ECTA 2023 also expanded the basis on which firms can be held criminally to account and bolstered the SFO’s information-gathering powers.
Ephgrave wants the SFO to be the first agency to use the new powers under ECTA.
Rigorous and intrusive case review
Perhaps one of the most surprising of Ephgrave’s proposals is the revelation that the SFO does not already do what good lawyers acting on behalf of business being investigated routinely have done for their clients.
Ephgrave has promised that the SFO will now ensure it focuses on the core issues of its cases and not allow itself to wander off.
As some good news for corporates, it also intends to shut down investigations where it is apparent it is never going to reach the threshold for charge and redirect those resources to cases with better prospects.
Managing disclosure more effectively
According to Ephgrave, approximately 25 per cent of the SFO’s budget is spent on managing disclosure, posing a significant burden with a slim margin for error.
For example, the SFO's investigation against former G4S executives collapsed due to exponential increase in costs and delays, many of which were connected to disclosure.
To speed up its disclosure processes, the SFO is piloting technology-assisted reviews. This is not surprising, we have been using such tools for our clients for some years, and they are only becoming smarter through artificial intelligence.
For businesses that have committed wrongdoing, this could mean that the SFO is likely to find the smoking guns sooner. For those who are innocent, it could mean shorter and less costly investigations.
Domestic and international collaboration
The SFO intends to increase its collaboration with the National Crime Agency, domestic police forces and international law enforcement agencies.
Given the increasing multi-jurisdictional nature of economic crimes, it is unsurprising that the SFO is waking up to the importance of being joined up with law enforcers both in the UK and abroad.
And given the large fines that can be secured in each jurisdiction, it is also in each agency’s interests to co-operate with each other on the same investigations.
Upshot for businesses
Whether Ephgrave’s reformist zeal will overcome past institutional and legislative inertia remains to be seen. If his proposals do translate into systemic change, it would give UK law enforcement powerful new tools in the fight against complex fraud.
As the future could bring a more activist SFO, it is important for business to take steps to prevent becoming the subject of investigations.
Having the right culture in your organisation is key for preventing fraud. Although having the appropriate policies and procedures in place is important, a policy is only as good as the people implementing it. Having the right people in the right positions, whether in your legal, compliance or any other part of your organisation is crucial.
