The SFO, COVID-19 and recent developments

In its 7 May 2020 COVID-19 update, the Serious Fraud Office (SFO) stated that it would continue to investigate fraud, bribery and corruption cases as normal during the COVID-19 pandemic (subject to government guidance in relation to work practices). While such intent is admirable, it is not entirely clear that the SFO is in fact managing to do so effectively.

Other agencies, including HMRC and the CMA either suspended certain investigations or refocused work streams directly in response to COVID-19 and the resulting lockdown. The FCA's business plan was deliberately adapted to face the challenges of the crisis head on and sets out the measures it had already taken to support consumers and markets as a result of the unique challenges businesses and consumers were facing in the current climate (see our article here). By contrast, the SFO's business plan stated that it remained "operational and committed to delivering [its] mission" but was light on detail in relation to its response to its dramatically changed circumstances.

Despite the SFO's best intentions we understand that there are ongoing difficulties in relation to progressing investigations. The SFO's response to a Global Investigations Review Freedom of Information Act request (FOIA) showed that between 23 March 2020 (when the government put a significant portion of the country into lockdown) and 30 April 2020, the SFO did not conduct any suspect or compelled interviews. Over the same lockdown period, the FOIA revealed that the SFO issued just 16 notices demanding access to certain information or specific documents under section 2 of the Criminal Justice Act 1987. Given that the SFO typically issues between 600 and 1,000 section 2 notices a year, this figure suggests that limited investigative activity was being carried out.

To a degree this is unsurprising; carrying out interviews virtually is problematic for everyone, and doubly so for enforcement agencies. However, issues with the SFO's evidence gathering and processing capabilities are more concerning. There have been media reports that the SFO's investigations are being hindered by difficulties with processing evidence during the pandemic. We understand that the SFO has stopped processing all hard-copy evidence and any evidence contained on a seized device. It is only accepting evidence that is in a specified electronic format compatible with its computer systems. Combined with delays to interviews, this cannot help but lead to further delay to some of the SFO's long running investigations.

It should be noted that the SFO's approach to the pandemic and the issues it has faced are not out of line with those experienced in other jurisdictions. A tracker prepared by our international network covering the approach taken by enforcement agencies in the UK, US, France and the Netherlands during the pandemic is available.

While noting that the SFO's decisions as to its ongoing case load are not necessarily linked to pandemic-related difficulties, it may be instructive that there has been a small flurry of announcements of investigations being dropped in the last few months, including those into De La Rue (here), EURIBOR (here) and ABB (here). Taken together with the SFO's failure earlier this year to obtain convictions against the Barclays individual defendants, difficulties in the Unaoil trial and ongoing criticism as to the pace of its investigations it would seem that the SFO could do with a good news story.