Is the SFO here to stay? Can the Bar expect some work from it? As he sits in his grey painted office overlooking the North part of the City on a grey day, the most obvious and immediate question is whether he will choose to have certain walls repainted in life affirming accent colours as he did at RCPO.
Counsel sent Shane Collery, his former pupil and former Standing Counsel to RCPO and now Standing Counsel to BIS, to find out the answers to these – and other – pressing questions.
SC: You are being presented by some sections of the media as having been brought in to manage the merger/abolition/transfer of the SFO. Is there anything in that?
DG: No there is not. I would not have taken this job unless I believed -with good reason- that the SFO is here to stay. Last June the Home Secretary made a statement in the Commons reflecting the Government’s position: the SFO is here; it will continue with its work. It will play its part in the emerging coordinated approach to the problem of fraud. The Government had a clear choice to get rid of the SFO last summer and made a conscious and considered decision not to do so. The SFO has strong support in the City, amongst ministers and across the political spectrum. That said, there are no meal tickets for life, and the SFO has to prove itself. We will do that by excelling at what we do, which is the investigation and, where appropriate, the prosecution of top end fraud. All sorts of talking heads, bloggers and chatterati opine about the abolition of the SFO, what it’s doing or not doing. This is basically recycled piffle.
What is the SFO’s role?
The SFO must focus on top drawer fraud. By that I mean cases which undermine confidence in UK plc and the City of London in particular; cases which compromise the level playing field investors require; serious bribery and corruption, national or international; cases with a particularly strong public interest dimension, and new species of fraud. We are here to use our unique set-up to do the most difficult and serious cases that others cannot do.
Uniquely, we have all the skills necessary to investigate and prosecute top end fraud under one roof. Those skills include lawyers, investigators, forensic accountants, evidential graphics and state of the art digital forensics. To ensure our survival we must nurture and grow our talent, communicate clearly both internally and externally, and do our job well.
How does that differ from what the SFO has done before?
The SFO should resist any dilution of its brand. The SFO’s mission has become a bit blurred. I do not believe it to be the job of the SFO to be doing mortgage frauds, boiler room frauds or prosecuting bent solicitors unless the particular case falls within the remit I have described. We cannot shrink from doing the most difficult cases in the hope of producing eye-catching results. The CPS is well able to do the cases that fall outside our ambit.
The SFO’s last report shows the average sentence for your cases over the last few years has been 32 months, which I think we would all agree after a trial is hardly a sign of serious crime. Would you agree?
Actually, in 2011-12, 73% of the defendants the SFO prosecuted were convicted; sentences averaged 55 months as opposed to 30 months for 2010-11, and we recovered over £50m in criminal assets. I have to say I am not over-impressed by average sentence statistics. Is serious fraud serious crime? Of course it is. Whether sentences for top level fraud are high enough has always been a hot potato. Quite apart from that, it’s vital that fraudsmen are deprived of the financial benefits of their criminality. I also believe that some of those confiscated funds should openly be reinvested in prosecution agencies in the fight against fraud. But then I would, wouldn’t I?
Can we expect an increase in the number of SFO cases?
Let’s see. Case numbers are not the be all and end all. What matters is the quality, significance and success of our cases. Bear in mind as well that we may investigate a case but decide not to prosecute on evidential or public interest grounds. We might decide that a particular case is best resolved by a Civil Recovery Order, or (if and when they are enacted) by a Deferred Prosecution Agreement (DPA).
Is a change needed in the way fraud is perceived by the Courts?
A crook is a crook no matter what the colour of his collar and it is very important that fraud is seen to be dealt with as crime, and in the SFO’s cases, serious crime. We cannot have a special cushy yellow brick road for white collar villains. Judges, not prosecutors, must be in charge of sentencing. I’m not sure that drastic change is required. But this type of crime is socially divisive and destructive, particularly during a recession. We do need efficient ways of dealing with this kind of offence. Resources are not limitless and presenting and proving cases at the higher end of the spectrum is always going to be tricky. We would certainly benefit from having the broadest range of prosecutorial tools, as they have in the U.S. The reality is that we cannot prosecute everything, so how best can we maintain public confidence?
The Tchenguiz case in particular has seemed to blight your first month as Director. Can you comment on that?
Obviously not, pending the judgment of the Divisional Court. Regardless of the result, I am redesigning our organisational structure so that there are effective layers providing quality control. Our casework will be conducted by four casework divisions, each headed by a senior civil servant answerable to me. I will also appoint a General Counsel to shape investigations from inception to charge, and another post to sharpen our case presentation and advise me on the acceptability of civil settlement or DPA in particular cases.
In terms of recruiting and retaining your staff you are competing with a number of organisations, particularly the FSA, at the moment. Indeed you have lost a number of investigators and lawyers to them over the last few years. How do you plan to attract staff with the right skills to the SFO?
We do the most interesting and challenging fraud work there is. People want to come and work here and I am very keen to recruit, as I did at RCPO, junior members of the Bar, high street and City solicitors and investigators from various backgrounds to come here in permanent posts or on secondment. We must always be on the look out for good people to increase the range of skills that we have. I will also have a full top management team in place by the end of the summer. Recruitment is not something you can sit back and let happen. Watch this space.
And what about the independent Bar – what can we expect in the way of instruction?
In due course I will be inviting applications from junior counsel and silks to refresh the SFO list. The list I have is dated. I will also be making use of counsel to conduct assessments and advise on certain cases within a very short time frame so that I am in a position to determine the future of the cases which I have inherited and those I may be considering.
As I hope I demonstrated at RCPO, I am a big supporter of the independent Bar. Ours is not the kind of work where the major advocacy can or should be covered in-house. So far as it lies within my power, I want counsel to be paid reasonably and promptly. Not every barrister has the particular skill set required, but available work will be shared fairly amongst those who can demonstrate those skills.
I see counsel as a valuable resource for expert advice and advocacy: no less, no more. They are a member of a team. Different members of the team may have pre-eminent roles to play at different stages of the case.
Having had a year back at the Bar yourself will you miss it in terms of hands on practice?
I was surprised at the state of the Bar on my return. I left in December 2004 and returned in April 2011. Firstly I was surprised (and not in a good way) by the standard of advocacy displayed by advocates (not just the Bar), especially in smaller cases. Secondly I was struck by the groups of barristers standing around in robing rooms and the Inns talking in miserable terms about the availability of work and cuts in fees. Thirdly I thought the Courts themselves - robing rooms and court rooms - were tatty and depressing. Fourthly I found an aggression and unpleasantness had crept into criminal litigation which simply was not there when I left the Bar in 2004. Why that is I do not know, but things have conspired to batter the publicly funded Bar. On the other hand, no barrister is owed a living out of public funds. To an extent the Bar is paying for the conduct of some people in the 80s and 90s who seemed to do very well indeed out of public funds without thought to the consequences and in the belief that the legal aid budget would rise indefinitely.
But that said, I am optimistic. The nice thing about the Bar and one thing that I really enjoyed was being around colleagues and friends I had known and trusted for years. I spent a year at 6 KBW and was impressed by their approach to practice, which is to diversify away from bog standard jury trial crime into new territory and to operate on a niche basis. Generally I am optimistic about the future of the criminal Bar but it has got to slim down and be a bit more realistic.
Maybe I’m just getting old.
Turning to the finances of the SFO, reading your annual report from last year I see that your budget in 08/09 was £50m. It is forecast to be £30m in 2014/15. How does that affect the amount you can do and what you can bring to a case?
There is not a Government department in any state in the world that couldn’t do with more money. I am confident that we are funded to do the level and type of work we need to do at the moment. Like any Government department we have got to be realistic about the availability of resources. In military terms, when resources are limited, you must concentrate your forces on targets of strategic value. And remember, we are also entitled to a share of the money we confiscate.
Is it a substantial amount you get from confiscation?
It is, but obviously SFO’s confiscation receipts are particularly lumpy – in some years it could be a lot and in others not so much, unlike at RCPO where we got in a fairly steady £20-23m a year. You cannot say that with the SFO. That doesn’t help with budgeting but that is just the way it is.
Will you be redecorating the SFO offices in life affirming accent colours as you did at RCPO? Or will you stick with grey?
Thank you for asking, but no. And in any event we are moving in November. We will be in modern offices just off Trafalgar Square, behind Canada House in Cockspur Street. (Yes, I know).
Do you have anything else you would like to add?
Look. We have been given assurances that we are here to stay but the SFO has to prove itself in the sort of cases I think the SFO should be handling. I do think that the SFO brand and casework definition has become a bit fuzzy over the past few years. I intend to restore clarity. I want to attract the best. I want the SFO to be a happy and stimulating working environment, offering unique opportunities to our staff. I want the SFO to recover its corporate self-respect. I want counsel to do SFO work because the doing of it brings professional cachet.
Whatever people think of the SFO I always look to the perception of Gorbachev in Russia for a comparison. He may not be a prophet who is loved in his own land but abroad he is admired and appreciated. However it may be perceived at home, abroad, the SFO is a unique and highly respected international brand. I hope to bring that appreciation home.
Shane Collery, 18 Red Lion Court