Serious Fraud Office

In 2021 we predict

2 or 3 deferred prosecution agreements.

The picture in 2020

• 2020 was a successful year for the SFO on the DPA front, with three being entered into in the year. This included the largest DPA ever in the UK – Airbus (Last year, we predicted that 2020 would be a crunch year for DPAs, with 2 - 3 being entered into in the year).
• Consistent with Lisa Osofsky’s agenda to move cases forward more swiftly, two long-running large investigations were closed without charge (ABB and De La Rue).
• There has been increased cooperation with other domestic authorities, including new MOUs with the Competition and Markets Authority and the Financial Services Compensation Scheme, as well as joint investigations with the FCA (e.g. London Capital and Finance).
• Internationally, the US-UK Bilateral Data Access Agreement came into force, setting the scene for authorities in both jurisdictions to be able to obtain communications data without going through time-consuming mutual legal assistance processes.
• A shift in approach by the SFO has been apparent, with its historic unwillingness to provide guidance being set aside. Guidance on two key areas has been published this year, covering the DPA process and the evaluation of compliance programmes.
• 2020 saw a number of senior level departures - the Chief Investigator (Kevin Davis), the Head of Strategy and Policy (Hannah von Dadelszen), the Head of Proceeds of Crime and International Assistance (Liz Baker) and a Joint Head of Fraud and Corruption (Camilla de Silva, to this firm).

Looking ahead to 2021

• We predict another 2 or 3 DPAs in 2021 (in the absence of any fast track SFO process, we think this is probably the limit of what is feasible in any one year).
• There will be an increase in global DPAs, as other jurisdictions enact DPA laws (changing the dynamic on self-reporting).
• The SFO will continue to struggle to match the guilt of individuals with the accepted culpability of corporates via DPAs (the G4S/Serco case will be another test of that, but the trial is scheduled for 2022).
• There will be some long-awaited clarity on the question of the ability of the SFO to use section 2 orders to acquire data held outside the UK (the decision of the Supreme Court in the KBR case is awaited).
• Brexit will be a significant issue for the SFO in terms of its cooperation with other European agencies and will slow down progress in European cross-border cases.
• Within the UK, we foresee increased cooperation between authorities through the role of the National Economic Crime Centre.
• There is likely to be an SFO focus on pandemic-related fraud cases, and other frauds involving multiple victims.
• We anticipate the first use of US/UK Overseas Production Orders following the implementation of data minimisation measures under the US-UK Bilateral Data Access Agreement.