Economic Crime: Law Enforcement

Debate between Robert Neill and John Penrose

Thursday 7th July 2022 Commons Chamber

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

I congratulate my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) and the right hon. Member for Barking (Dame Margaret Hodge) on securing the debate, and on the reports produced by their all-party parliamentary groups on fair business banking and on anti-corruption and responsible tax. Much of the debate so far has focused on what might be termed high-level and high-profile international and economic crime. I understand that, and I will touch on it briefly, but then I want to move on.

In relation to those very high-level matters, we definitely need to do more to tighten the rules on money laundering. I agree that the Bill that became the Economic Crime (Transparency and Enforcement) Act 2022 was much improved in the course of its passage, and we should certainly seek to tighten and improve the provisions of the second Bill when it comes before the House.

We also need to do more about corporate criminal responsibility and liability. The issue referred to by my hon. Friend the Member for Thirsk and Malton relates to what, in law, is called the identification test. It concerns the mens rea, or guilty knowledge, of the “controlling mind and will” of a company, and the requirement to identify that controlling mind and will—a term which, in practice, has tended to mean only a very small cadre of senior managers, which makes it impossible to make the company liable for acts carried out by anyone who is other than part of that controlling mind and will, the very tight-knit group at the top who may be carrying out fraudulent acts for or on behalf of the corporate entity. The system is different in other jurisdictions, including the United States, and reform in that regard would be helpful and sensible. As the right hon. Member for Barking pointed out, it has proved easier in practice to prosecute small companies than to prosecute large ones, because the management structures of the large companies are often more diffuse, and under the current law it is therefore harder to identify those who constitute the controlling mind and will.

An extension of the duty to prevent offences would also be wise, and the Law Commission has recommended it in relation to fraud, but I think we should be open to going further. My one caveat, which I think the Law Commission flags up in its options paper which it published month, is that there is not always an exact analogy between health and safety at work offences and fraud offences. To convict for fraud, there has to be the additional element of dishonesty, either knowledge or “connivance”—a term that it often used—and, of course, dishonesty is not always a requisite element of the offences under the Health and Safety at Work etc. Act 1974. A distinction may need to be drawn, and I think we have not gone as far as we could have. I am not saying that we cannot look at this, but I think it is important to bear that distinction in mind.

[John Penrose]

Would my hon. Friend care to venture an opinion on the Law Commission’s recommendations concerning the potential for fixing the “controlling mind” legislation and legal approach? Could that be improved sufficiently to provide a decent alternative to the “failure to prevent”, or is it fundamentally unfixable, and would such a path therefore not lead to success?

[Sir Robert Neill]

The Law Commission often offers a sensible way forward, and I urge the Government to adopt those recommendations and try to implement them swiftly. This involved considerable work and a great deal of expertise and advice, and I see no reason for us not to move on the “controlling mind” test quite quickly, even if we needed to look a little further at the “duty to prevent” test. Neither of those is unfixable. They offer a sensible way forward in relation to the “controlling mind” test”, and I hope the Government will act.

The other matter I want to raise in respect of larger-scale frauds is the work of the Serious Fraud Office. It certainly involves controversy, and there are some issues to which the SFO needs to respond in relation to the conduct of certain cases. I hope very much that we will see the full publication of Sir David Calvert-Smith’s report on one of those cases. On the other hand, to its credit, with a staff of 250-odd, the SFO has secured for the Consolidated Fund, through payments under deferred prosecution agreements—of which there are now 12—the recovery of some £1.6 billion. If a modest percentage of that were ringfenced, and, rather than going back to the Treasury, were held and reinvested in the budget of the SFO and allied crime-fighting agencies, that would be a massive step forward in providing it with the resources with which to deal with serious international and corporate crime.

In one of the cases that we spoke about recently when the Justice Committee visited the SFO, the disclosure material involved some 1.9 million documents. Dealing with those is a massive task. The SFO could invest in more artificial intelligence for searching documents. There are some legal complexities surrounding that, but it is doable, and is already done in commercial civil litigation. However, it is necessary to invest in it. If some of that money from the deferred prosecution agreements were ringfenced and reinvested, it would be money very well spent.

Having spoken about those large-scale matters, I hope that we will not forget that there is a great deal of “small-scale” fraud—small-scale in the global picture, that is, but very big and important to the victims of fraud. The Justice Committee recently conducted a number of hearings on fraud in the justice system. The message of the evidence we heard from Victim Support was “Do not think that fraud is a victimless crime, which is all too easy to do”. That view was supported by the Association of Police and Crime Commissioners, which reported that some 74% of fraud victims were emotionally impacted by the crime. At the very least, someone will feel that they have been made an idiot of; more often, they will have lost what may be a small sum of money for a bank, but is a lot of money to them. They will feel vulnerable thereafter, almost betrayed. So this is not a victimless crime, and we should never allow it to be thought to be so. This is coming from the people who have been talked to because they have reported the offence of fraud. There are estimated to be 3.7 million incidents of fraud but according to Her Majesty’s inspectorate of constabulary and fire and rescue services, the majority of them are not reported. We need to do a lot more on that everyday fraud.