The Serious Fraud Office (SFO) is facing criticism after suffering another high-profile defeat in its only financial crisis prosecution after three former Barclays bankers were today (28 February) acquitted of fraud.
Barclays’ ex-investment banking chief, Roger Jenkins, its ex-European financial institutions head, Richard Boath and the former head of its wealth division, Thomas Kalaris, were all accused of creating fraudulent advisory services agreements as a means to disguise payments worth £322m to Qatar.
The SFO alleged the money was in reality a fee demanded by Qatar in return for investing £4bn in the bank as part of an emergency £11bn fundraising which meant Barclays avoided a taxpayer bailout.
The acquittal of the trio follows a seven-and-a-half-year investigation – charges against the bank were dismissed by the Crown Court in 2018 – and raises questions over the SFO’s handling of the case, particularly given the failure of the agency’s prosecution against two former Tesco executives last year. In particular, questions have been raised over the SFO’s decision not to call live evidence in the case against Barclays, instead resting its prosecution entirely on documents presented before the jury.
‘It is the only case the SFO has brought over the 2008 financial crisis, and the only time bankers have been in the dock,’ one White Collar veteran told Legal Business. ‘The SFO will say it was their job to get it to jury, which they did.’
Ross Dixon, criminal litigation partner at Hickman & Rose, commented: ‘The SFO’s failure to secure any convictions in this important and high-profile case raises serious questions about the agency’s treatment of individuals in these matters. While it would be wrong for the SFO to only prosecute matters where it is certain of success; time after time allegations against individuals have been dismissed by the court or been rejected by a jury.’
In a statement, the SFO commented: ‘Our prosecution decisions are always based on the evidence that is available, and we are determined to bring perpetrators of serious financial crime to justice. Wherever our evidential and public interests are met, we will always endeavour to bring this before a court.’
Jenkins was represented by Herbert Smith Freehills counsel Kate Meakin and consultant Graham More, who continued to act on the case after lead partner Rod Fletcher passed away. Cloth Fair Chambers’ John Kelsey-Fry QC and Jonathan Barnard were instructed by the firm. Boath was represented by Peter & Peters partner Michael O’Kane, instructing QEB Hollis Whiteman’s William Boyce QC. Meanwhile, Kalaris was represented by DLA Piper partner Patrick Rappo, with Cloth Fair Chambers’ Ian Winter QC instructed.
The SFO instructed QEB Hollis Whiteman’s Edward Brown QC and Philip Stott and 6KBW’s Annabel Darlow QC.
