Page 143 - Deception at work all chapters EBook

144 Deception at Work

The prosecution is managed by an official body such as the Crown Prosecution Service (CPS),
the Serious Fraud Office (SFO) or a regulatory agency.

A victim may also start a private criminal prosecution by applying to a magistrates’ court
for a summons, requiring the accused to appear at a set date and time. Private prosecutions
are both rare and hazardous but may be taken over and abandoned at any time by the Director
of Public Prosecutions.

Even when criminal prosecutions are successful, any financial penalties are paid to the
government and not to the victim. Equally, the costs of the prosecution are borne by the State.
Thus, in criminal prosecutions, the State takes control and the victim assumes a secondary
position.

There are some important differences between the objectives of fraud victims, the police
and public prosecutors (see Table 5.1).

Table 5.1 Different objectives of police and civil investigations

Police prosecution (or regulatory agency) Victim company’s objectives

Aims at a successful prosecution on a number of The victim needs to establish the full extent of
specimen charges the loss to maximize its recoveries

The police are not concerned with making This may be a top priority for the victim
financial recoveries

The police expect unrestricted access to evidence The police have to release all evidence in their
in the possession of the victim possession to the defence; this can seriously
compromise the victim in civil actions

A lack of resources usually means the investigation Delay always acts against the interests of the

will not be completed quickly victim

Public prosecutors will not usually proceed The victim may start a case to obtain
with the case unless the chances of success are injunctions or discovery of evidence with a
overwhelming and there can be no compromises view to a negotiated settlement

In most cases, to get their money back, fraud victims have to take civil actions or negotiate.
However, it should be noted that from 1 November 2000 the Criminal Proceedings Amend-
ment Act (CPAA) 2000 permits fraud victims to apply to the police – through their lawyers
– to inspect their case files. The extent to which any evidence obtained can be used in civil
proceedings is, as yet, unclear.

STANDARDS OF PROOF

To succeed with a criminal complaint, the prosecution has to prove – to the satisfaction of the
magistrate, jury or judge – all of the elements of the offence and the responsibility of the ac-
cused ‘beyond reasonable doubt’. This is an extremely high standard and any benefit is given
to the accused. It is usually critical to show that the accused acted with ‘guilty knowledge’ or
intent.

There are some criminal offences where proof of guilty knowledge is not required and these
(such as failing to submit a tax return, not registering with the Information Commissioner