In its response, the SPP found the policy did not adequately distinguish between conduct giving rise to criminal sanctions, which should be reserved for the most serious misconduct, and conduct giving rise to civil liability.
The SPP also called for:
• The policy to explain how the Regulator will interpret and apply the concept of "reasonable excuse" in a practical context when deciding what cases to prosecute.
• The Regulator to include trustees of pension schemes in the policy, and to provide reassurance that trustee actions taken in good faith will not result in prosecutions.
• The policy to help employers determine which side of the line conduct would fall in difficult situations – the examples in the draft policy relate to extreme scenarios, but the difficult areas in practice will be the less black-and-white situations which fall in between, such as restructuring arrangements.
• The policy to make clear that persons other than the employers and trustees should not be expected to act against their own interests merely because there is a possible consequential effect on a pension scheme.
• The Regulator to commit to maintaining a public record of what published guidance was in force at any given time, available on its website, so it can easily be established what guidance was available to participants at the relevant time.
Nick White, a member of the Society of Pension Professional's Legislation Committee, said: "The uncertainty around whether corporate and other decisions could come under criminal scrutiny may stop some genuinely legitimate transactions. We believe both the Regulator and the wider pensions community would benefit from clearer guidance about what behaviour might lead to prosecution and what is considered legitimate commercial activity."
Christopher Stiles, a member of the Society of Pension Professional's Legislation Committee, said: “While criminalising behaviour which intentionally or recklessly puts savers' pensions at risk may be commendable, the Regulator’s draft prosecution policy allows a far wider range of conduct to fall within the scope of the new offences. Successful prosecutions and effective deterrence would be more likely if the policy were clearer on what behaviour is now considered so unacceptable as to be criminal. This clarity would not only protect the innocent, but also better serve the interests of pension scheme members."
|
