UK: An Eerie Silence

Last Updated: 18 May 2015
Article by David N. Kirk

There's an eerie silence in the world of fraud prosecutions in the UK. A Libor trial is about to start, a FCA land banking prosecution is on trial at Southwark, but with reporting restrictions, and a couple of weeks ago David Dixon, author of a Ponzi Scheme, pleaded guilty; and Julian Rifat, having entered a guilty plea in the long-running Operation Tabernula case, was sentenced to 19 months in prison for insider dealing. But the City Slicker pages of Private Eye have not been full of critical comment about the 'Serious Farce Office' for some weeks – no doubt to the hearty relief of SFO Director, David Green QC – and apart from the odd reference to continuing enquiries, and the recent embarrassing fine by the Information Commissioner, there is indeed little to report in the Spring of 2015.

The 2014 year end produced a slew of good results for the SFO: there were convictions in JJB Sports, Arck LLP, Smith and Ouzman Ltd and Sustainable Growth Group in November and December. Although these were comparatively minor cases by SFO standards, and did not receive much media coverage, they were undoubtedly complex and serious cases which required skillful and determined preparation and presentation. Less welcome was the dismissal in February of a savagely criticized application for a Voluntary Bill of Indictment in the case against six directors of Celtic Energy.

In the pipeline are some challenging cases. Decisions are awaited about the Qatari refinancing of Barclays in 2008, which might involve some senior Barclays executives, corporate prosecutions arising out of the Libor scandals, not to mention Tesco and FOREX. The Rolls Royce corruption enquiry and a number of other Bribery Act enquiries are being pursued. No doubt consideration is being given to disposing of some of these cases by way of Deferred Prosecution Agreements. Although this form of Alternative Dispute Resolution, imported from the US, was originally touted as an economic way of sanctioning large corporations, without running the risk of causing the kind of collateral damage that saw the demise of Arthur Andersen in the wake of the Enron scandal, in practice it appears that the process is neither quicker nor cheaper than simply bringing a prosecution.

It is now nearly a year since DPAs were made available to some UK prosecutors, but none has so far been deployed. Part of the reason for this might be the level of judicial supervision, from a very early stage, that has been seen as a vital part of the UK version of DPAs (sections 7 and 8 of Schedule 17 of the Crime and Courts Act 2013). The US version has much more limited judicial input, and therefore there has been no handy precedent to provide guidance and 'lessons learned'.

It is assumed that very senior judges will oversee the first few UK DPAs, and will set the standards, and this will probably lead to some hasty cutting and pasting of the 25 page 'DPA Code' issued by the DPP and the Director of the SFO under Schedule 17. Prosecutors therefore, not surprisingly, are feeling their way carefully in the build up to their first DPA. They will be conscious that negotiated agreements between prosecutor and defence have never found favour with the UK judiciary, and the disapproving words of Thomas LJ will be ringing in their ears from the 2010 judgement in Innospec.

The first concluded DPA will be crawled over by all commentators, not to mention those lawyers acting for large corporations who are feeling their way towards a settlement. Meanwhile, the waiting game, and lots of speculation, continues. One outcome that will be eagerly awaited is the public and media reaction to a concluded DPA. Will such a case be reported as a victory for justice, or as an example of big business buying its way out of trouble?

Meanwhile, there are rumours that the plans hatched in 2010, but discarded in early 2012, to gather all the fraud prosecutors under one roof are in the process of being revived. Out with the alphabet soup of authorities responsible for this work; in with a team of prosecutors run by the Crown Prosecution Service, prosecuting cases brought to them by law enforcement, mainly the City of London Police Economic Fraud Department, but also including the newly formed Economic Crime Command. This would mark the end of the SFO, and with it the unified investigating and prosecuting system advocated by Lord Roskill in 1985. It might also lead to the demise of the FCA's criminal prosecution powers, under which the financial regulator prosecutes a narrow range of economic crime, including insider dealing.

Whether this plan gathers sufficient support in the right quarters to be brought, blinking, into some form of reality probably depends to a significant extent on whether the SFO can bring its current crop of difficult investigations to a successful conclusion. Those at the SFO will be aware of this pressure, and will want to prove the naysayers (including City Slicker) wrong by securing convictions in high profile cases. However, the outcomes of all the Libor cases, and the current crop of corruption investigations, not to mention Barclays, are unlikely to be evident much before mid-2016, which will coincide with the end of Mr Green's contract. So if performance based judgements are to be made, they will need to be deferred.

There is of course another area of uncertainty – the Election. What cunning plan will a new government, post-election, hatch for the future of the SFO? Even if the Conservatives remain in office, it is likely that Mrs May, the progenitor of the 2010 plan to bring all fraud prosecutors under one roof, will move on to a new post. Will a new Home Secretary, with many other pressing priorities, have space in the legislative programme to create a new structure? A Labour administration, while wanting to show that it has plans to be tough on corporate law-breakers, particularly those at the helm of big banks, will probably have better things to do than plan a wholesale revamp of the existing counter-fraud landscape.

There are undoubtedly some compelling arguments for unifying fraud prosecutions, including that there would be no turf wars about who should be responsible for a fraud prosecution. Where contention would remain is in agreeing the acceptance criteria and priorities for the super prosecutor. It could not possibly handle all fraud complaints, any more than that the police could investigate them, so there would need to be a cut-off point, and that would probably mean that any case with a financial loss of less than £250,000 would not be taken on.

There would also inevitably be a divide between the various fraud 'typologies': City fraud, boiler rooms and consumer offences, bribery, market abuse and cyber crime are likely to be dealt with by separate teams with very different specialisations. The intelligence requirements for each are radically diverse, and the divide between allegations of senior boardroom misconduct in major UK banks on the one hand, and the activities of career criminals committing boiler room frauds on the other, is immense. Market abuse requires a degree of experience, in terms of both the legal and factual elements of the offence, that must rely significantly on market specialists. Such knowledge can of course be acquired, but it is not cheap, and successive governments have shown a marked reluctance to spend the kind of money on counter fraud measures that is desperately needed.

So, for Fraud watchers, this feels like the calm before the storm for both prosecution and defence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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