Regulation  

SFO is just not scary enough

However, the flaw in Ms Osofsky’s proposal is much more fundamental. Simply put, to a prospective co-operator facing criminal investigation, the SFO is just not scary enough.

Size matters and, compared to the US Department of Justice, neither the SFO’s stick nor its carrot is big enough. 

Therefore, it cannot offer the kind of incentives that persuade fraudsters to confess and give evidence against their colleagues.

The stick is measured both by the length of prospective sentence if a potential co-operator refuses a plea bargain and goes to trial, and by the probability of conviction.

In the UK, the maximum sentence for both bribery and fraud is 10 years.

Theoretically, a conspiracy charge carries up to life imprisonment but, in reality, sentences are pegged to guidelines that make Ms Osofsky’s threat of “20 years in jail” a practical impossibility.

Sentences in the US are higher across the board than in the UK, but the crucial distinction is in conviction rates.

In 2018-19, the SFO convicted 53 per cent (17 of 32) of individual defendants it charged. In the previous three years, it was 77 per cent (10 of 13), 87 per cent (13 of 15) and 32 per cent (six of 19).

The headline numbers are less important than the low volumes, large fluctuations and high-profile acquittals, meaning that individual defendants will always believe that they have a chance at trial.

In the US, by contrast, the conviction rate has been over 90 per cent for all forms of economic crime for many years and hundreds of defendants have been convicted.

The reward for co-operation – the carrot – is the discount on sentence. Again, both the size of the discount and the prosecutor’s ability to control it differ greatly either side of the Atlantic.

According to latest US figures, 94 per cent of defendants charged with bribery, corruption, fraud, money laundering or tax offences in federal court in 2018 pleaded guilty, receiving an average sentence discount of over 60 per cent in return.

About a fifth of defendants received an additional discount for providing “substantial assistance to the authorities”.

US judges often will approve a sentence stipulated by the prosecutor pursuant to a plea bargain and an agreed statement of facts.

In the UK, the maximum discount for a co-operating defendant is 50 per cent and prosecutors have no power to recommend a sentence: this is entirely up to the court.

Accordingly, US prosecutors have far more influence over sentencing than their UK counterparts.

Even if US-style plea bargaining could be introduced successfully to the UK, would that necessarily be a good thing?

Prosecutor power can be coercive and might be misused to bolster a weak case.

A high conviction rate is not synonymous with a healthy criminal justice system and every acquittal need not be met with finger-wagging about the initial decision to prosecute or the company’s decision toadmit guilt.