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Motivated by a “visceral reaction” to large-scale economic crime, Nick Ephgrave lays out vision for a bolder, more pragmatic, and more proactive agency.

By Pamela Reddy and Matthew Unsworth

Whistleblowers, dawn raids, and cross-agency collaboration are all top of Nick Ephgrave’s agenda as he settles into his new role as Director of the UK’s Serious Fraud Office (SFO). Taking to the stage for his inaugural speech at the Royal United Services Institute last week,[i] Ephgrave gave a glimpse into his ambitious (if optimistic) plans for the agency under his leadership.

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Individuals continue to face risk from prosecutions for economic crime, despite media focus on corporate criminal liability reforms.

By Stuart Alford KC, Mair Williams, and Matthew Unsworth

Four individuals have today appeared at Westminster Magistrates’ Court charged with fraud in connection with the collapse of UK café and bakery chain, Patisserie Valerie.[i] This follows a five-year investigation by the Serious Fraud Office (SFO) — codenamed “Operation Venom” — which was launched after the chain suddenly announced that its financial statements over successive years had been “mis-stated and subject to fraudulent activity”.[ii] Among those charged is former CFO, Christopher Marsh, who was arrested on suspicion of fraud when the scandal first emerged but was released on bail soon after.

While corporate criminal liability continues to dominate headlines ahead of reforms to be introduced by the Economic Crime and Corporate Transparency Bill, the Patisserie Valerie charges serve as a reminder that there remains a risk of prosecution at the individual level. Indeed, this is the third case in which the SFO has charged individuals this year, and the agency is targeting a minimum 60% conviction rate of individual (as well as corporate) defendants between 2022 and 2025.[iii]

Landmark decision holds that the SFO does not have the power to procure documents from foreign companies outside the jurisdiction.

By Stuart Alford QC and Callum Rodgers

On 5 February 2021, the UK Supreme Court handed down a highly significant judgment in R (on the application of KBR, Inc) v Director of the Serious Fraud Office [2021] UKSC 2. The Court unanimously ruled in favour of KBR, Inc in its appeal of a 2018 High Court judgment, which had permitted the Serious Fraud Office (SFO) to use its section 2(3) powers under the Criminal Justice Act 1987 (the 1987 Act) to require foreign companies that were sufficiently connected to the UK to provide documents and other information for the purposes of an SFO investigation.

This is the first case in which the UK courts have ruled on the extraterritorial reach of the SFO’s section 2 powers, which are its primary means of gathering evidence and factual information in support of its criminal investigations into bribery and corruption. 

Guidance sets out the SFO’s expectations for investigations but leaves open questions, particularly for cross-border investigations.

By Stuart Alford QC, Nathan H. Seltzer, Christopher M. Ting, and Harriet Slater

On 6 August 2019, the UK Serious Fraud Office (SFO) issued its much-anticipated Corporate Cooperation Guidance (the Guidance) outlining, in substantial detail, the steps that the SFO expects corporations to undertake in order to be eligible for cooperation credit when the SFO makes charging decisions, including in relation to whether a deferred prosecution agreement would be appropriate in lieu of full criminal prosecution.

In many respects, the Guidance is unsurprising and provides the types of investigative best practices that sophisticated companies and their advisers are already familiar with – particularly companies familiar with US regulators’ expectations regarding cooperation credit.

New SFO Director reaffirms her intentions and priorities for the agency.

By Stuart Alford QC, Nathan Seltzer, and Christopher Ting

Fifty days have passed since Lisa Osofsky took over at the UK’s Serious Fraud Office (SFO), pledging to be a “different kind” of director. In her first days, Osofsky set out her priorities for the agency, which included:

  • Improved cross-border coordination
  • Improved corporate engagement
  • Continued use of Deferred Prosecution Agreements
  • Use of technology in investigations

This blog post will analyse what Osofsky has accomplished since joining the SFO, including her first major strategic decision, a further explanation of her priorities, and key personnel changes.

ENRC Appeal

In her first major strategic decision for the SFO, Osofsky decided not to appeal the ruling in Director of SFO v Eurasian National Resources Corporation to the Supreme Court. On 5 September, the Court of Appeal overturned a High Court decision in favour of the SFO’s interpretation of legal professional privilege and reaffirmed the boundaries of litigation privilege if litigation is reasonably in contemplation. Amidst speculation that the SFO would further appeal that judgment, Osofsky issued a statement on 2 October that the SFO would not take the decision to the Supreme Court.

New director Lisa Osofsky confirms her focus on cross-border and corporate cooperation.

By Stuart Alford QC, Nate Seltzer, and Clare Nida

On 3 September 2018, in her first speech, after only one week as head of the UK’s Serious Fraud Office (SFO), Lisa Osofsky laid out her plans for the agency.

Upon announcement of her appointment, Latham identified possible priorities for the new director here. As predicted, Osofsky’s unique cross-border and corporate experience is shaping the SFO’s…

New director Lisa Osofsky’s cross-border and corporate experience may lead the SFO in a fresh direction.

By Stuart Alford QC and Clare Nida

The announcement that Lisa Osofsky has been appointed as Director of the UK’s Serious Fraud Office (SFO) likely signals new strategic directions for the agency. For the past six years, the SFO has been led by David Green QC, who stepped down from his position in April. In this blog post, Latham partner and former Head of the Fraud Division at the SFO, Stuart Alford QC, provides five predictions for the SFO’s strategic priorities under Osofsky.

Background

Osofsky previously served as Regional Leader of Investigations for Europe, the Middle East, and Africa (EMEA) at Exiger, the global regulatory and financial crime, risk and compliance company. She has also held posts on the other side of the Atlantic. Her experience includes serving as a US federal prosecutor, as Deputy General Counsel and Ethics Officer at the FBI, as Money Laundering Reporting Officer (MLRO) at Goldman Sachs International, and as a member of the Corporate Investigation Division of Control Risks.

By Stuart Alford QC, Daniel Smith and James Fagan

 “Privilege is a fundamental human right guaranteed by the common law, and a principle which is central to the administration of justice. Once a document is subject to privilege, the privilege is absolute: it cannot be overridden by some countervailing rule of public policy”.

These dicta from Andrews J in her decision in Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017 are reassuring, but her ruling on the scope of privilege may prove somewhat less so to corporates.

The decision concerned a claim by the Director of the UK Serious Fraud Office (SFO) for a declaration that certain documents generated between 2011 and 2013 during investigations undertaken by solicitors and forensic accountants into the activities of the defendant, Eurasian Natural Resources Corporation Ltd (ENRC) and its subsidiaries were not, as ENRC maintained, subject to legal professional privilege, either legal advice privilege or litigation privilege. The decision is the first to consider the position of legal advice privilege in the context of internal investigation and an SFO investigation.

By Dan Smith

On November 26, 2015, the UK Serious Fraud Office secured its first Deferred Prosecution Agreement against UK-based ICBC Standard Bank Plc for failure to prevent one of its sister companies from bribing Government of Tanzania officials, an offence under Section 7 of the Bribery Act 2010 (the “Failure Offence”).

Standard Bank agreed to pay approximately US$33 million in compensation, disgorgement of profits, penalties and costs. In addition, Standard Bank settled charges with the US Securities and Exchange Commission under an administrative order for an additional US$4.2 million penalty related to the same conduct. The US Department of Justice reportedly worked with the SFO in this matter.