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Insight

SFO still sniffy about snitches?

18/06/2019
Lisa Osofsky, director of the SFO, appeared to slightly temper her earlier comments regarding offering leniency to informants when speaking at the GIR Live Women in Investigations conference on 12 June 2019.

Lisa Osofsky, director of the SFO, appeared to slightly temper her earlier comments regarding offering leniency to informants when speaking at the GIR Live Women in Investigations conference on 12 June 2019. Having previously told the Evening Standard that she saw "huge potential" regarding people who have committed criminal acts being willing to work with law enforcement, she clarified at the conference that the SFO has no intention to Americanise the UK justice system or to offer witnesses leniency deals in every case. In light of her more recent remarks, it seems that the SFO is likely to remain fairly sniffy about snitches.

Osofsky referred to a historic hesitancy to offer immunity deals to individuals in corporate crime cases but said that cooperative witnesses can be helpful, especially in complex cases difficult for juries to follow. She explained that under the current system the SFO can trade certain kinds of leniency for information and referred to the SFO's ability to offer immunity deals to individuals under the Serious Organised Crime and Police Act (SOCPA) with a judge needing to decide whether to impose a reduced sentence. She also commented “our juries could live with a little bit of leniency for someone who had been on the inside and has given extraordinary cooperation to the government.”

Osofsky is presumably referring to current powers under section 73 of SOCPA which, following a guilty plea, allows the court to take into account assistance given pursuant to a written agreement with a specified prosecutor when determining what sentence to pass. Section 72 SOCPA also allows for restrictive use undertakings to be given so that information provided by individuals will not be used against them in proceedings.

Although Osofsky discussed immunity, her references to reduced sentences and jury perception suggest that she is not in fact referring to increasing use of the section 71 SOCPA provision which gives her the power to give a written immunity notice to an individual confirming that no proceedings for an offence specified in the notice may be brought against that person. Use of that provision would bypass the courts altogether and would require the individual to confess all historic criminal conduct (including conduct irrelevant to the offence which is the subject of the proposed immunity). The SFO is thought to have so far issued only one immunity notice pursuant section 71.

Osofsky's recent comments regarding leniency for informants do appear more measured than her previous comments but we await any further proposals. We also await details of her plans to work more closely with HMRC to uncover crime. As yet, no details have been provided regarding how Osofsky envisages the SFO and HMRC working more closely together. One can see how difficulties might arise given the differing regimes for these organisations. Section 71, 72 and 73 of SOCPA are not available to HMRC and the COP9 investigations (used by HMRC to offer a reduction in penalty) are only applicable where criminal investigations have not yet started. In these circumstances an informant may be wary to assist the SFO if criminal conduct being investigated has tax implications, particularly since prosecutors are required to warn defendants that plea agreements won't bind other agencies not party to it.

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