After flubbing two of its most high-profile prosecutions in recent memory, the UK's Serious Fraud Office is preparing for the opening of one of its biggest cases in years: The prosecution of four senior Barclays executives over allegations of fraud and abuse dating back to the depths of the financial crisis.
One of the enduring populist gripes about how governments in the US and Europe handled the fallout from the great financial crisis is that no senior bank executives were punished for the brazen fraud that fed the big banks' MBS-sales operations (though billions of dollars in fines have been paid, and are still being paid to this day).
Former Barclays CEO John Varley
The case stems from two emergency capital raises that the bank negotiated with Qatari investors that helped Barclays avoid a government bailout. Here's more from the Financial Times:
The case involves issues over what the bankers told the market when Barclays twice turned to Middle Eastern investors in 2008 as part of emergency cash calls worth £11.8bn at the height of the financial crisis.
Qatari investors ploughed a total of £6.1bn into Barclays over the two capital raisings. The SFO alleges that the bankers induced the Qataris to invest through side deals worth more than £300m not fully disclosed to the market nor to other investors.
The case is historic in at least one sense: When the trial begins on Monday, it will mark the first time that a former chief executive of a Western bulge bracket bank stands trial for serious legal consequences - maybe even jail time - for fraud stemming from the crisis. And while the case has nothing to do with Barclays' MBS business, the SFO's case will involve former Barclays CEO John Varley, former Investment Banking head Roger Jenkins (who negotiated the two capital raises), former Barclays Wealth boss Thomas Kalaris and former European Financial Institutions head Richard Boath, who are all facing charges of conspiracy to commit fraud in relation to the 2008 capital raising, according to the Financial Times.
It is the first jury trial in the world of a major bank’s chief executive over actions taken during the financial crisis more than a decade ago and is scheduled to take at least four months at London’s Southwark Crown Court.
The trial officially begins Monday - though jury selection will likely take a few weeks and opening statements likely won't begin until later this month. Ultimately, the trial is expected to take up to three months, with the questioning of Varley, who led the bank between 2008 and 2010, expected to take four weeks.
The SFO badly needs a win in this case. Since the crisis, the SFO and the Crown Prosecutors' Service have been dogged by accusations that they haven't been hard enough on white collar crime. And as the Guardian reminds us, the SFO has already whiffed two cases this year, including a case against Barclays.
The last high-profile victory won by the SFO was the conviction of former
Charges against former Tesco executives, accused of being masterminds behind a major accounting scandal, were thrown out in December after a judge deemed the case too "weak" to face a jury. The SFO is believed to have spent about £10m pursuing the former managers.
The SFO also saw its case against Barclays bank – which is separate to the case against the ex-bosses - over the Qatar fundraising dismissed by the court in Southwark last year. The SFO later lost a high court appeal to reinstate those charges.
The court failures were embarrassing for the SFO, which also faced criticism for the collapse of a 2016 trial against brokers accused of helping the convicted trader Tom Hayes rig the Libor rate.
And already, the SFO is struggling after the general counsel in charge of the case recently left to take a job in private practice, putting six years of investigatory efforts at risk.
The question of who at the SFO is accountable for the case has been in doubt since its general counsel quit for a law firm. The stakes for the SFO, which has spent millions of pounds in ringfenced money from the Treasury investigating the case over more than six years, are high after bloody noses in other trials recently, including the collapse of the retrial of two former Tesco executives late last year.
SFO charges against Barclays itself and its operating subsidiary over the Qatari arrangements were also scrubbed in October, sparing the bank from trial.
And some have raised doubts about whether the official who has been tasked with overseeing the case is the right man for the job, since he doesn't have a strong legal background.
The anti-fraud agency has now named Mark Thompson, its chief operating officer, as the official accountable for the case.
The agency’s director, Lisa Osofsky, had to recuse herself from the Barclays case following her arrival at the SFO in late August from private practice, where she was a monitor to banks trying to overhaul their compliance.
Alun Milford, the SFO’s former general counsel who had taken the lead role in the case, has recently left for Kingsley Napley, the law firm. While the firm’s instruction precedes his arrival by many months and he will not be involved, Kingsley Napley has a role acting for some of the witnesses in the case.
Mr Thompson is viewed as a safe pair of hands at the agency and also stood in as acting director after the previous director, Sir David Green, left in April and before Ms Osofsky took up the role.
But while Mr Thompson is an experienced investigator, he is an accountant by background and not a lawyer.
The SFO has shrugged off concerns that there is no senior lawyer acting as a “second pair of eyes” as the landmark case proceeds to trial.
Mr Thompson is expected to make any decisions in conjunction with Hannah von Dadelszen, a senior lawyer who jointly heads its fraud team, while the case controller, Rakesh Somaia, has been in place throughout the probe.
Though Monday marks the official start of the trial, the defendants likely won't be present at the Southwark courthouse. Twelve jurors must first be found who can participate in a four-month trial, and the jury isn't expected to be sworn in until mid-January, with opening arguments not slated to begin until Jan. 21. The charges against the four were first made public in 2017.