In December 2021, the attorney general for England and Wales, Suella Braverman, launched an independent review following the conclusion by three Court of Appeal judges that the Serious Fraud Office (SFO) failed to disclose key information, which led to a businessman being jailed for bribery. The review will be carried out by David Calvert-Smith, a former director of public prosecutions and a High Court judge. In this article, we will look at the background of the SFO review requested by the attorney general, what we can expect from the review and the potential impact on the SFO.

What is the background to the review of the Serious Fraud Office?

In R. v Akle & Anor [2021] EWCA Crim 1879, the Court of Appeal was asked to review the case of Ziad Akle, who was convicted by the Crown Court in 2020 of conspiracy to make corrupt payments and tender manipulation in relation the business dealings of oil company Unaoil. The alleged activities took place between 2009 and 2011, during which time Akle was a territory manager for the oil company in Iraq. Akle stood trial in June 2020 along with Paul Bond and Stephen Whiteley. On 23rd July 2020, Akle was convicted and sentenced to five years’ imprisonment at Southwark Crown Court. Subsequently, he applied for leave to appeal, which was granted.

The 2020 Crown Court case followed a lengthy investigation and disclosure process by the SFO under the Criminal Procedure and Investigations Act 1996 (CPIA). Akle made a number of key complaints about the ‘abuse of process’ by the SFO during this investigation, which formed one of the grounds for this appeal. These complaints included the poor conduct of third-party investigator David Tinsley (a US citizen who runs 5 Stones Intelligence in Florida) and the non-disclosure of documents by the SFO. It was also alleged that a chief SFO investigator, Kevin Davis, had deleted data on his SFO phone. According to Lord Justice Holroyde;

“On 16th July, however, Davis brought about the wiping of data from his SFO-issued mobile phone, as a result of which the SFO have said that the phone had to be rebuilt and they have been unable to recover any of the text messages it is accepted Davis exchanged with Tinsley. The explanation which has been put forward is that Davis repeatedly entered an incorrect code, which caused data to be wiped from his phone. If that explanation is correct, it appears to have been the second time in less than a year that Davis had caused a mobile phone to be wiped and in need of rebuilding”. 

Lord Justice Holroyde agreed, stating that the deliberate non-disclosure of material by the SFO was “embarrassing to them” and that there had been “wholly inappropriate” dealings with a private investigator. He concluded the case by stating;

“We are satisfied that the convictions of Akle are not safe. He was prevented from presenting his case in its best light. We grant leave to appeal on grounds 2 and 3, and allow the appeal on those grounds. His convictions must therefore be quashed”.

Following the quashing of his conviction, Akle stated;

“This has been a difficult four-and-a-half years for myself and my family.” His lawyer went on to state, “This case became about the conduct of the SFO. By acting in the way it did, it undermined the whole justice system”.

What will the SFO Independent Review cover?

The SFO Independent Review Terms of Reference outlines the objectives of the review. These include considering and providing recommendations in relation to:

  • What happened in the case of Mr Akle and why focusing in particular on:
    • Assessing the two key failings identified in the Appeal Court judgment:
      • What occurred as regards SFO contact with third parties and why; and
      • Why did the SFO disclosure failures identified in the Court of Appeal judgment occur?
    • The potential implications of the failings highlighted by this case have for the policies, practices, procedures and related culture of the SFO
    • What changes are necessary to address the failings highlighted by the judgment and any wider issues of SFO policies, practices, procedures or related culture identified by the reviewer?

David Calvert-Smith has until the end of May 2022 to prepare his report for submission to the Attorney General (AG). Central to this report will be recommendations on changes that may be necessary to resolve the issues raised by Lord Justice Holroyde on the poor conduct of the SFO. The AG is then expected to publish the findings of the review and provide a government response to Parliament later in 2022.

the Review Of The Serious Fraud Office: What is the potential impact and future of fraud investigations?

Even before the outcome of the review is known, the SFO has already suffered reputational damage. According to Sue Hawley, executive director of the campaign group Spotlight on Corruption, the decision of the Court of Appeal was “a devastating setback for the SFO”. After all, if the main investigator and prosecutor for serious or complex fraud and corruption in England, Wales and Northern Ireland is itself under review, it is hard to see how this would not undermine their credibility.

It is also significant that the AG chose to announce the SFO review on the same day that the Court of Appeal overturned Mr Akle’s conviction; she stated:

“it was clear to me that swift action was needed. We must ensure lessons are learned so that the failings we saw in the Unaoil case can never happen again. I am pleased to appoint Sir David to lead this important review. Sir David is a former High Court judge and former Director of Public Prosecutions. I am confident he will be forensic and robust.”

It is not yet clear if the independent review into the actions of the SFO will act as a catalyst for substantive structural changes or for subtle cultural improvements within the organisation. We will keep you up to date as developments in relation to this matter emerge.

If you are facing prosecution relating to fraud, our Criminal Law Barristers and Solicitors can help. You can contact us through our contact page here.