From: An ex-IFA
Sent: 16 November 2004 19:31
To: Evan Owen
Cc: IFA Defence Union; firstname.lastname@example.org;
email@example.com; Gordon Brown; Callum McCarthy; Hart,
Subject: Re: Claims Culture - Solution
It is as complex as those who have already made their minds up before considering the facts wish to make it.
I also think part of the fee should be paid to the defending Adviser if the complaint is NOT upheld. WHY should they work for nowt building a chair to sit upon when a complaint throws the defending Adviser into the Regulatory ducking-pond - if the complaint is not upheld?
There is another point for consideration. Give the complainant the choice of the FOS OR the Court. WHY should the FOS decision be binding ONLY upon the defending Adviser?
There is another very serious issue so far not covered. A complaint which is or contains a lie and whose expected outcome is in whole or part financial will be guilty of committing the crime specific to the relevant section and act under the overall genus of Fraud.
The offence may be relevant thus reportable about a complainant who is reckless of whether a statement is true or not yet expects financial
redress or compensation. Fraud is a Financial Crime.
Under the Proceeds of Crime Act a defending Adviser may be sent to prison for failing to report...see the proof on the FOS own website
Where there is contradictory documentary proof on file that the complainant has lied this should be sufficient to trigger a suspicion worth taking seriously and consideration given of reporting the complainant to the Fraud Squad for the local Police Force or to NCIS.
The FOS website is very clear on this, saying: - " reporting: under the Act, it is a criminal offence for anyone who works in a regulated financial firm not to report any dealing that they suspect, or ought to suspect, involves the proceeds of crime. The report should be made to the firm's money laundering reporting officer, who must report appropriate cases to the National Criminal Intelligence Service
It must be remembered that if a complainant lies there may very well be grounds for a "SUSPICION" about possible Money Laundering through this easy to ML system of Financial Services complaints...and possibly also a suspicion about the validity of documents provided for proof of ID verification. Failure to REPORT any "suspicion" may involve a prison sentence for the innocent Adviser or forms ML Reporting Officer.
NCIS refuse to divulge their email address...which is unusual to say the least. They provide a PO Box for their address but I have yet to learn of anyone from NCIS being a speaker in any seminar for Financial Advisers about Money Laundering and the Proceeds of Crime Act 2002...which is also startling considering their role. Perhaps NCIS have no comprehension of the Financial Crime of Fraud stemming from a
complaint to a Financial Adviser..and as an aside, how EASY to Money Launder through the CURRENT Financial Services free complaints system, although that would show a severe lack of "intelligence".
I discussed this with a Fraud Squad Officer client who was beside himself at the lack of information on all this from the Regulators and NCIS themselves.
Please note: None of the F-Pack (FSA, FOS, FSCS) provides immunity for any Adviser from the above reporting requirement under the Proceeds of Crime Act 2002. It is also worth noting the Criminal Justice Act 1993 then covered all serious crime in addition to drug and terrorist related activities. Fraud may be a "Serious" Crime even before the Proceeds of Crime Act 2002, although the 2002 Act involves ANY Criminal activity, so lying for financial reward/redress/compensation via a Financial Services complaint is certainly now covered even if it was not deemed "SERIOUS" enough before.
The FSA will point out that their rule on treating customers fairly applies in every dealing with customers, albeit this does not seem to work in reverse by requiring the complainant to be honest or face sanctions from any of the F-Pack. This is NOT immunity from the law for the false complainant and the reporting requirements outlined by the FOS above and any attempt by the FSA to prevent any defending
Financial Adviser to comply with the law as described should be reported to the those responsible for the FSA - the Treasury under Gordon Brown and I would also say given to the National press and BBC, just to ensure no rugs are lifted to place the issue under. Details must NOT be divulged of the case nor sufficient detail given to anyone apart from the members ML Reporting Officer and NCIS in case the Adviser, whilst trying to whistle blow, ends up inadvertently committing the crime of "tipping off".
Despite appearances to the contrary we do not live in a "completely" dictatorial Regulatory-police State..yet. The reader should however be aware that this Governments Whistle Blowing protection does NOT appear to extend to a Regulated member reporting ANYTHING about the FSA simply because Whistle Blowing (Public Interest Disclosure Act 1998) apparently deals ONLY with "Employees" of the firm being reported and incredibly not to other people aware of Whistle Blowing issues and Regulatory revenge (extra reporting requirements, visits and making
life hard generally) could be expected if you criticize the FSA. The FSA are protected by the Treasury under the terms of the Financial Services and Markets Act 2000.
There may be many examples of complaints that are false....one example is a statement in the complaint that the Adviser did not carry out a Fact Find and therefore has no knowledge of the clients circumstances sufficient to have made a recommendation. A Fact Find on file shows the statement to be false. The question is whether the complainant has committed an act of fraud by knowing the statement to be false, which is more likely if the Fact Find has been signed by the complainant and
whilst this is not irrefutable proof that a Financial Crime is in progress it should be sufficient for any Court to state the defending Advisers "SUSPICIONS" should have been raised and the spectre of prison for failing to report as described by the FOS becomes more real for the defending Adviser.
There was no requirement in the rules that I recall for a Fact Find to be any set format by the way. The concept of a Fact Find of sorts was introduced on 29th April 1988 under the Financial Services Act 1986.
I have most often read a complaint of the above category from a complainant whose recollection of facts is based upon the downloading of their memory from a website run by OTHER people with no REAL and ACTUAL knowledge just assumptions of what was really the case between the Adviser and Client. I would draw the readers attention to the statement on the FOS website :- assistance: under the Act, it is a
criminal offence for anyone to be involved in arrangements that they suspect facilitate (in any way) someone else in acquiring, retaining, using or controlling the proceeds of crime.
It would be interesting to read in the media of the outcome if any Ambulance Chaser or Facilitator WAS "warned they could facilitate" such an offence by failing to warn their client of the absolute requirement for the truth, the WHOLE truth and NOTHING BUT the TRUTH.
I can see a Criminal Court looking into "assistance under the Proceeds of Crime Act" as described on the FOS website where any false claim came from an Ambulance Chasing firm, especially where that firm had been warned in writing that they could be facilitating "assistance" under the Act if they did not document their warning to their client (which surely includes surfers to their site who download provided
complaint material) of the absolute requirement for truth and that no part of any complaint should contain anything of which the complainant is unsure of the truth and accuracy of.
It is of concern to learn that none of the F'-Pack (FSA, FOS, FSCS) would apparently ever report a complainant to the authorities for the question to be considered of prosecuting the complainant for an offence under the genus of Fraud even when this is stronger then just a suspicion. I am unaware however of any of the F-Pack being given immunity under the Proceeds of Crime Act 2002 and would be obliged to anyone who can confirm they have immunity. Immunity from the Proceeds of Crime Act 2002 may not come from the protection afforded the F-Pack in other ways under the Financial Services & Markets Act 2000.
Please read the MAIN principles of the FSA. THESE ARE BEYOND DOUBT as
they are statements of fact. I gather anyone can complain if they believe the FSA is FAILING in its legal duty to carry out the principle...one of which says what about Financial Crime?
Helping to reduce financial crime. Our work focuses on three main types of financial crime: money laundering; fraud and dishonesty; and criminal market misconduct such as insider dealing.
Then ask yourself, WHY do the FSA NOT include the public in the above?
From. An ex-IFA
(which by definition is precluded by the AIFA from representing the
very people the AIFA claim to defend).
Civil Obedience Rules OK.