06 December 2018

Tesco, the SFO and Lady Justice - the rational choice

Images are especially potent when they are familiar to us. Images of 'good' and 'bad' pack a punch because they form the bedrock of what we expect to happen

By Agnes Foy

Sebnem Ragiboglu

The collapse of the SFO prosecutions against Chris Bush and John Scouler is good news for these two former employees of the Tesco group.  They had each been charged with one count of fraud and false accounting. The acquittals are bad news, from the perspective of the SFO. But the Tesco group has separately agreed a £129m deferred prosecution agreement — a form of plea bargain — with the SFO in order to avoid a possible prosecution of the Tesco corporate entities.  From an SFO perspective this outcome is good news.

The build up

These Tesco sequels all stem from 2014, when the supermarket group announced that its profits had been inflated by £250m. The SFO was called in to investigate. The SFO announced charges against three Tesco executives in 2016. Mr Bush and Mr Scouler stood trial in 2017 but the case was abandoned before the jury were sent out. The SFO then pursued a second trial against the pair. It started in October 2018. It lasted two months. On 05 December 2018 the trial judge, Sir John Royce, instructed the jury to acquit both men. He gave this ruling on the basis that elements of the SFO’s prosecution case against the pair were so weak the case should not have gone before a jury. Serious questions will now be asked about the way in which the SFO conducted their investigation. The SFO is also due to make a decision on whether a trial against Carl Rogberg, another former Tesco executive, should go ahead. More questions will be asked. This is what we expect. 


Routine matters. The latest developments don’t seem to have affected the investment case for the company at all. “It’s old news. Everybody has moved on,” said Bruno Monteyne, European food analyst at Bernstein. This declaration is good news for Tesco investors. For the legal community, this declaration is good news too. It demonstrates that the current societal mechanisms for corporate compliance, control and enforcement have secured social acceptability in the business sector, are deemed routine and will therefore continue to fuel legal sector employment. The acquittals are good news too for senior executives, because the acquittals highlight the horrific risks and immense personal strains endured by senior executives when companies are placed under external investigation. For many taxpayers, the acquittals constitute bad news. The waste of their good taxpayer money is the bad news part. For the judiciary the acquittals amount to good news because, from a judicial perspective, public faith in the wisdom of the judicial component of the justice system has been enhanced. 

Selfish creatures

Are we all just essentially calculating animals, all busily pursuing the necessities of our own narrow organisational life? The bulk of our current laws, regulations and public policies certainly treat us as selfish creatures. This societal framework reinforces our belief in the supreme power of incentives.  We are living within a framework that, in essence, relies on sugar cubes and a whip. This makes all of us perform like circus animals. We stoically accept this reality.

Successive generations of us have been weaned on the notion that our rational selfishness and self-reliance are good things. So any discussion about the problems associated with our ‘rational’ behaviour will always feel threatening to us. The very idea that our production line model could be horribly bad for us is unimaginable, not least because we deem the model ‘normal’. It’s not just normal here, it’s normal everywhere - but our version is one of the more superior versions. This logic is potent.

The framework certainly makes it very easy for us to suspect that altruistic feelings are rare. But we describe unselfish behaviour as ‘good’. So we’re definitely in favour of unselfishness - at some level in our psyche. Perhaps the truest measure of our sugar lump and whip existence is that it engenders a deep need - in all of us - to try to exert some form of control. All relationships of control are, simultaneously, relationships of resistance. Striving to be in control is, by definition, a self-isolating exercise. Is the personal cost of self-isolation bad - or good? 

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