Why "failure to prevent" will fail to prevent fraud and money laundering

 
Andrew Katzen
US-WEATHER-SNOW
The answer to fraud is better funded systems – otherwise, no amount of red tape will work (Source: Getty)

Predictably, reaction to the Prime Minister’s proposal of a new failure to prevent economic crime offence has been mixed.

The timing of recent announcement – in the wake of the Panama Papers scandal and just as Mr Cameron's anti-corruption summit kicked into gear – was not lost on some commentators. Others have welcomed the announcement, pointing to the beneficial effects seen following updates to Britain's old fashioned bribery laws.

The Serious Fraud Office (SFO) had been derided for the painfully slow and often unsuccessful bribery investigations it undertook before the 2010 Bribery Act came into force.

But the troubled watchdog was vindicated with its prosecution of Sweett Group under the new law, which saw not only a lightning-fast guilty plea, but some £2.25 million netted for the taxpayer in fines, costs and confiscation. SFO director David Green has since been campaigning for a similar makeover for the country's anti-fraud and money laundering framework. It looks like he might now be getting what he wants.

Read more: Prosecutors are cracking down on white-collar crimes

However, what might have worked for bribery will not necessarily do the same for the very different crimes of fraud and money laundering.

Bribery, like tax evasion, usually brings a gain to the company involved. But the company is generally no more than a witness to money laundering. If the service sector is told to take identification documents before designing a garden or leasing a car, the cost of compliance will be massively disproportionate.

And in fraud cases, the company – particularly in the retail sector – is usually the victim. Is it really a good idea to punish the corporate victims of crime?

The likely outcome would be a defensive over-reporting from corporates eager to avoid criminal sanctions. We already see this in the financial sector, where sophisticated software is deployed to make reports to law enforcement in circumstances in which there may not be an actual suspicion by a human being.

Read more: What you need to know about the Panama Papers database

Green has said that a failure to prevent offence would make the authorities’ job easier, but when our badly underfunded law enforcement agencies are sorting through a blizzard of anti-money laundering reports, he might not be so optimistic.

And, this proposed offence could still be dropped at the end of the consultation.

If anything, it is the sheer complexity of our fraud and anti-money laundering legislation that is the problem for business, an issue which may become worse rather than better if these proposals are brought into effect. The answer is properly resourced and smarter law enforcement rather than bringing in new legislation to make headlines. Industry lobbying has killed these proposals before and may very well do so again. Perhaps that would be for the best.

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