Aziz Rahman 9 Jan 2019 03:35pm

Why the SFO narrowed the Rolls-Royce investigation

Is the SFO’s decision to scale down its investigation into Rolls-Royce a well-informed move or a sign of panic? Aziz Rahman considers the SFO’s position

The Serious Fraud Office (SFO) has finally stopped investigating a number of former Rolls-Royce employees in connection with the bribery and corruption scandal that has been rumbling on for many years.

A shrewd decision based on available evidence? Or the frightened actions of an organisation that appears to be treading a tightrope, especially considering the mauling it took in court just a matter of weeks ago on another high-profile investigation? Neither option can be ruled out. But questions need to be asked about the SFO’s handling of Rolls-Royce.

Let’s just look back at the Rolls-Royce case. Two years ago, the SFO entered into a deferred prosecution agreement (DPA) with Rolls-Royce, with the company paying a total bill of £671m for bribery and corruption in at least seven countries. The DPA ensured that Rolls-Royce as a company was not prosecuted but it did not mean that individual staff members could not be charged. But here we are, two years after the DPA and more than six years after the SFO first began investigations, and nobody has been charged. Only now are a number of suspects being told they are no longer under investigation.

Why has it taken so long to reach this conclusion? And why have decisions not yet been made regarding all the suspects? Surely there has been enough time to make those decisions.
Staunch defenders of the SFO would say the SFO has concluded its enquiries and decided there is no mileage in pursuing certain individuals. That may well be true. But I can’t help thinking that this decision may have more to do with Tesco – another DPA-related saga that the SFO seems unable to resolve to its own satisfaction.

Like Rolls-Royce, Tesco entered into a DPA with the SFO early in 2017, paying almost £130m to settle allegations that it overstated its profits by hundreds of millions of pounds three years earlier. As with Rolls-Royce, certain former employees were investigated – and three were charged. But last month, the case against two of them collapsed when Court of Appeal judges cleared them of fraud and false accounting due to lack of evidence. Judge Sir John Royce said the case was “so weak’’ it should not be before a jury.

This was a major embarrassment for the SFO. Whether this has influenced the SFO’s decision to abandon investigations against Rolls-Royce individuals is something that only its senior figures will know.

This latest decision could be the SFO’s new director Lisa Osofsky acting as a new broom – sticking to her pledge to speed up decision making and discarding cases that she sees little or no value in pursuing. Or it could be that evidence has finally been found that absolves the individuals concerned of any blame. But whatever the reason, this decision should not have taken years.
Once Rolls-Royce was under investigation, it cooperated fully with the SFO. If the evidence was there to agree a DPA it is hard to see how it takes two more years to decide whether or not individuals should be prosecuted.

News of the SFO's decision to drop its pursuit of several individuals in the Rolls-Royce investigation comes at an important time for the agency. This week sees the trial begin of four former Barclays executives, which stems from an SFO investigation into how the bank raised capital during the financial crisis a decade ago. Many other major companies, including G4S, GlaxoSmithKline and most recently Patisserie Holdings, are also the subject of high-profile SFO investigations. Last year, the SFO’s case against Barclays bank – as opposed to the current trial of its four executives – collapsed. In 2016, the trial of brokers accused of helping convicted trader Tom Hayes rig the Libor rate also collapsed.

The SFO may yet have some success with its Rolls-Royce investigation. But the fact that it has now been scaled down – and that this comes after a number of recent setbacks for the agency – means that the SFO is now under pressure to deliver. The speed with which the SFO investigates matters and the success of such investigations are now matters that both the business and legal worlds are taking a very close interest in. As a new broom, Lisa Osofsky may have a bigger clear-out on her hands than she bargained for.

Aziz Rahman is a senior partner at Rahman Ravelli