The future of the SFO: An exercise in crystal ball gazing?

It has been a busy start to 2016 for the SFO. So much so that David Green, the SFO’s director, began the year by requesting an extra £21 million in funding; hardly surprising if the pipeline of cases is anything like that which we have seen in the last year. A few weeks ago, the SFO announced that it had extended Mr Green’s contract to 2018 (it was due to end in April), another clear sign that the more aggressive stance taken by the SFO under his directorship is likely to continue for the next few years. However, plans have recently emerged that might put a spanner in the works for Mr Green and, if they are implemented, it seems that the National Crime Agency (NCA) will be given the power to direct investigations carried out by the SFO. It will also reportedly have a representative on the SFO’s board.

Whilst the NCA was given the power to investigate corruption cases last summer, its remit to investigate serious crimes, such as child abuse and cyber crime, has little overlap with that of the SFO, the main agency responsible for the investigation of fraud and bribery. Commentators have, therefore, questioned the utility of allowing the NCA to direct the SFO’s investigations, of which it has little experience. Many are also concerned about the effect of such a power on the independence and credibility of the SFO and the potential for the Home Office to influence its investigations, albeit indirectly. Clear guidelines as to the circumstances in which the NCA could use its power of direction over the SFO would need to be implemented to allay concerns that the power could be abused. Its purpose would also need to be clarified as, at present, it is unclear what the government hopes to achieve through the introduction of such a power.

Under the new plans, the SFO would apparently need to appoint a new executive to oversee the agency’s finances - punishment, perhaps, for the millions of pounds of extra funding requested by the agency over the last few years. Whilst this would undoubtedly add an extra layer of scrutiny to the SFO’s finances and how it spends its money, there has not been any suggestion that changes to the availability of blockbuster funding would be made. Any such changes would likely be strongly opposed by Mr Green in any event, as the availability of such funding has been a key factor in facilitating the investigations undertaken by the SFO since Mr Green took the helm. Without it, many of the large, resource-intensive investigations linked to the LIBOR scandal would not have been possible and the successful prosecution of Tom Hayes would have been a lot less likely.

The ability of the SFO to choose which investigations to pursue and the availability of funding to pursue them, will be significant factors in the agency’s success in the years to come and it is unlikely that Mr Green will support any changes which place unnecessary restrictions on the SFO’s operations. The extension of Mr Green’s contract to continue as director of the SFO for a further two years appeared to answer questions about the future of the agency, at least in the short term. However, the emergence of these new plans means that it is once again shrouded in uncertainty. No official comments have been made to the press regarding the accuracy of these reported plans and until further details become available, most are likely to remain highly sceptical. If only we had a crystal ball…