Can The SFO ‘Crack' More Cases By Getting Suspects To Co-Operate?

Richard Sallybanks and Jonathan Flynn look at the considerations which can arise when entering into co-operation agreements under the Serious Organised Crime and Police Act 2005.

Over the past few months, Lisa Osofsky, Director of the Serious Fraud Office ('SFO') since late August 2018, has spoken of a series of measures designed to speed up SFO investigations and increase the number of convictions for white collar crime. These include greater collaboration with prosecuting authorities overseas (particularly in the US), utilising technology to expedite the investigative process and, significantly, encouraging suspects in the UK to co-operate with the SFO in order to 'crack' more cases.

In a speech in Washington DC on 4 December 2018, Ms Osofsky said: "...we in the UK have heard loud and clear from our colleagues in the United States how valuable co-operators can be in cracking white collar cases. We have different practices and different rules in Britain, and co-operators have, to date, been more widely used in narcotics or gang cases. Suffice to say, we are intently exploring this area in the white collar world."

These sentiments were echoed in Ms Osofsky's evidence to the UK's Parliamentary Justice Committee on 18 December 2018, when she talked of the need to "get an insider who can help us [the SFO] understand what the scheme was and what the relevant documents are" as opposed to having to "wade through what can otherwise be a morass of documents".

In the UK, the statutory framework governing co-operation agreements is contained in the Serious Organised Crime and Police Act 2005 ('SOCPA'). Introduced in April 2006, these provisions added to rather than replaced the pre-existing common law mechanisms.

There are two main types of SOCPA agreement: a section 71 agreement, which confers immunity from prosecution in exchange for a suspect's full co-operation; and a section 73 agreement, which requires a suspect to plead guilty to an offence, but enables the court, when sentencing, to take into consideration the co-operation provided (often resulting in a substantial reduction in sentence: R v Blackburn[1]; R v Dougall[2]).

Whilst SOCPA agreements have been around for a number of years, the provisions are infrequently used by the SFO (section 71 less so than section 73).[3] This is no doubt due, in part, to a reluctance by some prosecutors to 'do a deal' with suspects (particularly if that 'deal' involves granting full immunity). However, it is...