Introduction
An investigation into fraud, bribery or corruption is without a doubt complex and burdensome. It is all too easy for companies to get distracted by the investigative outcome, rather than considering where the money went or how to recover associated losses. Yet, in our experience, planning asset recovery sooner rather than later gives companies a better chance of minimising and reclaiming financial losses. In doing so, companies should consider the legal mechanisms available to them and the strategic objectives they wish to achieve in the short mid and long term before initiating an asset recovery plan.
Initial decision-making
The decision to engage in any form of financial recovery should not be taken lightly. Good legal advice is essential for companies throughout the recovery process. We always advise our clients to consult closely with their lawyers before making such decisions. Recent cases on which we have worked have shown how effective use of both legal and investigative resources can maximise the chances of an effective outcome and provide guidance on the potential implications for the company throughout the process. Companies can often commence their asset recovery strategy as soon as they have engaged with legal teams. In our experience, this can further expedite the recovery process. For example, a company that has been subject to fraud may not realise the value of gathering information from sources within its organisation to obtain potential intelligence connected to the offender’s assets. A recent case proved this approach can be useful in initial asset recovery planning. The company was able to identify not only UK assets held by the main offender, but also those in other jurisdictions, solely through its company network.
此外，公司通过开展公共记录研究，公司可以良好地利用他们的调查资源，开始建立或核实犯罪者持有的资产。然后可以将这些资产与欺诈的量化损失进行比较。此外，调查人员可以对任何企业资产进行分析，以确定该特定资产的财务状况。这些要素可以帮助公司通知其整体资产恢复战略的最佳方法，也可以支持合法团队，以确定冻结禁令。
民事与刑事诉讼
英国的公司有义务在2010年英国Bribery法案下，根据英国贿赂法案向执法报告贿赂行为。此类报告可导致执法部门或监管机构的诉讼程序。在组织内发生欺诈时，公司并没有义务向警方报告罪行。然而，许多人这样做是因为公司董事经常认为刑事起诉是所需的结果。
Nonetheless, although criminal proceedings come at no cost to the victim, they are typically less predictable in terms of outcome. Meanwhile, compensation orders (for victims) can only be granted post-conviction, which may not always be sought by prosecutors[1]. The compensation granted is also subject to the court’s considerations as to the outcome of any civil proceedings, whether a sentence of imprisonment has been handed down, and the funds available to the defendant.[2] This process can be frustrating and risky for a company waiting to retrieve its financial losses if pursuing criminal prosecution alone. Meanwhile, a criminal prosecution also relies on meeting the criminal burden of proof. Prosecutors may amend the charges to encourage defendants to enter guilty pleas, thereby avoiding a lengthy and costly trial. This in turn may affect the value of compensation awarded.
In most cases, companies will opt for civil proceedings instead of or in parallel with criminal proceedings if recovering losses is a high priority. However, although quicker, this comes at a price, and is a costly avenue for companies to pursue. Nevertheless, the company will have more control over civil proceedings, which focus more on compensation for damages[3]. Neither system takes precedence over the other, except in cases where the perpetrator(s) may face risk of prejudice from either or both proceedings.[4]
Once civil proceedings are under way, the disclosure process may assist in identifying further assets owned by the perpetrator(s). Disclosed financial documentation can also be used as the basis for an asset trace, again working with investigators, where money illegally facilitated or stolen by the perpetrator can be tracked to their assets. This may be a more suitable strategy for a company wanting to know exactly where its money has ended up. This can be especially useful when dealing with cases of long-term fraud or where multiple perpetrators have been involved.
了解法律程序的差异是在决定可用的法律途径时对受害者公司的关键审议。在最近的调查中，我们在近期调查的情况下观察到这一点，这些调查是在我们的客户到达这一决定的时间内，这反过来影响了他们所遭受的损失的检索。
Conclusion
There are substantial advantages in pursuing civil proceedings either instead of or in conjunction with criminal proceedings if asset recovery is a desired outcome for the company. Through a better understanding of the legal impact on objectives after the fraud, companies can maintain better control of the situation and are more likely to be successful in achieving effective asset recovery. It is key for companies to be aware of the legal mechanisms and investigative preparations to inform their asset recovery strategy early on, while working harmoniously with their civil legal teams, investigators and, if applicable, law enforcement during the process itself.
[2] Section 130 – 134, Powers of Criminal Courts (Sentencing) Act 2000
[3] ‘The criminal and civil justice systems in England and Wales’, (Fraud Advisory Panel, 2015)
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