Some time in April of this year—the exact date has not
yet been decided—the current Director of the UK's
Serious Fraud Office (SFO), Richard Alderman, will step down. He
will be replaced by David Green QC, who will hold the post for four
What are possible implications of this change for the SFO and
those it investigates? Our view is that Mr. Green is likely to
oversee a subtle shift in emphasis at the SFO, away from settled
outcomes and towards more traditional investigation and prosecution
of corporate offending.
Mr. Green is a respected criminal barrister with 25 years
of experience in both prosecution and defense work. In 2004,
he became the first director of the Revenue and Customs
Prosecutions Office (RCPO), a government body established to
prosecute tax, drug, money laundering and import/export offences.
Mr. Green held the RCPO directorship for six years, leading it in
its merger with the Crown Prosecution Service (CPS) in 2010. He was
Director of the CPS Central Fraud Group for a year following the
merger, and in 2011, returned to private practice.
Like Mr. Alderman, Mr. Green also has substantial experience in
government. However, he differs from his predecessor in that he has
spent the majority of his professional life in private practice.
Although he is perhaps not closely associated with white-collar
crime, he is particularly well regarded as a prosecutor and his
appointment is likely to result in a more aggressive SFO with a
greater emphasis on prosecution of serious fraud.
Under Mr. Alderman's leadership, the SFO has seen a gradual
move towards more collaborative methods of dealing with corporate
offending. In recent years, the SFO has relied increasingly on
self-reporting, plea negotiations and civil settlements as
alternatives to prosecution, particularly in relation to corruption
cases. Since the 2008 Balfour Beatty case concerning a
£2.25 million civil settlement for "books and
records" offences, there have been a number of similar
settlements. More recently, the government has proposed the
introduction of US-style deferred prosecution agreements which, if
introduced, would put an additional plea bargaining tool at the
SFO's disposal. While there appears to be significant political
support for the proposal, the timeframe for the consultation
process means that the formal proposal is unlikely to be put before
parliament before the next parliamentary session beginning in May
We do not think that under the new Director the SFO will
positively seek to reverse this shift towards US-style plea
agreements. However, we expect that this approach may be less
actively promoted in lieu of traditional prosecution and
Regarding the UK Bribery Act of 2010, which has been in force for
nearly eight months, the SFO is likely to actively look for a
"significant" case to prosecute or in which to reach a
large settlement. The SFO would particularly welcome a case in
which it could establish clear judicial support for the Act's
far-reaching extraterritorial scope with respect to the corporate
offence of failure to prevent bribery. In addition, and despite
businesses' difficulties with the Act's strict prohibition
of facilitation payments, we expect no let-up or "soft"
approach by the SFO on this issue.
Finally, a more aggressive SFO may scrutinize more carefully
companies' hospitality and entertainment events, something of
particular relevance in this Olympic year.
However, we need to keep in mind that Mr. Green joins the SFO at a
time when its resources are under severe pressure. A 25% budget cut
imposed in 2011 is expected to remain in place until 2013. Several
senior members of staff resigned in 2011 as a result of speculation
over the organization's future. The government's plans to
disband the SFO have since been shelved, though the exodus of
senior staff continues.
Thus the challenge for the SFO under its new Director will be how
to make its mark as an aggressive prosecutor of corporate crime
within the confines of limited resources.
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.
In its first public Policy Statement regarding the treatment of cooperation in investigations, the Public Company Accounting Oversight Board provided guidance on how it will consider a firm’s or associated person’s "extraordinary cooperation".
After a two-week trial before United States District Court Judge Edward Chen of the Northern District of California, David Nosal was convicted of three counts of violating the Computer Fraud and Abuse Act.
The U.S. Court of Appeals for the Second Circuit in United States v. Walsh ruled that the defendant could not use the proceeds from the sale of his house to fund his criminal defense because he used tainted funds to obtain the home.
In Commonwealth v. Nies, No. 5793-2012 (Pa. Ct. Com. Pl, Apr. 18, 2013), the Honorable John A. Boccabella of the Berks County Court of Common Pleas applied a somewhat rare exception to the requirement that those who do not submit to a blood test in connection with a DUI investigation are subject to enhanced sentencing requirements.