In early 2024, the SFO re-reviewed various previous prosecutions, including its Libor prosecutions, after problems emerged with the SFO’s disclosure software systems.
The SFO has also conducted re-reviews of current cases in light of this disclosure failure, perhaps contributing to their decision to drop the 10-year-old investigation into the Kazakh mining company ENRC case in August 2023.
Similarly, the sluggish pace at which many prosecutions are brought places a strain on the efficiency of the SFO and their ability to take on more cases.
A prime example being the SFO’s prosecution of Jeffrey Cook and John Mason, who had been accused of bribing a member of the Saudi ruling family and his associates to secure and maintain a huge defence deal for a British company.
They were acquitted of this charge by a jury in March, having heard submissions from the defence that the payments had been authorised by the British government and Saudi rulers. The SFO’s prosecution was heavily delayed, coming to a conclusion nearly 10 years after Mason and Cook’s arrests.
This is not an uncommon scenario in SFO prosecutions and indeed the SFO’s five-year strategy specifically notes that some prosecutions can, and should, be faster.
The intention as set out in the SFO’s strategy appears to be an adaptation of their casework processes, but it remains to be seen what exactly this will entail and how the process of achieving justice can be accelerated.
In dropping certain prosecutions, the SFO has found itself in deep water from a costs and damages perspective. Having abandoned the ENRC prosecution, the body could be liable for a sum worth nearly three times its annual budget.
This arises from a 2023 High Court ruling that the SFO’s misconduct triggered an investigation into ENRC a decade later, which saw the SFO set aside £200mn for a potential damages award in favour of ENRC. The SFO appealed the ruling but this was recently refused by the Court of Appeal.
The decision will prove to be a major blow to the SFO who are facing a huge bill for wasted expenses and legal costs on top of the £200mn damages bill for bringing this ill-fated criminal investigation in the first place.
This is likely to prove a major difficulty to the SFO and could trump any ambitious improvement plans set out in their five-year strategy.
The SFO has acknowledged that it needs to improve its disclosure capabilities, increase efficiency in bringing prosecutions and generally improve their case management to ensure only cases within the public interest are being brought to trial. What remains to be seen, however, is how they go about doing this.
