'The sword still hangs over the SFO' - partners warn uncertainty could damage UK law enforcement
Latham, Eversheds, OC and Addleshaws partners discuss the post-election prospects for the SFO
June 23, 2017 at 08:46 AM
5 minute read
White-collar crime partners have warned that ongoing uncertainty over the future of the Serious Fraud Office (SFO) could impact on recent progress made by the City watchdog, following the seeming reprieve granted to it this week.
The Conservative manifesto had included a pledge to merge the SFO into the National Crime Agency, but this was not mentioned in this week's Queen's Speech, which was slimmed down in the wake of the Tories' loss of an electoral majority.
The SFO's stay of execution came alongside the news that it was charging Barclays and four former senior executives in connection with capital-raising arrangements with Qatari investors during the 2008 financial crisis.
However, the organisation's future still remain uncertain. Latham & Watkins white-collar crime partner Stuart Alford QC, head of the fraud division at the SFO between 2012 and 2016, warns: "The sword still hangs over the SFO."
A government spokesperson says: "The government is continuing to review options to improve the effectiveness of the UK's response to economic crime, and any measures resulting from this work will be announced in due course."
Eversheds Sutherland corporate crime head Neill Blundell argues that the decision to charge Barclays shows the ambition and confidence of the organisation.
"If they are prepared to take on a big bank like that, it does send a message that the SFO is alive and well and is prepared to take difficult decisions."
Other recent high profile successes include a deferred prosecution agreement (DPA) with Rolls-Royce, which saw the engineering company agree to pay £671m to settle bribery and corruption allegations, as well as a £129m DPA with Tesco to avoid prosecution for overstating its profits in 2014.
"For the government to consider killing off the SFO shortly after it has demonstrated it can successfully target business, and achieve settlement levels only seen previously in the US, is frankly ridiculous," Blundell adds. "Post Rolls-Royce, they have earned their right to exist."
Alford cautions that the ongoing political uncertainty could be hampering the SFO's efforts. "Senior people at the SFO have to spend too much of their time worrying about the survival of the office and the politics of the situation; diverting time from core job of casework," he says. "Theresa May often says she wants to 'get on with the job', which I'm sure is how the SFO is feeling, rather than the constant distraction about its future."
Osborne Clarke business crime partner Jeremy Summers says: "The government ought to be bold enough to accept that [scrapping the SFO] it is a bad idea and allow the SFO to proceed accordingly, particularly given its track record and the momentum it has acquired in the last two years."
However, despite recent successes, the SFO has seen a number of high profile reversals, including the acquittal of two former Barclays traders earlier this year on charges of rigging Libor rates and the collapse of an investigation into the Tchenguiz brothers in 2014.
Addleshaw Goddard corporate crime partner Nichola Peters (pictured above) argues that reform is necessary to ensure its future.
"There are a number of things the SFO can do itself to improve its track record," she says. "There are still issues around liaison with other law enforcement agencies like the US Department of Justice (DoJ), for instance, and also the timescale it takes to investigate these big cases."
Peters also calls for a less London-centric approach to tackling corporate crime: "While in the past, the SFO has prosecuted cases working alongside local police forces outside of London, I think it would help for the SFO to have offices not just in London but in other parts of the UK," she says.
The uncertainty over the SFO's future could have other implications for its ability to perform effectively, as Summers warns. "International agencies like the US DoJ are likely to be looking on with no small amount of disbelief. They may also be disinclined from sharing intelligence with an agency it cannot be sure will be around next year," he says. "All of this has the potential to be badly damaging to UK law enforcement and, given that the SFO has been doing well, is totally unnecessary."
Blundell also calls for the SFO to be left to get on with job saying: "It strikes me that it is doing what the government always intended it to do, and should therefore be allowed to get on with it without constant government snipping and meddling.
"If there is a delay in any decision on its survival, it could mean the SFO losing good staff, morale being low and it might not be able to do the things it should be doing."
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