Lisa Osofsky speaking at Cambridge Symposium on Economic Crime 2019
2 Sep 2019 02:00 PM
Lisa Osofsky, Director of the Serious Fraud Office speaking at the Cambridge Symposium on Economic Crime 2019.
Thank you for the introduction. It is a pleasure and an honour to be here.
Last year, I stood before you just three days into my role as Director of the Serious Fraud Office. New in post, I had little to report then but plans and hopes. One of my greatest hopes, those of you who were here will remember, was to increase cooperation with other prosecutors and investigators around the world. I am delighted that it is the theme of this year’s symposium. We in law enforcement will not succeed without it.
We prosecutors simply cannot do our jobs today without working with our counterparts around the globe. We cannot do our jobs without obtaining evidence – documents, bank records, and witness accounts – from multiple jurisdictions. Criminals do not respect international boundaries. Quite the opposite, they use them to thwart us, to make it difficult to chase them and uncover their schemes, and trace and recover their ill-gotten assets. That means – if we are to succeed – that we must cooperate.
And we have been cooperating. The work we at the SFO have been able to do in the last year with our international law enforcement partners has been energising – at times even inspiring. Prosecutors all around the world are realising how much we need each other if we are truly to do justice. So we are increasingly linking arms in the march against transnational fraud and corruption.
Is it perfect? No. It is not perfect.
We do not always all fully grasp the differences in each other’s systems. We don’t always foresee how actions taken in one country can profoundly affect an outcome in another. Nor can I report that every aspect of parochialism has vanished from the face of the earth. But we are cooperating in a committed way. And we are reaping the benefits of that close co-operation.
But I urge us all to think of cooperation more broadly than prosecutor to prosecutor.
It is obvious that achieving an ethical marketplace cannot rest solely with prosecutors – nor should it. In the world of integrity and ethics, law enforcement should be one of the last resorts. We often come onto the scene when something has already gone very badly wrong. And at that stage, it is our duty to use the intrusive powers that Parliament has given us to find the evidence, to apply the prosecutor’s full code test, and – if the evidence and the public interest meet the standard – to present it to a jury for determination of guilt or innocence. All of this, each of these steps, is warranted only after we suspect that criminal misconduct has already taken place.
Think, instead, of all of the ethics and integrity successes that do NOT require law enforcement intervention. Think of the private entities that have embraced an ethos of integrity and put in place the procedures — and put in post the people — to back that ethos up. None of the dramatic and forceful intervention of law enforcement is necessary where integrity has already triumphed in private. If bribery is prevented in the first place, then there are no prosecutions, no investigations, no jury trials.
So as we speak of cooperation, let us also discuss how the private sector can cooperate in preventing crime in the first place.
The law, of course, can and should give the private sector a good, strong nudge. One of the laudable goals of our criminal justice system is to create proper incentives, to help give private entities sound commercial reasons to act with integrity, and to create consequences for criminal behaviour.
That is precisely why, for example, Parliament created the adequate-procedures defence to the Bribery Act. It is why the Ministry of Justice promulgated the Six Principles of a sound compliance programme. It is why codes that govern prosecutors’ decisions to bring charges instruct us to take into account the existence of effective compliance programmes and speedy self-reporting. It is about incentivising the private sector to cooperate in preventing crime, to be willing to report it if it occurs nonetheless, and to cooperate when we investigate and prosecute those who have transgressed.
You will soon hear more on this subject from Graeme, who will talk about the development of the National Economic Crime Centre and the drive to embed a public/private sector partnership across all we do. There is clear determination among all the Centre’s stakeholders – including the SFO – to work collaboratively to prevent and ferret out crime.
But we all know, human nature being what it is, that we will never prevent all crime. And then it becomes the job of investigators and prosecutors to pursue and present cases, and for judges to preside, and for juries to deliberate. And so, as prosecutors and investigators we must dedicate ourselves to doing our part with excellence, and diligence, and a commitment to justice. It is an extraordinary and weighty obligation, and one that requires a ceaseless dedication to craft.
It becomes our job to find the truth, and to find it in the form of admissible evidence. And with evidence in hand, it is then our duty to apply the Full Code test – is there a realistic prospect that a jury will convict; is it in the public interest to bring a prosecution?
When a prosecutor applies that test faithfully, there are a few things that are certain.
One, it is not always possible to gather legally sufficient evidence, even against someone whom you reasonably suspect has committed a crime. We have to seek the truth and be just and transparent in so doing. When we cannot get the evidence – maybe because witnesses are dead or unavailable, or documents or monies are hidden on unfriendly shores, or because the evidence trail runs cold for reasons beyond our control – then the law requires us to stand down. It is nothing more or less than the old saying: “No witness, no case.” These are hard and unpleasant choices when your heart tells you one thing but the cold, hard, admissible evidence does not support it. But there is no choice: we must do our duty.
Two, the law requires us not to bring charges against some people against whom we have the requisite evidence, but where it would not be in the public interest to pursue the case. One could think of a suspect who is truly infirm, or who played only a very minor role in a large-scale offence and has other mitigating factors. This is where our law directs prosecutors to temper justice with mercy.
Three, as we are bound to prosecute cases where there is a realistic prospect that a jury will convict, then we can be certain that some juries will acquit some defendants. And God bless our juries. They are an important protection of civil rights. Thank goodness a lay jury must hear evidence of even highly complex, sophisticated corruption and frauds and that they have the power to disagree with the prosecutor. This is right and just.
In closing, I want to thank you all for being here, and for being a part of this mission. This community – this extended criminal justice community – full well understands the nature of the destruction caused by those who defraud our citizens and businesses and use corrupt means to gain an advantage to which they are not entitled, often leaving law-abiding people and resource-rich but governance-poor countries as casualties in their wake.
We understand the damage to people. We understand the damage to democracy. And we understand the damage to the rule of law. It is why we do what we do and why we must continue to work in partnership for justice.
I look forward to the SFO continuing to play its part and to working in close collaboration with all of you.