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Harry Cassin
Publisher and Editor

Andy Spalding
Senior Editor

Jessica Tillipman
Senior Editor

Richard L. Cassin
Editor at Large

Elizabeth K. Spahn
Editor Emeritus

Cody Worthington
Contributing Editor

Julie DiMauro
Contributing Editor

Thomas Fox
Contributing Editor

Marc Alain Bohn
Contributing Editor

Bill Waite
Contributing Editor

Shruti J. Shah
Contributing Editor

Russell A. Stamets
Contributing Editor

Richard Bistrong
Contributing Editor

Eric Carlson
Contributing Editor

Bill Steinman
Contributing Editor

What does the inspection of SFO ‘case efficiency’ mean for future enforcement?

The UK’s HM Crown Prosecution Service Inspectorate has recently published a report on case progression in the Serious Fraud Office.

Given the costs associated with any SFO investigation and the need to treat all parties including witnesses, victims, other agencies and defendants fairly, the report provides an exceptional opportunity to understand the workings of the SFO, the practical problems it faces and how it is seeking to improve case efficiency.

The Crown Prosecution Service Inspectorate inspects the work carried out by the Crown Prosecution Service (CPS) and other UK prosecuting agencies, including the SFO. Its purpose is to enhance the quality of justice and make an assessment of prosecution services that leads to increased efficiency and fairness.

The Crown Prosecution Service Inspectorate has reported on the SFO (at the SFO’s request) on numerous occasions since 2012, most recently in July 2019, and although the case progression report was initiated by the former Director of the SFO, Sir David Green, it has been published during the tenure of the current Director, Lisa Osofsky.

The report

The SFO’s role in England and Wales is to investigate and prosecute serious or complex fraud, bribery and corruption. Inevitably, the cases it investigates will often involve vast amounts of data requiring detailed analysis, including consideration of privilege issues, disclosure and data protection law. Cases are usually international in nature and involve numerous victims. As the Crown Prosecution Service Inspectorate recognizes, timely case progression is often very difficult, and many challenges the SFO faces will be outside its control.

Despite this, the SFO and its stakeholders have identified the variables it can influence in case progression as a key area of development and action. Indeed, Lisa Osofsky has stated that one of her key tasks as Director of the SFO is to review the cases on its books and remove those that do not meet the Full Code Test. Most notably (and to some criticism at the time), the SFO closed long-running investigations into Rolls-Royce individuals and GlaxoSmithKline in February 2019.

More recently it has ended certain LIBOR related prosecutions and to some extent, the SFO’s Corporate Cooperation Guidance, published in August 2019, is part of the same effort to streamline the service by making companies present data from their internal reports in a more helpful and organized way.

Key findings

As part of its review, the Crown Prosecution Service Inspectorate examined six SFO cases selected at random – particularly analyzing the period between case acceptance and decision to charge. The report involved interviews with staff and case managers, document review, and analysis of SFO policies and procedures.

The final report made findings including the following findings, some of which appear to relate to issues that have root causes at least partly outside the prosecutor’s control:

  • Unused material was handled well, and there were good examples of consideration of material and disclosure strategies. However the Crown Prosecution Service Inspectorate found inconsistencies in practice, which hampered progression. This often occurred when a peer review highlighted problems, or a new case controller changed strategy. Difficulties the SFO faces when it comes to disclosure will be somewhat inevitable, however, considering the heavy burden that falls on it through the UK disclosure regime.
  • Cases are accepted for investigation in good time, but the Crown Prosecution Service Inspectorate found some examples of delays. This is a result either of delays in the allocation of a case controller or suitable team, or the digital forensic unit (DFU) being behind in processing digital material for investigations. The Crown Prosecution Service Inspectorate linked these delays to resourcing problems, as well as case teams seizing perhaps too much material without considering its impact. Obviously, the underlying causes of these problems are partly outside the SFO’s control as investigations will often involve increasing amounts of data due to the complexity of the SFO’s work and technological developments.
  • The SFO had clear internal case work processes and an operational handbook. However, there was some inconsistency in application by individual case managers, which could impact efficiency. In this regard, the Crown Prosecution Service Inspectorate recognized that the SFO had recently commissioned a new case management system, which will help address any concerns.

The Crown Prosecution Service Inspectorate further recognized that there were opportunities for learning and that staff receive training. However it was suggested that to improve, the SFO could consider developing specific case progression training.

As a result of its findings, the Crown Prosecution Service Inspectorate made seven recommendations. These focused on ensuring that resourcing was such that cases could be progressed efficiently, reviewing the value of independent counsel where it was used, improving training of staff to support case progression and seeing that Heads of Division set key milestones in the progression of cases.

The future

The SFO is yet to comment extensively on the report and may well not. However, presumably it will be taking on board the recommendations and continuing the actions already underway above. It might also be glad to have seen the Crown Prosecution Service Inspectorate’s comments that the SFO performs well, has delivered good results in many challenging cases, has in place the frameworks in which improvements can be made and is in a “strong position.”

Finally the report will be useful in guiding the SFO’s future efforts in dealing with case progression. It is clear that Lisa Osofsky has identified this as a key area for development and taken a transparent approach. Director Osofsky also seems to have made some positive inroads on case efficiency in the year since her appointment. No doubt those who interact regularly with the SFO will wait to see how and whether this starts to impact their own experiences and if these very difficult cases can become more efficient.

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Sam Tate, pictured above right, is a partner and Head of Financial Crime at Reynolds, Porter Chamberlain LLP based in London. He is a co-author of a leading UK anti-corruption compliance text book “Bribery: a Compliance Handbook” published by Bloomsbury. He can be contacted here.

Charlotte Thompson, above left, is an associate at Reynolds, Porter Chamberlain LLP. Before joining RPC, She worked at the Financial Conduct Authority in the Enforcement team. She can be contacted here.

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