Director of the Serious Fraud Office Lisa Osofsky used her annual Cambridge Symposium speech to emphasise the importance of international and corporate co-operation, to issue a call to arms for greater legislative assistance to companies in preventing economic crime from occurring and to warn of the difficulty she faces in securing convictions when it does.
Ms Osofsky has been in her post for a little over a year and has stressed throughout her tenure the importance of corporate co-operation with prosecutors and investigators.1 So central is co-operation to her approach that it was used as the theme to this year’s Symposium.
As well as reiterating the importance of good relationships between corporations and investigators, Ms Osofsky addressed the need to eliminate communication failure between countries, which she sees as increasingly damaging when evidence in large-scale cases of fraud and corruption is likely to be scattered across the globe.
Despite referring to “energising" and “inspiring” collaboration with international law enforcement partners, Ms Osofsky noted that different law enforcement systems from country to country made cooperation complicated and this was not helped by lingering “parochialism”.
Lack of Conviction
Ms Osofsky’s directorship has not thus far been characterised by high-profile convictions. She used her speech to highlight what she perceives as some of the main impediments to a higher hit-rate.
First, it is difficult to gather sufficient evidence to meet the evidential burden of the Full Code Test. The fact that the first cause of this difficulty that Ms Osofsky cites is dead witnesses demonstrates not that we live in a Mafia state but that offences of this nature often do no come to light for some time after the offending and this can make it difficult to build a satisfactory case.
Second, and in a similar vein, Ms Osofsky explained that it would not be in the public interest to bring charges against those too infirmed to challenge them.
The third difficulty Ms Osofsky suggested prosecutors face in securing convictions is that “some juries will acquit some defendants.” While this might seem somewhat truculent, it is worth remembering the high bar prosecutors must reach in convincing 12 people that they can be sure of a person’s guilt when the facts are often highly complex and unfamiliar and the conduct often a long time in the past.
Vexing as they may be, the need to ensure prosecution is in the public interest, to gather sufficient evidence to stand a reasonable chance of a conviction, and to present that evidence to a jury, are not issues that are going anywhere in a hurry. More interesting perhaps is that Ms Osofsky appears unwilling to apportion any blame to the SFO itself.
Prevention is Better than Cure
The issue, as Ms Osofsky sees it, is that investigators and prosecutors can only act once they reasonably suspect misconduct has occurred. While we await the technology that will facilitate Minority Report-style predictive policing, Ms Osofsky said the solution lies with corporations instituting effective policies and procedures to prevent criminal activity within corporations.
Ms Osofsky cited the adequate procedures defence in the Bribery Act as an example of how legislators can assist companies in establishing best practices, though she stopped short of providing any figures on whether the introduction of this defence has been accompanied by a fall in offending.
The SFO is an organisation in need of a win and Ms Osofsky will be hoping she can use next year’s speech to highlight the SFO’s successes instead of explaining away its shortcomings.
1 See for example: https://www.wilmerhale.com/en/insights/blogs/WilmerHale-W-I-R-E-UK/20180914-i-will-be-a-different-kind-of-director-lisa-osofsky-outlines-her-priorities-as-new-director-of-the-serious-fraud-office