Serious Fraud Office. Trials and tribulations

Despite the position's reputation as a “bed of nails”, about 40 people have applied for the job as director of the Serious Fraud Office (SFO). The applicants include judges, lawyers working for the Civil Service, the City's regulatory bodies, the public sector, private practice and the Bar. As one prosecutor puts it: “If you win, the attitude is any mug could have done it but if you lose, you are lambasted.”

The first round of interviews is due to be completed by the end of January to find a new “public face” for the SFO who is prepared to take responsibility for investigating and prosecuting serious fraud on the salary of a High Court judge – £104,415.

The successful applicant will inherit a caseload of 80, including the Sumitomo copper affair and Peter Young, the former Morgan Grenfell fund manager, a shrinking budget of £16m, cut by about £1m a year for the last five years, and more than 170 lawyers, accountants, administrative staff and seconded police officers.

Nicholas Woolf, of the recruitment agency Reuter Simkin, says: “It is an interesting post to fill. There are two things which may put some people off – the salary and the flak, although that is not such an obstacle as the money.

“Because the job is varied, there are people who are suitable for different reasons – some have a lot of management experience, others are more knowledgeable about criminal fraud, while others are very good at public relations. Our job is to find someone who can do all three.”

Current director George Staple is leaving in April after five years. It is no secret that he took a substantial cut in his income as a senior litigation partner with Clifford Chance to take up the post in 1992.

He was attracted to the job by the challenge it offered and it has certainly lived up to that expectation – but he believed that five years was a “reasonable stint” and that it was time for a change.

He found the biggest difference in moving from private practice to public office was exchanging clients for the public interest. He says: “As director, you have to serve the public interest but often there are many competing interests and you are forever faced with making judgments about them.”

It has not been an easy five years for him. There has been the grilling by a Parliamentary select committee over the sentencing of Roger Levitt, the disgraced insurance salesman, who was sentenced to community service after a plea bargain went wrong for the SFO.

Just before Christmas, the European Court of Human Rights found Ernest Saunders had had an unfair trial because Department of Trade and Industry transcripts should not have been used in evidence, although the court stressed this did not mean the verdicts in his Guinness trial would have been different.

There was a torrent of criticism following the acquittal of the Maxwell brothers, followed by some trenchant criticism from Mr Justice Buckley when he stayed the second Maxwell trial last September. He said launching another long trial at enormous expense would “run the grave risk of suggesting to the public that the authorities did not accept the verdict of the jury [in the first trial]”.

In a carefully-worded response at a conference shortly afterwards, Staple made it clear he felt the judiciary was moving the goalposts. He said the 1992 appeal judgement quashing the convictions in the Blue Arrow case was arguably the most influential event in the SFO's history. It encouraged the “robust and early use” of severance of charges to secure a manageable and fair trial before a jury.

However, the ruling in the Maxwell case made it unlikely a second trial would ever take place. This meant neither the full criminality nor all the defendants would come before a court, thereby “emasculating” the system. The question had to be faced, he said, whether it was reasonable to ask an ordinary jury to sit on these cases or whether an alternative tribunal would be more suitable.

In spite of all the media and political flak, Staple never felt under any pressure to resign. “I do not think there was ever a time when I felt I ought to stand down over the conduct of any of the cases,” he says.

Staple points out that the SFO has brought 153 cases since its inception in 1988 with 346 defendants prosecuted and 217 convicted. In more than 75 per cent of cases, one or more defendants were convicted, receiving sentences of up to 10 years.

Some commentators have argued that this record does not take into account the number of guilty pleas – some as the result of unanswerable prosecution evidence but others reflecting the acceptance of pleas to lesser criminality than originally alleged.

However, the SFO's role as a dedicated fraud organisation was backed by the Government's Davie report in 1995 which rejected a proposal that it should be merged with the Crown Prosecution Service's (CPS) fraud division.

Says Staple: “There is another side to the story – a recent case of major City fraud involving the chemical company MTM and sums amounting to £250m resulted in two convictions but these do not make good headlines.

“It is more instructive to look at the system in which these cases are investigated and prosecuted. It needs to be improved to get the issues on the table quicker. The new Criminal Procedures and Investigation Act, which comes into effect in March, should lead to earlier and better disclosure which should improve case management.”

In terms of future changes, he believes that a general offence of fraud would make the SFO's work easier. The office would also benefit from having a dedicated corps of police officers which could be deployed on any investigation rather than the individuals remaining attached to their own forces.

It is also important that cases are properly transferred from the other prosecuting authorities, such as the Inland Revenue and the Department of Trade and Industry, if they would benefit from the SFO's powers. “I am not suggesting a takeover bid for those departments,” says Staple, “but it is important that those cases which ought to get there do. It is happening with the CPS through the Joint Vetting Committee but it may not be happening elsewhere.”

There has been a change in the type of cases referred over the past three years – a sharp increase in frauds against investors and a substantial drop in market manipulation. There has also been a change in the pattern of referrals – with a 50 per cent increase from provincial police forces but only a 3 per cent increase in referrals from the Metropolitan and City police forces. Fewer cases are being referred by the regulatory bodies.

Gary Fooks, who lectures in criminal justice at Southampton University, has spent the last four years researching the SFO for his PhD and is writing a book on his findings.

“The SFO cannot do that much more to ensure victory,” says Fooks.

“If you want convictions you are going to have to turn the screw even harder on defendants with earlier disclosure, have penalties for deviating from case statements, and less generous legal aid.”

However, any statutory changes could depend on whether or not there is a change of government. Mike O'Brien, Labour's shadow Economic Secretary, says that it intends creating a new Securities and Investments Board, bringing together the four current regulatory bodies.

Most lawyers, however, give the current SFO far more credit.

John Clitheroe, of Kingsley Napley, and Monty Raphael, of Peters & Peters, who have defended clients in most of the major headline cases, regard the SFO as a tenacious and formidable opponent working in an imperfect system.

Peter Rook QC, who has both prosecuted and defended in SFO cases, says: “There are cases where there have been problems but on the whole, SFO cases are extremely well prepared and presented.”

David Kirk, partner at Simons Muirhead & Burton, is co-author with Stephenson Harwood's Tony Woodcock of Serious Fraud: Investigation and Trial.

“I think that the SFO has achieved its aim of prosecuting cases which would not have been tried before and, in spite of comments that it is the Serious Farce Office, I think it has also been a deterrent,” says Kirk.

For Staple, there is one regret as he prepares for his last three months in office – that the SFO's work has not been better understood. “But, quite honestly, what you see is what you get,” he says. “Our work is conducted under such public scrutiny – by Parliament, the media, the courts that there is no lack of accountability.”