SFO Director’s contract extended by two years

The Attorney General, Jeremy Wright QC MP, has announced that the Director of the Serious Fraud Office, David Green CB QC, has had his contract extended for a period of two years. This means that he will be in post until at least 20 April 2018.

The Attorney General commented:

“In his time as Director of the SFO David Green led a change in the organisation’s approach to prosecuting cases and delivered the first UK Deferred Prosecution Agreement and the first convictions under the Bribery Act 2010. I look forward to working with him in the next phase of his leadership of the Serious Fraud Office”.

It is perhaps unsurprising news that Mr Green’s contract has been extended. From a purely practical point of view, his original contract was due to expire in April 2016, and had a decision been made to appoint a new Director, the job would have needed to have been advertised towards the end of 2015. The Attorney General’s decision was almost certainly made before the news of the acquittal of six defendants in the second Libor trial broke on 27 January 2016.

The question of how successful a Director Mr Green has been starts with his appointment. Mr Green took over as Director in 2012 at what was perceived to be a time of crisis for the SFO, from a previous regime facing severe criticism for ill-conceived litigation, failing to take on or pursue matters of sufficient seriousness, on the receiving end of judicial criticism for particular settlements, poor management and claims of cronyism and corruption. Mr Green’s early days were spent dealing with a number of these problems, including the acceptance of cases rejected by his predecessor, the reopening of discontinued cases and a sea-change in the senior management of the organisation. It is certainly evident that some of the initial problems faced by Mr Green were resolved swiftly, and the comments emerging from within suggest the SFO is a far more content and stable ship four years later.

The reappointment of Mr Green means we are unlikely to see any great change in the SFO over the next two years. The most interesting aspect will be the extent to which some of the policy developments supported by Mr Green will progress.

Perhaps the biggest disappointment for Mr Green during his first four years in charge of the SFO was the failure to push through the failure to prevent fraud offence. This was rejected by the government, stating “there is little evidence of corporate wrongdoing going unpunished”. There have been some notable successes against corporate bodies, but far from enough for the government’s assertion to be convincing. Perhaps, given the result of the second Libor trial, Mr Green will reopen the debate on a failure to prevent offence and, as previously hinted, whether corporate bodies should be subject to vicarious liability.

The political battles are likely to continue. The SFO resisted attempts for it to be absorbed by the NCA during the four year tenure. While the reappointment may have been seen as government backing, the very next day the Home Secretary announced the formation of the Joint Fraud Taskforce, to boost co-ordination and pool resources between law enforcement and the Bank of England, from which the SFO was excluded. Budgeting will also be a key issue. For the last two years, the SFO has sought additional funding on top of its budget to fund various issues, and in January 2016 was provided with an “urgent cash requirement” of £15.5m.

Policy wise, the SFO pushed for a more relaxed approach to LPP in internal investigations, and adopted a robust approach to  the attendance of legal advisors in section 2 interviews and the extent to which firms have to cooperate with the SFO to obtain a DPA. All of these have been met with a certain amount of resistance, and perhaps fail to recognise the demands placed on defence practitioners. There are of course times when the SFO will develop a firmly adversarial approach, but it should not underestimate the benefits of a pragmatic approach.

Like any SFO Director, Mr Green has overseen a mixture of success and failure, both in terms of casework and policy. The two year extension is a recognition there has been enough of the former (his predecessor was not given an extension). Final judgement can be reserved until April 2018.

For more information on the SFO, see Practice note, Serious Fraud Office.

Practical Law David Bacon

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