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Compensation Principles to Victims Outside the UK

SFO OPERATIONAL HANDBOOK

The SFO Operational Handbook is for internal guidance only and is published on the SFO’s website solely in the interests of transparency. It is not published for the purpose of providing legal advice and should not therefore be relied on as the basis for any legal advice or decision. Some of the content of this document may have been redacted.

Guidance on the General Principles to Compensate Victims (including affected States) in bribery, corruption and economic crime cases.

Introduction

When investigating or prosecuting a case with potential overseas victims, (whether individuals, organisations or governments), SFO case controllers need to consider at an early stage whether compensation may be appropriate as part of the sentencing or resolution, and through which route that may be achieved.

This guidance is to be read in conjunction with General Principles to Compensate Victims (including affected states) in bribery, corruption and economic crime cases.

At the London Anti-Corruption Summit in 2016 the UK committed to introducing principles to govern compensation payments to overseas victims. The UK Anti-Corruption Strategy 2017-2022 committed to reduce the impact of corruption where it takes place, including redress from injustice caused by corruption, and supporting international processes for asset return and compensation. The General Principles to compensate overseas victims (including affected States) in bribery, corruption and economic crime cases were agreed by the SFO, NCA and CPS and published on 1 June 2018.

The role of the SFO in the context of these principles is to ensure that the question of compensation or asset repatriation is considered in every case and use all available legal mechanisms to secure it whenever appropriate.

The General Principles state that the SFO will work collaboratively with the Department for International Development, the Foreign and Commonwealth Office, Home Office and HM Treasury where appropriate. How the General Principles are applied will depend on the circumstances of each case.

The principles apply equally to cases resolved by conviction, a Deferred Prosecution Agreement and non-conviction based asset recovery.

Next Steps

Once a case controller has formed the view that a case has overseas victims and that the General Principles are likely to apply, they must notify Strategy and Policy Division (“S&PD”). This will allow for the predicted timescales and prospective methods of compensation or asset repatriation to be discussed at an early stage and, where appropriate, to involve other Government departments. This will also provide an opportunity to consider how to measure the loss suffered by victims and how best to present this information to the court.

Compensation Orders

Following conviction, compensation may be ordered by the court, in such amount as the court considers appropriate, having regard to any evidence and any representations that are made by or on behalf of the accused or prosecutor[1]

In order for a court to make a Compensation Order, the victim and the quantum must be either established by evidence or agreed with the offender[2].

When considering compensation orders, a court will want to know the following information about the victim(s):-

  1. Their identity.
  2. That the loss results from the offence.
  3. The quantum of their loss.

If the Court makes a compensation order in favour of a victim, the court does not have the power to order how that compensation will be spent.

Confiscation Orders

In some cases, the Judge may make a Confiscation Order but no Compensation Order. Normally, if a Confiscation Order is made, the payments made by the defendant are shared between the Home Office, HMCTS, the prosecutor and investigator as part of the Asset Recovery Incentivisation Scheme (ARIS). The SFO does not take a share of the funds from this scheme.

Where the victim is an overseas person(s) or state, consideration should be given to seeking an agreement with government partners that funds received under the Confiscation Order be paid in lieu of compensation to that victim. This will be an entirely voluntary decision on the part of the UK Government and the relevant departments.

The SFO is not directly involved in returning compensation or assets to affected states, this is ultimately a matter for HMG that necessitates early collaboration with partner agencies as set out above.

Deferred Prosecution Agreements

A DPA is concluded under the supervision of a judge who must be convinced that the DPA is in the ‘interests of justice’ and that the terms are ‘fair, reasonable and proportionate’[3].

The financial terms of a DPA may include compensation to victims. The compensation is usually paid to the victim directly by the compensating party or through an intermediary agreed by the parties and approved by the court. Early engagement with DFID and FCO will be required when considering how compensation will be paid to the overseas victim, particularly if they are an overseas government.

Non-conviction based Asset Recovery

The principles apply equally to non-conviction based asset recovery cases, and early contact should be made with Strategy & Policy Division to discuss modalities.

[1] S.130(4) Powers of Criminal Courts (Sentencing) Act 2000

[2] Vivian [1979] 1 All ER 48

[3] Schedule 17, Crime and Courts Act 2013

Version OGW 1, Published April 2019 © Crown Copyright, 2020.

This information is licensed under the Open Government Licence v3.0. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/ or write to the Information Policy Team, The National Archives, Kew, Richmond, Surrey, TW9 4DU.

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