The UK’s Serious Fraud Office (SFO) is about to appoint a new Director, which gives cause for reflection on the tenure of the current occupant.  Robert Barrington, Executive Director of Transparency International UK, assesses the state of play.

The institution David Green inherited in 2012 was in poor shape.  His predecessor had tried hard to address concerns of lack of action through a range of techniques; there were some successes, and a sense of momentum had developed from the days in which the UK was regarded by Transparency International as serially inactive in its implementation of the OECD Anti-Bribery Convention.  But there was also criticism of management practices, a high profile failure, lack of political support for the institution, an inescapable sense of low morale, and above all a high expectation that the Bribery Act would finally lead to UK prosecutions for corporate bribery.

The situation has had a remarkable turnaround.  The SFO is now seen as an institution that is serious, has better funding, is unafraid to take on big cases, and has seen off the worst excesses of political undermining.  Team SFO looks confident and successful.  This is good news for the fight against corruption, and a great credit to the outgoing Director.  By any measure, he has done a truly admirable job, against the odds, and restored the SFO’s status as one of the leading global corporate anti-corruption enforcement institutions.

And what of Deferred Prosecution Agreements, which have been introduced recently to the UK and are starting to play out in case law?  At Transparency International, we have mixed views.  On the one hand, they are a useful additional tool for prosecutors; the other hand, it is not yet clear that their use serves the public interest more than prosecution, or that they will not come to be viewed as a soft ‘cost of doing business’ option for erring corporates.  We don’t yet know how well they are being deployed, partly due to lack of transparency, but we are reserving judgement rather than strongly critical, as the signs are that a more settled SFO will look to learn the lessons from the early cases.

We wrote recently to the SFO with a detailed explanation of our views, to summarise the state of play and give a sense to the new SFO regime about what the expectations are from civil society about how best to use this powerful and important instrument.  You can find our letter here.

David Green’s successor will still have challenges.  Confirming the new reported settlement for its core funding.  Seeing off the inevitable political pressure not to prosecute UK champions in the post-Brexit era.  Retaining talent during a change of regime.  Encouraging self-reporting while not over-promising to corporates.  Solving the cooperation conundrum with overseas authorities.  And improving the deployment of DPAs in the light of the experience of the first cases.

Meanwhile, congratulations to the outgoing Director on leaving the SFO in a much better place than he inherited it.  He and his team have a great deal to be proud of.