Human rights lawyer Karen Todner tells Spear’s about her fight to overturn the conviction of former derivatives trader Tom Hayes
I have a lunch with Karen Todner, the high-flying lawyer whose client Tom Hayes has just been released from prison after serving five-and-a-half years of his 11-year sentence.
The former UBS and Citigroup trader has been all over the financial and business press, but the matter is not finished – Todner believes she can retroactively get his conviction overturned.
Before we can discuss that, though, Todner must usher her three dogs (Lulu, Dylan and Napoleon) out of the living room of her cosy Oxfordshire home. Since we are speaking over Zoom in the time of lockdown, lunch is not served at a sleek restaurant but by her husband, Ian, who brings in the gluten-free fettuccine with black truffle Alfredo from Pasta Evangelists arranged by Spear’s.
Sixty-odd miles away, I tuck into wild boar ragu. Todner qualified as a solicitor in the late Eighties, setting up her own firm as soon as she was able.
She ran Kaim Todner for 25 years before it was acquired by One Legal and left in 2017 to practise independently. (One Legal later attempted to sue Todner over claims of undisclosed debts, but the action has since been stayed.)
As a leading human rights lawyer, she often works with clients facing extradition. ‘I like representing the underdog and having a fight,’ she says.
From 2002, Todner successfully represented Gary McKinnon, the Scottish systems administrator accused of hacking into 97 US military and Nasa computers using the name ‘Solo’.
They came together because of Todner’s experience with computer law (she had previously represented police officers accused of accessing the Police National Computer), however in 2005 McKinnon was told that he faced extradition to America.
‘I knew nothing about extradition at that point,’ says Todner. ‘But he said, “I want to stay with you,” and I said, “I’ll learn.” So I went and bought a book and I read about extradition, and since then that’s what my career has largely been about.’
‘You want to make a difference,’ she continues. ‘And that’s what I enjoy doing. Feeling good about what you’ve achieved in the day is a big thing.’
As well as specialising in extradition, Todner is known for representing people on the autism spectrum. McKinnon has Asperger syndrome, which prompted other autistic clients to contact Todner for representation after the case concluded successfully – in 2012, the then home secretary, Theresa May, blocked McKinnon’s extradition to the United States.
Like McKinnon, Tom Hayes has Asperger syndrome. In 2012 he was arrested for having manipulated the London Interbank Offered Rate (Libor), the benchmark that tracks the interest rate banks pay to borrow cash from one another. At the peak of his Libor-related trading, a 0.01 per cent move could boost Hayes’ gains by about $750,000.
Initially, Hayes entered into a Socpa (Serious Organised Crime and Police Act) agreement – a plea deal of sorts – with the Serious Fraud Office (SFO), where he stated that he was ‘part of the dishonest scheme, so obviously I was being dishonest’.
He then revoked his cooperation, however, feeling ‘unable to admit to things he hadn’t done,’ says Todner. Hayes asserted that rigging Libor had been common practice among the big banks.
Todner, who began representing Hayes at his appeal, claims the SFO failed to disclose documents at trial which would have shown Hayes was acting on instructions from senior management. But before she got involved, Hayes had already been sentenced to 14 years in prison.
‘The sentence was monstrous,’ says Todner. ‘It was much more than anybody else convicted [for manipulating Libor], they all got between two and six years. You don’t get 14 years for a stranger rape in the park.’
The judge, Jeremy Cooke, indicated he wished to ‘send a signal’ to others trading illegally, and in a recent interview with the BBC Hayes acknowledged that he was being made an example of, saying, ‘They wanted to jail a banker… I was that banker.’
Todner managed to reduce Hayes’ sentence to 11 years (of which he served five and a half) and is still representing him today: ‘I believe there are very, very good grounds for his conviction and sentence to be overturned,’ she continues.
‘I think what happened to him is very wrong.’ Hayes’ case revolved around two different depictions of him: the ‘ringmaster’ of a network of corrupt bankers, or the ‘fall guy’ for the scandal, whose colleagues called him ‘Rain Man’ and gave him written instructions to manipulate Libor.
‘If you give someone with autism instructions, they will follow them to the letter. They won’t see the subtleties or the hidden agenda, they’ll just say, “Well, that’s what I’ve got to do,”’ says Todner.
As well as issues around endemic malfeasance in banking, Hayes’ case throws up questions about the role that Asperger’s plays in white-collar crime.
People with Asperger’s are often highly intelligent with a strong understanding of complex systems and mathematics. However, they can also have difficulty reading social cues and intuiting moral decisions – a combination that can have problematic consequences.
‘Banks actively recruit people with autism because of the skills that they have in relation to maths and logic,’ says Todner.
‘I believe that the banks were very happy to reap the benefits of Tom’s abilities, but then when things went wrong, it was him that they hung out to dry.’
In an interview with Bloomberg, Hayes recalled how he kept being promoted despite being a self-proclaimed ‘nutter’. ‘It’s because I was a moneymaker,’ he said.
Gary McKinnon was also a victim of a system which did not understand him, according to Todner, as was another of her clients, British ‘hacktivist’ Lauri Love, who was accused of a spate of cyber attacks on FBI, US Central Bank and Nasa systems in 2012 and 2013.
The two men’s Asperger’s meant that neither of them, she says, grasped the severity of what they were doing.
‘If they ever thought that they would end up in the High Court, the Supreme Court, or the European Court of Human Rights, they would never have done the things they’re accused of.’
McKinnon’s motivation was to look for evidence of UFO cover-ups, while Love ‘just wanted to make a statement about his views’.
‘Sometimes the way people with autism go about it isn’t necessarily the way somebody else would go about it,’ says Todner. Both McKinnon and Love faced extradition orders, which Todner fought successfully on the grounds of their autism and consequent depression; both were suicidal at the time of their hearings, and she argued that extradition would be a breach of Article Three of the Human Rights Act: the right not to be held inhumanely or subject to torture (the same defence used by Julian Assange in his magistrates court victory).
At this point, Todner’s Scottish deerhound barges in, and I take the opportunity to wrestle with my pappardelle (much like ordering spaghetti on a date, I’d caution against eating pappardelle during an interview).
Once Lulu has been banished, conversation turns to a worrying trend in extradition.
‘We have a treaty with the US which David Blunkett brought in 2003, after 9/11,’ explains Todner. ‘The idea was that we would transfer terrorists between the two countries. And actually, what’s happened is that it’s used for just about anybody other than terrorists. It’s used a lot for businessmen, they are the ones that are facing trial over there.’
Mike Lynch is the latest example of a British businessperson trying to resist American extradition. He is facing 14 counts of conspiracy and fraud relating to the 2011 acquisition of his software firm, Autonomy, by Hewlett-Packard, who sued Lynch for allegedly inflating Autonomy’s revenue prior to the sale.
Todner, who does not represent Lynch, believes ‘his prospects of defeating the American arrest warrant are quite good’.
The UK, it would seem, gets a raw deal when it comes to extradition. An unequal treaty with America means that the US can apply on the flimsiest of pretexts (this includes almost any crime that involves computers, as most of the tech giants are based there).
Since Brexit, Germany, Austria and Slovenia have joined France in saying that they will no longer extradite their nationals to the UK, which continues to extradite nationals all over the world. So, what should a British business figure do if faced with the prospect of extradition?
‘It is important to have a bail package ready to go upon arrest – or even better to arrange voluntary surrender to avoid an unwelcome knock at the door early in the morning,’ says Todner.
But the most important thing: ‘Make contact with me as early as possible.’