Kingsley Napley
20 Experts
2 Contributions by Kingsley Napley
PRACTICE NOTES
Section 188 of the Enterprise Act 2002 (EnA 2002) creates a criminal offence where an individual agrees with one or more others that two or more undertakings will participate in prohibited cartel arrangements. This spans price fixing, market sharing, restricting production or supply, and bid rigging. The offence bites on agreements both to create or implement such arrangements, and to cause them to be created or implemented. It is committed irrespective of whether the undertakings put the agreement into effect by the undertakings. There are a number of defences available. See further, The UK criminal cartel offence. Both the Competition and Markets Authority (CMA) and the UK’s Serious Fraud Office (SFO) have the power to investigate individuals suspected of involvement in the criminal cartel offence under EnA 2002, s 188. Under EnA 2002, s 190, proceedings for the criminal cartel offence may only be
Corporate Crime
PRACTICE NOTES
The creation of the Competition and Market Authority (CMA) in 2013
The establishment of the Competition and Market Authority (CMA) in 2013 coincided with an overhaul of a component of the criminal cartel offence that prosecutors had to prove to convict directors and officers. When the Enterprise and Regulatory Reform Act 2013 (ERRA 2013) commenced on 1 April 2014, the dishonesty element of the cartel offence was scrapped, marking a radical change to what prosecutors had previously been required to establish. Under the revised regime, an individual commits the offence by agreeing, with one or more persons, that two or more undertakings will take part in specified prohibited cartel arrangements (price-fixing, market-sharing, bid-rigging, or limiting output), regardless of dishonesty. Any such arrangements must have occurred in the UK to be caught. As explained further below, this shift is partly offset by new
Competition
14 Contributions by Kingsley Napley Experts
PRACTICE NOTES
What do you say to a client facing a custodial sentence?
When clients face the prospect of imprisonment, they may feel overwhelmed or daunted. This Practice Note serves as a speaking aid for practitioners advising adult clients at risk of custody. It signposts relevant, detailed guidance and helps practitioners explain to their clients what will occur if a custodial term is handed down. It should also be made clear that receiving a custodial sentence does not automatically mean immediate imprisonment. In particular, where a term of 12 months or less is imposed, the court is required to consider a statutory presumption in favour of suspending that sentence (subject to certain exceptions). For more information, see Practice Note: Sentences imposed following conviction—Suspended sentence order.
Fundamental principles
Detailed guidance on general principles applicable to all sentencing exercises can be found in these Practice
Corporate Crime
PRACTICE NOTES
This Practice Note aims to provide some guidance on the core principles of legal professional privilege (LPP) and how they apply in criminal investigations and prosecutions. For further information and guidance on maintaining LPP for a client during the course of a criminal investigation, see Practice Note: Maintaining privilege during criminal investigations.
What is privilege?
Privilege can be grouped into four primary categories in law:
legal professional privilege
common/joint interest privilege (though, strictly, this sits within legal professional privilege)
without prejudice privilege
privilege against self-incrimination
This Practice Note deals solely with LPP within a criminal context. For more general information concerning legal professional privilege, see Practice Note: Legal professional privilege in civil proceedings. For information on other types of privilege, refer to Practice Notes: Privilege—joint and common interest privilege, Privilege—solicitor and client confidence, Privilege against
Corporate Crime
PRACTICE NOTES
Financial Conduct Authority interviews
The Financial Conduct Authority (FCA) may hold interviews either on a voluntary basis or under compulsion, and it alone decides which route to take. As a matter of routine, set out in the FCA Handbook’s Enforcement Guide (ENFG), the regulator invokes statutory powers to require questions to be answered in interview, promoting fairness, openness and efficiency. That framework is adopted for reasons of fairness, transparency and efficiency. Where the FCA suspects regulatory and/or criminal misconduct, it need not immediately determine whether any later proceedings will be criminal or regulatory. The FCA retains discretion to deploy whatever powers it considers suitable to carry out its statutory function of investigating the alleged misconduct. If there is a prospect of criminal prosecution, or in market abuse enquiries, the FCA may question suspects under caution. Ordinarily, an interviewee is accompanied by a legal
Corporate Crime
PRACTICE NOTES
Introduction
This Practice Note reviews the statutory foundation of FCA supervision and the regulator’s supervisory methodology, including its decision‑making framework. It explores the FCA’s supervisory principles, areas of focus and priorities, and also sets out, in summary, how the FCA oversees firms on a day‑to‑day basis. The Note also addresses the supervisory stance taken towards retail and wholesale markets and towards international firms, as well as oversight of specialist domains (financial crime, fintech and outsourcing). It outlines the FCA’s co‑operation with other bodies, such as the PRA, and considers the prudential supervisory approach applied to firms outside of dual regulation with the PRA. The material draws principally on the following primary sources and references: FCA Mission: Approach to Supervision (April 2019), the FCA Handbook’s Supervision Manual (SUP), and FCA’s Mission Paper 2017: How we regulate financial services. Further background on the FCA and PRA can be
Financial Services
PRACTICE NOTES
The purpose of this Practice Note is to set out practical guidance on how best to keep legal professional privilege (LPP) intact for the client throughout the various stages of a criminal investigation. For information on legal privilege and how it operates in a criminal context, see Practice Note: Legal Professional Privilege in criminal proceedings. For information about LPP in general terms, see Practice Note: Legal professional privilege in civil proceedings.
Preserving privilege during a dawn raid/search and seizure
One possibility is that individuals or corporate entities under investigation receive an unannounced visit at their premises or homes, enabling investigators to conduct searches of property and arrest them for the purpose of interviewing them; this is commonly termed a ‘dawn raid’. Many individuals and organisations are insufficiently prepared for such raids, and LPP material is frequently contained within computer files and scattered around the office or home,
Corporate Crime
PRACTICE NOTES
The rules relating to privilege, disclosure and waiver can vary widely from one jurisdiction to another.
In recent years, collaboration among enforcement bodies has intensified significantly. This is reflected in instances of deferred prosecution agreements (DPA) spanning several jurisdictions and joint working between the UK and nations including France and the USA. See Practice Note: DPAs in practice. Where matters are multi-jurisdictional, it is essential to take privilege advice from lawyers in every relevant jurisdiction from the outset to ensure important material retains privilege and to minimise risk to the client. For instance, releasing privileged documents under a limited waiver in one country might be treated as a full waiver in another, with consequent loss of protection. This Practice Note outlines key privilege issues that emerge in cross-border investigations and sets out practical measures to safeguard privilege in practice. For guidance on legal
Corporate Crime
PRACTICE NOTES
Offences relating to financial services
The Financial Services Act 2012 (FSA 2012) sets out three offences aimed at market manipulation:
issuing false or misleading statements, or deceitfully hiding material facts, under FSA 2012, s 89
producing false or misleading impressions under FSA 2012, s 90
making false or misleading statements, and related conduct, concerning benchmarks under FSA 2012, s 91
See also Practice Notes: Misleading statements etc in relation to benchmarks and Misleading impressions under Financial Services Act 2012. For details of the previous regime for market manipulation under section 397 of the Financial Services and Markets Act 2000 (FSMA 2000), which has been repealed, refer to Practice Note: Misleading the market and market manipulation under s 397 FSMA 2000 [Archived]...
Corporate Crime
PRACTICE NOTES
Background
The idea of the privilege against self-incrimination, often treated as a single safeguard, in truth stems from several distinct common law protections for defendants and witnesses, each aimed at shielding citizens from misuse of powers by those who investigate crime.
Each reflects concern for the protection of citizens against abuse of powers by those investigating crimes in law.
Those varied protections can be broadly grouped as:
a privilege against self-incrimination for witnesses in criminal, civil, or other non-judicial investigative proceedings (including coroners' inquests)
the entitlement of a defendant not to give evidence at trial; and
a suspect’s right to remain silent during a pre-trial criminal inquiry
As outlined below, the privilege is not absolute, and statute has intruded upon these protections in several ways.
The privilege against self-incrimination at common law
The privilege against self-incrimination is a long-established common law protection. The principle developed at common law as a reaction to
Corporate Crime
PRACTICE NOTES
Legal professional privilege (LPP) safeguards the confidentiality of specified lawyer–client communications and is a fundamental right, subject only to tightly limited exceptions where it applies. A way to contest LPP is to argue that it never arose, often by invoking the crime–fraud, or iniquity, exception. This Practice Note explores that exception in greater depth. For guidance on what constitutes LPP and how it is preserved in criminal investigations, see the Practice Notes: Legal professional privilege in criminal proceedings and Maintaining privilege during criminal investigations.
The crime-fraud exception
When does it apply?
Privilege cannot be claimed over communications made to facilitate the client’s commission of a crime or fraud, or that themselves form part of a fraudulent act. This is also referred to as the ‘iniquity exception’, a more precise term since, as stated in JSC BTA Bank v Abylasov, it is not limited to criminal conduct but
Corporate Crime
PRACTICE NOTES
This Practice Note surveys construction and engineering activity within the UK defence arena. It summarises the Ministry of Defence (MOD)’s spending and procurement approach, the applicable public procurement regime, the Defence Reform Act 2014 (DRA 2014) and Single Source Contract Regulations 2014 (SSCR 2014), plus the deployment of standard form construction contracts. While the DRA 2014 and SSCR 2014 continue to underpin MOD procurement, the framework is shifting. The Procurement Act 2023 (PA 2023), refreshed NEC4 frameworks, and enhanced sustainability and SME objectives signal a sustained focus on openness, value for money, and innovation across the defence estate. A significant reorganisation of UK defence commenced in 2025 through the Strategic Defence Review and Defence Reform programme. This Practice Note captures policy and legislative updates to October 2025, including developments under PA 2023, the MOD SME Action Plan 2022–2025, and the 2023 NEC4
Construction
PRECEDENTS
[ Date ]
[ Client's name and address ]
Dear [ insert client name ]
Re: Injunctive relief
I write to advise you regarding your intended application for an interim injunction against [ name of party ], sought in order to [ insert reason for and type of injunctive relief being sought ].
An injunction is a court order that compels a party to carry out a particular act (a mandatory injunction) or prevents a party from undertaking a particular act (a prohibitory injunction), either compelling performance or restraining conduct.
The purpose of an interim injunction is to preserve the existing position and/or reduce potential unfairness ahead of a claim or issue being resolved.
When deciding whether to grant such relief, the court will consider whether, among other matters:
there is a serious issue to be tried;
damages would probably be an adequate remedy for any loss that might be
Dispute Resolution
PRECEDENTS
[ On the claimant’s solicitors’ letterheaded paper ]
FAO [ RELEVANT NAME ]
[ NAME OF DEFENDANT OR DEFENDANT’S SOLICITOR IF KNOWN ]
[ ADDRESS LINE 1 ]
[ ADDRESS LINE 2 ]
[ POSTCODE ]
[ DATE ]
Dear [ insert ]
[ PROSPECTIVE CLAIMANT’S NAME ]—claim for breach of duty against [ PROSPECTIVE DEFENDANT’S NAME ]
[ We refer to our letter dated [ insert date of previous correspondence, if any ]. ]
[ As you are aware, we OR We ] act for [ insert client’s full name ] of [ insert full address ]. This correspondence constitutes our client’s letter of claim against [ you OR [ name of defendant ] OR arising from the breach of [ your OR their ] duties as a director of [ insert company name ] (the ‘Company’).
[ If you have OR [ name of defendant ] has ] relevant
Dispute Resolution
CHECKLISTS
Checklist for overseas partners on preventing bribery
Policies and procedures
Does the company have a clear, robust and practical code of ethics that expressly states zero tolerance for bribery and corruption?
Is that code backed by proportionate policies? Is there visible top-level commitment from the Board, and does a suitably experienced senior officer oversee the anti-bribery framework?
Are anti-bribery policies and procedures a standing agenda item at Board meetings?
Are the Board’s discussions on these policies and procedures comprehensively recorded in the minutes?
Is there a Board sub-committee charged with updating and enforcing the anti-bribery policies and procedures?
Do the company’s General Counsel and, where applicable, the legal/compliance team have specific expertise in anti-bribery legislation and practice? If not, (a) are external lawyers with the requisite knowledge retained; and (b) is an appropriate internal training programme considered?
Do Board members receive the same anti-bribery training as other
Corporate Crime
CHECKLISTS
These are indicative pointers only, as each criminal investigation will depend on its particular facts. This checklist should be read alongside Practice Notes: Legal Professional Privilege in criminal proceedings and Maintaining privilege during criminal investigations. Confidentiality is paramount and must be preserved. If a document or communication was not confidential when created, or later ceases to be confidential, it will generally not benefit from Legal Professional Privilege (LPP). To assert privilege, consider carefully whether you rely on legal advice privilege or litigation privilege, as different factors apply to each...
Steps to maintain legal professional privilege
At the outset
If the client seeks advice before a criminal investigation begins:
Legal advice privilege
Assess whether legal advice privilege applies, namely:
is the communication confidential? (If yes)
is the
Corporate Crime
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