When Lisa Osofsky became the Director of the Serious Fraud Office ("SFO") last year, it was widely reported that she wanted to 'crack' more cases using plea agreements. 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."
What is less well known, however, is that whilst Ms Osofsky was extolling the virtues of plea agreements, Mr Dougall – the SFO's first co-operating defendant in a major overseas bribery and corruption case – was being prosecuted in Greece (using SFO-sourced material) for conduct that was part of, or wholly collateral to, his UK conviction.
In March 2008, following a referral by the US Department of Justice ("DOJ"), the SFO began a criminal investigation into the affairs of DePuy International Ltd ("DPI"), a UK subsidiary of Johnson & Johnson ("J&J") which manufactures orthopaedic devices. The SFO's investigation concerned allegations that DPI had paid bribes to surgeons in the Greek orthopaedic market since at least 1997.
In June 2009, Mr Dougall, a former executive of DPI, entered into an agreement with the SFO pursuant to section 73 of the Serious Organised Crime and Police Act 2005 ("SOCPA")1, which required him to plead guilty to conspiracy to corrupt, and to co-operate fully with the SFO and any foreign competent judicial authority investigating the affairs of J&J/DPI.
In accordance with the terms of this agreement, Mr Dougall signed a witness statement setting out his entire knowledge of and involvement in the payment of bribes to orthopaedic surgeons in Greece. He also met with and provided a detailed account to the DOJ, which granted him a Non-Prosecution Agreement ("NPA") in the US.
In April 2010, Mr Dougall pleaded guilty at Southwark Crown Court. He was sentenced to an immediate term of 12 months' imprisonment, which was suspended on appeal.2 Ultimately, no other individuals were prosecuted in the UK or US in respect of the DPI/J&J investigation. However, in April 2011, DPI agreed to pay £4.8 million in the UK as part of a civil recovery action and in the US J&J entered into a Deferred Prosecution Agreement with the DOJ (the "J&J DPA").
The Greek proceedings
Notwithstanding Mr Dougall's conviction in the UK (and NPA in the US), a Greek Investigating Judge issued an Indictment against him in 2014. Whilst the Indictment made it clear that Mr Dougall should not be charged with bribery/corruption due to the principle of ne bis in idem (analogous to the principles of double jeopardy or autrefois convict), it proposed that he should nevertheless be charged with fraud and money laundering based on the same facts as his UK conviction. Significantly, the evidence relied on to 'prove' these charges was derived, in large part, from material provided by the SFO and UK Central Authority ("UKCA") to the Greek authorities by way of Mutual Legal Assistance ("MLA").
In May 2017, Mr Dougall was tried (alongside 19 others) before a three-judge panel, sitting as a court of first instance, at the Court of Appeal of Athens (the "Court"). His co-defendants included former DPI/J&J executives (most of whom were from the UK or US), retired orthopaedic surgeons, and Greek nationals who were allegedly involved in facilitating the payment of the bribes.
At the start of the trial, it was submitted on Mr Dougall's behalf that the fraud and money laundering charges were barred by the principle of ne bis in idem, and that the material provided by the SFO to the Greek authorities could not be used to prosecute him owing to the principles of specialty and privilege against self-incrimination.
Surprisingly, the Court reserved its ruling in respect of ne bis in idem until the conclusion of the trial. As regards the use of SFO-sourced material, the Court excluded Mr Dougall's witness statement (due to self-incrimination) and the majority of the SFO-sourced exhibits (due to specialty). However, the Court also ruled that, insofar as this material was referred to (including quoted verbatim) in investigation reports prepared by the Greek Financial and Economic Crime Unit (the "SDOE"), those reports and their contents could be used as evidence to prosecute Mr Dougall in Greece. The Court also permitted the Prosecutor to rely on the J&J DPA and Court of Appeal judgment in R v Dougall as 'evidence' of Mr Dougall's guilt.
Having been made aware of the circumstances of Mr Dougall's prosecution in Greece, the SFO wrote to the Greek authorities on several occasions (both prior to and during the trial) expressing its concerns regarding the prosecution. These concerns centred on the fact that:
- the SFO had not consented to the use of SFO-sourced material to prosecute Mr Dougall in Greece (whether directly or indirectly via, for example, the SDOE reports);
- the SFO and UKCA had provided SFO-sourced material to the Greek authorities by way of MLA on the understanding that it would not be used against Mr Dougall in any criminal investigation or proceedings in Greece;
- the SFO would not have made the transmissions, or it would have expressly widened the undertaking required of the Greek authorities, if it had contemplated that this material would be used to prosecute Mr Dougall;
- the principle of specialty, founded on international comity and recognised as an essential component of MLA, required the Greek authorities to use SFO-sourced material only for the specific purpose permitted by the SFO or the UKCA;
- section 73 of SOCPA represents a long-standing, pragmatic policy in the UK whereby certain individuals involved in criminal offences receive lower sentences because they have assisted the authorities in the pursuit and prosecution of offenders bearing greater culpability;
- clearly there would be little incentive for an offender to assist the SFO if the potential reduction in sentence in the UK flowing from such co-operation were to be overridden by the risk of further prosecution and sentence in another jurisdiction; and
- accordingly, the Greek authorities' decision to prosecute Mr Dougall using SFO-sourced material for offences directly related to the facts underpinning his UK conviction, risked undermining section 73 of SOCPA, as well as the effectiveness of the SFO as a law enforcement authority.
The Court (and the Greek authorities generally) failed, however, to acknowledge these concerns. Consequently, in November 2018, the SFO's Associate General Counsel, Raymond Emson, agreed to appear before the Court as a witness in support of Mr Dougall's defence.
During his evidence, Mr Emson expanded on the SFO's concerns (as outlined above), emphasising the "unfairness" of prosecuting Mr Dougall in Greece for charges that were "to all intents and purposes" based on the same facts as those underpinning his UK conviction, and which were "founded substantially" on SFO-sourced material. He also explained how it was troubling that the "deep concerns" expressed by the SFO had "fallen on deaf ears".
When asked how many times a representative of the SFO had ever appeared as a witness in overseas proceedings, Mr Emson replied: "I'm not aware of any precedent, I'm not aware that the SFO has ever been forced effectively to appear in foreign proceedings, to intervene in this way."
As stated above, in addition to Mr Dougall's co-operation with the SFO, he also co-operated with law enforcement authorities in the US. Having been made aware of the proceedings in Greece, the DOJ wrote to the Court to endorse the SFO's position, describing how Mr Dougall had provided "key evidence" supporting the resolution of charges in the US against J&J, DPI and two additional companies engaged in similar conduct. The DOJ described Mr Dougall's co-operation as "extraordinary".
In July 2019, over two years after the trial began, Mr Dougall was acquitted of fraud (due to ne bis in idem) and money laundering (due to a lack of evidence). Thirteen of his co-defendants were convicted, including three former J&J/DPI executives (each sentenced to seven years' imprisonment). Although the written judgment has not yet been handed down, it seems likely that, in acquitting Mr Dougall, the Court took into account both the SFO's and DOJ's concerns.
Implications for Greek justice and jurisprudence
The Court's ruling was highly significant in Greece. In a case which concerned several jurisdictions, the Court was required to address unprecedented issues concerning cross-border cooperation in criminal investigations. For the first time, a Greek criminal court applied European Union jurisprudence relating to the principle of ne bis in idem (ruling that the principle was engaged where the alleged conduct was materially the same regardless of the legal characterisation of that conduct).
Furthermore, in applying the principles of specialty and privilege against self-incrimination in the context of mutual legal assistance, the Court implicitly recognised the importance of co-operation, trust and respect between countries in the fight against cross-border economic crime. It appears that the issues raised in this case prompted the issue by the Prosecutor of the Supreme Court in Greece of Circular No. 6/2019 which instructs all Greek prosecutors to respect the sovereign will of states from whom mutual legal assistance is sought and obtained.
The fact that the SFO and DOJ were willing to intervene in the Greek proceedings demonstrates the important public interest in supporting and protecting the position of co-operating defendants. The Greek court should be commended for ultimately respecting this important public interest. In relation to the SFO, its willingness to intervene was also perhaps due, in part, to its renewed commitment under Ms Osofsky's directorship to using more SOCPA agreements. Whilst it remains to be seen whether this strategy will ultimately help to 'crack' more SFO cases, one thing is clear: had Mr Dougall been convicted in Greece, the efficacy of the SOCPA regime would have been greatly undermined.
1 A section 73 SOCPA agreement requires a suspect to plead guilty to an offence, but enables the court, when sentencing, to take into consideration the co-operation provided (resulting in a substantial reduction in sentence).
2 R v Dougall  EWCA Crim 1048
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