By Niall Hearty
The Serious Fraud Office wants more time to investigate individuals regarding Glencore’s overseas corruption. Niall Hearty of financial crime specialists Rahman Ravelli outlines why this should not prompt criticism of the agency.
The Serious Fraud Office (SFO) has now made it clear that it will need further time to decide whether to charge suspects in its Glencore investigation.
In a letter to Southwark Crown Court, the agency has stated that it has received what it calls “significant further material” since June. As a result, it says it will need until July 2024 to decide whether suspects should face charges.
The commodities trading business was convicted in 2022 for overseas corruption. Glencore was ordered to pay a £281 million penalty after its London operation admitted bribing public officials in four African countries over five years and failed to prevent employees paying bribes in two other African states. Its guilty plea following an SFO investigation formed part of a global resolution worth over $1 billion that the company reached with authorities in the US, Brazil and UK.
Since then, the SFO has been weighing up whether to prosecute individuals in relation to the wrongdoing. Reportedly, there are at least 15 people being considered for charging. For them, the stakes are high – and the waiting to know cannot be easy. But the waiting is, once again, being prolonged. After the company’s conviction in the UK, the SFO said it planned to charge individuals by April 2023. Come June this year, however, the likely charge date had been put back to January 2024. At the time, the SFO was talking of the need to pursue further lines of enquiry, review possible evidence relating to the period before the time that was the focus of the prosecution of the company and wait on overseas evidence-gathering requests and completion of suspect interviews.
Now, however, the delay is being blamed on recently-received material and “evidential and disclosure’’ issues. The agency is to ask the court for permission in January 2024 to extend a temporary order withholding the names of the 15 suspects in the corporate entity’s deferred prosecution agreement statement of facts. With a judge in an earlier such hearing having referred to fears that the investigation “might go on forever and ever”, the latest delay does not appear to reflect well on the SFO, nor on the likelihood of a judge being sympathetic to a further application in January 2024.
For an agency that has previously been accused of dragging its feet when it comes to making big decisions, this situation may well be cited by some as further evidence of its tendency to dither rather than decide. At a time when the new SFO Director Nick Ephgrave is keen to act swiftly when it comes to investigations – a point arguably reinforced by recent raids on the law firm Axiom Ince – his agency’s detractors will point to Glencore as a clear contradiction of this.
But this is unfair. If matters have come to light that require additional investigation – including the interviewing of suspects – then it is hard to see how this could have been managed within the earlier timeframe. Investigations are organic in nature – and any agency conducting one has to act accordingly. The SFO would surely come in for stinging criticism if, further down the line, an investigation collapsed or a prosecution failed because the agency had rushed matters, cut corners or done anything else that suggested it had not taken a comprehensive approach to the task facing it.
While the SFO successfully concluded the corporate DPA with Glencore, this does not mean the investigation of relevant individuals can be rushed through the equivalent of a prosecution fast lane. It would be wrong, therefore, to view the delay as an early blot on the copybook of the Ephgrave-era SFO.
Putting it bluntly – an investigation takes as long as an investigation takes. Any idea of putting strict time limits on an investigation would be unfair – not to mention unrealistic – given the number of factors involved and the fact that there is often (as with Glencore) a significant international element that needs to be managed. In such circumstances, a delay can often be the most appropriate approach. To take another course of action could prove far less constructive.
The views and opinions expressed in this article are solely those of the author and do not necessarily reflect the official policy, position, or opinions of The World Financial Review.
About the Author
Niall Hearty is known for his in-depth corporate crime expertise. That expertise is reflected in his achievements to date and the demand for his services. Niall’s ability, backed with his experience of running a City firm’s business crime and fraud department, has helped make him a logical choice to lead complex and multi-jurisdictional investigations. His knowledge of cross-border and global business crime cases and the successes he has obtained for clients mean he has an impressive track record and have led to him being highlighted in the latest edition of The Legal 500 international legal guide, which calls him a “rock solid performer’’ and “outstanding’’
