Gib Beattie: SFO required to prove crime, not corporate immorality

Mark Hotchin talks to investors. Photo / Richard Robinson

Opinion

It is good that we finally have the Serious Fraud Office's decision on Hanover. Obviously those under investigation will be relieved at the outcome. They have always maintained that they acted honestly and, after a lengthy inquiry, the SFO says it doesn't have the evidence to prove otherwise.

There will be some who will dislike the outcome because, notwithstanding the lack of evidence, they would simply like to hang all finance company directors from the highest tree. We should ignore those people.

And finally, there will be those who will wail that the standard of proof in corporate crimes is too hard to reach and that some lower legal threshold is needed.

The media comments attributed to former SFO chief executive Adam Feeley on the day of the SFO's Hanover announcement, about so-called inadequacies in the Crimes Act, seem to fall into this latter category and sounded a little like trying to find excuses for coming up short in the evidence stakes.

If an agency fails to collect sufficient evidence to lay charges then it is either because there is, in fact, insufficient evidence of wrongdoing (for example where no crime has taken place) or because the agency itself has fallen short. There is no reason to blame the current Crimes Act. Charges can readily be found to meet dishonest behaviour, provided you have collected the evidence.

To suggest that in corporate fraud investigations we might replace the need to prove "individual dishonesty" with some vague concept of a dishonest "collective mind", even when prosecuting individuals, is a little like saying, "well we didn't clear the bar with any individual jump so we need to be able to add all our jumps together and then claim we cleared it each time".

The SFO reached a view in Hanover that there was insufficient evidence of criminality. An agency charged with investigating corporate crime (and not corporate morality) should not need to rely on legislated low-hanging fruit to guarantee that its investigative outcomes match initial expectations or the swagger at launch.

Gib Beattie is a principal of Beattie Varley Ltd, forensic accounting and litigation specialists. He was formerly the assistant director and head of investigations at the SFO.