UK: Can The SFO ‘Crack' More Cases By Getting Suspects To Co-Operate?

Last Updated: 2 April 2019
Article by Richard Sallybanks and Jonathan Flynn

Richard Sallybanks and Jonathan Flynn look at the considerations which can arise when entering into co-operation agreements under the Serious Organised Crime and Police Act 2005.

Over the past few months, Lisa Osofsky, Director of the Serious Fraud Office ('SFO') since late August 2018, has spoken of a series of measures designed to speed up SFO investigations and increase the number of convictions for white collar crime. These include greater collaboration with prosecuting authorities overseas (particularly in the US), utilising technology to expedite the investigative process and, significantly, encouraging suspects in the UK to co-operate with the SFO in order to 'crack' more cases.

In a speech in Washington DC on 4 December 2018, Ms Osofsky said: "...we in the UK have heard loud and clear from our colleagues in the United States how valuable co-operators can be in cracking white collar cases. We have different practices and different rules in Britain, and co-operators have, to date, been more widely used in narcotics or gang cases. Suffice to say, we are intently exploring this area in the white collar world."

These sentiments were echoed in Ms Osofsky's evidence to the UK's Parliamentary Justice Committee on 18 December 2018, when she talked of the need to "get an insider who can help us [the SFO] understand what the scheme was and what the relevant documents are" as opposed to having to "wade through what can otherwise be a morass of documents".

In the UK, the statutory framework governing co-operation agreements is contained in the Serious Organised Crime and Police Act 2005 ('SOCPA'). Introduced in April 2006, these provisions added to rather than replaced the pre-existing common law mechanisms.

There are two main types of SOCPA agreement: a section 71 agreement, which confers immunity from prosecution in exchange for a suspect's full co-operation; and a section 73 agreement, which requires a suspect to plead guilty to an offence, but enables the court, when sentencing, to take into consideration the co-operation provided (often resulting in a substantial reduction in sentence: R v Blackburn[1]; R v Dougall[2]).

Whilst SOCPA agreements have been around for a number of years, the provisions are infrequently used by the SFO (section 71 less so than section 73).[3] This is no doubt due, in part, to a reluctance by some prosecutors to 'do a deal' with suspects (particularly if that 'deal' involves granting full immunity). However, it is also important to recognise the reasons why suspects (and their lawyers) might view SOCPA agreements with some scepticism.

One of the main difficulties with the SOCPA regime is that in order to co-operate at an early stage in an investigation, a suspect will have to make admissions in an interview under caution, often before the person knows the full strength of the evidence against him or her. For obvious reasons this acts as a disincentive to providing the full and frank disclosure that SOCPA requires. Whilst the SFO has the power, under section 72, to conduct an interview which cannot be used against a suspect, this power is rarely used.

In addition, the conditions imposed by SOCPA agreements are often onerous and prolonged. As well as making admissions in interview (and, in the case of section 73, pleading guilty to a criminal offence), SOCPA agreements invariably require a suspect to co-operate in any ongoing investigations in the UK and overseas, which will often include appearing as a witness at the trial (or trials) of their co-accused.

Equally, where a person is a suspect in a cross-border investigation, entering into a SOCPA agreement in the UK does not automatically prevent prosecution overseas. Theoretically, if a suspect pleads guilty to a criminal offence in the UK (pursuant to a section 73 agreement) they can seek to rely on the internationally recognised principle of autrefois convict, ne bis in idem or, as it is more commonly known, double jeopardy if prosecuted elsewhere in respect of the same conduct. However, outside of the EU such protection is not universally applied and separate agreements must be obtained with overseas authorities conducting parallel investigations (for example, a non-prosecution agreement ('NPA') in the US). Problems can nevertheless arise in practice if, subsequent to the SOCPA agreement and conclusion of the UK proceedings (and any parallel investigation), another overseas authority begins an investigation.

Entering into a section 73 agreement also carries an inherent risk: in the past, some suspects have co-operated with the SFO (and pleaded guilty to an offence) only to find that their co-accused were not charged or, if charged, were ultimately acquitted. In those circumstances the co-operator ends up as the only person convicted, with all the adverse consequences that follow, including serving whatever sentence the court imposes (even a suspended sentence will have conditions attached to it), reputational damage and potential difficulties obtaining future employment and visas to travel overseas. One such example (in the context of the UK's anti-trust enforcement) is the case of R v Snee where the defendant, Mr Snee, co-operated with the Competition and Markets Authority, pleaded guilty to a cartel offence, gave evidence at trial against two co-accused and received a suspended sentence; his two co-defendants were however acquitted at trial.[4]

Whether the SFO can overcome all or some of these difficulties remains to be seen. Ms Osofsky may ultimately find, however, that using SOCPA agreements to 'crack' more SFO cases is easier said than done.

Footnotes:

[1] [2007] EWCA Crim 2290

[2] [2010] EWCA Crim 1048

[3] The Government White Paper that preceded SOCPA noted that "the assumption will always be... that the majority of co-operating defendants would be offered sentence reduction rather than full immunity".

[4] https://www.gov.uk/government/news/director-sentenced-to-6-months-for-criminal-cartel

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions