The trial of three Tesco executives charged with fraud by the Serious Fraud Office (SFO) has been abandoned after one of the co-defendants, former UK finance chief Carl Rogberg, suffered a heart attack last week.
Norton Rose Fulbright (NRF) partner Neil O’May, who is representing Rogberg, said in a statement: ‘Mr Rogberg is devastated at the news that the trial has been aborted. He waived his right to attend these last stages after he had given evidence himself for many days, and had participated in the last four-and-a-half-months of the trial.
‘He was always very anxious that this jury should be allowed to reach its verdict and is desperately sorry that they were prevented from doing so.’
The case against Rogberg, alongside fellow former Tesco executives Chris Bush and John Scouler, revolves around a 2014 misstatement in which the retailer posted incorrect profits by a margin of £263m. As a result, Tesco reported a £6.3bn loss in 2015, one of the biggest in British retail history. All three men pleaded not guilty.
A spokesperson for the SFO said that the prosecutor is ‘still exploring its options’ and will make a decision on whether to pursue a retrial before March.
WilmerHale white-collar crime specialist Alison Geary said: ‘To reach no conclusion after four-and-a-half months is extremely difficult for all parties. It is not simply a question of wasted costs on all sides, but the devastating effect on the lives of the defendants. The SFO will now need to decide whether a retrial is appropriate, a decision which will no doubt need to be taken with the input of the new director’.
Former SFO prosecutor and current Keystone Law white-collar crime specialist Claire Shaw told Legal Business: ‘There is no doubt that the SFO will go for a retrial; there would be huge questions raised if they didn’t. Overall, however, this is a timely reminder of how much stress and pressure these things put on a defendant. It’s just excruciating.’
White & Case white-collar crime partner Jonathan Pickworth agreed: ‘This serves as a reminder of the massive strain that the long-running investigations ultimately have on the health and wellbeing of the defendant. These things are often presented as an economic pressure, but let’s not forget the human side.’
Tesco already entered into a deferred prosecution agreement (DPA) with the SFO in March 2017, agreeing to pay the watchdog £129m to avoid prosecution after a two-year investigation.
As a consequence of the DPA, Tesco did not admit any liability in relation to the scandal. The now-abandoned criminal trial of Rogberg, Bush and Scouler, would have established if there was any criminal activity on behalf on individuals within the company’s c-suite.
Recently-appointed Kingsley Napley senior partner Stephen Parkinson advised Tesco on the SFO investigation, alongside Freshfields Bruckhaus Deringer partners Ian Taylor and Ali Sallaway.
The criminal trial will have been watched closely by litigation specialist Stewarts Law, which is currently representing over 125 institutional funds who claim to have lost money as a result of Tesco overstating its profits.