Keep it in court

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By far the best bit of the Serious Fraud Office annual report, published this week, is a seven-page account of cases prosecuted or under investigation over the past year. This is the first time the SFO has given such a comprehensive description of its workload, and it is complete apart from a handful of cases that are under wraps because to say anything could give the game away to the villains.

The range of white-collar crime the list reveals is breathtaking, from an extraordinary web of bribery and industrial espionage in the North Sea and Channel tunnel construction industry to old-fashioned theft of money from companies or investors.

The cases involve more than pounds 6bn. The entire housebreaking profession manages to steal pounds 800m a year and there are only about 400 burglaries a year worth more than pounds 50,000.

The average burglar would certainly have done much better to have worked hard at school and gone on to college to gain a qualification suitable for big-time crime, of which accountancy, banking, law or an MBA would be the most suitable.

But the SFO list also contains a lesson for those who believe that the best way to tackle financial malpractice is to switch the emphasis from criminal prosecutions towards civil and regulatory penalties.

These are certainly cheaper than a multi-million-pound trial, the burden of proof is lower and the penalties hit offenders in a particularly painful place, the wallet.

The difficulty with this approach is that a surprisingly small number of the SFO cases rest on regulatory issues of the type that concern the City and the Securities and Investments Board. The bulk of the work involves allegations that are easily recognisable as crimes by the man in the street, even if they are committed by rather upmarket people.

That makes it hard to see great gains in a wholesale transfer of certain types of crime into a separate category of white-collar offenders who would be dealt with, in effect, by their professional peers rather than by juries.

Professor Michael Levi, of the University of Wales, Cardiff, says in research for the Royal Commission on Criminal Justice that the difficulty of seeing where regulatory action could be used to ease the burden of the courts is not confined to the SFO's cases, which by definition are the largest and most complex.

He found the same applied to many of the lesser crimes dealt with by the Fraud Investigation Group of the Crown Prosecution Service.

Even where offences do involve markets and are in principle suitable for regulatory penalties, it could prove deeply unpopular to make them a special case by taking them out of the criminal courts.

It would encourage a feeling of 'us and them', of blue-collar crime committed by criminals and white-collar crime by posh people who have broken a few rules, as if they were Edwardian undergraduates stealing policemen's helmets. Professor Levi says: 'Even if people in the City were agreed that something was a regulatory breach rather than a 'crime for gain', the public might disagree.'

There is another reason for being wary of switching too much emphasis to City regulators. Regulation is itself in a mess. This is, of course, patently obvious as far as the structure of regulation goes, since Andrew Large, the chairman of the Securities and Investments Board, has just finished a report for the Government recommending how to improve it.

But regulation in the City has another problem when it comes to judging people's actions, and it has to do with human rights and the ability of individuals threatened with the loss of livelihood to defend themselves.

This is not something that will ever catch the public imagination, since it demands sympathy of a kind towards prosperous offenders.

The main differences between City regulatory hearings and criminal trials are that the City sits in private, the normal rules of evidence do not apply and neither the self-regulatory organisation nor the defendant can subpoena witnesses unless they are members or their employees.

Regulatory authorities also vary in the way they handle cases, in the degree of secrecy involved and in the ease of appeal. In the worst cases there exists what amounts to regulatory blackballing for life, particularly under the Banking Act.

Appeals exist in theory for those secretly 'convicted' in this way. In practice the system would have to be overhauled and made much more consistent before it could be used systematically as a substitute for the courts, even if there were a large number of suitable cases around.

There is a way to give the City a bigger role in tackling white-collar crime, not by turning the criminals over to regulators but by making it easier for the regulators to catch and prosecute them in the courts.

City regulators have a bad record at enforcement. Powers to investigate and prosecute are limited. They levy laughably low fines. Cases such as insider dealing tend to fall into a black hole between the Stock Exchange and the Department of Trade and Industry and the regulators have little political or public support.

The Royal Commission may recommend wider investigation powers for the SFO and perhaps the Fraud Investigation Group. It would make just as much sense to give similar powers to a City enforcement body working alongside whatever regulatory structure comes out of Mr Large's review.

If that happened, of course, there would be more cases for the courts rather than fewer. But they would be handled by a specialist market enforcement body instead of the SFO.