According to the Federation of Small Businesses (FSB) some 20% of all crime takes place on business premises. When you think of all the theft, murder, drugs and the like, this is an awful lot of crime!

The reason of course is that businesses are the target for all forms of fraud – employee fraud, creditor fraud, supplier fraud, Internet fraud…the list can go on. You should not wait until your business becomes a victim as it inevitably will at some point, do something about it now.

Apart from the obvious security issues for your assets, you need to put together a fraud reduction strategy that will help protect your business from various types of fraud, phishing, pharming, identity theft plus hacking and virus threats to your IT systems.

Your data needs protecting also. Even apparently simple information such as your customer lists are valuable and you do not want your employees giving it to your competitors. The data can also be lost through burglary and criminal damage to your premises. Think of the effort that would be required trying to recreate this information.

Remember to vet your employees when recruiting. You want trustworthy workers who will not put your business and assets at risk. Resumes very often contain falsehoods, and at best exaggerations. Make sure you take up references, check periods of employment and question what an applicant was doing in a “gap” period. Perhaps they were doing time at Her Majesty’s pleasure for fraud! Yes fraudulent employees do commit the same crimes time and time again, moving from one complacent employer to another.

Complacency is the name of the game when it comes to fraud risk. Although it does not always pay to be overly oppressive in your anti-fraud policy and cause resentment and even fear amongst your staff, a tightly controlled work place will undoubtedly prevent the fraudster striking or at least make him think twice before having a go.

Mark Jenner is a forensic accountant and fraud expert advising companies on cost effective ways of preventing fraud.

I thought that an article in the Sunday papers about the Serious Fraud Office this week would be a welcome read. However as I read down the first colmun the old cynicism crept in! The piece was an interview with a senior staff member Phillippa Williamson.

It was not the human angle that annoyed me, but the alarm bells began to ring when I noticed that prior to the SFO she was working for HMRC in charge of tax credits and child benefits. Reading down I was reminded that her current boss, Richard Alderman was also a former colleague at Revenue & Customs.

I have often noticed the various positions being advertsied – head of Asset Recovery Agency, Head of this, deputy for that – and in each case I have considered (for a very brief moment) applying. I have occasionally taken a passing interest in those that get the jobs. The Curriculum Vitae usual gives a history of public sector posts a little like Ms Williamson.

It upsets me a little to think that my industry’s flagship fraud regulator is just like any other politically driven organisation. I do not believe that politics and results go hand in hand very often and the regular accusations of cronyism by the press are well founded it seems.

Fraud is an insidious problem in the UK. Yes, I am just looking at the UK today, but no doubt many other countries will have the same problem. We are getting a Fraud Reporting Center so that we can begin to know really how much fraud costs us every year. We might be merging the SFO with the Financial Services Authority (particularly likely as the Conservatives are advocating this move). There was talk about a merger of the SFO with the Serious and Organized Crime Agency a while back.

There is plenty of talk, it seems that all parties recognize the threat of fraud, in the same way as they know there are too many vehicles on the road and that the railways ought to be developed properly. It is one thing knowing, setting up inquiries, having expensive working parties report the problem. What we need is direct action to stop fraud becoming further entrenched into our way of life. I hesitate offer more quasi political advice but perhaps the country needs its own “fraud policy”? I and others are always preaching to companies that they need one – it would go a long way to deter the fraudster and perhaps remove the need for the self gratifying public relations exercises that the SFO feels that it needs to promote in the form of reported interviews with its old schoolboy (or girl) network of staff!

Our criminal justice system has grown up over centuries as our society has progressed and is thought to be fair. Others criticise us, saying perhaps we are too soft on criminals. However, being magnanimous is probably better than being ruled by autocrats and tyrants. Better than having a hand chopped off for stealing. Better than being shot in the back of the head for actively opposing a regime.

The criminal justice system provides a balanced approach to dealing with crime. We believe in someone being innocent until proven guilty – the right to be heard by your peer – these are the mainstay of our whole modern way of thinking and has served us well on more occasions than it has failed. A very important element of this system is the right of criminals to present a case to defend themselves – the right to be heard. This is fundamental.

Criminal defence in the UK (or criminal defense in the USA) does mean that the whole judicial system is somewhat adversarial. We feel that the actions of the regulators and prosecutors must be tempered by a criminal defense system to ensure that they do not ride roughshod unfairly over the criminals, some who may well not be guilty, or as guilty, as their accusers say.  We must make sure that the system is properly managed, adequately funded and reaches the results that everybody wants – to punish and deter the criminals and to recognize when a person is not guilty or perhaps not as guilty as the indictments suggest.

The application of the Proceeds of Crime Act 2002 in the UK can provide an example of potential problems arising if the criminal defence team is not able to challenge the prosecution’s position. If somebody has been convicted of a crime they will have to serve a sentence proportionate to that crime – maybe in jail. But with POCA it is necessary to make sure that crime does not pay – so no longer can a person rob a bank, do time in jail only to be released a rich man! The conviction is now followed by confiscation proceedings. This is intended to stop crime paying – to take away the wealth of the lifestyle criminals.

However, the provisions within POCA allow for the possibility that somebody who steals only a modest amount may still be presumed to have a criminal life style. The Crown will apply for confiscation of everything the criminal owns – plus what he has assumed to have received – for several years previously. Obviously this needs to be challenged as the assumptions can be sweeping and need not be underpinned by evidence. It is up to the criminal defense team to show assets have been paid for with legitimate funds and that are receipts over the preceeding years are not from crime.

Sometime it is difficult to find adequate accounting evidence to show this, even by using forensic accountants, and a person is ordered to pay back more than he stole, more than even he possesses. If he is unable to do this he is in default and may be given substantial additional custodial time! This is why sufficient funding for the criminal defence team, including for a forensic accountant to do a full and detailed response to the Prosecution’s case, is essential if justice is to be done.

I was reflecting on the direction that my fraud investigation case portfolio would be taking over the coming few years – part of the anticipation many of us have about the fall out from the global economic downturn that is currently facing us. I think that my focus will be largely on frauds arising from companies that have gone bust. This is the time when the inner workings of a fraud are exposed, and thefts and defalcations would often simply carry on as long as a company is healthy. I have investigated many businesses that have been abused by the fraudster for many years, have passed through their annual audits with flying colours only to become exposed due to an unfortunate incident such as defaulting creditors or litigation that causes them to nosedive. A recession can crystalise such problems of course.

Do not be deceived into thinking that the recovery will protect those frauds that are currently taking place!

Commentators are split between those that say that the “green shoots of recovery” are showing and those that say we are bouncing along the bottom of the recession still.
In a way they are both right! The recovery from what is accepted to be, for the UK at least, the deepest recession (in 100 years?) will be complex. Just because houses are selling and yes, some green shoots are showing, it doesn’t mean that the throwback from the irresponsible credit problems of recent years will be swiftly cleared up.
Insolvencies are increasing and practitioners, in London at least, are busy. However, the floodgates have not yet broken and we don’t yet have a tidal wave of administrations, receiverships and liquidations revealing a vast array of fraudulent activity. I think that it is still to come though, with reports saying that many businesses are teetering on the brink. Just because we are making progress with mending the economy does not mean that the problems are over for many.
The ease with which many companies are phoenixed using the “pre pack” administration tool is open to abuse. The regulators are wise to it and look closely at obvious examples. This is clearly an area where fraud will come to light in the coming months and years – and the process will be examined in more detail in my latest research article on my Fraud Advisory Website.
Read my regular investigators diary blog for further fraud developments resulting from the Global Credit Crunch!

It is possible to divide asset recovery into a number of different camps depending on the circumstances giving rise to the need for claiming back money or goods that rightfully belong elsewhere. 

The first of these areas include criminal asset recovery or confiscation, from fraudsters and other criminals who benefit from their crime such as drug dealers or those that deal in human trafficking.  Such asset recovery is carried out through the criminal justice system but can also involve civil asset recovery using both the civil and the criminal courts depending on the circumstances.

The next area is the asset tracing and recovery from fraudsters or persons or organisations involved in sharp business practice through the civil courts.  This involves civil litigation through the civil courts.

Last but not least is the recovery of assets from insolvent individuals and organisations.  This is recovery of assets after the fact, attempting to trace assets that should be available to creditors of the insolvent entity.  A fraud investigator investigating such losses must need to be aware of both criminal and civil considerations when dealing with bankruptcies, receiverships and liquidations.  An insolvency will normally be investigated under the provisions contained within the Insolvency Act 1986 which details of numerous criminal offences.

Whatever powers and provisions used to investigate and recover assets, there can be no better outcome to asset recovery than when negotiated settlemement and recovery is achieved.  This means that costly litigation is avoided and a fraudster may well avoid the most serious sanctions if he pays the money back. 

When deciding to investigate a loss due to fraudulent activity with a view to recovering assets an understanding of the likelihood of recovery must be obtained before substantial resources are expended on protracted analysis, interviews and other research.  This is to reduce the risk of the gamble taken as to whether or not an asset recovery action will be successeful.  It is quite easy for legal fees to reach six figures and more when asset freezing injunctions, search orders, financial investigations and legal counsel are employed by lawyers progressing a case.  This is why it is always a good idea to have a fraud response plan in place within any organisation (in addition to a fraud policy) which sets out how to act if a fraud or loss is suspected.  Provisions can be made for an immediate and totally confidential appraisal by a fraud expert in order that the correct decisions can be made at the start and costly mistakes avoided.