The once prosecutorial powerhouse that is the Serious Fraud Office (SFO) has stumbled and fallen to a critical point. Following the SFO disclosure failings identified in the Unaoil case, the Court of Appeal overturned the bribery conviction of former oil executive Ziad Akle.
The Attorney General, Suella Braverman QC, announced in early February that an independent review has been commissioned into the workings of the SFO, ‘especially in relation to contact with third-parties and disclosure’. Leading the review is the former Director of Public Prosecutions and High Court judge Sir David Calvert-Smith. It is expected that the review will be reported by the end of May.
Some may say that it is long overdue that there should be an independent review into the SFO. The most recent reported failure of the SFO comes in the wake of the SFO admitting disclosure failings in the trial of two former directors in the Serco case, which led to their acquittal in April last year. These are only the two recently reported matters and of course there may be many more.
Despite the SFO admitting the disclosure failings, there seemingly appears to be no accountability for the errors. As yet, there have been no individual referrals to the Solicitors Regulation Authority (SRA) in the Serco matter. When asked about the disclosure issues, Lisa Osofsky, director of the SFO, commented ‘We are human beings, we make mistakes.’
This brings into question whether the SFO consider that, to a certain extent, they are out of reach in terms of conduct, regulation and accountability.
To date, no individuals have been held directly accountable. So, if individuals are not accountable for the disclosure failings, who is? The SFO as an organisation? If that is the case, does it follow that the director, Lisa Osofsky, should be held to account?
How can there be a disclosure regime in place which allows such failings to occur? Is it a matter of systemic failures of individuals, or systematic failures of the e-discovery tools? Regardless, there certainly appears to be a culture of complacency that has allowed such issues to persist.
What is the viability of the continuation of the SFO in a culture that is arguably out of touch in terms of approach to investigations and disclosure regimes?
The priority should be focussing on an effective disclosure regime that does not have the potential to so easily fall foul to human error, oversight or intervention. It is unclear whether that may mean more of a focus on the individuals using the e-discovery systems and tools, or the electronic platforms, tools and processes that are being used for disclosure, or a combination.
One may ask why it is that such disclosure failings do not arise in the civil forum, in matters of comparable complexity and volume, and indeed if lessons can be learned from civil counterparts.
It will be interesting to see the outcome of the independent review and, importantly, the ensuing steps to be taken by the SFO. This comes at a crucial time for the SFO, which could see new directorship next year at the end of Lisa Osofsky’s five-year term, and with many ongoing matters under investigation yet to be progressed.