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Solicitor General Hints at SFO Turning Point

By Max Walters

The future of the Serious Fraud Office appears brighter today after the solicitor general praised its work and high conviction rate.

Speaking at the Cambridge Symposium on Economic Crime, solicitor general Robert Buckland said the SFO was continuing to deal with ‘some of the most high profile cases’. He noted that the office has opened 12 new investigations in 2016-17 and brought charges against 25 companies and had a conviction rate per defendant of 89%. He also praised the deferred prosecution agreement with Rolls Royce.

He added that the charges brought against Barclays PLC and four of its former executives have all been important in demonstrating that economic crime will be ‘responded to with the seriousness it requires’.

The SFO’s future has been the subject of speculation recently after a pre-election pledge by the Conservative party to merge it with the National Crime Agency.

The symposium, held at Jesus College, also heard from departing SFO director David Green, who said he believed the office was in good shape.

On the manifesto proposal he said the office was ‘awaiting proposals and the underlying evidence justifying them’. He said he understood that a decision was ‘in hand’. Green, who will step down from his role in April next year, added: ‘The SFO is confident, attracting excellent staff, and well able to deal with the kind of case for which it was intended.’

Alison Geary, counsel at international firm WilmerHale, said Buckland’s words were a ’turning point’ for the SFO. ’In praising the agency’s results over the past year – from its high-profile cases, high conviction rate and successful DPAs – the solicitor general surely puts beyond question the SFO’s future as an independent investigator and prosecutor,’ she said.

Jonathan Pickworth, partner at US firm White & Case’s London office, added: ‘It is good to see positive messages about the SFO coming from the government. The past few years have seen far too much uncertainty about the SFO’s future, which is unhelpful for recruitment and retention and can impact on how investigations are managed. The SFO is receiving the plaudits now that it has marked itself out as an enforcement agency to be feared, and a significant generator of revenue for the Treasury.’

Also today, Buckland reiterated that the Criminal Finance Act, which will introduce several new provisions for tackling economic crime, will be introduced in the autumn.

Among the measures in the act include the creation of an unexplained wealth order, which will make it more straightforward for law enforcement to take away property from those suspected of wrongdoing and who cannot explain how they obtained the money to pay for it.

Reacting to the news, Robert Amaee, partner at Quinn Emanuel Urquhart & Sullivan, said the unexplained wealth order would provide a ‘novel legal tool’. However, he said defence counsel ’will need to safeguard’ against any over-enthusiastic use of the tool by law enforcement. Issues could include the subsequent use of information obtained through coercion and the question of any applicable immunity when dealing with a politically exposed person, Amaee said.

Buckland added that the government had completed its call for evidence on whether the failure to prevent act should be extended beyond bribery to other areas of economic crime, including money laundering, false accounting and fraud. A criminal offence for corporations who fail to stop their staff facilitating tax evasion – both in the UK and overseas – was introduced under the act.

Amaee said the extension of the ‘failure to prevent’ offence lends itself to the drive by the government and prosecutors to encourage companies to enter into settlement discussions under the Deferred Prosecution Agreement.

‘Companies with the potential to get caught in the crossfire, and in particular those responsible for their corporate governance and compliance, will be mindful of the need to review their policies and procedures to ensure preparedness,’ he said.

The Law Society said it plans to publish a practice note related to the Act shortly.

(Courtesy: Law Society Gazette)