Striking tigers as well as flies: non-selective anti-corruption law enforcement
23 Tachwedd, 2013 | Areithiau
Ben Morgan, Joint Head of Bribery and Corruption, at the International Association of Anti-corruption Authorities – 7th annual conference and general meeting.
When I was thinking about what to say in this session – “Striking Tigers as Well as Flies” – after I’d got past my initial reaction that I quite like Tigers, and in any event, it would be unwise to strike one even if I did not, it seemed to me that this is really a session about the Rule of Law. That is to say, what we are getting at is the widely accepted premise that the law should apply to everyone, equally, regardless of any external factors such as the identity of an alleged offender, their background, their status, who they know or, if they are a commercial organisation, their size, their share price, their line of business or their financial resources.
So if we’re being asked to discuss the need to be non-selective in the way we enforce anti-corruption legislation – to treat all potential defendants equally regardless of the external factors I have mentioned – that implies, does it not, that we have a problem in the way we currently enforce anti-corruption law. The implicit accusation we are answering in this session is “you don’t strike Tigers; you only strike flies”. So let’s test that.
First, let’s look at why it might be tempting not to prosecute certain offenders. Well, on the one hand, it might be for practical reasons. Many of our countries have endured difficult financial times recently. In times of austerity and ever decreasing resources, there might be a temptation to avoid prosecuting the really difficult, complex cases that are likely to consume resources. Those kinds of cases where the evidence is scattered all over the globe, where there are lots of witnesses and perhaps where specialist skills are needed. Far easier, surely, to deploy what resources one has into the easier targets, the “low hanging fruit”.
Another reason not to prosecute certain offenders might be for political reasons. Does a situation appear to involve state officials of one’s own country, or of an important ally? Does it concern an issue that those with power would prefer not to be investigated? Or perhaps, in the corporate world, does it involve a company that is of real national significance – a major employer and tax payer?
These are the sorts of situations where it seems to me there is a risk that the Tigers might be treated differently to the Flies. And while they are not to be underestimated, I hope that one thing we can all agree on here is that as a statement of principle, we cannot accept that for any reason the rule of law should be applied differently to some groups than others. The natural conclusion if we did accept that would be that we would tolerate a two tier system of justice in which the most reprehensible conduct affecting the most victims goes unpunished, while resources are instead deployed prosecuting conduct that while no less criminal is of far more limited social impact. We must strive to resist that, wherever we can.
So if that’s the sentiment behind this session, what of the practical aspects – how can we ensure that the rule of law is enforced fairly? I thought it might be useful if I just spend a few moments talking about what we do in the UK to try to tackle this problem. What I would like to stress before I do so is that I am not for one moment standing here claiming that we have got it right, that we are perfect, or that our way is the only way. But I do think talking through a real life example will add value to the discussion we will have in the remainder of the session.
Looking specifically at the UK then, the way we have sought to address the risk of unequal application of the law on anti-corruption is by setting up the Serious Fraud Office – my employer. Those of you familiar with the SFO will quickly see that it is slightly ironic actually, for me to be speaking in a session about not being selective about who to prosecute for anti-corruption, when in fact we could hardly be more selective if we tried. But I hope we can be forgiven for that, because our remit is only to select Tigers. As a nation, we strike the Flies as well through other agencies, but the whole point of the SFO is that we exist in order to prosecute the most serious or complex fraud, bribery and corruption.
In order to do that, we are set up in a way that is unique in our jurisdiction. By way of background, ours is a system in which the conventional model for criminal justice agencies is based on a clear separation between investigating crime on the one hand, and prosecuting it on the other. In England and Wales powers of investigation vest with the police and our newly formed National Crime Agency, often described – by journalists at least – as our version of the American’s FBI. Meanwhile prosecutorial powers vest in the Director of Public Prosecutions and the organisation she heads, known as the Crown Prosecution Service. So typically the police or the NCA would investigate an alleged crime and then hand it over to the CPS who will decide whether to prosecute it, and if so how.
The Serious Fraud Office is different. We were established by statute in 1987 specifically in order to take on the most serious or complex cases. In order to be able to meet the challenge that such cases present, we were given powers both to investigate and to prosecute. As such, we have within our organisation investigators and lawyers, accountants and IT professionals and our case teams are fully integrated from the outset of an investigation. In tackling the complex cases, that combination of skills and depth of resources is crucial.
Our remit is to deal with what we often refer to as the “top slice” of economic crime, and this is why last year our new Director reviewed and re-issued our take on criteria: to ensure that the cases we take on for criminal investigation really do meet that description. When considering whether to accept a case for investigation, he will ask himself whether the case demands the particular expertise, capability, multi-disciplinary approach and legislative powers that are available to the SFO. Factors will ordinarily include: the scale of the loss occasioned or threatened; the impact or potential impact upon the UK economy; the effect of the alleged conduct upon the UK’s reputation as a safe place to do business; and the degree of factual or legal difficulty to which the case may give rise. We are, in short, designed to ensure equality before the law.
This is reflected in our caseload. I do not intend to go into details, but even in the public domain it is known that we are investigating the types of cases that I said earlier might risk being overlooked as too difficult, or too sensitive. So the example of the SFO – an organisation solely focused on tackling the most complex economic crime – is one way in which it might be possible to strike Tigers as well as Flies, which perhaps we might discuss further.
The final thought I wanted to acknowledge is that striking Tigers as well as Flies comes at a price. By their very nature, the complex cases we prosecute are high risk, by which I mean there is a lot more to go wrong than there would be in a simple case. Understanding the scale of what has happened is hard; it can often take huge case teams to progress lines of enquiry (we have more than 60 people working solely on the LIBOR investigation, for example); the types of defendants we are up against are often hugely well-resourced and so assemble enormous defence teams who throw everything at us; these cases take a long time to come to trial; when they do come to trial, they often require many witnesses and the trials can last months; and most importantly of all, the very complexity of the matters being prosecuted can, in some cases, mean that at the end of all, we fail to persuade a jury of 12 lay people to convict.
There is no question that this is difficult and highly challenging work, but as a country we have decided that it needs doing, and that’s why the SFO exists.