Following on from a period of some uncertainty over its role of tracking, investigating and prosecuting frauds committed against and within UK PLC, David Green went so far as to submit before a parliamentary committee that he accepts the SFO would be judged on the outcome of its investigation into Libor rigging.
The conviction of Tom Hayes, and the subsequent custodial sentence of 14 years handed down by Mr Justice Cooke, follows a difficult few years for the SFO both financially and on the reputation front. It has been dogged by errors, failed prosecutions and legal challenges to its investigations, and has seen a combined payment of £7.5 million in damages and costs to two property developers in July 2014. One must recall that it was only a few months ago that Theresa May was looking at wielding the axe by indicating that she would like to fold the SFO into the National Crime Agency.
The Hayes conviction, therefore, seems to be a turning point in its fortunes. Or does it? Was this all down to the dogged determination of the SFO?
Tom Hayes was the first to appear before a criminal court following the long and drawn out investigation into the sprawling Libor scandal; a key benchmark rate that underpins approximately $350 trillion of debt worldwide. The debts would range from simple loans to derivatives, which Hayes was skilled at trading. Whilst the US authorities were taking the lead on the Libor investigation and were in fact seeking to extradite Hayes to the US to be indicted, following a briefing between the Department of Justice (DOJ) and the SFO, within hours of the same, the latter arrested Hayes. Although this had the potential of causing a political storm, the conviction is now being seen a coordinated effort, at least in the eyes of the DOJ.
Hayes was subsequently subjected to 82 hours’ worth of evidence over a five month period following his arrest in December 2012. During the course of questioning, he provided the names of other conspirators and went so far as to admit dishonesty. As a result, Hayes negotiated an assisting offender agreement (Agreement) with the SFO under the Serious Organised Crime and Police Act 2005. In return for incriminating himself and cooperating with the SFO, Hayes had hoped for a reduced sentence. Things took a turn, however, when he changed his mind (and solicitors) and instead suggested to the Old Bailey that the only reason he had entered into the Agreement and withdrawn from it some ten months later was to stave off the threat the US was posing to extradite him. The seeds seemed to be sown for what should have been a relatively straightforward trial.
Indeed, this is how it was played out. The argument regarding the Agreement did not go down well with the jury, who convicted Hayes, or indeed Mr Justice Cooke, who sentenced the former trader to a 14 year custodial sentence.
Although some credit can be given to the SFO in breaking down the intricacies of such a case to a jury in clear language, most of the work was surely completed in advance of Hayes entering a not guilty plea to the allegations that he faced. He had, after all, sealed his fate by making admissions and then entering into an Agreement which he later sought to wriggle out of. Hardly, one would suggest, an epic legal battle between defendant and the SFO. It was, in the words of Mr Justice Cooke, “an open and shut case”.
Thus, whilst some would suggest that the SFO has placed a further barrier to any talk of merging with the National Crime Agency as a result of this conviction, it will be under far greater pressure to deliver in the other Libor cases; ones where the evidence may not be as straightforward as Hayes’ open and shut case. Only then can it be judged.
For further information, please contact Sophia Purkis, Partner, Fladgate LLP (firstname.lastname@example.org)