The Appeal Board of the Financial Services Board recently emphasised that findings of criminal or delictual conduct are only made by courts and lesser tribunals following hearings at which evidence is heard and tested by cross-examination. If decision-makers such as the registrar of short-term insurance have to consider whether wrongful conduct of that kind has occurred, no such finding should be made in the absence of clear proof that would render cross-examination superfluous.
This should be borne in mind particularly by ombuds as well as by others in charge of statutory enforcement proceedings. That does not mean these tribunals cannot, according to fair and rational procedures, make findings on regulatory breaches that do not amount to criminal or delictual wrongdoing.
