Serious fraud in England & Wales is at a crossroads. It is no longer obvious that the state will continue to fund the painstaking investigations and lengthy criminal trials that have been the raison d’être of the SFO since its creation in 1987. Three of its last four directors, including the current incumbent, have been the subject of trenchant, occasionally vitriolic, criticism, some of it from within Government itself. That this was, and is, largely unfair is beside the point. Whitehall seems to have lost faith that the system can deliver. Whereas the large corporation continues to co-operate (in return for a deferred prosecution agreement and the payment of swingeing fines and costs, ultimately met by shareholders and customers), its executives show no such inclination – hardly surprising since the consequences of conviction will inevitably include imprisonment and ruinous POCA proceedings. When faced with the determined defendant, the SFO’s recent success rate is less than impressive.
What is the alternative? The amendments to the POCA consequent upon the Criminal Finances Act 2017 furnish the state with extensive powers of civil recovery. We anticipate seeing a substantial increase in their deployment, not as at present alongside the criminal prosecution but rather in its place. If this is correct, it will be no more than the SEC has done for decades. And the SEC is feared in a way the SFO is not.
Whatever the fate of the SFO, it will have no effect upon cases of minor fraud. These will continue to be brought by the CPS, trading standards departments and private prosecutors across England and Wales.