The use of monitors in corporate crime enforcement is well established in the US, and in recent years we have started to see their use in the UK, typically following a criminal or regulatory breach.
Simply put, monitors are independent experts who, at a company’s expense, review its culture, systems and processes, recommend improvements and validate their implementation. They are appointed when a company needs to satisfy third parties, usually government authorities, of the manner in which it conducts its business.
Monitors might be appointed:
1. At a prosecutors’ request
Prosecutors who negotiate deferred prosecution agreements – and the judges who review them – will want to be satisfied that a company will emerge reformed from the criminal process, and may require the appointment of a monitor as a term of a deferred prosecution agreement.
2. By a regulator
Regulators may want the benefit of a third-party view on aspects of a company’s business practices. For example, the Financial Conduct Authority (FCA) has the power to obtain an expert opinion on aspects of a regulated firm’s activities if it is concerned or wants further analysis. Such reviews are called ‘skilled person reviews’.
3. During a procurement process
Government officials engaged in procuring goods or services may want to be satisfied that a company bidder is one it can safely and lawfully contract with. The use of a monitor to validate a recent reform and self-cleansing process can help a company overcome the risk of exclusion from a procurement exercise.
Although monitorships are still a rarity here and used on a selective basis, we understand how they work and can help you ensure that, if you need a monitor, it remains focussed, manageable and, as such, useful.
How we can help
- We can act as a monitor ourselves to test and report back on controls and compliance functions and to demonstrate a company has learned lessons from its misconduct. We aim to be as unobtrusive as possible and believe it is important to maintain a dialogue with company management to ensure there are no surprises at the end of a monitorship scheme. We can be trusted to act independently, with duties to the court or regulator rather than the monitored client.
- We also advise clients on appointing a third-party monitor and scoping their work – typically in relation to a criminal or regulatory investigation or where a company is requested to implement a monitorship scheme to oversee and report on its controls and compliance functions.
We understand that monitorships are not the answer to every difficult situation a company faces but we believe that, in the right case, they can be very helpful.
Please contact one of our expert lawyers if you have any questions about how monitorships work or think we can assist.