With a stated aim to “make the world even more inhospitable for those who would lie, cheat, steal and bribe to line their pockets” and secured funding of GBP53m for the next three years, the new director of the UK’s Serious Fraud Office (SFO), Lisa Osofsky, is ambitious for the future of the agency.
In a series of speeches and interviews, key figures from the SFO have revealed the organisation’s priorities and hinted at its future strategic direction. With a focus on collaboration, transparency and efficiency, the SFO hopes to make the UK a high-risk place for the world’s most sophisticated criminals to operate.
International and domestic collaboration
The key message from the SFO in recent months has been the importance of collaborating with fellow law enforcement agencies, both domestically and abroad. Osofsky believes that such collaboration is vital in order to bring strong and effective cases.
Given the increasingly international nature of white collar crime, it is perhaps unsurprising to see growing cooperation between prosecutors and regulators around the world. The SFO has found that is often easier and quicker to obtain evidence from overseas where another jurisdiction is investigating similar conduct. Such collaboration led to the joint settlement between Rolls Royce and the UK, U.S. and Brazil.
Understanding the differences and similarities between jurisdictions is key to such efforts – and this has been aided by secondments. A prosecutor from the U.S. Department of Justice has been recently seconded to the SFO for a year, and two prosecutors from the Singapore Attorney General’s office joined the agency in January 2019.
Osofsky has also emphasised the role that collaboration with other domestic agencies will continue to play in the FO’s work. The agency has affirmed its close links to the FCA, NCA and the police, and has sent secondees to the UK’s newly formed National Economic Crime Centre.
Corporate cooperation and integrity
Both Osofsky and Hannah von Dadelszen, the SFO’s Head of Fraud, have underlined the importance of corporate cooperation in their investigations. They have stressed that corporate leaders who, in their view, obstruct the progress of cases, mislead the SFO or cause unnecessary delays may not benefit from cooperation credit.
The level of cooperation the SFO now expects from corporations is high. They will be expected to make documents, financial records and witnesses available promptly; to point the SFO to the most relevant evidence, rather than ‘document dump’; to make such evidence available in a legal and useful way; and to avoid creating proof issues or procedural barriers. According to the SFO, this level of ethical corporate behaviour is required in order to qualify for a DPA, and Osofsky has stressed that DPAs will not be available to those organisations who fail to follow these guidelines.
Furthermore, the SFO maintains that this ethical corporate behaviour should begin even before an investigation is launched. The SFO has therefore placed a renewed emphasis on ongoing corporate compliance and integrity, which must be more than mere ‘window dressing’. Favourable dispositions will not be available to corporations unless their compliance systems are functioning and thorough.
In addition, Osofsky has brought to the SFO a greater emphasis on individuals being awarded immunity from prosecution where they cooperate and provide evidence against others.
Investigating at pace
In a speech in late 2018, Matthew Wagstaff, the SFO’s Joint Head of Bribery and Corruption, acknowledged that much of the criticism directed at the agency is brought about by frustration at the length of time it takes them to resolve cases.
The advance of technology has fundamentally changed the investigative process, according to Osofsky. Whereas previously law enforcement agencies suffered from a lack of information, now the problem lies in finding “evidential needles in huge digital haystacks”. The large volume of data the SFO is required to sift through, combined with the increasingly international nature of the work, means that investigating and charging at pace will always be difficult.
However, Osofsky has made a clear commitment to get cases moving quickly, especially at the investigation stage. She told the UK parliament’s Justice Committee that she aims to bring a “more proactive, nimble approach” to the SFO in order to give the public greater confidence in the agency. As a starting point, this will entail being strategic about what lines of enquiry to pursue, presenting cases in a simple and jury friendly manner, and dealing swiftly with delaying tactics.
Working with technology and legislative tools Another key way in which the SFO hopes to increase the pace of investigations is through the use of technology and carefully chosen legislative tools.
Although advances in technology may have contributed to the vast amount of data thrown up by each case, the SFO considers that technology will also provide the tools with which to tackle the problem. For example, Osofsky has indicated that technological developments can help the SFO to access the varied ways in which criminals now communicate and lead them more quickly to exculpatory documents. Indeed, the SFO has invested in an AI-powered ‘Robo-Lawyer’ which can rapidly review documents for legal professional privilege before they are handed over to the case team.
Using the correct legislative tools is also important for the SFO to be effective. There have been calls from the agency to increase individual director liability for corporate failures, to make up for the difficulty they have faced in prosecuting corporates. The much-quoted ‘failure to prevent economic crime’ offence would likely be modelled on section 7 of the UK’s Bribery Act – the ‘failure to prevent bribery’ offence – and would no doubt increase the SFO’s workload considerably were it to be made law. The government’s response to its call for evidence is expected imminently.