The Serious Fraud Office (“SFO”) has now been in existence for a little over 20 years and during this period it has often been in the headlines. There have been a number of high-profile disasters, which have naturally attracted much media scrutiny. There have also been some notable successes, about which one hears little.
It would not be especially helpful for the purpose of this article to examine the reasons for past failings. More important is the fact that in 2007 a report was commissioned to examine the way in which the SFO carried out its duties.
That report, Review of the Serious Fraud Office: Final Report (June 2008), produced by a distinguished New York attorney, Jessica de Grazia, was hard-hitting and identified a number of major matters which needed addressing. It led to a major shake-up with the appointment of a new Director, Richard Alderman, and a significant turnover in staff. One of the innovations was my appointment from April this year as the first General Counsel. I therefore present these thoughts from a perspective of some four months in post, following just over 40 years in practice at the criminal Bar.
Looking to the future
There is no doubt that the Director has a clear vision of the future role of the SFO, a vision which I fully support and which contains a number of important elements:
- First, the profession and the public can be assured that the SFO will relentlessly pursue through the courts those blatant cases of serious fraud and corruption which can only be dealt with in this way. That has always been and will remain its primary purpose.
- Secondly, we want the courts to be encouraged to adopt a strong approach when exercising their powers to deprive fraudsters of their ill-gotten gains and to compensate those who have suffered at their hands. This should include, where appropriate, using s 19 of the Serious Crime Act 2007 to impose orders ensuring that those convicted are prohibited or restricted as to their future behaviour and are in no position to continue to operate to the detriment of our society.
- Thirdly, there are cases where we will consider it appropriate to engage with companies who are willing to bring improper dealings to our attention. In such cases we will try to reach a civil settlement which will avoid the full rigour of the court process.
This last objective is proving controversial. It has been suggested, particularly by the members of the legal profession, that this is an indication that the SFO is “going soft” on serious cases which should be taken through the courts. This is not so at all. Anyone in a position to consider the full complement of cases on the SFO books at a particular time would quickly see that there are a number which are readily susceptible to such a resolution.
Civil settlements have the advantage of enabling corporate wrongdoing to be publicly exposed and marked in a manner which does not incur the public expense of long and drawn-out court proceedings. We also believe that corporates will be increasingly disposed to self-report improper dealings in the knowledge that such a disposal, while by no means guaranteed, may be a real possibility.
A further criticism levelled at the civil settlement approach is that the SFO will tend simply not to bother with individual miscreants, having reached settlement with the company. Again this is not so. While there will indeed be some cases in which it will not be considered necessary in the public interest to pursue individuals, there will undoubtedly be cases where the prosecution of individuals is inevitable and will be pursued with equal vigour.
A new approach
Over the past 20 years, the SFO’s approach has traditionally been one of response to the work referred to it. While maintaining that approach, we are now becoming more proactive than ever before.
We are seeking out new cases for ourselves—and we have the capacity to carry out initial investigations—rather than relying solely on referrals from the police, government departments and others. We are actively engaging with other law enforcement agencies both at home and overseas. We are developing more open relationships with non-governmental organisations, professional advisers and the media. We hope and genuinely believe that we are getting our message across.
Public admissions of guilt
While we are becoming more resourceful with the tools at our disposal, we are canvassing a wide range of views on whether we need more. For example, we are looking carefully at the procedure, widely used in the United States, of deferred prosecution agreements.
Under this system a company makes a full public admission of guilt and agrees to a statement of facts setting out the offence. It agrees to a number of conditions, which typically include the payment of a financial penalty, the making of restitution to the losers and the introduction of enhanced compliance procedures to prevent future fraud.
In return for this, the agreement will specify a period within a range of one to five years, during which the company will not be prosecuted, provided all the conditions are complied with. A significant proportion of serious fraud cases are disposed of in this way in the United States and we are finding considerable interest in the introduction here of a similar procedure.
A personal change of direction
On a personal note, it might seem a little strange to some that after a very long time in private practice, I should have chosen such a marked career change at this stage.
Having had plenty of experience of the SFO as a practitioner from both sides of the fence, I felt that perhaps I might have something to contribute to the wind of change now blowing through the organisation. I liked the new vision of the way ahead. At first it was strange to be working in an “open plan” office after years of having my own room. I have a great PA, who forbids me to do many of the organisational chores which you tend to do for yourself at the Bar. I am also getting used to a more widespread use of acronyms.
At no point have I felt that taking on this job was a mistake. I hugely enjoyed my time at the Bar but felt that it was the right time to have a change of direction.
As General Counsel, the role does not involve any court work. This obviously contrasts with the pattern of my previous practice, where cases could last weeks or months. The other, enormous difference between life at the SFO and life in chambers is that I now have day to day dealing with the full range of people who work here—not just lawyers but also investigators, forensic accountants and many others.
The job is of course demanding and particularly so until December, as I have to share it with being Treasurer of Inner Temple. In a curious way the two roles have complemented each other very well. The working day is divided between my tasks at the SFO which I then put aside in order to spend the late afternoon and/or evening with my duties at the Inn, attending meetings and events.
Although my professional life is now quite different, some things remain constant—the work is hugely stimulating and no two days are ever the same.
Vivian Robinson QC is the first General Counsel to the SFO and Treasurer of Inner Temple
2009: Vivian Robinson QC was appointed the first General Counsel to the Serious Fraud Office (“SFO”). Prior to this post Mr Robinson QC practised, mainly in the area of commercial fraud, at the criminal Bar. He was involved for the defence in the Blue Arrow and Blackspur Leasing trials and prosecuted cases on behalf of the SFO. Mr Robinson is also the Treasurer of Inner Temple
2008: Appointed Reader, Inner Temple
2004-2007: Head of Chambers, QEB HollisWhiteman Chambers
1991: Master of the Bench, Inner Temple
1986 to present: Recorder of the Crown Court
1986: Took Silk
1967: Called to the Bar (Inner Temple)
General Counsel: the role
There are basically four distinct parts to the job.
- The first is advisory—giving advice to the Director on major matters regarding SFO cases.
- The second is supervisory—assisting in the regular review of ongoing cases to ensure efficiency and expedition in their preparation.
- The third is liaison—being at hand to liaise with members of the Bar instructed in our cases, whenever need arises.
- The fourth is public relations—helping the Director in his continuing engagement with the large number of outside agencies and organisations, both at home and abroad, which are interested in our work.
In 2007 a review of the way the SFO approached its cases was commissioned jointly by the former SFO Director, Robert Wardle, and former Attorney General Lord Goldsmith. They asked ex-senior New York City prosecutor Jessica de Grazia, to analyse and report on the laws, systems, processes and culture that direct the prosecution of SFO cases, from initial complaint through to the jury’s verdict.
The 163 page report, published in June 2008, contained 34 recommendations.
Recommendation 13 called for the post of Deputy Director to be replaced with a new position entitled Chief Counsel. It envisaged that the Chief Counsel would sit on the Strategic Management Board and report to the Director, and would head up a new directorate that would combine the policy, training, standards and vetting functions.
According to the report, the role called “for an external appointment with high-level criminal fraud skills and a practical and proactive character. This lawyer would establish an ethos of close cooperation with operational lawyers, problem-solving, and delivery…”