THE PROSECUTION of white-collar crime in the US is not as different from here as many commentators seem to think, according to senior counsel Shane Murphy.
He told the annual conference of the Director of Public Prosecution (DPP) that when there was a major financial scandal, there was a danger of over-reaction and mistakes could be made as a result.
“There is a need for a cool, balanced assessment of the evidence and a calm response,” he said.
There was a danger that both people and the political establishment thought the problem could be met by yet more laws.
There were ample laws to investigate white-collar crime; the question was whether they were being used properly and whether procedures needed to be simplified, he said. The prosecution of fraud was always difficult and had been found to be so in the US.
However, the challenges were not insurmountable.
A major change that had taken place in the US in the 1990s was that the federal guidelines on sentencing changed.
Judicial discretion was enormously reduced. This was aimed at forcing people to choose a plea at the earliest opportunity, as could be seen in the recent arrest of Dominique Strauss-Kahn. “We would not be comfortable with that here,” Mr Murphy added.
The American system of plea-bargaining allowed the question of a plea to be discussed. He said the Madoff case, where there was a swift investigation with a clear goal, was not an appropriate parallel for this jurisdiction.
A more relevant case was that of former billionaire hedge fund manager Raj Rajaratnam, convicted earlier this month on insider trading charges. The investigation began in 2008 and he was arrested in 2009.
He fought the case and his conviction was in doubt until a guilty verdict was brought in after 12 days of jury deliberation. “The prosecution was every bit as difficult as it would be in this jurisdiction,” he said.
Mr Murphy added that there were laws here that could be more widely used.
These would include allowing written admissions to be made and the accused getting credit for doing so; the confiscation of assets following conviction, where the burden of proof that they were the proceeds of crime was on a civil rather than a criminal basis; and a more widespread use of the practice now begun by the DPP of co-operation between the investigators and the prosecutors at an early stage, to “open up pathways” for the investigators to follow.