2023v14, Sunday: A little. Late.

14th May 2023 JSJLeave a comment

It’s nice to see a government at least pretend to take fraud seriously. It’d be nicer for them actually to do so.

It’s almost 20 years ago that a senior police officer handed me a sheet of paper. On it was a table showing the number of specialist fraud officers in every police force in England and Wales.

Adding up the columns, the total force strength of fraud investigators didn’t even break four figures. Out of 100,000-plus officers, not even a single percentage point.

I remember writing about it for the BBC at the time. And then about the Fraud Act and Fraud Review, two years later. I left the BBC in 2007, but stayed involved in investigating and preventing fraud first at the Financial Services Authority and then in two international banks. And now, of course, as a barrister dealing both with civil and criminal fraud is still part of my daily life.

Throughout those two decades, fraud’s only got bigger. More common. Easier for fraudsters. More damaging for individuals. More prevalent. More endemic. More expensive.

One thing hasn’t changed, though.

We – that is, the UK government – still doesn’t take it seriously.

Grand plans

I’m writing this now a week or so after the very, very long-awaited Fraud Strategy was published.

It talks tough. Several hundred new officers, in a new National Fraud Squad. Making fraud an official policing priority. Using the intelligence community. Leading the world. New reporting mechanisms.

Great. Big stuff.

The scale of it

But let’s put it in context.

Getting on for half of reported crime is fraud.

The latest Economic Crime Survey fraud and corruption review (I’ll resist the urge to comment on the fact that this in fact dates back from 2020 – published this month with no word as to why we’ve had to wait three years, although of course the numbers are starkly embarrassing) says one in five businesses had suffered from fraud in the previous three years – and that’s not counting the hundreds of thousands of individuals who’ve lost sums ranging from small but painful, to life-changing and catastrophic. (The ECS notes that fraud accounted for 41% of recorded crime in the year ending September 2022, with 6% of adults being a victim. UK Finance’s fraud report gives a further small flavour of this.)

Not to mention what is to my mind one of the greatest harms caused by rampant fraud: the wholesale destruction of the trust on which any properly-functioning economy rests. The faith – let’s call it that – that on the whole, when you do business with someone, you don’t have to assume they’re going to try to rip you off.

So even with these new numbers – and ignoring the parlous state of the criminal justice system, which gets no new resources here to enable anyone investigated actually to be successfully prosecuted amid crumbling courts, staff worked to tears, and lawyers often paid less (when you count up the hours and then honestly account for expenses) than minimum wage – we’re still staring at something which barely exceeds that single percentage point. If it exceeds it at all.

This isn’t taking fraud seriously. This is doing the bare minimum. It’s buzzword bingo. Not real solutions.

If not now, then

I’m not saying this isn’t worth doing. It is. Let’s not let the perfect be the enemy of the “at least it’s something”. If the alternative is nothing, I’ll take this.

But it’s astonishingly uncreative. Unambitious. People have been talking, shouting even, about the effective decriminalisation of fraud for two decades. There are lots of ideas, from better prosecution techniques, to public-private partnerships, to incentivising private sector asset recovery, to … well, many more. Lip service is paid in the Strategy, but that’s as far as it goes. There’s scarce sign that anyone’s been listening.

And worst of all: it’s hard to see anything here (other than the stuff about online harms – because, of course, those didn’t exist in the same way in 2004) that couldn’t have been done at any point during these past two decades or so. If only someone had had the will. If only someone had cared.

Had fraud started being taken seriously back then, as it is in many other countries, we’d be in a very different place. Instead, we’ve had inertia, spinning wheels, – no, worse: neglect. While fraudsters have had 20 years to get better. To learn. To evolve.

We’re starting now, perhaps. At long, long last. But from way behind the line.

Who cares?

And that’s deliberate political neglect.

Starting with Labour, to be sure: I remember sitting round a table in the Law Officers’ Department as the Fraud Review was launched, a seat or two along from the great Joshua Rozenberg, as he and I and others hammered away at the abject lack of meaningful resources being offered to confront what, even then, was clearly a grossly metastasizing problem. But the past 13 years of neglect has been the Tories. Ignoring the problem. Even when the crime figures finally showed just how huge it really was.

I don’t know why this has been such an also-ran. It always seemed to me like an open goal, popularity-wise: after all, who doesn’t have a relative, or a friend, or a neighbour, who’s been left with empty pockets, or cleaned-out bank accounts, or a gaping hole in their pension – and, even worse, that mortifying (and I stress wholly unfair) sense that since nobody’s taking it seriously, and since they must have been a mug to get taken in, somehow it must be partly their fault?

So I’ll take what’s on offer. But I’d love to see someone make this an issue when the next election rolls round. Surely it’s a vote-winner?

But then, what do I know. I’m just a lawyer.

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2021v1, Saturday: What’s measured matters.

1st May 2021 JSJLeave a comment

When measures become targets, they’re useless as measures. But when something isn’t measured at all, it’s invisible…

Short thought: a rare day off yesterday with spouse. So nothing written. Catching up today, I spotted one of the terrifying number of tabs I currently have open and awaiting attention, which dealt with Goodhart’s law. And that took my mind to fraud.

Yes, I know: for me, that’s a fairly short leap from practically anywhere. But bear with me for a moment. Goodhart’s Law, named after economist Charles Goodhart, holds that “Any observed statistical regularity will tend to collapse once pressure is placed upon it for control purposes.” Or, more simply and pithily: measures become useless as measures once you start using them as targets.

Why is this? Because measures are diagnostic: things that help you understand a situation. They’re therefore only any use as long as they’re objective. And as soon as people start being graded according to that measure, it will be gamed. Think hospital waiting lists, or A&E waiting times, or paying teachers (or funding schools) by kids’ school grades. Or stack ranking in workplaces.

Which means I have mixed feelings about this story in the Times (£, sorry). It talks of six metrics by which police forces will be ranked. None of them, predictably, explicitly deals with fraud – the single largest crime problem the UK faces, yet the one with probably the least amount of focused resource and attention.

This brings back memories. In 2007-8 I spent a short amount of time working with people at what was then the (short-lived) National Fraud Strategic Authority. One thing that passed across the NFSA’s desk was a proposed set of police performance indicates. There were 147 of them, I recall – and not a single one dealt with fraud. Most were obviously chosen because they were things that were easy to count, rather than things that would genuinely make a difference in the effectiveness of policing.

So on the one hand, having just six – and high-level at that (homicide, serious violence, drug supply, neighbourhood violence, cybercrime and “victim satisfaction”) – is a step up. As is a Home Office source’s comment that “I wouldn’t classify them as targets.”

So not a Goodhart problem, then?

Hardly. Because the next sentence is: “It’s about tracking progress — we’re giving forces extra officers and now we want to see outcomes.”

So it’s directly a Goodhart problem. As has been the case before, forces will game their resource spend to make sure the Home Office is happy.

And fraud, as ever, will be forgotten. As will its millions of victims. Because, to be cynical, their problems cost too much to fix.

(Yes, yes. “Cybercrime” could be interpreted to include a lot of fraud. But it’s not the same thing. And how is “dealing with cybercrime” to be measured? I have no idea, and I’m pretty sure the Home Office doesn’t either.)

Someone is right on the internet: This is the third piece in a row in which I’ve mentioned the Horizon scandal. I won’t apologise. This is disgraceful, and it deserves a lot of noise.

So today I’ll simply point to someone who, if we had Pulitzers in this country, would deserve one for his coverage of this: Nick Wallis. This piece by him in Private Eye describes the scandal in great detail. Read every word. And then get very angry. And then decide how the issues that arise herein might arise elsewhere – and start thinking about who should be held to account for not making this a priority.

One quick sideline: I should have mentioned when writing about Horizon that the Post Office – shortly before Mr Justice Fraser tore Horizon to shreds – agreed to a £58m settlement of many postmasters’ claims. You can make your own mind up as to whether sociopathy on this level can be satisfied by that, or whether individuals should also be held to account.

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2021iv26, Monday: An affront to justice.

26th Apr 2021 JSJLeave a comment

Firstly – sorry for being off-schedule. Exhaustion, I’m afraid. Back to work, with a few words about the wholly shameful tale of the Horizon prosecutions.

Preface: I apologise. Last week was insane, to the point where I fell asleep before 9 on Friday night and (unusually for me) slept for more than 8 hours without interruption. The combination of general exhaustion and a hearing on Thursday for which the papers arrived very late, together with a family need to drive into central London and back on Wednesday (which meant losing about 6 hours of the working day) means I’ve wholly failed to keep up the schedule.

With readers’ permission, I’m going to forgive myself the lapse, and simply try to get back on schedule.

With that in mind…

Short thought: There are probably more egregious examples of shameless people doing shameful things than the one highlighted in the acquittal on appeal of 39 sub-postmasters in the Horizon affair. But offhand, it’s very hard to think of any.

The tale is told, with clarity, in the Court of Appeal’s judgment. For those few who don’t know:

A Post Office accounting system, called Horizon, found significant errors and omissions in the accounting of a number of post offices.
The Post Office said, and continued to say, that Horizon’s numbers were unquestionably accurate, and that the only explanation was fraud by the sub-postmasters running the post offices in question.
It prosecuted dozens of them. For many, the Horizon data was the primary basis for the prosecution. Many were found guilty. Others pled guilty because they weren’t given access to underlying data and – in effect – had to prove their own innocence without the tools to do so.
But – as it later transpired – Horizon was fatally flawed. Its data was unreliable, as an earlier civil court case demonstrated in a superb judgment from Fraser J, one of a series of such exemplary pieces of jurisprudence.
And the Post Office knew it, but despite advice from a barrister who does credit to my profession (see paras 81-90 of the Court of Appeal judgment), refused to disclose it so as to avoid embarrassment.

A number of sub-postmasters appealed their convictions. And now, for all but three of them where there was other evidence, their convictions have been quashed.

I’m not sure “quashed” is a strong enough word. The judicial distaste, bordering on real anger, for the way the Post Office conducted the matter (as a private prosecutor) rings out throughout the 447 paragraphs of the Court of Appeal’s judgment.

Honestly, I can’t do justice to it. It’s a long read. But this is one of the great scandals of English criminal law: the conviction of dozens of people whom the Court of Appeal says were subject to prosecutions which amounted to “an affront to justice”.

These are not idle words. What the Court is saying is that in effect the system of criminal justice was abused by the Post Office, in its deliberate failure properly to investigate, and then to disclose matters which it had been clearly warned it had a legal duty to share with those it was prosecuting.

The depth of dissatisfaction is clear at paragraph 133:

POL’s [Post Office Ltd] failings of disclosure and investigation… ‘directly implicate the courts’. If the full picture had been disclosed, as it should have been, none of these prosecutions would have taken the course it did before the Crown Court. No judge would have been placed in the unhappy position of learning – as some judges (or retired judges) will do if they read this judgment – that they unwittingly sentenced a person who had been prevented by the prosecutor from having a fair trial.

To be clear: the Court of Appeal isn’t just feeling sorry for its sibling judges. Far from it. From the previous paragraph:

It is important here to state that many of these appellants went to prison; those that did not suffered other penalties imposed by the courts; all would have experienced the anxiety associated with what they went through; all suffered financial losses, in some cases resulting in bankruptcy; some suffered breakdowns in family relationships; some were unable to find or retain work as a result of their convictions – causing further financial and emotional burdens; some suffered breakdowns in health; all suffered the shame and humiliation of being reduced from a respected local figure to a convicted criminal; and three – all “Horizon cases” – have gone to their graves carrying that burden. Inevitably, the families of the SPMs have also suffered. In each of the “Horizon cases” it is now rightly conceded that those human costs and consequences were suffered after the denial by POL of a fair trial.

POL’s conduct was beyond shameful. It betrayed the trust of trusted, loyal employees. It condemned them to ignominy and poverty on false information, covering its own back along the way.

POL and those responsible for making the relevant decisions showed absolute contempt for the court. I can’t help wondering whether the court might, in turn, wish to take more formal notice of this. There’d be some justice in it, for sure.