The Serious Fraud Office has been teetering on the brink for some time now. Several victims of its inept investigations have prompted some experts to question whether it remains fit for purpose.
I have commented several times on the SFO, including criticism of the organization’s head, Lisa Osofsky, for failing to grasp the SFO fundamentals and becoming too embroiled in the politics of what is effectively the UK Government’s anti-corruption arm.
One such victim of the SFO’s historical clumsiness was former Serco boss Simon Marshall, who spent eight years after being charged under a cloud of suspicion, before being cleared of any wrongdoing earlier this year. The case against him folded when issues generated by failings linked to disclosure brought the trial to its knees.
Mr. Marshall was quite rightly left angered and frustrated by these developments. Fraud, money laundering, and corruption inquiries are notoriously difficult to prosecute criminally due to their inherent complexity and resource intensiveness. However, eight years is a ridiculous delay for such a case to reach trial.
Mr. Marshall’s life had been placed on hold for all those years, with his professional reputation and personal character all being called into question. The SFO was quite rightly criticized for its delay here, but also for its lack of professionalism in failing to meet its pre-trial disclosure obligations to the accused (which proved terminal to its case).
However, on a brighter note, the SFO has recently obtained two Deferred Prosecution Agreements (DPAs) against unnamed UK companies which have admitted their part in bribery offenses, amounting to “multi-million” pounds in value. Such cases are still comparatively rare, with the SFO having secured ten such orders previously.
The companies concerned have agreed to pay a total of £2.5 million ($3.44 million) in fines and disgorgement of profits. Both companies are reported to have fully cooperated in the SFO’s investigation. The DPAs also contain an undertaking by a parent company to support a comprehensive compliance program and obligations to report to the SFO on compliance at regular intervals during the two-year term of the DPAs.*
In a statement, Lisa Osofsky said: “The SFO exists to uphold these principles, and DPAs enable us to do this, punishing companies for their crimes but also putting in place measures which ensure they will not flout the rule of law again.”
There has been a comparative dearth of SFO successes in recent times, so one can hardly criticize Ms. Osofsky for making hay while the sun shines. However, she must keep her eye on the ball, this being but a short respite. The SFO needs to continue upping its game to salvage its reputation among partner law enforcement agencies. This is a small step in the right direction.
* [Note requested by the SFO] The DPAs only relate to the potential criminal liability of the companies and do not address whether liability of any sort attaches to any current or former employee or agent of the companies. Upon determining the issue of approval of the DPAs, the Court did not make findings of fact. No process took place by which the culpability of individual people was determined or assessed.
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With thanks to Tony McClements, Senior Investigator at Martin Kenney & Co, for his assistance with this post. He served for 33 years with UK police forces and has specialized in Fraud & Financial Investigation since 1998. He is also a lecturer in these subjects at the University of Central Lancashire (UCLAN).
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