If you are seeking advice on how the Bribery Act is likely to be interpreted or guidance on how to avoid corporate fraud, then the last person you should go to is David Green, director of the Serious Fraud Office (SFO).
“We are not an educator, an adviser, a confessor or a deal-maker. We are not funded to do any of those things,” he insists in a quiet, thoughtful voice that seems to belie his reputation as a tough prosecutor and a bit of a legal bruiser.
“If a corporation doesn’t realise the threat it faces from bribery and corruption, it shouldn’t be in business,” adds Mr Green, QC, who spent more than 25 years both prosecuting and defending at the bar.
He was also head of the Revenue and Customs Prosecutions Office before taking over at the SFO 18 months ago, refocusing its work on what he believes it was originally set up to do – investigating and prosecuting “the very top tier of very serious, complex fraud, bribery and corruption”.
Mr Green took over at a difficult time when criticism was rising, and there was even talk of breaking the organisation up and distributing its functions to other bodies.
One of the first decisions he had to take was first to halt the investigation into the Tchenguiz brothers, the property developers, and then learn the lessons from what a High Court judge called the SFO’s “sheer incompetence” in drawing up the original search warrants at the beginning of the case in 2011. Mr Green declines to comment on the affair because the SFO is facing civil lawsuits over the investigation.
He believes there was a perception, fair or unfair, that under his predecessor Richard Alderman, there had been a dumbing down at the SFO in order to get more and better results.
There had been a perception that the SFO had done so with the help of dawn raids to make the headlines and had also lost “the stomach for a fight”. The SFO had often gone for settlements, particularly if a company came and admitted wrongdoing – a self-report.
“I do not comment whether those perceptions were fair. Those perceptions were there,” says Mr Green, who has never been accused of lacking the stomach for a fight.
Under the previous regime, he says, in the event of a self-report, the SFO would basically do everything possible to have a civil rather than a criminal outcome.
“If you owned up there was an implied undertaking that you wouldn’t be prosecuted. As a prosecutor, I believe it is wrong in principle to give an undertaking in advance because you never know the facts that are coming through the door,” argues Mr Green, who concedes there might be circumstances where it would be against the public interest to prosecute.
A bottle of champagne and a ticket to Wimbledon would probably not represent a problem under the Bribery Act
So far as bribery is concerned, he is prepared to give a few morsels of guidance using the Wimbledon tennis championships as exemplar.
A bottle of champagne and a ticket to Wimbledon would probably not represent a problem under the Bribery Act, depending always on motive and context.
If, however, during a takeover all the board members of a company were given front row seats at Centre Court with their partners, complete with a banquet afterwards, plus a weekend at a lovely London hotel “that would be a real problem”.
The first arrests have already been made under the Bribery Act and Mr Green says “watch this space” for further prosecutions, just as he believes there will also be more people, and possibly even corporates, in the dock over the alleged manipulation of the Libor (London interbank offered rate).
“We will follow the evidence and, if the evidence enables us to prosecute a corporate, certainly we will prosecute a corporate. We have a number of banks and a number of individuals of interest to us, and the investigation is progressing,” says Mr Green, whose annual budget is around £30 million, down from £50 million in the recent past.
The Libor case involves what the SFO calls “blockbuster funding”, when extra funds can be called on because the cost exceeds an agreed proportion of total revenues in any one year.
There is at least one, and possibly two, other blockbuster cases on the way, but Mr Green declines to say what they concern.
Investigating and then prosecuting complex cases through the court system inevitably takes time and at the moment 14 cases involving 33 individuals are stacked up awaiting trial.
There is unlikely to be a shortage of new appropriate cases to investigate and prosecute. In the first week of this month, for example, there was the decision to open an investigation into government contracts with G4S and Serco for the tagging of criminals – “exactly the sort of case the SFO should be taking on”, according to Mr Green.
A day later, an SFO trial began of a British-Canadian businessman accused of paying £40 million in bribes to secure contracts in the aluminium sector.
A high point earlier this year for the SFO was the successful prosecution of Asil Nadir of Polly Peck, 19 years after he fled the UK.
Mr Green’s ambitions for the future include building intelligence on sectors where bribery and corruption are believed to be a problem – construction, development, gas, oil, mining and extractive industries. He also wants to become increasingly proactive, rather than waiting for complaints and allegations to come to him.
In the end Mr Green knows his four-year stint at the helm of the SFO, which can be extended, will be judged by results, rather than any number of tough words, and there is no certainty that every case will be successful.
Indeed the SFO director goes so far as to say he is not sure he would want to live in a country where the prosecution won every case.
“I would like the SFO to become what it has always meant to be, a fully confident and highly effective investigator and prosecutor at the very top tier of our sort of crime,” says the markedly private prosecutor, who away from the office is intent on improving his cooking and gardening.
