The Attorney General Jeremy Wright QC MP has today announced that the Director of the Serious Fraud Office (SFO) David Green CB QC has had his contract extended by 2 years until 20 April 2018. In announcing his re-appointment the Attorney General Jeremy Wright QC MP said:
“In his time as Director of the SFO David Green led a change in the organisation’s approach to prosecuting cases and delivered the first UK Deferred Prosecution Agreement and the first convictions under the Bribery Act 2010. I look forward to working with him in the next phase of his leadership of the Serious Fraud Office.”
The announcement comes on the back of the SFO’s success yesterday in securing guilty verdicts in a £45m investment fraud scheme.
What awaits David Green in the next two years?
Funding will be a critical issue. In 2014/15, with a budget of £35.2m, the SFO asked for an additional £26.5m to cover “significant investigations and to settle liabilities”. The 2015-16 budget was reduced to £33.8m but in January 2016, the Solicitor General informed the House of Commons that the SFO sought a cash injection of £21.1m, including an advance of £15.5m to meet “an urgent cash requirement.”
Bolstered by his extension we can expect David Green to continue his campaign for reform of the law on corporate criminal liability, and in particular the adoption of the US system of vicarious liability for corporates. The UK Anti-Corruption Summit in May could be a useful platform for him to call for the Ministry of Justice to make progress in this area. The MoJ needs a push. Last autumn it rejected Mr Green’s request for a new offence of corporate failure to prevent economic crime. The Ministry argued at the time that “there is little evidence of corporate economic wrongdoing going unpunished.”
Aside from legislative reform, we can expect the SFO to take a more confident approach to privilege following its recent success in the Divisional Court. The court upheld the legality of SFO procedures for dealing with material potentially subject to legal professional privilege (LPP) embedded in electronic devices that have been seized using statutory powers, or produced in response to a notice (R (McKenzie) v Director of the Serious Fraud Office  EWHC 102 (Admin)). There have also been recent press reports to the effect that Barclays has now decided to abandon a claim for LPP that it had made over certain material in the possession of the SFO in connection with its investigation into the circumstances of the bank’s capital raisings in 2008.
We can also expect further proposals for deferred prosecution agreements to be put before the courts in 2016, following strong signals from the SFO that more are in the pipeline (David Green’s speech to the Economic Crime Symposium 2015), though it remains to be seen how the courts will treat cases. It seems certain that co-operation by companies at a very early stage will be a key component of future agreements. (As set out by Ben Morgan, Joint head of Bribery and Corruption, in a speech at the Managing Risk and Mitigating Litigation Conference 2015).
Finally, we await the outcome of the SFO’s consideration as to whether to tighten up its current guidance concerning the attendance of independent legal advisers at section 2 interviews. It has signalled that it will place more conditions in future on such attendance, scarred it appears by the behaviour of some firms in the past. Any significant tightening of its current approach is likely, however, to be counter-productive and lead to a loss of goodwill with firms that by and large are supportive of the SFO’s continued existence.