For the first time I am going to post the response I got from the City of London Police to my report of fraud by HSBC. In my view it is completely inadequate and seems to take the view that since the SRA, OFT and FCA didn’t take any action, they don’t need to either. It is not the remit of these regulators to bring criminal charges, it is a matter for the police. Quite simply if you add charges to an account hoping the debtor’s ignorance will allow you to get away with it, that is fraud.
If the police won’t prosecute and the FCA won’t prosecute (see TSC hearing), who the hell will? I tried to take out my own private prosecution but of course City of London Magistrates, funded by the City of London (as are the police) made it impossible. I need pro bono help from a barrister to prepare the summons.
The fraud has been looked at privately by two fraud detectives, one of whom is still serving with the City of London Police and both confirmed to me that it was a case of fraud.
Here is their response, from a Detective Chief Inspector in the Economic Crime Unit, City of London Police:
Dear Mr Wilson ,
I have fully considered your report of fraud and have come to the following conclusions , I understand my views will come as a disappointment to you but I do not believe that criminal law is the way forward or fits the problem you have identified .
I am however in the office this morning should you wish to discuss , I have also copied in you MPs office .
My conclusions go further than whether it is a case that the City of London Police would adopt for investigation as I believe that criminal law and the criminal judicial system is not the most appropriate way forward for your complaint that a financial institution charged customers for the costs incurred by its solicitors when seeking to recover bad debts .
In reviewing your allegation I have considered whether the allegation amounts to an offence under the fraud act , also whether any investigation would realistically lead to a criminal charge , including theft , false accounting .
In this case the police are the last enforcement body that have been asked to consider the problem with the OFT , SRA , and the FCA all receiving the allegation and coming to conclusions that would make police action impossible and highly likely to fail .
The OFT have conducted an investigation and came to the conclusion that the clauses in the consumer credit agreements were unfair rather than fraudulent .
This on reviewing is similar to the PPI situation with the major banks currently paying compensation to customers , which has not led to the criminal investigation of all the banks concerned or the banks ending up in Southwark Crown Court .
The PPI situation was brought to a head through a class action in the civil arena and if you are to have any success your complaint may need to take a similar route.
This would have to be qualified through legal advice and is an observation perhaps oversimplifying your complaint and chances if any of success in a civil court .
In reporting the suspected fraud to the OFT , SRA and FCA all have found that while the contract was considered to be unfair and may have breached professional standards that the allegation falls short of criminal activity .
The fraud act is not the most appropriate legislation to deal with an unfair contract , the fraud act is a very strong and effective piece of legislation and in the right circumstances leads to prosecution of offenders .
The element which would in my view cannot be proven is dishonesty .
This is key and without dishonesty proven criminal charges would not be authorised and it ceases to be a police matter.
The OFT , SRA , and FCA would have considered the use of regulatory offences and I understand took the view that prosecution was not the best way forward . The action that would have been considered would have been civil which required proving the offences to the level of a “balance of probability” .
This is a long way short of the level required for a criminal prosecution of “ beyond all reasonable doubt” .
I will provide an example of an offence where technically a fraud act offence may fit , but is not the most appropriate legislation to resolve the problem .
“ a lorry driver puts false information on his tachograph , which comes to light when he is involved in a damage only accident , his actions fit the fraud act as he has made a dishonest misrepresentation .
However the offence is best dealt with by the road traffic act and a non–criminal offence” .
In the case you bring forward the OFT have found the consumer credit act agreement to be unfair and required it to be amended which did in fact happen .
I am led to believe by the FCA that intervening in this way by causing small changes to how companies conduct business and in doing so protecting the consumer is in fact business as usual .
In assessing the viability of the report I have found it to be interesting and can see that it is unresolved for the customers who paid the fees who probably have no knowledge of the issue , and as “sub-prime borrowers” have little opportunity to seek compensation. The volume on the size the problem however has not been proven.
I respect your position as a whistle blower in attempting to put right what you see as an injustice.
On reviewing cases for acceptance I am limited in how the City of London police can assist by our remit , case acceptance criteria and have come to the conclusion that no crime has taken place under current legislation .