Whisper it quietly, but it looks like the Serious Fraud Office (SFO) may have got its ‘mojo’ back. Indeed, last September, in a speech to the Cambridge Symposium on Economic Crime, SFO director David Green said as much: ‘The SFO has the cases, the people and the resources in place. It knows its mission and it has recovered its mojo.’
Historically, it has been part of a SFO director’s role to make bombastic statements such as this, but the statements have not always been matched by results or supported by practitioners’ opinions. This time, though, it has a ring of truth, and the next 12 months may do much to justify the director’s confidence.
So what is the SFO doing right? It is investigating what it is supposed to, under its stated remit of investigating and prosecuting the most serious cases of alleged complex fraud and overseas corruption. For example, early this month it was confirmed that the SFO had begun an investigation into Bank of England auctions amid rigging fears.
Also, look at the SFO’s current case list, which reads like a Who’s Who of blue-chip companies: Barclays (payments to Qatar), Rolls-Royce (overseas corruption), GSK (overseas corruption), Tesco (accounting irregularities), Airbus subsidiary GPT (overseas corruption) and G4S/Serco (fraud). No charges have yet been brought in these investigations. Over the course of this year we may also see the SFO enter into the first UK Deferred Prosecution Agreement. It is also moving towards the start of the series of Libor (benchmark fixing) and Alstom (overseas corruption) trials.
In addition to ongoing investigations, the SFO has had recent tangible success with the conviction of Ulf Magnus Peterson, the head of collapsed hedge fund Weavering, who was sentenced to 13 years in prison. The SFO also obtained its first conviction under the UK Bribery Act in the Sustainable AgroEnergy matter, as well as three convictions in relation to JJB Sports.
The Weavering case is an important example because, like Libor, it had previously been dropped by Green’s predecessor Richard Alderman.
It is this break with the past that the SFO has wrestled with in recent years. Two of the SFO’s most recent damaging defeats were in cases started under Alderman. The collapse of the Victor Dahdaleh trial turned the spotlight on to the way the SFO handles multi-jurisdictional investigations, after the prosecution had to be abandoned when two key witnesses from US law firm Akin Gump refused to come to the UK to give evidence.
During the proceedings, the defence had raised issues about Akin Gump’s role in the provision of assistance to the SFO, both in relation to the relevance of the information it was providing and its motives for providing it. The trial judge said that the SFO had remarkably mismanaged its investigation and particularly its relationship with the lawyers of the corporate (Alba).
The second, well-known disaster related to the Tchenguiz brothers, who successfully sued the SFO and received at least £7.5m in damages and costs following the SFO obtaining unlawful search warrants in relation to its investigation into collapsed Icelandic bank Kaupthing.
On top of these headline problems, the available statistics show the SFO has struggled to get results. The conviction rate dropped from 91.7% in 2009/10 to a low point of 73% in 2012/13, before rising in 2013/14 to 85%. It is important to note that this time period straddles the tenures of two directors: Alderman (2008 to 2012) and Green (2012 to the present).
Given the length of time SFO cases take to reach court, it is reasonable to assume that most failed cases in 2012/13 were started on Alderman’s watch. It is against this backdrop that the SFO’s performance must be judged. Green inherited not only a challenging case load but also an organisation which suffered from poor morale and a string of high-profile departures.
So how has this improvement come about? For a start, the SFO’s relationship with the City has hardened (certainly in public), with a greater emphasis on actual prosecutions as opposed to cutting deals with companies who self-report concerns about possible criminal conduct.
This is evidenced by the SFO’s publicly stated dislike for internal investigations and the suggestion that private practice lawyers are ‘churning up the crime scene’ by conducting interviews with witnesses and suspects before the SFO becomes involved, and then claiming privilege over the interview notes. It is expected that the SFO will litigate this point shortly, another example of its increasingly aggressive approach – one that should be viewed as an attempt by the SFO to assert control over the investigation of white-collar fraud and corruption.
While it is correct to say that there are elements of posturing in this approach, not least because the SFO does not have the resources to conduct the initial sift of material required in massive global investigations, it is heartening to see a prosecutor act like a prosecutor and be aggressive in its approach.
Perhaps lessons have been learnt from the US, where the SFO has worked hard, and not without the odd hiccup, to rebuild its relationship with the Department of Justice (DoJ). This followed a period during which the DoJ did not trust the SFO to get the job done and therefore took responsibility for many high-profile multi-jurisdictional prosecutions.
The progress outlined above is positive, but the next six to 12 months will be vital for the survival of the SFO. Media reports suggest that there is a desire by politicians to merge the organisation with the National Crime Agency following the general election.
To avoid this, the SFO will need to translate the big-name cases currently under investigation into convictions. The stakes are high, as another false dawn for the SFO could result in its demise.
Christopher David is counsel at WilmerHale