Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
Theresa May’s plan, announced last week, to eviscerate the Serious Fraud Office by absorbing it into the National Crime Agency demands an explanation. On the face of it, the decision is bizarre. Why submerge this independent, highly experienced and increasingly successful prosecution body into an unproven near start-up with many other priorities? Why send such a strong signal to the rest of the world that we have lost our focus on tackling bribery and corruption so soon after reforming our bribery and corruption laws? Why promote a policy that now makes it probable that the rich and wealthy, both corporations and individuals, will be less likely to be caught and punished than ordinary men and women?
No explanation has been offered. This is all the more surprising because the evidence, for and against the policy, is there. For months the Cabinet Office has been reviewing the national response to economic crime. However, the government is sitting on the results. Could it be that they are inconvenient?
I have worked with the SFO for the 30 years of its existence, from within government and now as a criminal defence practitioner. It has of course had its failures, alongside its successes, but for the past few years it has undoubtedly been more successful than at any other stage of its history.
While the SFO’s failures always attract huge publicity, what has been trumpeted less loudly has been the way in which David Green, the present director, has transformed the organisation into a confident, successful force for public good. Since 2012 the SFO has undertaken investigations involving some of the largest multinational banks and corporations. Some outcomes are awaited, but already this year the SFO has exacted penalties and compensation that, together with costs, amount to almost £650 million. What hope is there that a police-led organisation, with no track record of dealing with serious economic crime and subject to political control, will have the courage and confidence to open such investigations, let alone the expertise to bring them home?
Those of us who practise in this area would like to see the SFO survive. May can deliver on her promise of “strong and stable government” by giving it more resources, better-paid staff, and a firm promise that its future is secure. She should empower the SFO, not destroy it.
This article was first appeared in The Times (page 59) on 25th May 2017.
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