David Green QC this month took over the directorship of the Serious Fraud Office ("SFO") promising to "rebalance the relationship between prosecution and civil settlement" and focus on "strategically significant cases1" in a clear departure from the approach of his predecessor, Richard Alderman. Mr. Green's statement of intent follows the publication last month of a report by an Organisation for Economic Co-operation and Development ("OECD") working group ("the Report")2 on the implementation in the UK of the Bribery Convention, which is highly critical of much of Mr. Alderman's tenure.
The UK has, by no means, always accepted the recommendations of OECD working groups, which are of course aggressive by nature in their approach to prosecution, but the tenor of their comments and criticisms, some of which are set out below, is certainly echoed by Mr. Green, who concedes that "the perception has emerged over the last few years that perhaps there is more willingness to compromise than to prosecute". He is plainly set to change that perception. It is reported that the large, circular table around which deals have been thrashed out over the last four years has already been removed from the director's office in favour of an imposing desk3.
OECD Criticisms - Role of the SFO
The SFO's new director is, it appears, entirely at one with the working group's fundamental observation that the SFO's statutory mandate is to conduct criminal investigations and prosecutions and does not include their recently self-appointed role advising companies on both specific transactions and corporate measures to prevent bribery.
The Report makes the point that this role has created a potential conflict of interest for the SFO, which is effectively acting as both legal advisor and prosecutor. Also criticised is the fact that, to the extent that the SFO has advised on corporate responses to past misconduct, it has been entering into de facto non-prosecution agreements with zero transparency or accountability.
The OECD recommends that the SFO reprioritise law enforcement, leaving the advisory role to other government departments. Mr. Green puts the matter even more succinctly: "We are primarily a crime-fighting agency and we've got to remember that".
The Report also cites a number of specific areas in which it considers that the SFO's approach to individual cases has been overly lenient in recent years.
Noting that all corporate bribery cases since Innospec have been settled by civil consent agreements...