Overlooking a Bargain : OUTLOOK
The natural reaction to the way the Government and the Serious Fraud Office have between them mishandled the attack on large-scale City fraud is to look for an alternative way to nail the villains.
This has led to the increasingly fashionable view that City regulatory powers and the civil law - with its lower burden of proof - could do the trick.
In fact, the idea that if the criminal law does not work the civil law is an alternative is a fallacy, based on seeing the two as contradictory extremes. What has been missing from the attack on City dishonesty is the sensible use of civil and criminal actions at the same time. At present they happen in sequence, with the regulators waiting until criminal actions are over before they pronounce.
The Royal Commission on Criminal Justice 18 months ago proposed a system of bargaining in which prosecutors and regulators would co- operate closely in negotiations with a defendant over whether he or she would accept a "sufficiently severe" regulatory
penalty. In return the prosecution could be dropped altogether or the charge reduced to a lesser but still criminal offence, to which the defendant would plead guilty.
This would not be quite the same as the formal plea bargaining controlled by a judge, as used in the United States. But it would be a step in the same direction. …