The Policing of Commercial Malpractice — Public Law or Self‐Regulation
| Date | 01 April 1994 |
| Published date | 01 April 1994 |
| Pages | 187-194 |
| DOI | https://doi.org/10.1108/eb025646 |
| Author | Samantha Linsley |
| Subject Matter | Accounting & finance |
The Policing of Commercial Malpractice —
Public Law or Self-Regulation
Samantha Linsley
Samantha Linsley
is a barrister and Technical Compliance
Manager at Couttes & Co. In the course
of her career she has worked for the
Crown Prosecution Service and financial
services regulator IMRO. For the past
four years she has been employed as a
Compliance Officer and has recently
completed the postgraduate Diploma in
Compliance Studies at Exeter University.
ABSTRACT
Whilst the criminal justice system has
evolved over the last seven years, it can be
argued that the ability of the current criminal
justice system in England and Wales to deal
with the investigation, prosecution and trial
of serious and complex fraud can still be
challenged.
Using material gathered whilst
undertaking research for the Diploma in
Compliance Studies at Exeter University,
this paper makes a number of recommen-
dations in this context. The existence of civil
remedies and the regulatory structure
created under the Financial Services Act
1986 may offer a limited opportunity to deal
with some categories of commercial
mal-
practice in an expedient and cost-effective
manner, outside the scope of the criminal
justice system.
This paper derives from research carried
out with the purpose of reviewing the
investigation, prosecution and trial of
serious fraud in England and Wales in
order to assess whether commercial mal-
practice is in fact a proper subject for
'public law', or whether it could be more
effectively and expediently dealt with
through civil law remedies, or by the
self-regulatory agencies created under
the Financial Services Act 1986. This
paper represents a summary of the main
findings and interpretations of that
research, which included interviews
with three experts in the field.
In considering this issue, one is bound
in two ways. If one concludes that the
criminal justice system can offer an
effective and efficient method of the dis-
posal of commercial fraud, the argu-
ments for and against the use of the
regulatory system become commensur-
ably less significant. If, however, the
conclusions suggest that major legisla-
tive and procedural changes arc required
to facilitate the effective and efficient
prosecution of commercial fraud, the
scope for use of regulatory sanctions
where appropriate takes on a greater sig-
nificance.
Thus there are two elements in the
writer's conclusion. First, there was con-
cern to assess the veracity of the conclu-
187
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