In November 2017 the Government published a series of measures which it intended to take to tackle white collar crime (the "Measures"). One of the Measures was to establish a new independent corporate law enforcement agency, to overcome some of the difficulties currently faced by the Office of the Director of Corporate Enforcement (the "ODCE"), which operates as an Office of the Department of Business, Enterprise and Innovation.
The Government has recently published draft legislation, the General Scheme of the Companies (Corporate Enforcement Authority) Bill 2018 (the "Scheme"), which if ultimately enacted will give effect to that proposal. 1
The Scheme provides that the new body will be called the Corporate Enforcement Authority (the "Authority"). The Authority will comprise of between one and three full time members, who will be appointed for a period of five years (with a possibility of reappointment for a further five year term). An explanatory note to the Scheme states that flexibility is being deliberately given as to the number of the Authority's members, to allow its membership to be tailored according to its workload. The member(s) will be assisted in carrying out the Authority's functions by staff.
The Scheme gives the Authority autonomy to appoint its own staff, subject to standard Ministerial approvals. The Government believes that this will facilitate the Authority in acquiring the expertise it needs through the recruitment of more specialist staff. This differs from the current process for recruiting staff to the ODCE, whereby recruitment is managed through the Department of Business, Enterprise and Innovation (save for specialist competitions).
For the most part, the Authority will have the same enforcement powers available to it as those that are currently conferred on the ODCE. However, the Scheme does give the Authority some additional powers.
The proposed new powers allow the Authority to access data under the control of an entity or individual, regardless of where the entity/individual has that data stored e.g. to access off-site lawfully accessible machines or cloud storage. The proposed new powers reflect the fact that evidence is now frequently collected in digital format and that this information may...