From October 2013, the new National Crime Agency will take the lead on co-ordinating the UK's response to serious and organised crime that cuts across regional and international borders. Hailed as the UK’s FBI, the National Crime Agency will have principal responsibility for a wide array of categories of organised crime, including drug smuggling, people trafficking and cybercrime.
From October 2013, the new National Crime Agency (NCA) will take the lead on co-ordinating the UK's response to serious and organised crime that cuts across regional and international borders (see box "What is the NCA?").
Hailed as the UK's FBI, the NCA will have principal responsibility for a wide array of categories of organised crime, including drug smuggling, people trafficking and cybercrime. In addition, the UK's law enforcement response to fraud and bribery and corruption will fall within the jurisdiction of the NCA's Economic Crime Command.
The introduction of the NCA, and other recent proposals and developments, may have a significant impact on the Serious Fraud Office (SFO); the body tasked by Parliament with taking the lead in investigating and prosecuting large and complex fraud and bribery cases.
A reprieve for the SFO
In June 2011, when the Home Office published the proposals for the creation of the NCA, it also announced that the government was dropping its plans to split the SFO's prosecuting and investigating functions and reallocate them to the Crown Prosecution Service, and a new Economic Crime Agency (since abandoned), respectively (see News brief "National Crime Agency plan: a real reprieve for the SFO?"). However, the Home Secretary stopped short of making an unreserved, long-term commitment to the SFO, leaving its future uncertain.
David Green QC has since taken over as director of the SFO and has pledged to move away from his predecessor's approach of actively engaging with the business community; instead adopting the stance of an old-fashioned prosecutor. On taking office, Mr Green's vision for the SFO was that it should undertake the difficult and complex investigations and prosecutions that others cannot: the very top slice of fraud and bribery.
The relationship between the NCA and the SFO will, in part, be governed by the Crime and Courts Act 2013 (2013 Act), which established the NCA.
The 2013 Act identifies the SFO as a strategic partner of the NCA, with the director of the SFO being given a role in determining the NCA's strategic priorities. The 2013 Act also places mutual obligations on each body to share intelligence with the other (and with other law enforcement agencies).
That said, the precise dynamics of the relationship between the NCA and the SFO are (no doubt intentionally) not set in stone in the 2013 Act. What is clear, is that the NCA has the senior role. For example, the 2013 Act stipulates that the NCA "may provide assistance" to the SFO at the latter's request, whereas the SFO (along with any other police force or HM Revenue & Customs) can be required to provide assistance to the NCA.
To take the area of bribery and corruption as an example, the paper states that the NCA will either take action itself, or co-ordinate with other agencies (including the SFO) on the appropriate response. To that end, the Home Office proposes a new single reporting mechanism for reporting bribery and corruption, to be agreed between the relevant agencies.
The SFO, meanwhile, is referred to as remaining the lead agency for investigating large and complex cases of corporate bribery and corruption, and enforcing the Bribery Act 2010 (2010 Act) in respect of overseas corruption by British businesses.
Significantly, the paper also proposes that the Home Office, together with the Ministry of Justice and the Department for Business, Innovation & Skills, should consider the case for incentivising whistleblowing through the provision of financial rewards to those reporting cases of fraud, bribery and corruption to the authorities.
Such incentives might mirror those available under the Wall Street Reform and Consumer Protection Act (generally known as Dodd-Frank) in the US, where whistleblowers can receive between 10% and 30% of monetary sanctions imposed on a corporate as a result of information provided by them (see News brief "The Dodd-Frank Act: the UK perspective").
Such an incentive scheme may prove a game-changer in creating a more active culture of whistleblowing in the UK. This could serve to dramatically increase the flow of information to law enforcement bodies, such as the SFO. At the same time, the system will have to be designed carefully to ensure that false and malicious reports are filtered out so that responsible companies are not unnecessarily dragged into costly and time-consuming investigations.
Expected to come into force early in 2014, DPAs are deals voluntarily entered into between a corporate and a prosecutor where the corporate avoids prosecution subject to the fulfilment of various conditions, including, typically, paying a fine and implementing a compliance programme. The underlying rationale is that DPAs will incentivise companies to self-report, as they will be able to predict with greater certainty what the eventual result of "coming clean" will be.
The SFO's future role
Despite the spate of setbacks suffered by the SFO in the past couple of years (the Tchenguiz brothers debacle and the widely reported loss of documents from its investigation into BAE Systems being two significant examples), the SFO remains a force to be reckoned with (www.practicallaw.com/7-539-0566; www.practicallaw.com/2-504-8661).
In August 2013, the SFO announced its first prosecution under the 2010 Act, and Mr Green has indicated that two other investigations are under way into companies suspected of breaching the 2010 Act.
If all goes to plan, the creation of the NCA, together with the introduction of DPAs and (if introduced) whisteblower incentives, should mean that the SFO is freed from less complex investigations (which will be allocated elsewhere) while being supplied with the intelligence, support and flexible tools needed to deal with the very sort of big ticket investigation that Mr Green would like it to tackle.
Michael Roberts is a partner, and Alex Hohl is an associate, in the Investigations, White Collar and Fraud practice at Hogan Lovells International LLP.
What is the NCA?
The National Crime Agency is both a police force in its own right as well as a co-ordinator of the UK's existing regional police forces. It will have a budget of £450 million, a staff of over 4,000 and will be headed up by Keith Bristow, formerly chief constable of Warwickshire Police. It replaces the Serious Organised Crime Agency (SOCA), although it will have more areas of responsibility and, crucially (and unlike SOCA), the power to command other police forces.