SFO vs Theresa May: lobbying for survival?

The Serious Fraud Office (SFO) celebrates its 30th anniversary next year. Should the agency reach that milestone, it may possibly be its last. The FT recently reported that ‘a sweeping audit of UK agencies that combat economic crime is being carried out by the Cabinet Office amid growing concern that London is awash with dirty money.’ In a post-Brexit world, it is seen as imperative that London, and in particular the City of London, operates with clean hands: economic criminals must be tracked down, prosecuted and convicted.  
 
The review was briefly alluded to in parliament last December by Home Secretary, Amber Rudd. ‘The Cabinet Office will look at the UK’s response to economic crime more broadly,’ she said. ‘This will include looking at the effectiveness of our organisational framework and the capabilities, resources and powers available to the organisations that tackle economic crime.’
 
A very detailed questionnaire has been provided to the SFO covering success rates in investigations, conviction rates, costs for each investigation and prosecution, as well as comparisons with overseas agencies. However, similar assessments of the UK’s anti-bribery capabilities, undertaken in 2015 by the Cabinet Office and the Home Office, resulted in no real change.
 
There is a distinct sense of déjà vu surrounding this: the future of the SFO has been subject to heated debate ever since its foundation. It really matters now because Theresa May is Prime Minister. Previously, as Home Secretary, she wanted to incorporate the SFO into what was then the Serious Organised Crime Agency (SOCA), ending the division where the Home Office controls the NCA budget while the SFO reports directly to the Attorney General.
 
In 2011, May was defeated in cabinet when Dominic Grieve and Ken Clarke, respectively Attorney General and Justice Secretary at the time, vigorously opposed the move. In 2014/15, May reportedly revived her plan to incorporate the SFO into the National Crime Agency (NCA), which had by then replaced SOCA. Asked about the proposal, Green told the Telegraph: ‘It’s absolute rubbish. Utter rubbish.’  
 
But the latest review has created genuine fear that this time Mrs May will get her way, although one SFO loyalist pointedly suggests otherwise: ‘Theresa May has not been persuaded of the value of the Roskill model; perhaps somebody needs to sit down and explain it to her. Part of the previous problem was a Home Office versus Attorney General’s Office issue. As PM, she may decide that everything is now under her domain, so it might be worth leaving the SFO as it is.’   
 
In resisting potential change of control, the SFO has powerful champions. As another prominent loyalist told me, they see any attempt to put the agency under NCA control as ‘completely misguided and wrong. If we didn’t have the SFO, we would need to reinvent it today. It is absolutely essential that there is a separate independent body, which both investigates and prosecutes.’
 
The importance of effective lobbying on the agency’s behalf is not lost on its director, David Green QC. ‘A certain degree of political savvy is required as director of the SFO; that’s probably why David has done well: he has oodles of that. You have a lot of stakeholders. David is dealing with the Treasury, the Attorney General, the Solicitor General. It’s a balancing act,’ says one of Green’s allies. 
 
Whatever his skill behind the scenes, Green’s case has been made on the record by senior lawyers, albeit with varying degrees of enthusiasm. Certainly, few are willing to make any public criticism: in part because it does not always serve their interests. Maintaining a strong working relationship with the SFO can sometimes pay dividends, especially for practitioners whose corporate clients may find themselves subject to a fraud or bribery investigation.  
 
Among their number is Robert Amaee, Head of White Collar & Corporate Investigations and a partner at the London office of Quinn Emanuel Urquhart & Sullivan, the second most profitable law firm in the world: profits per partner reached $4,420,000 last year, according to the American Lawyer. Chambers UK describes Amaee as ‘highly regarded for his ability to manage sensitive global investigations, money laundering and corruption work.’
 
In an immediate response to the FT article disclosing the Cabinet Office audit, Amaee was prominently quoted by the Times defending the SFO: ‘At a time when the SFO is starting to make good use of its new [DPA] powers and stands on the cusp of being given wider powers under the Criminal Finances Bill and expanded corporate criminal liability laws, it’s difficult to see how the government could justify disbanding it —a move that presumably would involve folding its investigations capability into the NCA, which has competing priorities and a heavy workload, and handing its prosecutions remit to the already overburdened [CPS].’
 
Notably, what the Times article did not report is that between 2009 and 2011, Amaee served as Head of Anti-Corruption, Head of Proceeds of Crime and Head of International Assistance at the SFO, leading the investigation and prosecution of high-profile bribery and money laundering cases. So his remarks are not those of an impartial commentator. 
 
And then we turn to parliament. In a recent House of Commons debate into SFO funding, two MPs, both lawyers, spoke in favour of the SFO: Sir Edward Garnier QC, Conservative MP for Harborough and Solicitor General for England and Wales between 2010 and 2012, and Alex Chalk, MP for Cheltenham. 
 
‘The SFO’s track record is ‘certainly better than that of equivalent agencies,’ suggested Chalk. In discussing ‘David Green’s valuable work,’ Garnier said: ‘I am proud to say that he is a personal friend of mine; he and his organisation have a proud record of demonstrating to the Government that it is worth every penny it gets and that it ought to get yet more money, so that it can catch more and more villains.’
 
During the debate, Chalk and Garnier rightly disclosed that they are instructed by the agency. ‘I declare an interest as someone who has previously been appointed to the SFO’s “A” panel of counsel,’ said Chalk. Garnier added: ‘The SFO instructs me from time to time as a member of the private Bar. One of the most recent cases that I have been instructed in was that of Rolls-Royce.’ Although declared, their interest was clearly vested. 
 
Meanwhile critics of the SFO are circumspect about having comments attributed to them. 
After one trial collapsed last year, a defence solicitor branded the SFO’s case ‘a complete shambles that should never have been brought,’ according to press reports. Another former senior SFO insider says: ‘The standards are not the same. There are some good people in the SFO, but the quality is much more uneven than you would get in a City law firm.’
 
A former colleague adds: ‘The government always says, and David Green will say, and is honour bound to say, that they would never refuse to investigate or prosecute because of money, and to some extent, that is true. But equally, it’s also true that they only do a tiny proportion of the fraud cases that are out there. It would clearly benefit from becoming part of the NCA.’  
 
However enthusiastically the SFO loyalists might lobby for it to remain independent, the same conclusion about the NCA taking control was also previously articulated by the woman who is now our Prime Minister. On Theresa’s watch, it may yet come to pass. 
By Dominic Carman, journalist, writer and legal commentator

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