After three of the four convictions in the SFO’s Unaoil case were overturned, the UK attorney general launched a review into the agency. Last month, Sir David Calvert-Smith’s report was published, and it made for deeply uncomfortable reading for the SFO and its supporters. It will also be a stick of dynamite for critics and detractors to throw at the SFO for years to come.
A pivotal moment happened in December 2021, when the Court of Appeal decided to quash Ziad Akle’s conviction due to the SFO’s contact with David Tinsley, a fixer for the Ahsanis, and the failure of the agency to disclose those communications.
The review highlights serious failings by senior leadership at the SFO, including errors of judgment by Director Lisa Osofsky.
Much of the discourse following the review has been focused on the funding of the SFO, and undoubtedly this is a major stumbling block for the agency. It places an inordinate amount of pressure on the agency to “perform.”
The SFO should be held to account for its successes and failures. Still, this incessant focus on whether it should even exist is deeply damaging and a significant distraction for the agency in fulfilling its mandate. Discussing the DOJ’s FCPA division and whether it should exist would be virtually unthinkable. Certainty is needed so that the SFO doesn’t continually have to fight for its survival or justify its existence. An environment of uncertainty creates a pressured environment leading to misjudgments and mistakes.
As a former SFO prosecutor, I know the weight that is on the shoulders of case teams managing these very complex, vast, and often high-profile cases. The idea of making a big mistake is terrifying and causes one’s blood to run cold as you picture being the person that puts the SFO’s future in jeopardy. That is an unhealthy and unsustainable environment for all concerned.
Inside the SFO, the pressure is immense. The review noted that “many emails were sent and actions taken at hours late into the night, and that key players were working on the case while on annual leave or, in one case, while unwell.”
Reform the agency, improve its funding, make it accountable – but guarantee its independence and existence. That is how it can begin to move forward from this difficult moment.
The review identified major issues it found that led to the decision by the Court of Appeal and categorized them under the following themes:
Casework. There was a lack of casework quality assurance and record keeping. No one within the agency had a proper and complete understanding of the issues in the multiple-stranded Unaoil investigation. The significant one-year without a General Counsel meant a possible gap in quality advice the Director and the case team could have received about Tinsley. The priorities and focus of the case team and senior management were at odds. The former was focused on trial readiness, and the latter on repairing the damaged relationship with the DOJ and working up new cases. The extradition of the Ashani family to the United States instead of the UK marked a significant low point in the relationship between the law enforcement authorities.
Resources. The case team lacked the capacity and resources needed to manage the demands of the Unaoil case. Some team members were also working on other cases. This impacted the team’s ability to manage the disclosure process effectively and led to mistakes.
Guidance. There was an absence of guidance in the Operational Handbook and other internal policies on how to deal with non-legal representatives. I did not encounter such a situation during my time as an SFO prosecutor, and the possibility of dealing with any party other than legal representatives would have been an alien concept.
Compliance. While there were several policies relevant to the life cycle of a case, the review found limited compliance with those policies, especially by senior leaders who perceived that they were “above the guidance.”
A lack of trust. The review found a “culture of distrust” between the case team and senior management based on several factors. These included the dismissal of the Case Controller, and the agency appearing to bow to pressure from the DOJ related to the Ahsanis. This distrust was exacerbated by the senior managers dealings with Tinsley, about which the case team said, “To be blunt, we thought that anyone with an ounce of investigative nous would have seen right through him.”
The Director’s endorsement of Tinsley. It appeared to be the case that Tinsley had been given the “seal of approval” by the Director. This impacted how the case team dealt with Tinsley and hindered their ability to make the right judgment call regarding their engagement with him. “His relationship with our senior managers…was one of the causes of the pressure and expectation to engage with him and the inability to shut him down.” Tinsley was also not a legal representative of any of the parties being investigated, and the case team thought that he should not have had any role in the agency’s investigation.
In total, the review set out eleven recommendations that the SFO and the attorney general have accepted. Some of the recommendations have already been implemented — including an anonymous reporting tool for staff to raise concerns directly with the Chief Operating Officer.
The review was damaging to the SFO, but I’m optimistic that this will make it a stronger and more resilient agency over time. This is a key moment for the SFO to rebuild its reputation and, most importantly, regain the trust of those within the criminal justice process.