Whilst the sun shone fiercely last week, it was a bleak forecast for the SFO.
In the wake of the Serious Fraud Office (SFO) disclosure failings identified in the Unaoil case, earlier this year the Attorney General, Suella Braverman QC, appointed the former Director of Public Prosecutions and High Court Judge Sir David Calvert-Smith to lead a review into the workings of the SFO. The Independent Review into the Serious Fraud Office’s handling of the Unaoil Case – R v Akle & Anor was published last week. The review was published simultaneously with the conviction of a third defendant in the Unaoil case being overturned by the Court of Appeal.
Additionally, the review of the collapse of the R v Woods & Marshall case by Brian Altman QC was also published last week. That review provided an insight into the inner workings of the disclosure practices at the SFO, the identified failings and specific recommendations as to the approach to disclosure – from remuneration and resourcing, to technological processes and procedures.
There is much overlap in the disclosure issues found in both reviews, including the overarching approach to disclosure and, importantly, quality assurance.
The focus is on disclosure failings. Yet it is arguably what lies beneath that is more troubling.
The Calvert-Smith Review identified some of the following areas of concern:
- ‘‘Ownership’ and accountability were not clear and there was no effective challenge to, or understanding of, the issues.’
- ‘the case team were having to work through major issues and deal with legal representations with limited resources.’
- ‘It was not a lack of policy or guidance which caused the issues that came to the fore in this case, it was the fact that some individuals were willing and able to ignore it.’
Lack of Trust:
- ‘a culture of distrust between the case team and the senior management team…a structural issue potentially extending beyond the particular circumstances and timing of the Unaoil case, which was exacerbated by the fact that there was no level of assurance’
Whilst the review found no evidence of ‘deliberate concealment’, it appears that some information was certainly not forthcoming. In addition to potential issues and concerns being raised as to the nature of contacts with third parties, ultimately it was a lack of quality assurance, resources, compliance and trust that were fundamental to the failings. This may be more neatly summarised as the ‘culture’ at the SFO.
The director of the SFO, Lisa Osofsky, said the reviews made a “sobering read” and added “I am determined to ensure these reviews help us move forward with clarity and confidence.”
With such endemic issues at the core of the culture of the SFO, what is the way forward? How can cases be effectively managed with such disharmony and discontent? Given the now known internal fractions at the SFO, is a collegiate approach possible without widescale changes in personnel?
There will almost certainly be changes to the structure of the SFO, particularly given the announcement earlier this week that both the SFO and the National Crime Agency (NCA) have been asked by the Government to model the impact of a 40% cut to their headcount. Such a timely announcement may suggest that this is the start of a move to “incorporate” the SFO into the NCA. That in turn may lead to abandoning the Roskill model under which the SFO currently operates, where investigators and prosecutors work together. Such a move would be in direct conflict with the recommendations in the Calvert-Smith Review, which includes the need to improve communications and relationships between the investigative and prosecutorial arms of the SFO.
How far-reaching changes to the SFO may be, with the end of Lisa Osofsky’s five-year term just a year away, is uncertain.
It seems that the reviews raise further uncertainty for the SFO. It will be interesting to see how things unfold and the impact on current and future cases.