Emerging from COVID-19: an opportunity for prosecutors?

Emerging from COVID-19: an opportunity for prosecutors?

Criminal lawyers are always asked by their clients how long they think an investigation or prosecution into allegedly serious offending will take. Even before the outbreak of COVID-19, in a justice system crippled by budget cuts and beset with inefficiencies, the answer would nearly always be measured in years.

Nowhere has the issue of delay been more acute than in cases investigated and prosecuted by the Serious Fraud Office (SFO). When Lisa Osofsky became the Director of the SFO in 2018, it was optimistically predicted that pace and proactivity would become the new norms. Despite the Director’s best efforts, the figures tell their own truth. In the last year for which statistics exist (ending March 2019), the SFO concluded 10 cases. The majority were for criminal conduct that was said to have occurred between 2010 and 2013, with the most recent being 2015. Of the cases that proceeded to trial, the headlines continued of high-profile acquittal – Tesco (defendants acquitted December 2018 for conduct reported in 2014); after acquittal – Güralp (defendants acquitted December 2019 for conduct between 2002 and 2015); after acquittal – Barclays (defendants acquitted February 2020 for conduct in 2008).

When it was recently reported that the SFO had not conducted an interview or executed a search warrant since the start of the COVID-19 pandemic, some commentators began to question whether this really was the end. Nevertheless, whilst battered and beleaguered, the demise of the SFO seems unlikely. And, like the most sensible businesses forced to adopt a rigorous prioritisation of key work in a post COVID-19 world, there appears to be a real desire to confront the future.

Whilst the proof will only be apparent in more timely case progression, the SFO’s mid COVID-19 crisis response to the 2019 reviews conducted by HM Crown Prosecution Service Inspectorate (HMCPSI) is a promising start, even if the time taken to respond to the reviews might itself say something about the SFO’s tempo.

HMCPSI identified several key challenges facing the organisation: inefficiencies in resource allocation; a lack of consistency between case controllers; severe delays in the processing of digital material; and poor staff retention. In response, the SFO has announced: a rebalancing of the allocation of resources across casework divisions; implemented training programmes aimed at supporting case progression; and introduced the requirement for all investigations to have a digital strategy where data and devices are seized.

If followed through, those actions suggest real recognition for a much-needed faster pace. The public interest – viewed from all perspectives – demands no less.

The need for timely action can also be seen in the Crown Prosecution Service (CPS) acknowledging the long-term impact the COVID-19 crisis will have on the criminal justice system, and especially on case progression. The CPS has issued guidance asking prosecutors to prioritise more serious cases and consider the impact of the COVID-19 pandemic when weighing up whether criminal charges are in the public interest: a realistic approach behind which lies a recognition that not all cases can be prosecuted – at least, not in a timely enough manner to provide justice. In announcing the guidance on 14 April 2020, Max Hill QC, the Director of Public Prosecutions recognised that:

“We must focus is [sic] on making sure the most dangerous offenders are dealt with as a priority as we adapt to challenging circumstances. And in less serious cases, it is right that we consider all options available when weighing up the right course of action.”

It is to be hoped that this latest CPS Guidance will be adopted by all prosecution agencies.

It may be then that the present health crisis, aside from making the criminal courts grasp the realities of the digital world, will also have the effect of concentrating investigators’ and prosecutors’ minds like never before: a COVID-19 silver lining for the criminal justice system and corporate investigations perhaps, and to the benefit of all. It remains truer than ever that ‘justice delayed is justice denied’.

Greta Barkle is a New Zealand qualified lawyer specialising in business crime, regulatory investigations, extradition and cybercrime. Prior to joining BCL Solicitors LLP, Greta worked on a range of complex disputes, including claims against the New Zealand Police and Government Communications Security Bureau in relation to dawn raids and unlawful surveillance of communications. Greta also assisted counsel in New Zealand’s leading white collar crime and extradition case and is an experienced criminal and regulatory prosecutor.

Jonathan Flynn is an employed barrister at BCL specialising in criminal and regulatory law. He has particular expertise in fraud, bribery and corruption, restraint and confiscation proceedings, and general crime. Jonathan has acted in a number of high-profile, complex and multi-jurisdictional cases, including investigations/prosecutions by the SFO, FCA, HMRC, and NCA.