Regulation  

SFO success is under scrutiny

SFO success is under scrutiny
 Chris J. Ratcliffe/Bloomberg

On August 28 2020, Lisa Osofsky passed the two-year mark as director of the Serious Fraud Office.

Her appointment received some praise at the time, with commentators cautiously welcoming the choice of a “former FBI lawyer who has pursued the Mafia, bank robbers and corrupt financiers”; a figure from outside the establishment with a reputation for toughness.

Early interviews confirmed her intention to be “practical”, reporting that she was “keen to clear the decks and get on with cases she has a better chance of winning”. But now, two years down the line, has the anticipated boost to the SFO’s fortunes actually come about?

The SFO has recently been trumpeting its success in securing a €991m (£900m) deferred prosecution agreement in the Airbus case. While this was a great achievement, it is but one case in many, and a single triumph is not a suitable yardstick with which to judge either the SFO or its director.

Any fair assessment must take into account the SFO’s failures as well as its successes, its investigative speed and the extent to which its flaws impact unfairly on those who come into contact with it.

The judicial resolution by DPA must be placed in the context of other outcomes, including prosecutions and the pursuit of those responsible for misconduct.

Unusually, in its 2019-20 annual report, the SFO did not specify its annual conviction rate at trial (87 per cent in 2016-17, 77 per cent in 2017-18, and 53 per cent in 2018-19), instead relying on a four-year success rate of 62 per cent.

Some quick maths, however, based on the figures contained in the report, reveals one possible reason for this omission: continuing the consistent downward trend, the 2019-20 conviction rate appears to have been only 38 per cent.

Key points

  • Ms Osofsky has been at the SFO for two years
  • Her tenure has not been marked with big success
  • The SFO finds it hard to recruit top people

The report boasts “13 defendants brought to trial” (with a graphic showing 15 stick figures), without any mention of the fact that, to result in the rate claimed by the SFO, eight of them (62 per cent) would appear to have been acquitted (four of those, of course, being the senior executives of Barclays).

And the SFO likes to report its conviction rate “by case” – an odd measure by which a case can be judged to have had what the SFO terms a “successful outcome” even if all but one defendant is acquitted.

No doubt the innocent defendants whose lives have been turned upside down would fail to see the SFO’s “success” in that outcome.

But these headline-grabbing figures – trials and defendants, convictions and acquittals – are only the tip of the SFO’s investigative iceberg. The SFO has opened 35 investigations over the past four years (12 in 2016-17, seven in 2017-18, 11 in 2018-19, and five in 2019-20), and most of them are not Airbus, Barclays, Rolls Royce or Unaoil.