The recent welcome action by the Regulator to bring criminal proceedings in respect of pensions fraud in the case of Roger William Bessent and the Focusplay Retirement Benefit Scheme raises the question of when will TPR bring proceedings under general fraud provisions and when under the new criminal provision in the Pensions Bill?
This is a matter of interest for providers, schemes and employers alike. A key difference is that fraud actions sit generally outside of the pensions legislation, with their own history of precedents and procedures, whilst the new criminal powers under the Pensions Bill sit within specific pensions legislation and overlap in many areas with the existing Moral Hazard Regime.
Both defendants and victims of crime may benefit from clarity as to which regime is likely to apply and in which circumstances. Take for example a section 72 request for information - will that information be used for pensions legislation purposes or for a general fraud claim? The degree to which a disclosure is relevant and therefore the degree to which it complies with the section 72 regime may depend on this question. The importance of this point is brought out by non compliance with a section 72 request potentially giving rise itself to criminal liability.
In short, the new TPR powers may promote member protection whilst at the same time - as the web of the growing variety of TPR powers grows, there is ever more need to know how that web will be cast and when it will be applied.
Erica Carroll, TPR’s director of enforcement, said: “Bessent held a position of trust which he abused for his own gain – stealing money meant for hardworking scheme members’ retirements. “[This] result shows TPR is determined that criminals such as Bessent are not only punished for their crimes but also do not benefit financially from their crimes. The money he stole will now be returned for the benefit of the scheme members he took it from.