Individuals continue to face risk from prosecutions for economic crime, despite media focus on corporate criminal liability reforms.

Four individuals have today appeared at Westminster Magistrates’ Court charged with fraud in connection with the collapse of UK café and bakery chain, Patisserie Valerie.[i] This follows a five-year investigation by the Serious Fraud Office (SFO) — codenamed “Operation Venom” — which was launched after the chain suddenly announced that its financial statements over successive years had been “mis-stated and subject to fraudulent activity”.[ii] Among those charged is former CFO, Christopher Marsh, who was arrested on suspicion of fraud when the scandal first emerged but was released on bail soon after.

While corporate criminal liability continues to dominate headlines ahead of reforms to be introduced by the Economic Crime and Corporate Transparency Bill, the Patisserie Valerie charges serve as a reminder that there remains a risk of prosecution at the individual level. Indeed, this is the third case in which the SFO has charged individuals this year, and the agency is targeting a minimum 60% conviction rate of individual (as well as corporate) defendants between 2022 and 2025.[iii]

Patisserie Valerie: A Short History

Patisserie Valerie was founded in 1926 as a single store in London’s Soho. By 2018 it had become one of the UK’s major café/bakery chains — with a 200-store footprint, more than 2,500 employees, and ambitious plans to expand further still.

Alarm bells started to ring in October 2018, when the chain warned of “significant, and potentially fraudulent, accounting irregularities”[iv] and suspended its shares from trading on AIM (the London Stock Exchange’s growth market). Further investigation confirmed that there had been extensive manipulation of Patisserie Valerie’s accounts — rather than sitting on almost £30 million of cash as reported in its half-year results, it was actually £9.8 million in debt.

Attempts to rescue the (by that point, very clearly beleaguered) chain through an emergency share placing and last-ditch talks with existing bank lenders ultimately failed. Consequently, Patisserie Valerie’s parent company (Patisserie Holdings plc) entered administration in early 2019 — later to be acquired by Irish private equity firm, Causeway Capital Partners. Grant Thornton, which audited the chain, received a fine from the Financial Reporting Council (FRC), the audit regulatory body in the UK, for missing “clear indicators of the risk of material misstatement due to fraud”.[v] The audit firm was separately hit with a £200 million negligence claim by Patisserie Valerie’s administrators, which it settled.

What Are the Charges?

As well as Mr Marsh, the SFO has charged accountant Louise Marsh, financial controller Pritesh Mistry, and financial consultant Nileshkumar Lad. All four have been charged with conspiracy to defraud for inflating the cash in Patisserie Valerie’s balance sheets. Mr Marsh, Mr Mistry, and Mr Lad have also been charged with fraud by false representation, and making and supplying articles for use in frauds. Mr Marsh faces a further charge of making false statements as a company director.

The fraudulent conduct to which the charges relate is not yet known. However, the FRC’s Final Decision Notice against Grant Thornton indicates that it may include (at least in relation to some of the suspects):

• fabricating unusually large payments at year end in Patisserie Valerie’s annual accounts;
• producing fake receipts to evidence those payments to Grant Thornton; and
• improperly recognising certain payments in one financial year when they should have been recognised in the next (so as to artificially inflate the cash balance for that first year).

Of course, the FRC did not specifically investigate the conduct of Patisserie Valerie personnel, and so the full details of their alleged wrongdoing will only become clear closer to trial.

The Bigger Picture

The Patisserie Valerie prosecutions are by no means a one-off. Already this year, the SFO has charged a trio of former employees of a now-defunct mining company in connection with alleged bribery in Sierra Leone,[vi] and has brought fraud charges against three former directors of an ethical investment scheme with operations in Costa Rica.[vii]

These cases build on a series of recent successes for the SFO in enforcement action against individuals, in which it secured the convictions of:

• in February 2023, a project manager who pleaded guilty to accepting bribes from two office outfitting companies in return for sharing confidential information about tenders for office refurbishment projects — the first ever conviction of an individual for conduct that relates to a deferred prosecution agreement;
• also in February, three former executives of a British steel trading company for forging steel contracts to defraud five trade finance lenders;[viii] and
• throughout 2022, a host of fraudsters in connection with various bogus investment schemes relating to holiday properties,[ix] financing for “no-win, no-fee” legal claims,[x] and rainforest protection.[xi]

Takeaways

Though corporate criminal liability is undoubtedly the hotter topic at present, company directors should be alive to the very real possibility that they could be prosecuted personally for fraud, bribery, and other economic crime. The SFO has been criticised in recent years for adopting a corporate-centric approach to enforcement — a reputation that is not entirely deserved given the agency’s modest but significant successes against individual wrongdoers.

The SFO’s new director, Nick Ephgrave, is now in post and given his background as an investigator and police officer, there is reason to believe we may see a more active SFO during his tenure, with individual prosecutions much higher on the agenda.

This post was prepared with the assistance of Emma Bunting in the London office of Latham & Watkins.

Endnotes

[i] Serious Fraud Office, “SFO charges four individuals behind Patisserie Valerie collapse” (13 September 2023), available at https://www.sfo.gov.uk/2023/09/13/sfo-charges-four-individuals-behind-patisserie-valerie-collapse/.

[ii] Patisserie Holdings plc, “Further trading update and proposed firm and conditional placing to raise capital” (Regulatory News Service announcement, 12 October 2018).

[iii] Serious Fraud Office, Strategic Plan 2022-25, available at https://www.sfo.gov.uk/download/strategic-plan-2022-25/.

[iv] Patisserie Holdings plc, “Trading update” (Regulatory News Service announcement, 10 October 2018).

[v] Financial Reporting Council, Final Decision Notice against (1) Grant Thornton and (2) David Newstead (27 September 2021), available at https://www.frc.org.uk/getattachment/207dc84d-af8b-494d-8113-379c1838e076/Grant-Thornton-Patisserie-Valerie-Final-Report.pdf.

[vi] Serious Fraud Office, “Serious Fraud Office charges former CEO and CFO of London Mining Plc with bribery” (16 June 2023), available at https://www.sfo.gov.uk/2023/06/16/serious-fraud-office-charges-former-ceo-and-cfo-of-london-mining-plc-with-bribery/.

[vii] Serious Fraud Office, “Serious Fraud Office charges three directors with fraud for forestry investment in Costa Rica” (14 June 2023), available at https://www.sfo.gov.uk/2023/06/14/serious-fraud-office-charges-three-directors-with-fraud-for-forestry-investment-in-costa-rica/.

[viii] Serious Fraud Office, “Serious Fraud Office secures three convictions in $500 million trade finance fraud”, available at https://www.sfo.gov.uk/2023/02/02/serious-fraud-office-secures-three-convictions-in-500-million-trade-finance-fraud/.

[ix] Serious Fraud Office, “Fraudulent Caribbean resorts owner convicted after SFO investigation” (3 August 2022), available at https://www.sfo.gov.uk/2022/08/03/fraudulent-caribbean-resorts-owner-convicted-after-sfo-investigation/.

[x] Serious Fraud Office, “Investment manager behind £100 million no-win-no-fee fraud jailed for 14 years” (11 August 2022), available at https://www.sfo.gov.uk/2022/08/11/serious-fraud-office-secures-conviction-in-100-million-no-win-no-fee-fraud/.

[xi] Serious Fraud Office, “First SFO trial of 2022 results in double conviction” (31 May 2022), available at https://www.sfo.gov.uk/2022/05/31/first-sfo-trial-of-2022-results-in-double-conviction/.