For most of the last few years, the UK’s main serious crime fighting agencies have had a major reorganisation hanging over them.
One such agency, the Serious Organised Crime Agency (SOCA), has already gone, with the National Crime Agency (NCA) taking over its activities in October 2013.
The current position, in broad terms, therefore, is that we have the NCA focussed on serious organised crime, cybercrime and national security, and the Serious Fraud Office (SFO) focussed on serious and complex fraud and corruption.
The Conservatives have had their sights set on this arrangement since as long ago as 2010, when they floated the idea of merging SOCA with the SFO and the Financial Services Authority. Since then, the financial regulatory landscape has been completely re-drawn, so the proposal from 2012 is to abolish the SFO, merging its investigators into the NCA and its prosecutors into the Crown Prosecution Service.
Some would say the SFO has only itself to blame for the threat to its existence, given a long history of high profile case failures and the discovery of serious governance weaknesses under its last Director.
But has the tide recently turned?
The SFO is currently seen as an agency very much ‘on the up’. First, there was the conviction in August this year of Tom Hayes for LIBOR ‘fixing’, resulting in a 14 year prison sentence. Although both conviction and sentence are at the time of writing subject to appeal, the outcome stands up extremely well to comparison with the US, traditionally held up as the leading example of strong white collar crime enforcement.
Then, at the end of November, the SFO secured another historic first – the US$33 million deferred prosecution agreement with ICBC Standard Bank concluding its first case for failure of a corporate to prevent bribery under section 7 of the UK Bribery Act.
But the SFO wasn’t finished there. Just days later came the announcement of the first section 7 guilty plea, by Sweett Group plc, in respect of two contracts in the Middle East. We will have to wait a few months for the hearing of this case to learn the details, but around a year ago theSFO was announcing that it was treating Sweett as non-cooperative with its investigation. On any view, therefore, the result is a good one.
It is perhaps no surprise that news emerged almost contemporaneously that David Green has had his contract as Director of the SFO extended by two years.
Contrast the successes of the SFO with recent travails of the NCA.
On 27 November 2015, it was forced to announce an independent review of all warrants, production orders, accounts monitoring orders and authorisations under section 18 of PACE(which deals with search and entry after arrest) in all live cases. This followed two cases where the NCA was found to have obtained evidence unlawfully, leading to severe criticism of theNCA’s approach to search warrants and surveillance devices and one judge labelling its conduct “systematically flawed”. There are fears now that important cases may collapse and a large number of existing convictions in serious crime cases may be subject to challenge. On 8 December, in evidence to the Home Affairs Select Committee, the Director-General of theNCA admitted that some 350 operations were under review.
The NCA claims that it has inherited these problems from SOCA, but it has been operating for two years now, and it is difficult to see how issues so fundamental to the fight against serious crime have been allowed to develop into this state.
So is the Government proposal to abolish the SFO and strengthen the NCA dead in light of recent events? Certainly many commentators are speculating that it will be much harder for the Government to proceed, and the SFO must surely now be on stronger ground when arguing for an independent future.
In a sense, though, the debate about recent events misses the point. Both organisations remain seriously underfunded. The NCA concedes that it is only able to scratch the surface of organised crime and money laundering. The SFO remains reliant on the UK Treasury granting special funding for particular projects. Until we commit to funding the fight against serious crime properly, there seems little point arguing about how best to structure the agency or agencies which lead it.