In the Media

SFO pushes fraud higher up the agenda

PUBLISHED December 8, 2011

Its new guide shows that the prosecutor is both enforcer and educator, reports Edward Fennell

The conviction this week of Kevin Steele, the former Mishcon de Reya property partner, for forgery and fraud offences shows that the Serious Fraud Office is chalking up some significant victories.

But SFO prosecutions cannot keep up with the level of crime. That is why Richard Alderman, the director of the SFO, has embarked on a new strategy based on ?engaging with business and encouraging a consensual approach to the treatment of serious economic crime?.

That at least is the view of Harry Travers, a partner with BCL Burton Copeland, who recently accepted a ?poisoned chalice? invitation from the SFO to be the consulting editor of Serious Economic Crime ? A Boardroom Guide to Prevention and Compliance, published last week by White Page in association with the SFO.

The guide marks an unprecedented attempt by the SFO to get all the interested parties ? the authorities, corporate legal advisers, accountants and non-governmental organisations, such as Transparency International ? working together. Indeed, most of the contributors are actually defence lawyers. If you want a monument to Alderman?s philosophy of how to attack large-scale financial crime then this is it. Even Travers, who in his day job normally acts against the SFO, thinks that Alderman is doing a good job.

It must be said, however, that there are Alderman sceptics as well as admirers. Maybe Andrew Legg, of Mayer Brown, is typical. He is happy to compliment Alderman on transforming the performance of the SFO and getting some good results, but says that he is waiting to see whether the big claims for robust enforcement ? for example, in relation to the Bribery Act ? will be borne out in practice.

Others are less generous in their opinions. Andrew Ford, of Withers, for example, is almost condescending. ?I don?t want to be rude but the SFO is toothless. It doesn?t have the budget and it can?t recruit the quality of people needed to do this difficult job. Some of my clients are nervous if there?s an investigation by the Financial Services Authority [FSA] but if it?s the SFO that is involved then the attitude is that it will have little impact.?

It may then be realism by the SFO about its lack of firepower that is pushing Alderman to adopt this approach. Rod Fletcher, head of the business crime and regulation team at Russell Jones & Walker, says: ?Under Richard Alderman the SFO budget is down from £40 million to £29 million. It has struggled to retain staff ? particularly at senior level ? and its salary levels and career prospects suffer in comparison with the industry-funded FSA.?

So it makes sense for the SFO to reposition itself as an ?educator? as well as an ?enforcer?. Through the publication of Serious Economic Crime the SFO aims to push fraud much higher up the agenda in the boardroom. ?We want to see board-level commitment demonstrated to the highest level of corporate governance,? Alderman says in his own chapter in the book about the SFO?s priorities and successes.

Its new robust approach, following the American model, was adopted after the highly critical report in 2008 by a former senior American prosecutor, Jessica de Grazia; and its hope is that self-reporting of infringements will become the norm with greater internal policing ? backed up by criminal prosecutions where this is neglected ? squeezing fraud out of business life. Or as Stephen Gentle and Elly Proudlock, of Kingsley Napley, say in the guide: ?We can expect businesses to be operating in a changed environment where corporate criminal risk will be one of the most important compliance challenges that they face in the future.?

But will it? Ford argues that until the SFO becomes a more intimidating beast, the tendency will still be for boards to let sleeping dogs lie. This is compounded by the enormous drawback, as David de Ferrars, of Taylor Wessing, points out, that the SFO ?is unable to offer a global settlement?. In short, by coming clean to the UK authorities a global corporation may still be exposing itself to prosecution elsewhere in the world (especially in the United States).

So whistleblowing is now also being promoted heavily by the SFO as a way to expose wrong-doing. And the new SFO Confidential whistleblowers hotline (?call us in confidence on 020-7239 7388?) is being widely advertised. But as Tracey Groves and Harry Holdstock, of PwC, point out in the book: ?Developing and implementing an effective whistleblowing regime is one of the most complex challenges that organisations face.?

Maybe that is why, as Fletcher observes: ?The Government is also considering the benefits of offering deferred prosecution agreements [as in the US], and enabling courts to impose heavier fines and longer prison sentences.?

Travers, however, is alarmed at the threat posed by following the US model too slavishly. ?In the UK we are at an important juncture in developing our approach to fraud,? he says. ?I?m concerned that if we are influenced too much by the Americans we won?t end up with a proper and fair system. As the film of the Bonfire of the Vanities put it, in America ?witnesses perjure themselves ... and prosecutors enlist the perjurers?.?

Puritanical calls for confession and reform are ethically admirable. Too often, though, it?s the wrong people who get burnt.