On 7 May 2020, the Serious Fraud Office (the "SFO") issued a statement declaring that it will continue to investigate fraud, bribery and corruption cases during the COVID-19 pandemic. Whilst that is to be welcomed in principle, it remains to be seen precisely how it will do so, and the consequential practical effects for witnesses or suspects.
Other UK enforcers, such as HM Revenue & Customs and the Competition and Markets Authority, have either suspended certain investigations or refocused work streams in response to the pandemic. The Financial Conduct Authority identified its own priority areas of work for the coming years in its recent business plan (7 April 2020), and described the measures it had already taken to support consumers and firms and maintain markets during the pandemic. By contrast, the SFO's business plan published on 2 April 2020, stated that the agency had made some adjustments in response to COVID-19, that it remained "operational and committed to delivering [its] mission", and yet provided no explanation as to how it hopes to achieve that in practice.
In its subsequent COVID-19 update on 7 May 2020, the SFO stated that investigations would continue and that its offices remain open for staff to carry out essential work which cannot be done from home, but tasks capable of being done remotely would be prioritised. The update also stated that case teams would contact legal representatives with information about the adapted ways of working. The update therefore does little to answer any questions companies or individuals under investigation may have.
One key question that arises from the ongoing lockdown, and expected longer-term social distancing circumstances is how SFO interviews will be conducted going forward. In response to a Freedom of Information Act request issued by the Global Investigations Review magazine ("GIR") , the SFO disclosed that between 23 March 2020 (when the UK government imposed the current lockdown) and 30 April, it conducted no compelled witness interviews under section 2 of the Criminal Justice Act 1987 (the "CJA"), nor any suspect interviews. This should not surprise practitioners in this field, given the SFO is necessarily strict about keeping such interviews confidential, and video-link interviews carry the risk of being recorded and/or leaked by the suspect/witness or third parties. By contrast the SFO has confirmed that it continues to conduct voluntary interviews via telephone while social distancing measures are in place.
It remains to be seen when compelled interviews will be resumed, but their suspension for the past few months will inevitably cause some degree of backlog and delays to ongoing investigations, many of which were already long-running.
Evidence gathering and processing
In its response to that same Freedom of Information request, the SFO also confirmed that, in the period 23 March to 30 April 2020, it did not apply for a search warrant or carry out any raids and had issued only 16 notices compelling the disclosure of information pursuant to section 2 of the CJA. As the SFO typically issues between 600 and 1,000 section 2 notices a year, 16 notices in an eight week period represents very little evidence gathering activity.
That confirmation by the SFO of its reduced evidence gathering activities follows media reports that their investigations are being hindered by difficulties with processing evidence during the pandemic specifically. The SFO has stopped processing all hard-copy evidence and any evidence contained on a seized device. It is only accepting evidence that is in a specified electronic format compatible with its computer systems.
These issues with evidence gathering and processing, combined with the postponement of compelled interviews, will undoubtedly hold up investigations and increase pressure on the SFO, which has often been criticised for its slow handling of cases. For example, the HM Crown Prosecution Service Inspectorate ("HMCPSI") published a report in 2019 which criticised how long the SFO takes to develop investigation strategies and install case teams after formally opening a matter. On 2 June 2020, the SFO published a response to the HMCPSI report stating that it had “rebalanced the allocation of resources across the casework divisions” and had re-established a steering group that will “oversee the future allocation of resources according to business needs and in line with our staff rotation policy”. The SFO stated that it has also begun staff training programmes to develop case management skills and teach methods to conduct investigations more efficiently. However, doubts remain among practitioners as to whether the changes adequately addressed the HMCPSI's main criticisms and will have any material impact on the pace of investigations. Overall, therefore, individuals subject to investigation should expect longer waiting times for interviews, charging decisions or other information relating to their case whilst the SFO, and indeed other prosecutors, find their way with enforcing law in the time of Corona.