The economic crisis of recent years has lead to a heightened focus on tackling financial criminality, also known as ‘white collar crime’. According to D.Leigh and R.Evans, “Ministers are publicly committed to merging the Serious Fraud Office, plus part of the Financial Services Agency … into one large economic crime agency that would tackle bribery, fraud and insider trading.” This essay will critically examine that statement; consider the specified forms of financial crime and determine the potential impact of the Economic Crime Agency.Background
Financial crime is not a recent development; however, it could be argued that it occupied a secondary position in the public’s perception of criminality.
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There is no clear definition of financial crime; it varies depending on the context of the situation. It includes a number of corrupt activities from relatively ‘simple’ frauds like the over inflation of expense claims by an employee to complex ‘Ponzi’ schemes like that of Bernard Madoff which defrauded investors of billions of dollars. For the purposes of this essay, the definition in section 6(3) of the Financial Services and Markets Act 2000 will be employed. This states that financial crime includes any offence involving fraud or dishonesty; misconduct in, or misuse of information relating to, a financial market; or handling the proceeds of crime. In recent years, reducing ‘white collar crime’ has become a key priority for regulators, government, corporate bodies and even individuals as it has a number of ramifications for the economy as a whole. A recent report by the National Fraud Agency found that “the public sector was the biggest fraud victim, at ?17.6 billion, followed by the private sector at ?9.3 billion (including ?3.8 billion from the financial services sector alone) and the individual and charity sector at ?3.5 billion.”
At the start of the century the government took a tougher stance on the issue with the establishment of agencies like the Financial Services Authority (FSA) and the Serious Organised Crimes Agency (SOCA). Even still, the UK penalty rates for such crimes are relatively low in comparison to countries like the US with long established anti corruption policies in place . That said, the recession of 2007-2008 and the damaging effect the activities of unscrupulous bankers had on the financial markets led to a revival of financial crime regulations.
Types of Financial Crime
What follows is brief analysis of the crimes specified in the article on which this essay is based.
Again, this is a term not expressly defined in legislation or determined by common law. Prior to the Fraud Act 2006, fraudulent behaviours were those identified by the Theft Acts of 1968 and 1978. The 2006 Act now states that fraud is committed where section 2-4 is breached. Summarily, it occurs where a person makes a representation which he knows is false , dishonestly fails to disclose information which he is under a legal duty to disclose and abuses his position . Succinctly, fraud may be defined as the use of deception to obtain an advantage at the detriment of another.
Insider trading, synonymous with insider dealing, is defined as dealing with securities on the basis of inside information that is not yet publicly known and which would affect the price of the securities if it were made public . It is a criminal offence under the Criminal Justice Act 1993 (CJA) and a civil offence under section 118 of FSMA 2000. In the context of financial services, the FSA Handbook refers to section 52 of the Criminal Justice Act 1993 which extends the offence to encouraging another to deal in the securities in question, or disclosing the information outside the proper performance of employment or professional duties .
Bribery is the receiving or offering of any undue reward by or to any person whatsoever, in a public office, in order to influence his behaviour in office and incline him to act contrary to the known rules of honesty and integrity . The crime of bribing an official was previously governed by the Public Bodies Corrupt Practices Act 1889, The Prevention of Corruption Act 1906 and the Prevention of Corruption Act 1916. These laws have now been repealed by the Bribery Act 2010 which came into force on 1 July 2011. Sections 1, 2 and 3 clarify the law in relation to bribing another person, offences relating to being bribed and the functions or activities to which bribery relates respectively.
The responsibility for preventing financial crime, including the types listed above is split between the following principal agencies; Serious Fraud Office (SFO):
The SFO is an independent government body empowered by Section 1(3-5) of the Criminal Justice Act 1987 to investigate and prosecute cases involving serious fraud and corruption. With a budget of over ?43 million, it examines complex frauds which are politically sensitive, could significantly affect the economy and involve a loss of over a million pounds. These include investment fraud, bribery, corruption, corporate fraud and public sector fraud . In recent years, the agency has been criticised for its low conviction rates as well as its overall failure to reduce the rate of serious fraud in the UK. In a comparison of the SFO with two similar institutions in the US (The US Attorney’s Office for the Southern district of New York (SDNY), and the Manhattan District Attorney’s Office (DANY)), Jessica de Grazia reported the striking differences between the conviction rates of the different bodies . The SFO had only managed to secure a 61% conviction rate in the period of 2003-2007 in a striking difference to its US counterparts who achieved 97% and 92% respectively. Furthermore, the efficiency of the agency was questioned as it expends far more resources than its US equals while achieving a much lower productivity rate in terms of convictions . In a case which further questions SFO case management, it was found that it took approximately ?40 million, 184 days and more than 1 million documents to charge the directors of Wickes plc with fraudulent trading. In the end, all were acquitted despite admitting knowledge of fraudulent activities in their company . Financial Services Authority (FSA)
Established under the previous labour government, the FSA is the sole regulator of the UK financial markets. Its powers are derived from the Financial Services and Markets ACT 2000 (FSMA), which also imposes a statutory objective on the organisation to reduce financial crime . In contrast to the SFO whose sole remit is complex fraud, the FSA has more extensive responsibilities. It needs to protect consumers by ensuring that market participants are compliant with the rules in place and do not engage in any activity which might affect the public’s confidence in the financial markets or disrupt the UK monetary system. Inevitably, the responsibilities of the SFO and FSA overlap as cases on malpractice are rarely restricted to one type of crime. This often leads to longer case management times, as both agencies have to work together to collate evidence and decide the best manner and under which regulation to prosecute. Several criticisms have been made against the FSA. Similarly to its counterpart the SFO, the FSA has been accused of a light touch approach to prosecuting offenders for economic crime. In another comparison with the US, John Coffee, a leading US academic, found that in 2005/2006, the financial penalties meted out by the United States Securities and Exchange Commission (SEC) surpassed that of the FSA by a 30 to 1 ratio . Other enforcement agencies
There are a substantial number of agencies involved in the fight against financial crime. The quote on which this essay is based only mentions the two considered above. However, other agencies include; the Office of Fair Trading (OFT), CPS (Fraud Prosecution Service), CPS Revenue and customs Division, City of London Police Economic Crime Directorate amongst others. Regulatory Reform –The Economic Crime Agency (ECA)
According to Jonathan Fisher QC, the barrister responsible for shaping the Tories thinking on the corporate crime landscape, the current system for tackling economic crime is “lamentably deficient” . This comment was based on an appraisal of the aforementioned agencies and their failures at identifying and prosecuting perpetrators as identified above. In a report entitled ‘Fighting Fraud and Financial Crime – A new architecture for the investigation and prosecution of serious fraud, corruption and financial market crimes’, Jonathan Fisher suggested a solution. That is, “a single Financial Crimes Enforcement Agency to tackle serious fraud, corruption and financial market crimes, either by consolidating the existing investigative and prosecutorial powers of the disparate agencies (SFO, FSA, CPS, FPS & RCD, OFT) into a new body, or by enlargement of the Serious Fraud Office.” The former consolidation proposal was chosen by the new coalition government. In its coalition programme , the government announced plans for an Economic Crime Agency which would take over the investigatory work of the Serious Fraud office and the prosecution powers of the Financial Services Authority and the Office of Fair Trading. Furthermore, this strategy was seen as a way to “simplify the confusing and overlapping responsibilities in this area in order to improve detection and enforcement” . Crucially, the ECA would be responsible for “serious economic crime”. This term was not expressly defined but based on the conservatives pre-election document, could reasonably be considered to include “large scale fraud, bribery, corruption and Madoff style pyramid schemes” . Potential Impact
Enhanced Prosecution Powers – Deferred Prosecution Agreements
Amalgamating the various agencies would pave way for a new method of prosecuting offenders. According to Jonathan Fisher QC, “consolidation of existing powers would enable a unified agency to impose financial penalties in serious fraud and corruption cases as well as financial market crimes in appropriate cases where an alternative to immediate criminal prosecution is preferred”. This could be achieved using US method called Deferred Prosecution Agreements (DPA). Under these sorts of agreements, prosecutors, in this case the ECA, would be able to file criminal prosecutions against offending companies, with the understanding that they would not “pursue a trail on the charges and eventually drop the charges so long as the corporation involved aids public officials in investigations of the individuals responsible for the offenses charged and the corporation institutes reforms to ensure that similar offenses are not committed in the future” . This has a number of advantages for both parties. The ultimate aim of prosecuting offenders for financial crime is to punish the companies and individuals involved, deliver a penalty which provides an adequate deterrent for would-be duplicators and gives the public faith that such dishonest behaviour is being managed. The ECA could achieve this through a DPA as financial fines set at an adequate level could achieve the punitive and restrictive goal. DPAs also provide a social benefit as evident in an appraisal of settlements in the US. Siemens for example, was fined in excess of $800 million dollars for bribery and corruption in its global activities . The money received from the fine was used in the further pursuit of financial crime. Were the ECA to be given such powers, money recouped from offenders could be used for the continued maintenance of the body as opposed to funding from the public purse. Furthermore, a DPA is an admission of culpability by the company involved; settling with conditions attached allows the regulator to avoid a situation where the criminal prosecution fails at trail, meaning a waste of manpower at public expense. A DPA also assures change in the company as the regulator could impose conditions on the defendant which they would need to uphold to prevent the charges being resumed, e.g. getting rid of culpable directors, adequate monitoring procedures and censorship from certain activities. The US experience shows that offenders rarely ever default on a DPA as the threat of the charges being upheld is an adequate disincentive. From the company’s perspective, it avoids the high level of publicity that a criminal trial would invariably entail and the uncertainty about the level of punishment to be meted out if it were found guilty. Conversely, DPAs are not without risk to the companies involved. The use of Deferred Prosecution Agreements to prosecute corporations is still relatively new, even in the US where it is now commonly used in place of civil and criminal litigation. Therefore, therefore its application lacks uniformity on a case by case basis. Furthermore, evidence revealed or disclosed during the investigation process could incriminate the company and its employees to other offences. As Jonathan Fisher points out in his report, “Individual company directors or senior employees who caused a company to act unlawfully are frequently not afforded the benefit of a DPA. More often than not, directors or senior employees are prosecuted in a criminal court and following conviction it is not unusual for lengthy sentences of imprisonment to be imposed” . Certainly it would be unacceptable for companies to use their directors as ‘scapegoats’ to avoid prosecution and this is a criticism that is often levied against DPAs. This concept of unfairness extends to the treatment of individual companies, DPAs are an option which the regulatory body concerned can choose to employ or disregard. Therefore not all companies will be offered the option of an agreement. There is concern as to whether large companies are able to tempt regulators into forgoing a criminal or civil litigation by paying large fines, a luxury which smaller companies might not be given or indeed afford . Although the power to enter deferred prosecution agreements would be very useful to the ECA in combating financial crime, the process requires thorough consideration and guidelines need to be set before it is employed in the UK. Economies of scale:
Recently, the Court of Appeal held in R v Rollins & McInerney that the FSA would be able to bring criminal prosecutions for economic crimes like bribery and misrepresentation of financial accounts. This means that the FSA’s work could overlap considerably with that of the SFO, the body currently responsible for the investigation and prosecution of bribery offences. Therefore, combining the efforts of the two bodies under the umbrella of the ECA would increase efficiency and reduce the duplicity which could arise out of cases based on the aforementioned decision. Fees:
Currently the FSA is funded by the levy it charges the companies that it regulates. On the other hand, the SFO and other similar agencies are maintained from the public purse. Having a single consolidated agency could have a number of outcomes. Depending on the size and remit of the agency, the government would have to pay out more for the maintenance of the ECA. However, the economies of scale mentioned above could equally translate to cheaper running costs as the concerned agencies would be streamlined with fewer personnel needed for example. Alternatively, the government would need to consider developing a new funding structure to maintain the organisation. It is unlikely that financial institutions would agree to increased fees due to the presence of a single regulator. Regulatory upheaval:
Most of the agencies concerned operate under different legislative parameters. For example, while the FSA derives its powers from FSMA 2000, the OFT’s anti-money laundering powers is given by the Money Laundering Regulations 2007 . Therefore, the creation of a new agency, albeit an amalgamation of existing organisations, will inevitably require new laws governing its remit. Impact on affected companies and individuals:
Many organisations and people have structured their businesses to meet with their existing obligations under the current system. For example, the FSA imposes regulatory obligations on some financial services firms to report any trading activity on regulated markets – to identify potential instances of market abuse . If a new arrangement involving the FSA comes into place it will create uncertainty about how to manage the reporting requirements. Furthermore, reporting to a new body could mean increased costs for those companies who have automated reporting facilities. Reception
As expected, the proposal received mixed responses. A number of observers identified the plans as identical to that proposed by Lord Roskill, chair of the Fraud Trails Committee over 25 years ago. Roskill had recognised “the need for a new unified organisation responsible for all the functions of detection, investigation and prosecution of serious fraud cases… ”. The report had lead to the formation of the Serious Fraud Office; however, a truly unified approach to tackling corporate crime has never been achieved. The creation of the ECA was therefore seen as a practical application of a sensible theory. Having a single entity creates clarity, defines the remit of the various regulators, could improve efficiency and avoid situations such the failure of the FSA’s first criminal prosecution for insider trading where the defendants were acquitted due to evidential failures. The various institutions all have different specialties; therefore, some commentators contend that a unified agency like the ECA would combine the strengths of all the agencies involved and make it easier for successful convictions to be brought. For example, the OFT was blamed for the collapse of a price fixing trail against four British Airways executives amid claims of incompetence. The prosecution had offered no evidence to support its argument of collusion despite having spent four years and millions of pounds preparing the case . Responding to the coalition’s plans to bring the OFT under the umbrella of the ECA, Jon Lawrence of Freshfields Bruckhaus Deringer stated that the plan is “ a move in the right direction….it is about making sure prosecutions aren’t brought and cases not pursued that have no merit. It’s better for everyone to have these cases run properly and for prosecutions to be assessed and brought on a consistent basis” . On the other hand, most of the agencies affected were not in agreement with the proposal. The FSA made it clear that as the body responsible for market protection, it should retain the criminal enforcement powers which currently enable it to prosecute offenders for insider dealing and market abuse. The government has recently proposed that the FSA’s responsibility for market conduct would be taken over in 2012 by a new agency called the Consumer Protection and Markets Authority. Therefore, Margaret Cole, the FSA’s director of enforcement and financial crime argued that as a specialist regulator, CPMA’s ability to prosecute criminals would be essential to “maintain a strong and effective enforcement function” . It is difficult to disagree with this statement as the knowledge that an organisation has not only the ability to investigate, but to prosecute criminal activity has been proven to be a somewhat effective deterrent . A number of financial commentators align with this view, stating that “if credible deterrence is to work and act as a genuine disincentive to market abuse, then, the joined up use of criminal as well as civil enforcement powers in one body is necessary” .Margaret Cole also pointed out the upswing in successful FSA actions, such as the fine of almost half a million pounds handed out to Malcolm Calvert for market abuse, the extradition of an individual from Mayotte for insider dealing, and the compounding of almost ?35m of suspect property. Academic commentators also weighed in on the proposal with Professor Ellis Ferran, professor of Companies and Securities Law at Cambridge University saying that “There are strong arguments for leaving responsibility for the prosecution of crimes against the market with the CPMA as the successor markets authority. This would allow for the seamless, close co-operation between supervision, markets and enforcement that has reputedly been crucial to the FSA’s recent successes in enforcement to continue, and minimise the wastage of the expertise that the FSA has built up in making use of the wide range of enforcement tools at its disposal. At a time when at least one senior markets regulator in another country has spoken out in favour of being given authority to bring criminal prosecutions, it would seem perverse for the UK to consider stripping its markets supervisor of that power.’ SFO director Richard Alderman also debated the merits of splitting up the organisation in a bid to integrate it with the proposed ECA. In his view, ‘the prosecution-led approach with integrated teams of lawyers and investigators is needed in this very specialist and complex area. No evidence has been produced to show that separating investigators and prosecutors will improve the approach to complex economic crime. In my view, the effect will be damaging .” The reasoning behind his opinion is apparent when one considers the nature of the SFO’s organisation. It is comprised of a number of lawyers, finance professionals and consultants who have experience in the corporate world and knowledge of the markets. Announcements of a structural overhaul at the SFO lead to the exodus of a number of key personnel from the agency. Therefore, there is no guarantee that the specialist knowledge which lead the agency to increase its conviction rate to a credible 84% in 2011 from a mere 61% would transfer to the ECA. In light of recent legislative developments, the UK Bribery Act in particular, Richard Alderman also stressed the need for the SFO to remain the prevalent body for fraud and corruption. Companies already have existing channels of communication with the SFO and disbanding the agency at the same time as new laws are introduced risks leaving the companies with little or no guidance. Alderman said that the “SFO would be there to help companies navigate their way through the legislation and said that the new rules, which take effect on July 1, would hopefully create a “ripple” effect through the economy and lead to better corporate behaviour . Furthermore, the need for a new agency could be questioned where the cost of creating a new agency could be saved by providing existing bodies with enhanced powers. Richard Alderman expressed a desire for the US style deferred prosecution agreements discussed above. According to him, “the US has had about 20 years experience dealing with big corporate cases and the judicial and criminal justice system there has developed greatly over that period…. I am particularly interested in deferred prosecution agreements”. Therefore, rather than giving these powers to the ECA, an alternative would be to expand the powers of the SFO. Current Position
The coalition government seems to have abandoned its plans for the creation of an Economic Crime agency. Rather, the Home Secretary Theresa May announced that the SFO would remain as it stood, with a new agency called the National Crime Agency to be set up to tackle organised fraud. Perhaps in consideration of the criticisms levied against separating the enforcement powers of the FSA and the OFT, both organisations had managed to be removed from the coalition’s later plans for the ECA. The SFO was the only agency which faced being scrapped until the 2011 announcement. Commentators have observed however that ‘once the NCA is fully up and running, which should take two years, the government will review whether the anti-fraud agency should remain independent. ’ Conclusion
The government’s plan for the ECA was weak in the sense that it lacked detail and certainty. Executed effectively, the agency had the potential to clean up financial crime through streamlined procedures and enhanced powers. Whether the ECA comes into place or not, financial regulation in the UK is undergoing an overhaul. The conviction rates at the FSA, SFO etc lend credence to their effectiveness at policing the system and any plans by the government to change their organisation structure could ruin future progress. This sentiment is echoed by Elizabeth Robertson, the corporate crime head at Addleshaw Goddard. As she puts it, “There has been a lot of momentum to prosecute white collar crime, the Bribery Act is gaining momentum, and with the credit crunch there is a real appetite to deal with these things, The Government risks damaging effective prosecution of business crime if it introduces too many changes at once.”
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