17 June 2016
3 min read
The Serious Fraud Office (SFO) has closed its investigation into allegations of fraudulent conduct on the foreign exchange market. Aziz Rahman examines why investigations are dropped – and how defence teams can influence this.
After reviewing more than half a million documents and using thousands of man hours, the SFO has brought to an end its investigation into the foreign exchange market (forex).
In announcing its decision, the SFO declared that “there were reasonable grounds to suspect the commission of offences involving serious or complex fraud’’, which has to be taken as a strong indicator that its investigators are convinced they haven’t got to the bottom of the matter.
Yet, in explaining its decision, the SFO added that “based on the information and material we have obtained, there is insufficient evidence for a realistic prospect of conviction’’.
Prosecutors do not take the decision not to prosecute lightly. But they have to follow the Crown Prosecution Service’s (CPS) Full Code Test in deciding whether to prosecute. Under this, a body such as the SFO must consider whether there is both sufficient evidence to prosecute and whether a prosecution is in the public interest.
The prosecutor has to examine the quality of the evidence as well as the likely defence that will be mounted against the allegation and how this will affect the chances of a conviction.
In short, the prosecution must, according to the Full Code Test, “be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge.’’ This means that prosecutors have to consider admissibility of evidence and its impact on the chances of a successful prosecution.
When it comes to the issue of public interest, prosecutors have to think about the seriousness of the offence, how much blame the accused can carry for the offence – how culpable he was – and the harm to the victim as well as the impact on the wider community. Having thought about these matters, prosecutors then have to decide whether a prosecution is a “proportionate response’’.
All these factors, it must be remembered, are important when it comes to prosecutors deciding whether to prosecute: the ending of the forex investigation is proof of that. Yet they are also grounds for a switched-on defence solicitor to stop a prosecution in its tracks.
By arguing that there is no public interest in a prosecution or by challenging the quality or admissibility of evidence, a defence team can have a prosecution ended on the grounds that there is no case to answer.
It is unlikely that those making the decision to prosecute will agree instantly with a defence team’s arguments about either evidence or public interest.
But defence arguments can – and do – tip the balance between prosecutions going ahead or being abandoned. If a seed of doubt can be placed in the CPS’ mind that charging a person is not a proportionate response, is not in the public interest or does not have a realistic prospect of conviction then it increases the likelihood of the case being dropped.
Such arguments have to be researched meticulously and delivered powerfully and convincingly by a defence. After all, if prosecutors are fi rmly of the belief that they have strong evidence of wrongdoing, a defence team will have to have a powerful counter-argument that either questions or rebuts the quality of that evidence or shows that a prosecution is not in the public interest.
The potential is always there to challenge the prosecutors. Whether the forex investigation reached the stage of such challenges being made is not crystal clear. But while the SFO has abandoned hope of bringing to book those responsible for wrongdoing over forex, it does not mean it will always give in.
Forex is a form of investment fraud and such cases are often lengthy, complex and challenging for prosecutors. If anything, the forex investigation should be seen as a warning to companies and individuals about the risks of investment fraud.
Recent years have seen estimates for investment fraud vary from £1.2 billion a year to many times that amount. The authorities believe the figure is far higher than the official reports show and reports of investment fraud having risen by 75% in 2013 went unchallenged; indicating that the problem is a growing one.
For that reason, it would be surprising if the SFO were to decide to divert its energies away from investment fraud.
For one reason, tackling investment fraud is one of its main aims. For another, investment fraud is a problem that needs tackling. And for a third reason, there does appear to be the political will to tackle it, despite what some people have to say about the lack of power afforded the SFO.
For all these reasons, anyone suspected of investment fraud needs the right legal expertise: a legal team that can se every available detail to demonstrate honesty, can explain the nature of the defendant’s work and outline the motivation behind his behaviour.
Skilled use of disclosure to obtain all relevant material, shrewd deployment of expert witnesses and use of evidence to show a track record of principled behaviour can all help paint a picture of a defendant whom is far from the criminal that the prosecution potray.
Such tactics are essential should an investment fraud case go to trial. But, as we have outlined here, there are arguments to be made and techniques to be employed that can even stop it going that far.