The Director of the Serious Fraud Office (SFO), Lisa Osofsky has suggested that the prosecutor is considering introducing a plea-bargaining system that would grant immunity to those willing to pass on information.
The proposals arise alongside new investigatory tools at the SFO’s disposal, such as Unexplained Wealth Orders, and may in part be a response to criticism over a number of failed high-profile prosecutions for fraud and false-accounting, including of executives at Tesco.
Speaking with the London Evening Standard, Ms Osofsky, a former US-prosecutor, said that she wants the SFO to work closely with HM Revenue and Customs to uncover white-collar criminals and tax evaders before telling them “You can spend 20 years in jail for what you did or wear a wire and work with us.” Whilst the exact details of the plans remain unclear, Ms Osofsky cited similar systems currently in use in the USA, for example, during the investigation into FIFA corruption.
Whilst there is no “plea-bargaining” system currently in the UK, the SFO can rely on s71 of the Serious Organised Crime and Police Act 2005 to grant immunity from prosecution, but this is rarely used in practice. Another system of leniency that has been popular with the SFO in recent years is Deferred Prosecution Agreements (DFAs), although these are currently only available to corporate defendants.
DFAs require the corporate defendant to agree to a number of conditions and co-operate with the investigation in order to avoid prosecution. This leaves senior employees vulnerable to prosecution. Instead of pursuing the corporate body, the SFO pursues individual directors for their alleged role in wrong-doing. The Tesco case is one such example. However, the SFO appears to still have great difficulty securing convictions against individuals. Several of these prosecutions have now failed.
The introduction of an informant scheme may then help to rectify this current imbalance in obtaining more lenient treatment.
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