Looking back, I spent 25% of my time at the Serious Fraud Office reacting to a campaign against the SFO orchestrated [by] the [UK government]. In order to do that I was building alliances with politicians in the Lords and the Commons, with journalists, with academic and City lawyers, with independent NGOs and with international organisations. They were all hugely supportive, and ultimately the SFO survived.
I’m not saying that there aren’t two sides to this argument, but I fought as I did because I believed very strongly in the need for an independent SFO. The reason being that if you are investigating the kind of companies at the very top of the blue-chip list, people who can literally pick up the phone and speak to the Prime Minister, it is incredibly important in terms of public confidence that the prosecutor has visible and real independence.
On the Thursday before I left, after six years of campaigning, I’m sure it was pure coincidence, the SFO’s budget was consolidated so that it went up from £32m to £52m overnight. We still kept access to blockbuster funding. £52m is a reasonable budget for the SFO, plus that blockbuster funding for whatever enormous investigation is around the corner. Of course, it could have more staff, more staff means shorter investigations. But more staff means more budget.
What do I see as landmark cases? Libor, Rolls-Royce. You could pick any of them really. There were some cases the media were particularly keen on, but there was a whole strata of serious and complex fraud that wasn’t particularly media-friendly. Overall, by case, the conviction rate was 82% for my time, which is not that bad.
There were misconceptions about [deferred prosecutions agreements]. Rolls-Royce, Tesco and others, in those cases the corporate accepted liability for the criminal wrongdoing of senior people. But companies don’t commit crime, people commit crime. In both those cases, the company took advantage of the DPA procedure, which they are perfectly entitled to do. It’s important to note that DPAs are transparent and are subject to judicial superintendence. A judge has to give a reasoned judgment why the DPA is in the interest of justice.
Dealing with the company is quite separate from dealing with individuals. If there is sufficient evidence to prosecute individuals, they will be prosecuted. A DPA has no bearing on that whatsoever. But if there’s insufficient evidence, a prosecutor cannot bring charges. People will then say ‘The company bought itself out of trouble’, but that’s a very lazy way of looking at it.
‘If you are investigating the kind of companies who can literally pick up the phone and speak to the Prime Minister, it is incredibly important that the prosecutor has real independence.’
Is it easy to prosecute a company in English law? No. There is constant comparison in the media between the perceived successes of American prosecutors against corporates, compared with the difficulties we have in the prosecution of corporates here. The reason is that in America a corporate is liable vicariously for the criminal acts of its employees, providing the employee had the benefit of the company as part of his or her motive. Here, you have to identify the ‘controlling mind’ of a company, which in itself is quite difficult. It’s usually someone at board level. And you have to prove that that person was complicit in the criminality, which can be very difficult. The rule operates unfairly in favour of complex corporate structures – it is easy to identify the controlling mind of a small company.
The trouble is we’ve now reached this absurd situation where we have the identification principle with significant exceptions to it, in the form of the ‘failure to prevent’ offences: section 7 of the Bribery Act and the facilitation of tax evasion. This model bypasses the identification principle.
The easiest way to improve the situation would be to widen the ambit of section 7 of the Bribery Act to create an offence of a company ‘failing to prevent economic crime by persons associated with it’.
I don’t think one can worry about legacy [at the SFO]. One does one’s best in the job. But I do think I raised the profile of the SFO and made it an attractive addition to the CV of any aspiring lawyer, investigator or accountant.
Obviously, government salaries cannot compete with the private sector, and nor should they. But if someone at the associate stage gets one or two years’ at the SFO on their CV it can only assist them in the long-term. That’s what I was most pleased about: we attracted good people at that stage of their careers.
I was attracted to Slaughter and May because it has a deserved reputation for unrivalled excellence. It’s a collegiate atmosphere to work, which is reminiscent of being in chambers, where if you have a problem you can kick it around with colleagues.
My career has never really been a passion. I’m particularly keen on cooking and gardening. Last year I was the Master of the Worshipful Company of Gardens. I love fly fishing. I collect Fornasetti, he’s an Italian designer, long-dead, who operated from the ‘50s until the late ‘80s in Milan. He designed thousands of different objects throughout his life from fabrics through to china. I collect lots of his stuff, but I’ve noticed thanks to the internet, so do lots of other people. It’s always a battle on eBay.
My signature dish is spaghetti vongole, but you’ve got to be able to get the palourde clams to make it. They sell them in Borough Market. They’ve got to be really fresh.
It’s one of those dishes that people mess up by putting too many things in. It’s very simple: olive oil, garlic, pasta, vongole, white wine and then parsley. You don’t need anything else. My night-before-execution meal would be a toss-up between spaghetti vongole and ham, egg and chips.
Music-wise my children tell me my education is stunted. I’m happy and stuck with Fleetwood Mac and Bruce Springsteen.
Australia was my best holiday. I went in 2017. One realises what a vast country Australia is. You seem to drive hundreds and hundreds of miles, but if you were to look on the map, we just drove an arc around Sydney. It was superb, I’d love to get back and explore. But my favourite place to visit is Italy. Particularly the northern Italian cities like Venice, Lucca, Verona and Ravenna. They are fabulous cities, perfect for a long weekend.
I’ve always loved the phrase: ‘If you want to make God laugh, tell him your plans.’ I would like to retire but keep active in terms of my interests.
At the Bar, I always preached the rule of the six ‘P’s’, which are: Perfect Preparation Prevents Piss-Poor Performance. I’ve learned you should take reasonable risks and explore every opportunity that comes your way, because doors open unexpectedly in a way that comes from nowhere and every door should be explored. It makes life a lot more interesting.
Sir David Green QC is a senior consultant at Slaughter and May and the former director of the Serious Fraud Office.