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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.