SFO’s Balli Steel win latest to leverage international cooperation

Balli Steel depended on short-term loans from trade finance banks so it could buy and sell steel globally. It collapsed in 2013 owing more than 20 banks about $500 million. The SFO found the executives provided the banks with misleading information, false shipping documents, and forged signatures on fake sales contracts to make the company’s balance sheet look more attractive to secure cash.

One of the notable aspects of the investigation was it involved—in the SFO’s own words —a “record-breaking degree of international cooperation.” The agency said it made 30 requests for evidence to law enforcement agencies in 25 different countries—more than any previous investigation—and worked with counterparts in the Czech Republic, Belgium, the Netherlands, and the United States.

Under Director Lisa Osofsky’s tenure, cooperation with other agencies to secure convictions and financial penalties has become a key part of the SFO’s strategy. Osofsky has said closer working ties and information sharing between enforcement agencies have resulted in high-profile cases being settled more quickly and effectively, with record fines.

For example, the SFO collaborated with the U.S. Department of Justice and Dutch and Swiss prosecutors in ordering Glencore Energy to pay a penalty of nearly 281 million pounds (then-U.S. $314 million) in November after its investigation revealed the company paid $29 million in bribes to gain preferential access to oil in Africa. The penalty was the largest ever for an SFO case following a corporate conviction.

Other notable collaborative actions include the ground-breaking deferred prosecution agreement (DPA) aerospace company Airbus reached in January 2020 that saw it agree to pay approximately $4 billion to prosecutors in the United States, United Kingdom, and France. The approximately $1.1 billion in penalties apportioned to the United Kingdom is the SFO’s largest total under a DPA since the scheme began in 2014.

However, there have also been low points for the SFO, including its mishandling of disclosure rules in its investigation of executives at security company Serco that led to the agency offering no evidence at trial along with its botched investigation into Unaoil that saw the convictions of three executives overturned.

Some white-collar crime legal experts have suggested the SFO’s chief successes have depended on its joining forces with investigators in other countries—most notably the United States—where combined resources, greater evidence gathering, better investigatory tools, and legislation and sanctions favoring prosecutors have helped secure larger penalties and more corporate and individual convictions.

Sara George, white-collar crime partner at law firm Sidley Austin, believes such an assessment is unfair: The SFO has won trials—it just isn’t always easy.

George said it is traditionally tougher to take criminal action against corporates and executives in the United Kingdom since U.K. law requires a “controlling mind” to be identified as ultimately being responsible for criminal behavior. The SFO’s inability to prove this in court, she said, led to its fraud trials against Barclays Bank and Tesco collapsing, for instance.

“With the likes of Glencore, Rolls-Royce, and Airbus, the SFO never had to fight the case—these companies self-reported and wanted a deal,” she said. “The SFO’s DPA process also makes this kind of outcome more likely.”

Another problem, said George, is while the SFO gives back more to the Treasury in fine revenue than it costs, the agency is still under-resourced and has a high turnover of staff.

“Companies would be much more fearful of an enforcement agency that had much better resources,” she said.

George believes the U.K.’s reluctance to pay whistleblowers and offer immunity to witnesses in exchange for crucial evidence also hampers the SFO’s ability to win complex fraud trials and bribery and corruption cases.

“The U.S. gives whistleblowers huge awards for disclosing key information to help with prosecutions or to bring about financial settlements,” she said. “… U.K. juries are skeptical about the influence whistleblower rewards and immunized witnesses might have on the legal process, and there doesn’t appear to be any appetite to change the status quo.”