Pressure is on to turn around the agency's fortunes in the face of mounting criticism, says Friederike Heine

Even by the standards of an organisation as regularly publicly lambasted as the Serious Fraud Office (SFO), the damning High Court verdict of its investigation into property tycoons Robert and Vincent Tchenguiz was humiliating.

The ruling at the close of July by two top judges that the SFO arrest of the brothers in relation to the collapse of Icelandic bank Kaupthing was unlawful arguably marked a new low for an organisation that has already faced a string of high-profile departures and budget cuts in recent years. 

Not to mention such serious criticism of its ability to fight fraud and questions about its future that it only narrowly avoided being broken up altogether last year.

The controversy, which came only weeks after the SFO named barrister David Green QC as its new director, has renewed concerns among white collar advisers in the City that the agency now faces a renewed fight for survival.

"The agency has become a byword for procedural failings and a lack of major convictions," states a former SFO employee, summing up the sentiment among many of the City's top white collar defence lawyers.

"It's time now for them to step up. Choosing the right cases and showing consistency in how they prosecute individuals and institutions will determine whether the agency can continue as a stand-alone body."

While the SFO's reputation has never fully recovered from the fallout of its 2006 decision to drop an investigation into BAE Systems' operations in Saudi Arabia (with the agency seen as buckling under political pressure to drop the case), under its most recent director, Richard Alderman, it had been seen to make some progress, albeit not enough. However, the Tchenguiz ruling threatens this.

Vincent Tchenguiz and his brother Robert were arrested in March 2011 in a dawn raid that received huge media coverage. 

Soon after, the fraud agency conceded that there were fundamental errors in the evidence it used to obtain search warrants against the brothers. It subsequently announced it was dropping its investigation into Vincent earlier this year. 

With the High Court confirming the warrants were unlawfully obtained, both brothers are expected to sue, with insiders concerned that the inevitable settlement could further deplete the SFO's already strained budget.

"Vincent has said that he will press forward with a £100m claim against the SFO, and his brother is considering launching a separate claim," says a white collar defence lawyer at a US firm in London. 

"The new director, who has openly stated that he will try to take the SFO out of the media spotlight, is likely to opt for an out-of-court settlement." 

In its defence, the SFO has consistently argued that its resources are too small to give it a fighting chance of meeting the expectations of the public – its budget is set to be cut from £53m in 2008-09 to £29m in 2014-15.

Stepping up

The pressure though will now be on the well-respected Green, former director of the Crown Prosecution Service (CPS) Central Fraud Group and member of 6 King's Bench Walk, to turn the troubled agency around.

"He is known for not shying away from prosecution, particularly in strategically significant cases that threaten confidence in UK plc and the City," says Robert Amaee, who left the SFO last year to join US law firm Covington & Burling in the City. 

"His structural reshuffle of the SFO was overdue – it's been well received so far, but a lot remains to be seen."

Green's revamp includes the hire of Alun Milford – previously head of organised crime at the CPS – as its new general counsel to replace Vivian Robinson QC, who left the body last year to join the London office of US firm McGuireWoods.

The director has also appointed senior barrister Geoffrey Rivlin QC, the former resident judge at Southwark Crown Court, as his new adviser on case presentation. Rivlin, whose remit includes overseeing cases from charge to trial, something the SFO has struggled with in recent years, has been appointed to a two-year term and will earn about £100,000 per year.

Aside from bringing in heavyweight lawyers to put some bite into the SFO's bark, Green has instigated the creation of four new casework divisions, with two departments to focus on fraud and bribery & corruption respectively, each headed by a senior civil servant.

He has also decided to split the role of head of corruption – currently held by Satnam Tumani – into two, with separate lawyers set to oversee UK and overseas corruption respectively. Tumani, who played a role in the Tchenguiz investigation, is set to join the London arm of Kirkland & Ellis at the end of September.

Against this backdrop, the SFO is embarking on its most important investigation in recent years as the agency tries to bring criminal actions against banks and individuals in the Libor rate-rigging scandal that has engulfed British banks such as Barclays. 

Chancellor George Osborne even confirmed his intention to boost the SFO's budget to ensure it has appropriate resources to pursue inquiries into the politically contentious affair.

 "The Libor investigation will certainly be seen as a litmus test for the new-look SFO – it might well determine whether the agency continues as a stand-alone body," comments Glyn Powell, who joined Jones Day earlier this year from the SFO, where he had led the fraud business division since 2004.

"If they do a good job of it, the investigation could safeguard their future, but there is no doubt that the media will pounce on even the smallest mishap after the botched Tchenguiz dawn raids earlier this year."