Interesting times!

Citation

Rider, B. (2013), "Interesting times!", Journal of Financial Crime, Vol. 20 No. 1. https://doi.org/10.1108/jfc.2013.30920aaa.001

Interesting times!

Article Type: Editorial From: Journal of Financial Crime, Volume 20, Issue 1

Interesting times!

Once a year the orchard of Jesus College, one of the oldest colleges in the University of Cambridge, is turned into an international campus for the Cambridge Symposium on Economic Crime. The Symposium celebrating its 30th anniversary was founded, with the support of governments and academic institutions from around the world, to promote understanding of the risks presented by economically motivated crime to the stability and security of our economies and thereby to foster meaningful international co-operation. Its strength has been that it is not an official gathering and can therefore have senior officials from, for example, both China and Taiwan able and willing to discuss mutual assistance. It also brings together experts from a very wide spectrum of interests and disciplines. The 350 speakers this year included, attorneys general, foreign ministers, governors of central banks, chief justices, ambassadors and senior officials as well as representatives from law enforcement, regulatory agencies, the intelligence services, compliance industry, the professions and the financial sector. And even the odd academic! All in all well over 1,100 experts from 93 countries during the week passed through the gates of Jesus College. While each symposium has a different and topical over-aching theme, this year’s being the consequences of the financial crisis and the impact, desired and otherwise, of the measures taken to address it, there is always a very wide-ranging menu of topics under discussion.

An issue that returned with some persistence during the week was the restructuring of the UK’s response to fraud and financial misconduct in terms of its institutions. While the Serious Fraud Office has managed to survive and under its new leadership may even prosper, there is still considerable uncertainly as to who is actually going to end up within the new agency that will be responsible for policing economic crime – the Economic Crime Command of the new National Crime Agency. While there is some clarity on the functions that it will assume, there is for many individuals considerable uncertainty as to their future career paths. Of course, this is nothing new in the UK agencies. For example, one senior officer involved in criminal intelligence stated that over the last 15 years he has, while doing more or less the same job, found himself in five different organisations – each time with a different boss. This has obvious implications in terms of morale, career progression and continuity. Representatives of various overseas agencies also emphasised the practical problems that arise where continuity cannot be taken as a given. Indeed, one of the successes of SOCA has been the very effective network and profile that it has created, with limited resources, internationally. Let us hope that the new organisation that will be functional in a year or so is going to be able to build upon the positive initiatives that have been taken in the past – particularly by the City of London Police and provide a stable vehicle for the future.

The Serious Fraud Office for a variety of reasons, and certainly not all of its own making, had been in the doldrums. However, changes have been made in terms of direction and structure which one must welcome. One of the weaknesses in the development of the SFO’s strategy for addressing cases of corruption and serious corporate misconduct was that it failed to get the judiciary on side. The concern expressed by senior judges about what came down to negotiated settlements was predictable and probably avoidable. It is to be applauded that the SFO now has within its ranks a very well respected and experienced retired judge. It is also commendable that the emphasis on prosecution as the primary tool in its arsenal has been re-affirmed. What is perhaps more controversial is the importance that the SFO is placing on deferred prosecution agreements to achieve largely what it sought in its earlier negotiated settlements. In the USA, in a very different legal environment, deferred prosecution agreements have proved successful – although not without their critics. Such allows compensation, restitution, monitoring and the like, to take place – under supervision, but with the integrity of the criminal justice system preserved in the pending threat of prosecution.

The practical issue, thrown up at the symposium by many speakers including the Shadow Attorney General, is that to be effective there must be a realistic threat that a prosecution will be successful and impose a meaningful punishment. If a successful prosecution is not likely then why would anyone agree to such a deal? Indeed, the point was made, that given the relatively small budget that the SFO has for dedicated enforcement of the new anti-corruption law, how many serious prosecutions can it realistically entertain? Of course, there will always be cases where expediency and the desire to close investigations down – as soon as possible, argue in favour of compromise. It also remains to be seen how the wider criminal justice system – particularly given the importance of intelligence led non-traditional policing, will regard potential defendants under such an agreement. There are also issues for the civil and regulatory law. For example, is someone under such an agreement unfit to hold a licence or privilege – possibly in another jurisdiction? This has been a real concern in regard to non-determinative proceedings brought by, for instance the US Securities and Exchange Commission. In the result the SFO will, I am sure, continue to exist in interesting times!

September 2012

Barry Rider