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Fraud convictions remain low despite rise in SFO-compelled interviews

Witnesses must be protected from 'distressing' interview experience, says white collar crime lawyer

16 August 2016

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A rise in the number of witnesses interviewed by the Serious Fraud Office (SFO) failed to lead to more convictions last year, the latest statistics has revealed.

In 2015, 177 witnesses were compelled to attend interviews - a 37 per cent increase on the 129 interviews completed the year before, according to RPC.

Richard Burger, a partner at the firm, said: 'It is not surprising that the SFO is conducting more compelled interviews - the SFO is busy and intends to remain busy.

'Interviews with witnesses and suspects are one of the most effective means to gather evidence that the SFO has at its disposal. Compelled interviews with witnesses often provide the most valuable information.'

Despite the agency's intent to increase the number of convictions, however, just six defendants in four cases were convicted in 2015/16 (year end March), resulting in a conviction rate of 32 per cent by defendant and 57 per cent by case.

The SFO has been criticised for its poor conviction rate despite increased investment from the Treasury (£33.8m in 2015/16). However, the agency did recently recover £19.6m in assets from criminals.

While the rise in interviews may increase the number of convictions, RPC has urged caution over the 'very distressing experience' witnesses can face during the process.

In June, the agency announced new guidelines that compel witnesses to attend interviews, under section 2 of the Criminal Justice Act 1987.

In a recent article for Solicitors Journal, Brian Swan, a partner at Stokoe Partnership Solicitors, warned that the new guidance could potentially backfire on the SFO, directly 'hampering investigations by reducing cooperation with witnesses and by reducing dialogue with firms involved'.

Witnesses must foot the bill of their lawyer whom must prove that their presence is 'likely [to] assist the purpose of the interview' or provide 'essential assistance'.

The SFO also retains the power to expel the lawyer from the interview. A conflict is expected where an employee is compelled to be interviewed as part of an investigation into their employer and is represented by their employer's own lawyers.

RPC said directors and senior managers must ensure that the cost of personal legal representation is properly covered under their company's directors and officers' insurance policy.

'Until you have been questioned by a highly skilled and highly motivated fraud investigator using statutory powers to make you answer questions, you cannot tell how you will react,' said Burger.

'For many people, a compelled interview will be their first encounter with law enforcement officers and the process itself is often very disconcerting.'

Asked to respond to RPC's findings, an SFO spokesperson said: 'Since taking up office in 2012, the current director has refocussed the SFO's caseload onto the top tier of fraud, bribery and corruption.

'This is in line with what the SFO was set up to do and is reflected in our current caseload of large and complex cases.'

Matthew Rogers is a legal reporter at Solicitors Journal @sportslawmatt matthew.rogers@solicitorsjournal.co.uk

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Procedures