The writer is senior partner at Peters & Peters
Last week’s acquittals of my client Richard Boath and two other former Barclays bankers should serve as the starting gun for a top-to-bottom review of the UK Serious Fraud Office for waste and incompetence.
It is a national scandal that as fraud victims up and down the country face ruin due to the under-resourcing of fraud investigations, the SFO flushed millions down the drain on this prosecution.
The case stems from actions taken in 2008, whenRoyal Bank of Scotland and Lloyds Banking Group were being bailed out by the UK government. Barclays avoided this outcome by attracting £11.4bn from investors, including Qatar. Had Barclays been bailed out, the austerity endured by the British public could wellhave been longer and deeper.
Qatar insisted on better returns than the other investors and the SFO alleged that in order to meet this demand, Barclays entered into sham advisory agreements with Qatar that saw the bank pay £322 million in fees in exchange for nothing. The SFO further alleged the arrangement allowed the bank to avoid disclosing the payments to the market.
The SFO’s investigation, which did not start until 2012, took almost five years and consumed millions of pounds, including a one-off grant from the Treasury of “blockbuster” funding. In 2017, indictments were handed up against Barclays, John Varley, who was its chief executive in 2008, and the three men acquitted last week.
Mr Boath was cleared of wrongdoing in 2017 by the Financial Conduct Authority in a separate probe of the same matter. But the SFO took no notice.
Then the case against the bank was dismissed before trial. Last summer, Mr Varley was acquitted by the Court of Appeal. Unabashed, the SFO doubled-down and ploughed on.
Despite interviewing board members and the many lawyers involved, the SFO failed to call any live factual witnesses. The SFO also ignored a court ruling that they had failed in their duties by not seeking evidence from Qatar’s 2008 London lawyers that might assist the defence.
In most cases, a jury acquittal should not lead to criticism of the decision to prosecute. But the Barclays case raises serious questions because of the different decisions taken by the FCA and SFO, and the time and money involved.
In addition, this is not a one-off. The Barclays’ acquittal is just the latest in a lengthy list of self-inflicted embarrassments in the SFO’s biggest cases. In 2014, the SFO apologised to and paid the Tchenguiz brothers £4.5m over dawn raids that grabbed headlines in 2011; in the 2014-16 Libor rate rigging cases, eight out of 13 defendants were acquitted; in 2018, the judge stopped the trial of two senior Tesco executives due to lack of evidence; and last year the defendants in the Guralp corruption cases were acquitted. This string of failures highlights serious flaws at the heart of SFO decision-making and case management.
The SFO was part of the recent £3.6bn deferred prosecution agreement with Airbus to settle a series of corruption probes by the UK, France and the US. But the aerospace company avoided criminal charges despite admitting systemic, wholesale, massive global corruption for years. Negotiating such settlements is not the same as prosecuting criminal cases and risks creating the impression that justice can be bought.
To instil public confidence in the UK’s ability to thwart fraud, the right companies and fraudsters must be brought to court quickly, prosecuted fairly and if justified on the evidence, convicted.
Britain’s global reputation for the excellence of its policing and the ability and integrity of its legal sector is being undermined by the performance and record of the SFO. It has had long enough to put its house in order. All options should now be on the table.
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