With the SFO operating under a shadow cast by the independent reviews being conducted by Sir David Calvert-Smith and Brian Altman QC, BCL partner Richard Sallybanks and senior associate Anoushka Warlow look at where next for the beleaguered agency.
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On 24 March 2022, the Court of Appeal quashed the conviction of Paul Bond, one of Zaid Akle's co-defendants in the Unaoil trial. Although the decision was widely reported as a 'fresh blow' to the SFO, and represents a further setback, the outcome cannot come as too much of a surprise insofar as it arises from the same disclosure failures that resulted in Akle's own conviction being quashed in late 2021.
Those failures, which have been the subject of widespread criticism, are already the subject of an ongoing independent review being carried out by the former Director of Public Prosecutions, Sir David Calvert-Smith. Much is riding on the outcome of the review. When probed last month by the Parliamentary Justice Select Committee on the disclosure and conduct failures which led to the quashing of Akle's, and now Bond's, convictions, Ms Osofsky indicated that she was duty bound not to answer any questions until Sir David Calvert-Smith's report had been published.
The report is expected in May and is likely to comment not only on the SFO's conduct and disclosure failures which were central to the quashing of the convictions in the Unaoil case, but also on wider issues relating to the SFO's policies, practices, procedures, and culture. The report may well be a painful read for the SFO and it remains to be seen whether its conclusions will result in Ms Osofsky being forced to or choosing to step away before the end of her five-year term.
Whatever the Calvert-Smith report finds and recommends, it seems likely that Ms Osofsky will at the least be called upon again to answer those difficult questions which she has so far avoided; she has indicated to the Justice Committee she 'gladly and willingly' will do so. With a separate review, conducted by Brian Altman QC, into the Serco disclosure failures also due to conclude in May, Ms Osofsky may be in for an uncomfortable next session before the Justice Committee. Indeed, her appearance before the Public Accounts Committee earlier this year, in which the collapse of the Serco trial featured, led to the solicitors involved in that case writing to the Committee criticising Ms Osofsky for making a number of factual misstatements and commenting that she appeared to have a fundamental misunderstanding of the factors that led to the collapse of the Serco trial.
Whether a change in leadership at the SFO is the answer to the problems the SFO currently faces is but one issue. Given the level of scrutiny to which the SFO is currently subject, we may well see the re-emergence (if it ever went away) of the debate about the future of the SFO as an independent investigating and prosecuting agency or whether it should be subsumed into an existing, or form part of a new, agency tasked with the fight against financial crime.
*This article was first published by Fraud Intelligence on 26 April 2022. If you wish to read the full article, please visit Fraud Intelligence website.
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