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Tom Epps presentation at White Collar Crime Conference 2008
10 September 2008
Tom Epps, a partner in our Business and Regulatory Investigations department, was invited to speak at the White Collar Crime Conference 2008 in relation to the operation of the immunity from prosecution provisions in white collar crime investigations.
Tom’s presentation was well received by representatives who attended from a wide range of businesses including leading forensic accountancy firms, lawyers, compliance officers, internal investigations officers and company executives.
Tom’s fellow speakers included City law firms such as Herbert Smith and DLA Piper as well as leading Counsel Robert Rhodes QC and Paul Garlick QC of Outer Temple Chambers and a senior manager from Price Waterhouse Coopers.
Tom Epps explained the background to the statutory immunity provisions which provide the authority for specified prosecution agencies to grant immunity from prosecution to those who have committed offences provided various conditions are met. He went on to outline the key statutory provisions including S190 of the Enterprise Act 2002 and S71 of the Serious Organised Crime and Police Act 2005. However the majority of Tom’s presentation focused on the practical application of the law and how immunity may be used to the advantage of clients in particular investigations.
TAE analysed the recent Virgin and BA price fixing case including the application of the immunity provisions in favour of Virgin Atlantic. Tom also considered the lessons that may be learnt from the prosecution of various pharmaceutical companies and executives following the granting of immunity to various “accomplice witnesses” by the Serious Fraud Office. Attention was given to the OFT Leniency and No Action Guidance which was published on the 30 November 2006 and the report on the SFO published in June of this year by Jessica De Grazia, a former senior US prosecutor.
The importance of immunity in global investigations was addressed in some depth and the significance of the Marine Hose Cartel investigation was also considered.
Tom confirmed that he believed that the use of statutory immunity powers in criminal investigations was gathering momentum and that the FSA may well seek to use statutory immunity powers in insider trading cases once authority to do so has been granted. It was noted that the Chancellor has confirmed that the FSA will be granted specified prosecutor status under S71(1) of the Serious Organised Crime and Police Act 2005 although no date has been fixed for the potential new powers to be provided to the FSA.
Summary
Tom summarised the impact of the new provisions as follows:-
The effect of the statutory immunity provisions is that those in the Boardroom are increasingly vulnerable to others, rightly or wrongly, “blowing the whistle”. That means that before or after an investigation commences individuals may seek to explore whether immunity may be offered with a frequency which would have been unthinkable until recent times. For some, the choice will be stark – corporate with the authorities and give evidence as a witness against your colleagues or face the prospect of being prosecuted and a possible term of imprisonment.
It is likely that those facing proceedings in fraud trials are likely to be faced with evidence emanating from former colleagues and business partners, were it not for their co-operation with the investigating authorities, would be sitting in the dock alongside their co-defendants facing criminal proceedings.