Is this what the UK needs?
Global financial crime, in recent months, has had a dominating presence in the media after the leak of Panama law firm Mossack Fonseca’s files.
The ‘Panama Papers’ exposed thousands of companies, banks, politicians and more as potential financial criminals, highlighting acts ranging from tax evasion to money laundering. The reception has been astounding — with politicians stepping down from posts and protests, demanding the resignation of high-ranking officials, erupting across the globe. In turn, many are questioning the UK government’s position on financial crime punishment policies, due to their evident failures as deterrents. It appears that 150 year sentences in the US still fail to act as deterrents, so how would the introduction of a financial crime register, similar to that of sex offenders, be received?
Financial crime punishment in the UK
The FInancial Conduct Authority (FCA) has informed 20 entities, including banks, to inform the regulator of any relationship between the firms and Mossack Fonseca. What the public want to know is what will happen to the companies involved; if found guilty of involvement in financial crime. The FCA, in an annual business plan, ensured that they are not afraid to use their enforcement powers to deter financial crime, which include referral to the Serious Fraud Office. Financial crimes have different punishments: fraud and bribery with up to 10 years imprisonment and/or a fine, insider trading and market manipulation with seven years and/or a fine, and money laundering with two years imprisonment and/or a fine. The effectiveness of these punishments is debatable.
The Utah register
Utah has recently ‘changed the game’ of punishment to white-collar criminals in the US: by treating them like sex offenders. The ‘H.B 378 White Collar Crime Registry’ legislation creates a database, filled with details of charges, photo identification and home addresses of white-collar criminals, for lengths ranging from five years to permanently.
Is this a far-reaching attempt to act as the ultimate deterrent, notwithstanding the death penalty in China?
Further, is this what the UK needs: a public form of deterrence, arguably, to protect society from being victims of white-collar crime? It would appear a bold form of deterrent, albeit like any legislation, it has its faults. The Utah bill itself allows removal from the ‘Utah White Collar Crime Offender Registry’ where: five years have passed since the completion of the offender’s sentence, the offender has successfully completed all treatment ordered by the court or the board of pardons and parole relating to the conviction and the offender has not been convicted of any other crime, excluding traffic offences.
However, critics have scrutinised Utah’s traffic offences requirement. Under s185 of the registry bill, a person can be removed from the registry where, in a traffic offence, they have paid all restitution ordered by the court. Is this effectively a ‘get out of registry free card’ in the financial crime edition of monopoly? For many, yes, as this allows effectively buying your way out of punishment, which is often unfair to those who cannot afford to pay restitution. However, the raison d’etre of the legislation is to inflict shame. Jennifer Jacquet argues tarnishing the reputation, through shaming, and publicising acts of white-collar criminals on an accessible scale is the only option.
Reception of a register in the UK
The Office for National Statistics estimated over five million fraud incidents occurred last year, a terrifying figure that only seems to be growing. This beckons the question, would a register be useful in the UK?
In order to understand possible issues that may arise with the introduction of a financial crime register in the UK, conclusions can, with a pinch of salt, be drawn from legality issues faced by sexual offender registers.
Under the European Convention on Human Rights, the right to privacy can be limited where it is necessary and proportionate to protect public safety (i.e. use of sex offenders’ register). Could this be extended to protect public financial safety and security? Financial criminals would likely rebut any attempt to be placed on a register arguing a right to privacy, however, as we have seen with the sex offenders’ register, the right can be limited as long as inclusion is proportionate to the crime. This can easily be established mirroring Utah’s approach, whereby a first offence would be placed with five years, a second with 10 years, and a third offence meriting permanent placement on a crime register.
The UK Supreme Court held that appeals against indefinite inclusion on a sex offender’s list was a breach of human rights and in turn, creating a new appeals system allowing for appeals for removal after 15 years. A financial crime register in the UK would likely follow suit and be a useful deterrent, strengthening protection in the UK from acts of financial criminals.
Umar Akram a third year law student at the University of Strathclyde, who intends to practise as an advocate in Scotland in the future. This post was one of the standout entries we received for the BARBRI Global Financial Crime Blogging Prize.
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