which is expected to take place before the end of 2020. The EU has also recently extended the list of designated persons under the 'cyber-attacks' regime. Our colleagues in the Netherlands have considered the update to the regime in a recent article. 

For more detailed coverage on navigating conflicting sanctions regimes, please see this chapter in GIR co-authored by Cherie Spinks.

The US-UK Data Access Agreement

The UK-US Bilateral Data Sharing Agreement, which was signed last year and came into force on 8 July 2020, is significant. It has been described as a "world-first" that will dramatically speed up investigations by enabling law enforcement, with appropriate authorisation, to issue overseas production orders directly to foreign tech companies in order to access their clients' data, rather than through governments using the traditional mutual legal assistance route, which is cumbersome and time-consuming.

That said, our current understanding is that the process is not yet in use. It remains subject to law enforcement agencies in the US and the UK establishing a memorandum of understanding in place to govern its use. However, once in operation, it will amount to a potential step change in the jurisdictional reach of UK law enforcement's investigative powers. The Agreement's stated purpose is to combat terror and child abuse crimes, but we fully expect broader use to be made of these powers in respect to 'white collar' offences.

The Agreement has significant implications for law enforcement, but also raises serious issues in relation to data protection, encryption and legal privilege that could prompt litigation which may challenge efforts to increase the speed of cross border law enforcement. For more, you can listen to our webinar, hosted by Camila de Silva together with data protection and law enforcement experts from Simmons & Simmons and US-law firm Wiley Rein, or read our article on this topic.

Met Police faces further criticism for stop and search failings

Following a year when concerns around institutional bias have been at a historic peak, the Independent Office for Police Conduct (IOPC) has published findings from a review of stop and search powers exercised by the Metropolitan Police. The review identified continuing issues with the use of these powers, including that black men are nine times more likely to face its use. One of the biggest concerns, in our view, is the fact that there is "a lack of understanding from officers about why their actions were perceived to be discriminatory".  The IOPC also identified five key areas of improvement in their report, which we have summarised in our full overview.  

New MOU between CMA and SFO promises closer working

A Memorandum of Understanding (MOU) that promises closer working on criminal cartel cases between the Competition and Markets Authority (CMA) and the SFO was published on 22 October 2020. The MOU could be seen to benefit both agencies by extending the remit of the SFO and providing much needed manpower and investigative resources to the CMA. It is hoped that this MOU will provide a renewed focus on criminal cartel investigations by the CMA after a string of cases being closed due to evidential issues. The impact of the upcoming Brexit deadline on ongoing and upcoming investigations will likely be the first test that the agencies must tackle together. Read our full overview here.