“Differences in Approach between the SFO & the FCA”

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Presentation transcript:

“Differences in Approach between the SFO & the FCA” MAX BAINES

Investigation - SFO Governed by Statement of Principle: Does the conduct undermine UK commercial or financial interests? High financial loss? Significant public interest? A new species of fraud? E.g. benchmark manipulation Focus on prosecution Section 2 powers

Investigation - FCA Concerned with clean markets Operational Objectives: Protect customers Protect financial markets Promote competition Policy = “Credible deterrence” Wide range of powers: civil, regulatory & criminal Must decide criminal or regulatory CJA 1993 (Insider Dealing) Financial Services Act 2012 (False/ misleading statements) FSMA (Market Abuse)

Prosecution - SFO Renewed focus on “serious” “Blockbuster” funding High value (Libor/ FX) International Complex/ multiple trials “Blockbuster” funding Additional powers: DPAs s.2 interviews See recent Guidance on presence of lawyers following R v Lord

Enforcement - FCA Regulatory v Criminal Code for Crown Prosecutors & Enforcement Guide EG s.12.3: Effect on market (distortion?) Previous record (criminal or regulatory) Ability to make redress Voluntary cooperation Assistance to prosecution (e.g. R v Calvert) Vast majority of cases are regulatory 17 criminal insider cases since 2009 Market abuse = quicker, cheaper, more certain

Outcome - SFO Lengthy & costly trial process Leverage for defence lawyers DPAs Not (yet) available to FCA Open to corporates Exceptional cooperation (Standard Bank & XYZ Ltd.) LPP material SOCPA Early engagement Full disclosure Commitment (see Hayes) No immunity (contrast DoJ) Plea – R v Sanghera re first to break ranks

Outcome - FCA Criminal route = resource heavy Op Tabernula – 9 years investigation to verdict Mixed result R v Calvert Co-accused assisted & avoided prosecution Financial penalty Engage early Preference for fining institutions Libor/ Euribor - £757m FX - £1.4bn Gold (Barclays) - £26m Leaving criminal prosecution to SFO