The National Crime Agency – the new sheriff in town?

17 May 2024

Last Friday, 10 May 2024, was a significant day for the National Crime Agency (NCA). It secured combined custodial sentences of five years and nine months for two individuals convicted of bribery offences and new legislation came into effect which empowers the NCA to instruct the Serious Fraud Office (SFO) to conduct certain investigations. 

There has recently been a lot of focus on the SFO, including relating to the appointment of its new Director, its strategy announcement and potential disclosure issues. However, perhaps attention should also be paid to the NCA in the sphere of investigating and prosecuting serious financial crime.

Bribery conviction

The SFO has historically faced difficulties securing convictions of individuals for bribery offences, including in instances where the company employing those individuals has admitted fault as part of a deferred prosecution agreement. 

The NCA’s conviction of individuals for attempting to solicit a bribe, under Section 2 of the Bribery Act 2010, was therefore a significant result. Notably, the NCA employed various covert tactics to secure relevant evidence including undercover officers, fake meetings and secret recording devices. As we observed recently, the SFO’s strategy paper for 2024-2029 stated that the agency will seek to use “covert” tactics, capabilities and powers more frequently, but did not specify what those were. Perhaps the NCA is setting something of an example in this regard.

The investigation and conviction came about because of a report made by a private company, from which the defendant tried to solicit the bribe. This report is a good example of the sort of co-operation that the SFO and NCA say they want to see from the private sector.

New power to direct the SFO

The Crime and Courts Act 2013 (CCA) – the legislation that formed the NCA – has been amended by the National Crime Agency (Directed Tasking) Order 2024 (NCADTO). Section 5(5) of the CCA now empowers the Director General of the NCA to direct the Director of the SFO to perform a task if it appears “on reasonable grounds that the matter in respect of which the direction is to be given involves serious or complex fraud”, but this explicitly does not extend to the prosecution functions of the SFO and does not reference bribery. Another minor but necessary statutory change is that section 2 of the Criminal Justice Act 1987 has been amended, so the Director of the SFO can exercise powers under that provision for the purpose of following a direction given by the NCA. In Parliamentary debate on the NCADTO, it was stated that the amendment to the CCA would “support strong, ongoing collaboration between the NCA and the SFO”.  

The NCA will be liable for any costs incurred by the SFO in complying with any directions given under their new CCA power, which might limit the extent to which it is used – or at least give the NCA pause for thought before utilising it. However, this change could cause – or at least signify – a shift in the SFO’s independence, being the first time in the SFO’s history it has seen a change to its operational independence. Commentators have observed that these legislative changes just formalise existing practices and that the SFO will remain independent, but it will be interesting to see whether the investigation and prosecution landscape changes in light of the NCA’s successes and new power.