The Serious Fraud Office (SFO) has abandoned its prosecution of three former G4S executives who were alleged to have defrauded the Ministry of Justice over contracts to provide electronic monitoring services.
The three men were charged with seven counts of fraud by false representations made to the Ministry of Justice between 2009 and 2012. In a brief hearing at the Central Criminal Court, counsel instructed by the SFO told the Court that the SFO had decided that it was no longer in the public interest to proceed with the prosecution despite maintaining that there was still a realistic prospect of conviction if the case were to proceed to trial.
The SFO's stated reasons for its decision was that it was unable to resolve outstanding disclosure issues in the case within a reasonable time frame. The trial had been due to start in January 2022, but it was adjourned for a year due to disclosure issues. During the hearing the SFO informed the Court that it would take many more months for the disclosure issues to be resolved and that the SFO recognised the potential unfairness that this would cause to the defendants who had been under investigation for 10 years.
In 2020, G4S agreed to pay £44.5 million as part of its deferred prosecution agreement (DPA) with the SFO following which charging decisions were made. Following the entering of not guilty verdicts against the three men, means that the SFO has now failed to secure a conviction in 18 out of 19 prosecutions that it has pursued after agreeing DPAs.
What is perhaps even more concerning is that this is yet a further example of failings in disclosure which have already come under fire following the Calvert Smith and Altman reviews, which were both reported last year.
The situation is not aided by the fact that the SFO's outgoing Director Lisa Osofsky has in recent times appeared to place the blame for the SFO's disclosure failings on the current disclosure regime. Whilst delivering a speech at the Cambridge International Symposium on Economic Crime in September 2022 Ms Osfosky appeared to criticise the requirements that the SFO had to comply with under the current disclosure regime and she made reference to the tactical challenges that this allowed defendants to make in cases. This view is at odds with one of the underlying conclusions that was reached by the Calvert Smith and Altman reviews, which is that the disclosure issues that were under review were avoidable.
The prosecution of the three G4S executives was ten years in the making and it is worrying that the SFO was unable to fulfil its disclosure obligations even after being given a one-year extension to complete its disclosure process. This case demonstrates that regardless of the huge expense involved in prosecuting individuals, the SFO will continue to be embarrassed unless it deals with the systemic problems that have beset its disclosure process.