In June 2018 it was formally announced that Lisa Osofsky will be the next Director of the SFO. As her official start date of 3 September 2018 rapidly approaches, we consider how Osofsky's tenure may play out given the SFO's involvement in important judicial decisions and a trend towards an increasingly assertive stance on white collar crime.
Osofsky will join at a key time for the SFO, which awaits two important decisions that will help define the ambit of the SFO's powers. The first is the outcome of a claim for judicial review brought by KBR Inc. which seeks to challenge the use of s.2 powers to compel KBR Inc. to provide data held on their US servers, albeit previously held in part by their subsidiary KBR Ltd which is currently under investigation by the SFO. It is anticipated that the Court's ruling in this matter will provide clarity as to the scope of s.2 powers, particularly how these relate to material held overseas. The second decision will be the Court of Appeal's eagerly anticipated ruling in the ENRC matter, which will consider the scope of privilege in criminal investigations.
Parallel to this a recent Freedom of Information request revealed that the number of raids carried out by the SFO to gather evidence in criminal investigations has reached a 6 year high. Throughout the period April 2017 to March 2018, the SFO carried out 30 raids compared to only 9 raids in 2016/17. This increase is perhaps unsurprising given that since April 2017 the SFO has announced a number of high-profile investigations including into mining group Rio Tinto, British American Tobacco, Chemring and oil and gas production company Petrofac.
White collar crime lawyers will watch with interest Osofsky's impact in the coming months. Already, the increase in enforcement activity and criminal investigations into large corporations, along with Deferred Prosecution Agreements, can be seen as examples of the SFO moving towards the US criminal law enforcement model. It is possible that the appointment of Osofsky, who has previously worked for the FBI, was made with the expectation that she will continue to steer the SFO in this direction.