A step too far – a warning for Private Prosecutors
The SFO Annual Report and Accounts for 2015-2016 were laid before parliament on 20 July 2016.
This coincided with commentary and speculation in the legal press that SFO might be in danger of being merged with the National Crime Agency – a stated ambition of Theresa May for a number of years.
Has the SFO performed well enough to convince Theresa May – or indeed her Home Secretary successor Amber Rudd that no change is necessary?
This year the SFO opened 12 new criminal investigations, compared with 16 in 2014-2015, and three civil recovery investigations. The conviction rate was said to be 32% by defendant (6 in total), and 57% by case, much lower the 78% by defendant reported the previous year. The SFO argues the complex nature of the cases that they prosecute means they are dealing with long-running trials that last up to 3 to 4 months and consequently conviction rates can vary significantly year on year. They suggest that looking at the figures over a longer period provides a more “representative perspective” and to illustrate this provide data for a period 2012 to 2016 with a conviction of 65% by defendant and 81% by case, with 75 defendants in 25 cases convicted.
The SFO obtained confiscation orders totalling £3.4 million compared with £26.5 million the previous year. However, it recovered £19.6 million, which included money recovered through the enforcement of confiscation orders previously obtained. This is said to be 11% of the total proceeds of crime recovered in the UK in the reporting period. Recovery of the proceeds of crime (or failure to do so) is an area that has come under recent close parliamentary scrutiny (see our recent blog).
The first ever Deferred Prosecution Agreement (‘DPA’) was obtained in the Standard Bank case in November 2015. This has not been without controversy, due to recent claims that Standard Bank misrepresented the truth and suppressed facts in order to obtain the DPA. A second DPA was approved by Lord Justice Leveson on 8 July 2016 in relation to an as yet unnamed UK SME.
The planned expenditure of the SFO for investigating and prosecuting cases, as agreed with HM Treasury during the 2015 spending review, was £35.7million. In addition the SFO has access to HM Treasury reserve funding on a case by case basis, to finance the cost of investigating large and complex cases. The total expenditure for the year on investigating and prosecuting cases was £60.3million, including reserve funds obtained.
HM Crown Prosecution Service Inspectorate recently criticised the SFO funding model, saying that it ‘is not representing value for money’. The reliance on reserve funds requires the SFO to increase staff levels temporarily through the use of temporary or contract staff when dealing with large or complicated cases, which is more expensive and does not allow them to retain expertise at the conclusion of a matter.
The Inspectorate also said that ‘increasing core funding would provide the SFO with the ability to build capacity and capability in-house’. This would then reduce the need for access to reserve funding.
The end to the Tchenguiz affair?
These accounts record the final expenditure of £6.75m for the civil damages which arose out of the arrest of Messrs Robert and Vincent Tchenguiz and the searches of their homes and business premises in March 2011. Since July 2014 the SFO has paid out £4.5m in full and final settlement of the damages claims and £9.75m in full and final settlement of its costs liability in respect of those claims. Defending the damages claims cost the SFO a total of £14.3m (plus VAT where non-recoverable) in legal fees and associated expenditure.
The SFO reported that 31 Defendants have been charged and are currently awaiting trial in 7 cases. This includes 10 individuals in the Alstom investigation, which has lasted over 4 years.
It is expected that the SFO will continue its push for “real and effective co-operation”, with David Green stating in his introduction that “our investigations are met with responses varying from less than minimal to full cooperation from well-resourced companies and individuals”. Indeed, the next few months will see the bedding in of the new guidelines around attendance of legal advisors at s2 interviews.
With David Green’s contract extended by two years in February 2016 and Theresa May’s focus on Brexit negotiations it may be that the proposal to merge the SFO and NCA will fall away.
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