As the Government unveils a review of fraud and bribery authorities, now is not the time to lose sight of what really matters.
Recently the Government announced a wide-ranging review of the “UK’s ability to tackle bribery and white-collar crime”. Headed by Ken Clarke, the Cabinet Office Minister, the review will examine the structure of the various bodies that investigate and prosecute bribery.
Behind the move is a frustration felt by Downing Street, the Home Office and the Cabinet Office at the time taken to bring cases to trial. However, it is not the only review in this area taking place this summer. Quite separately the Treasury is conducting its own formal assessment of enforcement decision-making by financial regulators, looking in particular at whether the regulators’ institutional arrangements and processes strike an appropriate balance between fairness, transparency, speed and efficiency.
Politicians are clearly frustrated that, with the general election set to take place in less than a year’s time, so far they have no high-profile successes to trumpet to evidence their “crackdown” on bankers and other scapegoats for failures that led to the recession. These reviews will inevitably put pressure on decision-makers at the Serious Fraud Office (SFO) and Financial Conduct Authority (FCA) to take early action on outstanding cases. Whether or not this is the driver, one thing is certain: reviews always have an agenda and invariably a provisional conclusion.
The language behind Ken Clarke’s review is reminiscent of the Home Office’s long-held ambitions to fold all crime-fighting bodies into one overarching National Crime Agency. Worryingly, it looks like its panel is staffed by generalist civil servants with no operational experience. It is difficult to have confidence that the panel has the expertise to identify problems and the open-mindedness to find solutions to bring about real improvements. Why are there no representatives from the City or any criminal defence practitioners?
Both the SFO and the FCA, the main regulators in the firing line, inevitably will be distracted as they respond to calls for evidence and defend their position. This is unnecessary. They are already revived and restored organisations, on the front foot and actively engaged in fighting financial crime and misconduct.
Since David Green QC took over the SFO a little over two years ago, he has launched investigations of companies and institutions with the highest profile: the investigations of Barclays, Rolls Royce and Glaxo are publicly known, but there are others, both visible and under consideration.
The FCA for its part has been heavily engaged in combatting insider dealing and fraud. This February, it successfully prosecuted Benjamin Wilson for a £21m fraud, resulting in seven years imprisonment. It is also the prosecutor in Operation Tabernula, an alleged major insider dealing conspiracy and Operation Cotton, the complex fraud case which recently went to the Court of Appeal because no defence barristers could be found to provide representation.
So there is no lack of activity. The SFO and the FCA are making an impact but they need time and resources to achieve results. Prosecutions which limp to court with investigations unfinished and allegations still unfocussed help no-one.
There is also another dimension to this, rarely acknowledged by Government: prosecutors need the time to consider carefully any representations by the defence and to review evidence which points away from the guilt of the accused. Defence lawyers also need time and resources to mount a proper defence of their clients. Yet, all we hear these days from Government is of the need for speed. But it isn’t speedy justice that has made our legal system so envied. It is fairness.
Forget investigating the periphery, let’s look to achieve fairness in our criminal justice system instead.
Stephen Parkinson, head of criminal litigation, Kingsley Napley