The future of the SFO is in David Green’s hands – he must encourage firms to self-report if it’s to survive
The reappointment of David Green as director of the SFO has been a long time coming, and the ending of the uncertainty around the SFO’s leadership is going to be welcomed both inside and outside the organisation.
The SFO has certainly restored its reputation as a proper prosecutor after four years under Green’s leadership. But perhaps it is also now time for the SFO to consider taking a more pragmatic approach to ensure a better and more efficient throughput of cases to help ensure its own survival after this next two-year term is over.
Green’s tenure has been characterised by a more aggressive approach, in contrast to previous director Richard Alderman, who many saw as too soft.
There is, however, a danger that in attempting to emulate what it perceives as US aggression in order to obtain the credibility of the DoJ, the SFO may be seen as trying too hard, or picking the wrong cases.
Green has previously stated that he should be judged on Libor – Alderman had declined to investigate this at all – and believes his decision to prosecute was vindicated by the Hayes conviction.
But, after the Libor2 acquittal, who was right?
It would not necessarily be fair to criticise the SFO for taking that case forward: its remit is to look into only the most serious and complex cases of fraud and corruption. Nor should it be criticised for being discerning in deciding which cases to take on. After all, the purpose of an SFO investigation is to find out whether there has been criminal conduct and if so whether to prosecute.
The SFO’s role is harder than that of most prosecutors as it only deals with the most serious and complex cases; it doesn’t get any easy wins. It is currently grappling with how to deal with the likes of Tesco, Barclays and Rolls-Royce among several others.
Clearly the SFO cannot be expected to investigate everything, but the SFO should look now to build on the past four years and start to find ways to encourage more self-reporting, as this means the company essentially pays for its own investigation.
This encouragement has to come in a positive way, rather than simply threats of what will happen to companies who don’t self-report. Companies who do self-report seem to end up with a similar fate anyway.
So we need to see more incentivisation for companies to self-report (by way of better outcomes) and less criticism of companies conducting their own investigations. After all, a properly conducted internal investigation, followed by a candid self-report to the SFO, would take a huge burden off the agency.
It would also save taxpayers’ money as the SFO then wouldn’t have to investigate every single whistleblower report.
It could instead focus its limited resources more effectively on those intent on sweeping their problems under the carpet.