Clifford Chance

Criminal practitioners know it, the current Director of the SFO has acknowledged it, and now HM Crown Prosecution Service Inspectorate has confirmed it – the SFO has room for improvement when it comes to the speed at which they progress cases under investigation.

Last week saw the publication by the UK's HM Crown Prosecution Service Inspectorate (HMCPSI) of the results of their review of case progression in the SFO.

Although HMCPSI's findings will be unsurprising to many, its final report nonetheless makes for sobering reading in places. Whilst rightly acknowledging that the size and complexity of the cases that the SFO investigates will inevitably impact on how quickly they can be progressed, HMCPSI's report makes clear that there is much more that the SFO can and should do to speed up its cases.

The report identifies two key blockages that contribute to delays once the SFO has accepted a case for investigation.

Firstly, post-acceptance it takes too long for the SFO to allocate a team to begin working on the case. HMCPSI's report highlights that in some instances, where a case is not considered to be a high priority, it could take as long as 12 – 18 months for resources to be allocated to the case, and that even on cases that have resources allocated in a shorter timeframe, sufficient resources are not always allocated to enable the case to be investigated effectively.

Given that the SFO's Statement of Principle concerning case acceptance is underpinned by the notion that the SFO will investigate the most complex cases that have the greatest risk of actual or intended harm (whether this is to the public or the broader reputation, integrity and economic prosperity of the UK), even a case that is considered by the SFO to be of lower priority will still fit these parameters and yet can take a significant amount of time to get off the ground.

Secondly, the report identifies significant delays in the SFO's digital forensic unit in processing the materials that case teams need to progress their cases. In the most recent case that HMCPSI examined, they identified a wait time of one year for the processing of the digital material. With the volume of potentially relevant digital material in criminal cases having grown exponentially over recent years, the challenges faced by the SFO in this regard are by no means unique. However, without prompt access to the materials and evidence that the case teams need to investigate, their ability to effectively progress cases in the meantime is inevitably going to be limited.

As HMCPSI's report notes, resourcing could be said to play a part in the above two issues, however the report also identifies a number of other areas hindering case progression at the SFO, including poor levels of compliance with the SFO's own mandatory handbook, high levels of staff turnover, inconsistent use of external counsel, delays in identifying and seeking evidence from overseas jurisdictions and a lack of management level challenge when cases are not progressing effectively.

To the credit of the SFO's current Director, Lisa Osofsky, she has recognised, both at the outset of her tenure and subsequently, that the SFO must work at a better pace. HMCPSI's report however makes clear the scale of the task on her hands in achieving this. As the Chief Inspector notes in his foreword, achieving the changes required "within a departmental structure following Civil Service rules in a reasonable time will be challenging".