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DPP Max Hill's speech to the Cambridge Symposium on Economic Crime
- Sep 12, 2022
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Introduction
Good morning, it is a pleasure to be here.
As we are in a university setting, I would like to pay tribute to Professor Phil Rumney, who sadly died recently. Academic scrutiny of the work we do in criminal justice will be the poorer for his passing.
Economic crime poses a threat to countries’ economies and institutions and causes serious harm to society and individuals. Tackling it is a priority for the Crown Prosecution Service of England and Wales - and last year we published our first ever CPS Economic Crime Strategy.
But this is not something any of us can tackle alone. Crime crosses borders and so we must too – to learn from each other and work more effectively together to achieve our shared aims. So many of our partners are here today so I must take this opportunity to publicly thank you all for your collaboration and your dedicated efforts in this area.
Of course, later today our new Prime Minister will be announced. Among the many pressing issues they will be turning to, tackling economic crime must be a real and sustained priority for the new government – because progress is only possible through a long-term and concerted effort and investment from all parts of the criminal justice system, underpinned by an effective legislative framework.
Taking my lead from the week’s agenda, I will start by saying a little about corruption before moving on to the crucial area of asset recovery then reflecting on how we need to adapt to ensure we can continue to deliver justice in corruption and wider economic crime cases.
Corruption
Corruption has the ability to span multiple jurisdictions and each jurisdiction has its own legal framework for tackling it.
Here in the UK for example we have the Bribery Act and section 4 of the Fraud Act (Abuse of position) - which applies to both public and private actors - and we also have the common law offence of misconduct in public office.
Earlier this year we used this framework to successfully prosecute both individuals and companies for their involvement in bribing a senior manager at Coca Cola Enterprises UK Limited.
Our international network also plays an important role in tackling corruption and illicit finance.
We have a network of CPS liaison prosecutors deployed overseas who work to ensure that information, evidence, and assets can be secured from abroad, that witnesses who are located overseas are available to support domestic investigations and prosecutions, and that suspects or defendants who flee the jurisdiction are extradited to face justice.
And where international corruption is carried out from England and Wales, we will robustly prosecute and deprive individuals of their ill-gotten gains.
However, ensuring our own house is in order is just as important and we would like to see an increased focus on domestic corruption in the up-coming next edition of the UK Anti-Corruption strategy.
Asset recovery
Turning back to asset recovery - developments in cryptocurrency and the recent focus on financial sanctions make this a very topical subject.
Across all our casework, the CPS has recovered assets worth £530 million through confiscation orders over the past five years, securing £118 million of that amount in compensation for victims of crime.
But restraint and confiscation are not the only tools that we have available to us. We can also use our civil recovery powers where they are better placed to recover the proceeds of unlawful conduct - for example in cases where a suspect cannot be extradited, has died prior to confiscation, or where evidential and or jurisdictional hurdles cannot be overcome.
And we keep pace with technological advances and changes in the nature of crime to ensure we can prosecute and recover illicit gains effectively, such as in the case of DPP v Briedis and Reskajs [2021] EWHC 3155 (Admin), where on our application the High Court held that cryptocurrency was “property” under the Proceeds of Crime Act 2002.
In a case being sentenced this week four offenders were convicted for fraudulently obtaining and laundering Bitcoin and other cryptocurrency worth tens of millions of pounds from an Australia-based cryptocurrency exchange. The cryptocurrency was then converted into cash and invested in property.
The individual who masterminded the conspiracy died before he could be prosecuted. So we worked with the police to identify the assets obtained through his unlawful conduct and obtained a Civil Recovery Order in the High Court from his estate, with the estimated value of nearly £1,000,000. A confiscation hearing will be held for the surviving offenders to pursue them for their ill-gotten gains.
Sanctions
Moving on to financial sanctions - on which we have seen an increased focus in recent months.
Sanctions are an important tool for the government but it is important to recognise that they are not an alternative to law enforcement and prosecution action.
Last year, the UK introduced a new Anti-Corruption Sanctions Regime, and we worked with the government to ensure we could continue prosecution or asset recovery action when financial sanctions are imposed on individuals - because it is vital that we also have a robust law enforcement and prosecution response to corruption. To this end the UK Government recently issued a General Licence which allows asset recovery action to take place against any property otherwise subject to a financial sanction.
What more could be done?
These are all positive developments - but just as crime continually evolves, we must constantly ask ourselves what we need to do to be in the strongest possible position to prosecute it.
Corporate Criminal Liability
That includes ensuring our legislative framework allows us to prosecute effectively, so for example we have recently been supporting a review of UK Corporate Criminal Liability laws. The UK has led the way and set a gold standard on corporate criminal liability with the Bribery Act. However, a restrictive application of the identification doctrine has caused challenges in enforcing corporate criminal liability in relation to wider economic crime such as fraud. That is why I support expansion of the existing ‘failure to prevent’ model to wider economic crime, specifically fraud - including Section 4 of the Fraud Act, that is Fraud by Abuse of Position.
This approach would be more effective in identifying and prosecuting the true criminality in any given case. Our prosecution experience tells us that cases are not always clear cut - what may be corruption may also be fraud and vice versa. Our prosecutors will always look to ensure that a charge reflects the true criminality. An extension of the ‘failure to prevent’ model to fraud would therefore be a welcome addition to the tools available for prosecutors to ensure that all those involved in wrongdoing are brought to justice.
Misconduct in Public Office
We are also interested in exploring the Law Commission’s recommendations from their 2020 review of misconduct in public office. This includes a proposal to create a statutory offence of corruption in public office.
We are working with colleagues across government to consider the recommendations in the report and on any future plans for reform. An important aspect to this will be the related definitions, and how we can ensure the functions of a public office are adequately captured and kept up-to-date. This must consider the nature of the role, the duties carried out and the level of public trust involved.
Disclosure issues
We are also working to tackle the huge challenge of disclosure in economic crime cases, which are amongst the most complex work that we undertake as prosecutors.
In one of our current cases, we were faced with approximately 32 million files across all devices. The capability and capacity to sort this material according to relevance, sensitivity, and the disclosure test is critical to the viability of any case.
Early engagement between investigators and prosecutors is therefore vital to help develop case strategies around digital material and disclosure. Early engagement with the defence will also be crucial in helping to identify reasonable lines of inquiry, as well as narrowing down the case issues.
We also hope that technology will help to ease this burden in future - we are particularly interested in how new technologies such as artificial intelligence (AI) can make a difference in facilitating the process. However, this is not about taking humans out of the process - our casework decisions will always be made by highly trained prosecutors exercising their judgement.
Conclusion
All these things could help us to tackle economic crime, but it is only through a joined-up, coordinated approach with our domestic and international partners that we can effectively address the threat.
This symposium provides an excellent opportunity for us to better understand how economic crime is investigated and prosecuted in our respective jurisdictions and share best practice from our domestic approaches to tackling corruption – so that on the international level we can work together more effectively and on a domestic level we can enhance our respective systems and approaches to tackling this threat.
Let’s make the most of this opportunity. Thank you.
https://www.cps.gov.uk/cps/news/dpp-max-hills-speech-cambridge-symposium-economic-crime