Olivier Le Queinec
The UK compares badly with other jurisdictions when it comes to whistleblowing. Dominic Carmen says legislation is urgently needed to protect them.
Many children used to enjoy having a wanted poster on their bedroom wall. Copying the style of nineteenth century Wild West posters targeting criminal outlaws, these would include a portrait photograph of the child offering a reward of tens of thousands of dollars underneath the phrase in bold capital letters: "Wanted: dead or alive". Since 1950, the FBI has maintained a real Ten Most Wanted Fugitives list, which is now updated on its website. In the spirit of nineteenth century posters, rewards are offered for information leading to the capture of fugitives on the list, usually $100,000.
FBI's most wanted
The FBI website also publishes other priority “wanted” lists, divided into two categories: National Security Priorities (terrorism, counter intelligence, cybercrimes), and criminal priorities (public corruption, civil rights, organised crime, white collar and violent crimes). Of the current ten Most Wanted, two are serious fraudsters, among their other alleged criminal activities.
No SFO list
In Britain, the Serious Fraud Office publishes no such external list. More significantly, it does not offer any reward to those providing information leading the to the arrest and prosecution of alleged serious fraudsters. The argument for paying rewards is not seen as compelling by officials.
But Crimestoppers Trust, an independent crime-fighting charitable UK organisation, does exactly that. In November 2005, Crimestoppers launched the Most Wanted section of its website where anyone can look at images of people currently wanted by UK law enforcement agencies. Most Wanted is the only UK-wide online forum where individuals wanted by the police or other law enforcement bodies such as the National Crime Agency, HMRC and the UK Border Force can be found and information passed on about them anonymously by the public.
Game of Fraud
Crimestoppers also offers rewards of up to £1,00 for information that helps the police to make an arrest and charge, or is of significant use to law enforcement agencies. However, less than one per cent of people who could claim a reward actually do so.In November 2014, Crimestoppers launched a campaign educating the public about fraud through an interactive microsite. To help raise awareness, the charity created a Game of Fraud hub featuring an online survey with information on a variety of frauds, including romance fraud, courier fraud and online shopping fraud, that affect the UK public every day.An intuitive quiz identifies which fraud types members of the public may be most vulnerable to and gives a detailed description of how they may be targeted.
But serious fraud is not specifically targeted. All of the 19 individuals on the Crimestoppers Most Wanted - Fraud & Forgery category are too low level to be considered as serious fraudsters. Instead, the SFO relies on victims, witnesses and critically, on whistleblowers. Whistleblowing - when an employee reports suspected wrongdoing at work - is officially called “making a disclosure in the public interest”. Many large organisations have their own whistleblowing procedures. The SFO uses whistleblowing informants in serious or complex fraud, bribery or corruption, providing protection for them under The Public Interest Disclosure Act 1998.
The SFO launched its whistleblowing hotline, SFO Confidential, in November 2011. Within two years, it was receiving over 2,500 reports from whistleblowers; but in that year - 2013/14 - only 12 new investigations were launched. Even if a high proportion of these complaints were malicious, fictitious or the inventions of poison pens, many were not.This begs the question of whether whistleblowing is being used properly. The SFO is said to rely increasingly on whisleblowers’ information: their role in bringing potential misconduct to the attention of the SFO certainly creates a powerful incentive for companies to self-report wrongdoing. The current Tesco trial is a good case in point.
UK whistleblowers deserve better
But by July 2017, the situation has not changed dramatically. Under the headline ‘Serious Fraud Office: UK whistleblowers deserve better’, Euromoney reported: ‘The Barclays (Qatar) case may have saved the SFO, but the UK fraud agency needs to change the way it deals with whistleblowers.’ The article continued: ‘The UK’s whistleblower protections already pale in comparison with many other countries. The 1998 Public Disclosure Act does allow uncapped compensation to qualifying whistleblowers who have been wrongfully dismissed, but there are no protections for whistleblowers before employer retaliation.
‘According to a 2016 report from organisation Blueprint for Free Speech, the median payout for these cases is about £17,400. But cases last, on average, 20 months and costs can soar quickly. The Act passed through parliament unopposed, meaning there was little debate about its strengths and flaws. Blueprint found that of 26 standards for whistleblower protection developed by international organizations and NGOs, 13 were entirely missing from the Act.' The article went on to say that whistleblowers often are confronted with numbers of corporate lawyers who have unlimited resources and that this is a strategy often deployed - to outspend the claimant so that he or she cannot afford to go on.
It is clear that whistleblowing needs serious reform. As a country, we may not want our serious fraudsters to appear on wanted: Dead or Alive posters. We may not expect a website of the Ten Most wanted fraudsters. We may not even think it is a good idea to offer large financial rewards leading to the arrest of serious fraudsters. But at the very least, we should be treating genuine whistleblowers not just with courtesy and respect, but also fully protecting those who blow whistles and compensating them properly. Without proper legislation, we are leaving them to an environment akin to the Wild West.