Providing flexible solutions to growing financial regulation
December 04, 2017
The Criminal Finances Act 2017 which came into force on this year created two new corporate criminal offences in respect of the facilitation of tax evasion (together the ‘Corporate Criminal Offences’).
With successful prosecutions leaving businesses open to possible unlimited fines, loss of operating licenses and prohibition from bidding in public tender processes in addition to serious reputational damage, the importance of businesses not falling foul of the new legislation must not be underestimated.
Although the Corporate Criminal Offences impose strict liability businesses may rely on a ‘reasonable procedures defence’.
Guidance has been published as to what may constitute ‘reasonable procedures’ and parallels have also been drawn from the ‘adequate procedures defence’ under the 2010 Bribery Act. These guiding principles have to date focussed on businesses conducting a thorough risk assessment. In order to constitute a valid defence the risk assessment should be methodical and thorough and engage senior stakeholders from the business. The burden of conducting risk assessments of this nature (and implementing any policies and procedures identified during the risk assessment) will inevitably fall upon already stretched in-house legal teams who are coming under increasing pressure to deliver more for less.
The Corporate Criminal Offences and Bribery Act are just two recent examples of the post-financial crisis trend of the increased regulatory and compliance burdens faced by businesses. We are seeing more and more General Counsels looking for solutions on how to increase their workforce on a temporary basis. Since the launch of our Flexible Legal Resource, we have been able to locate from our pool of lawyers, those that specialise in financial regulation and can help companies with their risk assessments to the satisfaction of their Boards and shareholders.