Two former executives at security company Serco were acquitted Monday of defrauding the U.K.’s Ministry of Justice after the Serious Fraud Office (SFO) failed to disclose documents to the defense.
The agency offered no evidence against Nicholas Woods, a former finance director, and Simon Marshall, a former operations director, who were charged with defrauding the government department between 2011 and 2013 by concealing £12 million (U.S. $16.6 million) in profits related to an electronic tagging contract for offenders.
Because the SFO did not disclose documents to defense lawyers, Mrs. Justice Tipples directed the jury to return verdicts of not guilty after refusing an adjournment that would have allowed the agency to pursue a retrial.
The judge said the SFO took the view that issues identified had “undermined the process of disclosure in this case to the extent that the trial cannot safely and fairly proceed.”
“We are considering how best to undertake an assessment to prevent this from happening in the future,” the SFO said in a statement.
The SFO launched its investigation into Serco’s government contracts in 2013. In 2019, the company agreed to a £19.2 million (then-U.S. $24.2 million) fine as part of a deferred prosecution agreement (DPA).
Woods’ solicitor, Andrew Katzen, said the SFO’s decision to drop its prosecution after an eight-year criminal investigation—and three weeks into a trial—“should be a matter of profound concern to everyone concerned with justice.”
Katzen accused the SFO of “creating a narrative” in which the responsibility of Serco and its senior officials was marginalized and blame was instead cast on Woods and Marshall, who he says were “small cogs in a big wheel.”
“It is hard to avoid the conclusion that, once again, the narrative created by the DPA drove this investigation and did so in defiance of the facts,” said Katzen.
This is now the third time the SFO has failed to secure charges brought against individuals in relation to conduct for which a company has accepted a DPA. The other two cases are Tesco and Sarclad.
Neil Williams, white-collar crime lawyer at law firm Gherson Solicitors, adds “these are not the only occasions where a DPA has resulted in no individuals being held to account. In the Rolls-Royce case, the SFO did not bring charges against any individuals, and in the Airbus DPA, there is still no news on individual prosecutions.”
Claire Shaw, white-collar crime solicitor at Keystone Law, says as a result of Monday’s verdict, “Many lawyers in this practice area will be advising against self-reporting in the current climate.”
“If you discover a problem, it’s best to investigate, remediate, dismiss anyone culpable, and have a robust compliance program in place as well as thorough training,” says Shaw. “In that way, you would be in the best position should the matter come to light and be picked up by the SFO, and you wouldn’t have incurred the costs involved in self-reporting in the meantime.”
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