In December 2016, the Home Secretary announced a review of the UK's response to economic crime, to include "looking at the effectiveness of [the UK's] organisational framework and the capabilities, resources and powers available to the organisations that tackle economic crime".

At the time, the hope of practitioners was that the review would result in courageous and imaginative solutions to the challenges faced in relation to modern-day economic crime.

It is therefore a matter of some regret that, more than nine months on (and counting), the Government has not even made public the Terms of Reference, much less sought the views of the multitude of stakeholders that interact with the criminal justice system on a daily basis.

Instead, as a letter from the Prime Minister to the Chair of the Treasury Committee, Nicky Morgan MP reveals, the extent of the review has been to look at the "largest UK agencies involved in the investigation and prosecution of high value or complex economic crime", namely:

  • The National Crime Agency
  • The City of London Police
  • Serious Fraud Office
  • Financial Conduct Authority
  • Competition and Markets Authority
  • Relevant functions of HMRC dealing with money laundering and
  • The Crown Prosecution Service and to ask officials "to deliver internal advice to their respective Ministers". Those officials have apparently consulted with "non-governmental organisations, academics, members of the financial services industry, and the agencies themselves".  Unfortunately it does not take a great deal of imagination to envision what was said in the course of those consultations, and in particular the extent to which innovation and reform would have been encouraged to flourish.

With that in in mind, what then are the prospects for the review resulting in a radical re-imagining of the way in which economic crime is addressed in the UK?  On the basis of the very narrow remit of the review, those prospects must surely be low, not least because:

  1. just doing more of the same is not a solution to the problem;
  2. asking for more funding is also not the answer as there simply isn’t any more money; and
  3. the views of wider stakeholders have not been taken into account. 

On that last point, the Government talks a great deal about public/private partnerships and the importance of information sharing. Why then does it appear that the anti-corruption organisations, the private sector investigators, the financial insurance industry, private sector lawyers and the organisations which support victims were not asked to participate?

Had the consultation net been cast much wider, it is almost inevitable that a variety of practical, experience-based solutions would have been proposed.  Not all of them may have been viable, but they at least would have triggered a debate about how we can do things differently, which is to say more effectively and more efficiently.

One such proposal could have been for an entirely new branch of the court system, to be known as the Combined Fraud Court (CFC).  The CFC would bring together the civil and criminal systems to deliver quicker and more cost-effective outcomes for victims, witnesses and defendants alike.

How would such a court operate?  The proposal is that there would be a single trial, using aspects of both the civil and criminal law, heard by a specially qualified Fraud Judge sitting with a jury. At the end of the trial, the Judge would ask the jury whether they are satisfied to the criminal standard that the defendant is guilty. If the answer is yes, then the court proceeds to sentence the defendant, assess and award compensation to the victim, confiscate the defendant's benefit, and deal with costs.

If, however, the jury found itself not sure of guilt to the criminal standard, then the Judge would thank the jurors for their service and discharge them. The Judge would then revert to civil procedure and, having heard all of the evidence, ask him or herself whether, on the balance of probabilities, the claim is nevertheless made out against the defendant, applying the civil standard of proof.  If the answer is yes, then the Judge would assess the damages payable to the victim and the costs, in the conventional way.

The advantages to such a system are manifest.  Importantly, the victim, other witnesses and the defendant would only have to give their evidence once because there is one trial rather than two.  The results would also include a significant saving in terms of cost and time, as well as a reduced impact on the court estate.

Whether or not the CFC is the answer will, we hope, one day be the subject of rigorous and informed debate, alongside a range of other creative ways to improve the effectiveness of the UK's efforts in relation to economic crime.  For now, at a time of ever-increasing budgetary pressures on the agencies leading those efforts, it must surely be clear that maintaining the status quo is not the answer, just as it is equally clear that this review may well have been a golden opportunity missed.