International - Written by on Tuesday, April 30, 2019 3:24 - 0 Comments

UK approach to white collar investigations can and must encompass plea bargains & immunity

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At just over half way through her first year in office Lisa Osofsky’s stated new approach to doing things at the SFO differently, heavily influenced by her experiences in the US, remains undimmed.

Ms.Osofsky was reported (again) this weekend as targeting speeding up SFO investigations as a cornerstone of her strategy.

In the US where a statute of limitations time bars the prosecution of historic crimes, junior prosecutors have drilled into them from the beginning of their careers the importance of bringing cases quickly. The UK has no such statute of limitations which no doubt accounts, at least in part, to the length of time some SFO cases have historically taken.

It is widely acknowledged that the more historic a case is the more difficult it will be to prosecute.

The new SFO director has repeatedly identified the future use of cooperating witnesses in SFO cases as a target but this has been met with a degree of circumspection.

To be fair, the naysayers have a point.  Culturally, historically and in practice the UK has frowned upon plea agreements.

SFO results have been mixed and UK courts, who jealously guard their right to determine sentence, have expressed their disapproval of sentence determination in plea agreements.

In one notorious example a cooperating witness entered into a plea agreement with the SFO.  After years of extensive cooperation the co-operator attended court for his (reduced) sentencing.  At that hearing the SFO’s lawyers argued for a suspended sentence of 12 months or less in exchange for his cooperation.  The court had none of it. The co-operator  was handed an immediate custodial sentence.  Subsequently on appeal the Court of Appeal endorsed the original court’s approach albeit the individual was released early for other reasons.

It goes without saying that if the SFO cannot live up to its side of the deal in exchange for the cooperation of a suspect to break open a case then there is no incentive to enter into a plea bargain with the SFO.  This is neither in the public interest or in the interest of a cooperating witness.

However, the new Director of the SFO is right to keep pursuing the goal.

A framework exists today for the SFO to enter into deals with cooperating witnesses under the Serious Organised Crime and Police Act 2005, (SOCPA).  One of its provisions (section 73) in connection with the reduction in sentence was used in the case that went wrong with the cooperator unexpectedly being sent to prison by the judge.

In appropriate cases the SFO also has power, in consultation with the Attorney General, to grant immunity from prosecution in the first place under Section 71 SOCPA.  In doing so the SFO has the ability to offer a cooperating witness complete certainty, avoiding the problem suffered by the cooperator who was unexpectedly sent to prison.

The Crown Prosecution Service has issued detailed guidance surrounding the granting of immunity which applies to the SFO.  This provision has been used very sparingly to date and could, and should be used more.

Cooperating witnesses should reasonably be able to expect that any deal offered by the SFO in exchange for their cooperation is deliverable; if they cannot they will not be advised to enter into discussions with the SFO.

Likewise, if it is in the public interest that a co-operator be given a deal in exchange for information to assist the SFO in its investigations then that should be possible.

As a famous impressionist painter is reported to have said, “I’m always doing that which I cannot do, in order that I may learn how to do it.”

Ms. Osofsky is right to challenge established wisdom when it comes to plea bargains and cooperating witnesses.

 

 

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