The Serious Fraud Office (SFO) has announced its key priorities for 2019. The underlying role and remit of the SFO will remain unchanged, but the main areas of focus will be ensuring cases progress as quickly as possible; working more collaboratively with partners; and making full use of the tools and resources available.
The organisation’s joint head of bribery and corruption, Matthew Wagstaff, outlined the plans to delegates at the Lawyer’s Managing Risk and Litigation Conference. “Investigating and prosecuting cases of serious and complex fraud, bribery and corruption and associated money laundering … remains, very clearly, our focus,” he said. “We will continue to progress those cases as well as take on new work, where appropriate, alongside the three key areas we are focusing on.”
Progressing cases at pace
Criticisms levelled at the SFO over the length of time investigations can take have been heard, Wagstaff said, as he outlined how the department plans to progress cases at pace.
There are several issues which currently hinder investigations. An increasingly globalised economy means cases are becoming more ‘multinational’, so evidence often has to be gathered from different countries. A sharp rise in the volume of digital data being acquired by SFO teams has also had an impact on the time it takes to investigate cases, while factors outside the SFO’s control, such as court listings, can slow case progress.
“Even accepting these points, we recognise the importance of progressing our cases as quickly as possible,” Wagstaff said. “Lisa [Lisa Osofsky, SFO director] has made clear her commitment to getting our cases moving more quickly, especially at the investigative or pre-charge stage.”
“That will mean case teams being strategic as to what lines of enquiry they pursue; not over investigating cases; making good use of the investigative tools that Parliament has entrusted to us and selecting charges that are sufficient to reflect the criminality alleged but that do not go beyond what is necessary.”
Presenting cases in simple terms and ensuring they are as jury friendly as possible are key goals, whilethe SFO says it is determined not to be ‘distracted’ by delaying tactics deployed by businesses or their defence teams.
Working more collaboratively
Working collaboratively with other law enforcement partners, both in the UK and overseas, is a crucial strategy in being able to build robust and strong cases, Wagstaff told the conference. The latter is especially important, given that crimes often don’t respect international boundaries and jurisdictions.
“To be clear, [working with other jurisdictions] is a good thing and it is absolutely right, for example, that those suspected of criminal wrongdoing, be they corporates or individuals, are dissuaded from thinking that they can play one law enforcement authority off against another,” he said.
Working internationally can have its challenges, for example the need to work with differing legal systems, but the SFO is determined to make more of the advantages that working collaboratively with international partners can bring. It will now happen in a more “co-ordinated and equitable” way, Wagstaff said.
He highlighted the recent Rolls Royce deferred prosecution agreement (DPA) case which saw UK, Brazilian and US authorities work together to achieve a successful settlement. The SFO also works closely with the US Department of Justice and plans are in place to cement that relationship further in 2019.
Whatever the final Brexit outcome may be, the SFO says it is confident in being able to work as closely as before with its European agencies.
The new National Economic Crime Centre, which launched in November and is tasked with planning and co-ordinating operational responses across the UK, will be an essential partner for the SFO. Staff have been seconded to the centre while the SFO will continue to work closely with police forces, including the City of London Police, the lead force on fraud.
Making use of the tools available
The Bribery Act and, in particular, the s.7 offence of failing to have adequate measures in place to prevent bribery are ‘highly effective’ tools for the SFO. While the volume of prosecutions has been relatively low, the Act and s.7 offence have been useful leverage tools to persuade corporates who have identified a problem to come forward and talk to the SFO proactively. It’s something the SFO wants to see applicable to all economic crimes.
The relatively new DPA is an option the SFO wants to utilise effectively in 2019. Whether the company is co-operating with any investigations is an important determiner in deciding to apply a DPA, and the SFO has marked clarifying what this co-operation looks like as a ‘topic of interest’ for this year.
Obtaining an unexplained wealth order (UWO), a measure introduced by the Criminal Finances Act 2017, is another tool the SFO hopes to use appropriately in 2019, after an application to overturn an UWO was dismissed by the High Court last year.
Given the SFO’s emphasis on ensuring that businesses can demonstrate co-operation in its investigations, it would seem prudent for risk managers to ensure their client plans acknowledge the new direction.