The Serious Fraud Office Director Lisa Osofsky has once more expressed her desire to see covert surveillance play a greater role in her agency’s battle against white-collar crime.
Speaking at an ABA conference in London, the Director has emphasised the value of such an approach when it comes to tackling crime and her belief in the need to work closely with cooperating defendants.
It is an idea that is understandable. After all, information gained from those who decide to tell all in exchange for some kind of a deal with the authorities can be of great worth to the SFO – or any investigating agency. And covert surveillance is arguably the most direct way of obtaining evidence necessary for a prosecution, especially regarding white-collar crime where the chances of a “smoking gun’’ being left behind can be more remote than in other forms of criminal activity.
Yet the SFO has less experience than other agencies in covert policing methods and its officers have no power of arrest. This could arguably be overcome by calling on the services of the National Crime Agency (NCA) or police forces if and when the need arises. Agencies can and do work together. And if they could be deployed in harmony on cases this could be a game changer for the SFO.
Covert surveillance can be of value. It has certainly brought success in a number of HM Revenue and Customs (HMRC) tax fraud cases. But what needs to be considered is whether this is a practical approach for the SFO.
The NCA could be deployed on behalf of the SFO to, for example, bug a Chief Executive Officer’s car, office or home. But, assuming the legality of the bug was not in question, any success would depend on audio or video evidence being obtained of the person in question talking loud and clear about their wrongdoing, as all the mob guys seem to do when they are bugged in US crime dramas.
If the SFO is looking to use wires on cooperating witnesses in order to obtain evidence, this is a route that is fraught with difficulties in the UK. The barriers to their use, both legal and cultural, can seem to be insurmountable. And given the historical lack of enthusiasm for wiretaps and cooperating defendants, there may need to a culture change to make increased use more palatable. In the US, there are incentives available for those who choose to cooperate whereas the best the UK can really offer is immunity. This makes it difficult to understand why anyone other than those known by the SFO to be mired in the offending would come forward.
It is very rare for an SFO investigation to be live at the time of the event. It needs a trigger for that to happen, which inevitably points towards a whistleblower. So unless the SFO has real-time information about an ongoing offence – or about plots to commit an offence –then they are realistically only going to be able to deploy surveillance after the event, in the hope that someone does talk about the wrongdoing that has been committed.
If the SFO is set to rely on after-the-event surveillance while itself lacking experience in conducting surveillance, it could be said that the agency has areas of weakness when it comes to carrying out its own investigations. It may well come to use surveillance intelligently and successfully. But, in order to do so, it is going to require the perfect storm of real-time intelligence, the availability of expertise from other agencies and the possibility of someone being ready to talk.