Belfast Telegraph

Thursday 24 July 2014

David Prosser's Outlook: SFO proves it can be a force, not a farce

The conviction of Michael Bright, the former boss of Independent Insurance, yesterday was one in the eye for critics of the Serious Fraud Office, unkindly dubbed the Serious Farce Office by Private Eye.

The SFO has been repeatedly attacked for its perceived failure to secure big-name convictions in high-profile and complicated cases – think Asil Nadir and the Maxwells – a criticism the Independent convictions should help to counter.



This shot in the arm for the SFO certainly comes at an opportune moment. The agency has spent much of this year defending its decision to drop an investigation into BAE Systems, the arms company accused of making secret payments to Saudi officials to secure hugely lucrative contracts.



It is also the subject of a review being lead by the former New York prosecutor Jessica de Grazia – there has even been speculation that the SFO could be incorporated into the Serious Organised Crime Agency or the new Ministry of Justice.



In fact, the SFO deserves to retain its independence because the agency's record has steadily improved. Last year, it secured convictions in 71 per cent of the cases it prosecuted, up from 57 per cent a year previously.



Moreover, the SFO's biggest problem is not its own competence but that it is forced to work with one hand tied behind its back by the UK's hopelessly outdated corruption laws. These are to blame for the fact that the typical SFO case now takes five years to come to trial.



The most recent attempt to update corruption legislation failed in 2003, when a draft government Bill was scrapped following widespread criticism. Reformers believe the SFO needs a system that is closer to the US model – in particular, the adoption of plea-bargaining, the process through which defendants receive lighter sentences in return for an early guilty plea. This approach has its downsides, but does at least mean justice is dispensed more quickly (and cheaply).



One final thought. Robert Wardle, the SFO's director, believes there is a strong argument for abolishing the right to a jury trial in the largest fraud cases. He has called for such cases to be heard by a judge alone, on the basis that jurors find themselves ill-equipped to deal with the most complicated charges.



This is a tempting fall-back position for any prosecutor frust-rated by cases in which the verdict has gone against him, but it's a road that we travel down at our peril. For one thing, it's not just fraud cases that can be complicated. For example, murder trials often require jurors to weigh up the merits of technical scientific evidence, with expert witnesses often presenting conflicting interpretations of the facts.



More fundamentally, the right to a trial in front of one's peers is a cornerstone of the British legal system. It is the prosecutor's job to prove his case beyond reasonable doubt, presenting the evidence in the clearest and most compelling way possible.



Yesterday's convictions show that even in the most complicated cases – the Independent Insurance trial has taken six years to come to court, cost millions of pounds, and lasted four months – jurors will convict when the prosecution does its job properly. And when the prosecution fails to convince, the jury is quite right to acquit.



VW case is a blow for protectionists



The British Government has not always enjoyed the decisions made by the European Court of Justice, but yesterday's ruling on the illegality of the so-called "Volkswagen Law" must have prompted some wry smiles at the Treasury.



As this newspaper was first to report last Thursday, Alistair Darling has in recent weeks moved towards a more hard-line stance on the issue of sovereign wealth funds buying up British companies. The Chancellor confirmed this shift at the G7 finance ministers meeting over the weekend, warning that while he would resist protectionism, sovereign funds needed to be more open and accountable.



Part of the reason for this change of tone is that the Government has become increasingly sensitive to the charge that its laissez-faire attitude towards international investors has allowed sovereign funds – and foreign corporates – to snap up companies here they would never be allowed near in other countries.



While a string of British companies operating in almost every sector of the economy has succumbed to foreign buyers, our EU rivals and the US have been much more sniffy about who they permit to buy what. Peter Mandelson, the EU's Trade commissioner, has even suggested that governments should be allowed to take golden shares in companies they wish to protect from unwanted acquisitors.



Well, not according to the European Court of Justice. Volkswagen was told yesterday that its articles of association, which prevent any single shareholder exercising more than 20 per cent of the company's voting rights, no matter how large their stake, were a flagrant breach of EU law.



The Volkswagen set-up is a variation on the golden share concept. It was supposed to prevent the company falling prey to a hostile takeover and the arrangement has been strongly backed by successive German governments. The former German chancellor Gerhard Schröder even sat on Volkswagen's board as a representative of the Lower Saxony region, which owns 20 per cent of the car giant.



Yesterday's ruling paves the way for a full-scale takeover of Volkswagen by any buyer that wants to chance its arm – though the German car maker Porsche is the most likely bidder – and has wider implications for the debate over protectionism in the EU. Despite Mr Mandelson's views, it remains illegal under EU laws for governments to take golden shares in domestic companies, except in the case of particularly sensitive industries such as defence.



Mr Darling's change of stance on sovereign wealth funds has essentially been forced upon him by colleagues in the G7 and beyond with much more protectionist instincts than the Chancellor. Those instincts may or may not be well-founded, but yesterday's ECJ ruling will make it much tougher to act upon them, at least in the EU.



BP draws its linein the sand



So now we know why Tony Hayward, the new boss of BP, warned his employees that the oil giant's results for the third quarter would be "dreadful" . It was exactly the right word to describe yesterday's announcement of a 45 per cent slump in profits, year-on-year, particularly given the soaring price of oil.



Still, to give Mr Hayward his dues, he has done a wonderful job in managing expectations, notwithstanding yesterday's fine. BP shares rose yesterday, with analysts queuing up to recommend the stock now that production problems are easing and the new chief executive is tackling costs and bureaucracy.



Mr Hayward's performance at BP so far has been a masterclass in public relations. First, he let it be known early on that these results would be dire – so much so that many worried analysts reviewed the numbers yesterday as better than expected. Then he published a damning critique of BP's tortuous management hierarchy, handily shifting the blame for the oil giant's woes on to his immediate predecessor, Lord Browne.



Now, however, the real work begins. It's true that with capacity in the US improving and new production facilities coming onstream elsewhere, the outlook for BP is rosier. But the challenges of streamlining the company, improving its safety record and growing production should not be underestimated.



Let's hope, for the sake of BP shareholders, that Mr Hayward finds it easier to move on than that other master of drawing a line under a previous regime, Lord Browne's near-namesake in Downing Street.



d.prosser@ independent.co.uk

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