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  1. Law
December 15, 2009

Partners in Crime

By Spear's

Tuckers has established itself as one of the country’s premier criminal law firms for high net worths. In a round table with some of its lawyers, Spear’s hears the case for the defence

Around a conference table in their offices just off Great Portland Street, some of the country’s finest criminal lawyers pondered the scrapes that the wealthy get themselves into. These solicitors from Tuckers, who have represented everyone from billionaires to investment bankers to notorious boldface names, answered Spear’s questions about whether high net worths commit different crimes from the man in the street, how they can  stop the glare of publicity, and whether wealth works in their favour.

Do criminal lawyers have a different attitude from corporate lawyers?

Jim Meyer: Criminal lawyers are terrified about mentioning their client’s name — commercial lawyers want to shout it from the rooftops.

Phil Smith: Jim’s right: our role is to intervene at the earliest point and protect not only their legal rights but also their reputation. If we can persuade the police at an early stage to drop the investigation or even proceed by way of a caution, then that is the best result for the client and their reputation. The flip side is that if a client is unrepresented, or poorly represented, in the police station, they can make statements that can irrecoverably harm their position and consequently their reputations for ever.

For example, it’s a matter of public record that I acted for Mr and Mrs Rausing in relation to an investigation regarding the possession of drugs. All my work in this case took place representing my clients during the investigation and subsequent consideration by the police and the prosecution as to whether they should be charged: they were not.

We rely on part law, part emotion, part pragmatism, and we persuade the prosecutors — pure legal skills, if you like. It’s not only what you argue, it’s also what you don’t argue. You’re treading a fine line because you don’t want to give them too much information. Also you have to have personal credibility with the police and prosecution and know who is going to be making the decisions — which we do.

Richard Egan: Cases such as this demonstrate for me that clients cannot afford to leave this to luck. High-profile clients can be fortunate and find a firm such as ours with the experience to deal with their case. However, they can also end up in a completely different situation where the wrong advice at an early stage could make their situation significantly worse. The skill is in knowing how to deal properly with the particular issues that high-profile clients face.

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What is the impact of a conviction for a high net worth?

RE: A conviction for a relatively small matter can have a significant impact. Say, for example, you’re a business person who has a number of interests in other jurisdictions. Let’s imagine that you have a fondness for taking a line of cocaine and then through an unforeseen set of circumstances you get arrested in possession. Not a major thing, and if you were to get a conviction for it, some people may find that a bit distasteful, but we live in the modern world and they’ll think, ‘Oh well, fair enough.’

But how might that impact? Suddenly you can’t go to America. There may be ways around it but they’re difficult as the Americans tend to have a blanket policy to refuse visas for those with drug convictions and they are not inclined to be sympathetic to your plight. If your business requires your regular attendance, then that that could be the end of your career.

PS: There aren’t just implications if you need to do business abroad. If you are a trader who’s arrested for a series of offences, the FSA will be extremely strict and they will not cut you much leeway if you are convicted of the overwhelming majority of offences, particularly if it’s dishonesty or an offence that involves pretty poor public conduct. You’re a trader, not a footballer. Reputation matters in business and with regulators, and if you are going to protect that reputation being represented properly from the first minute in the police station can make the difference between having a future career and not.

Is there such a thing as celebrity justice?

PS: I’ve just represented a high-profile individual in the music industry who was involved in a road traffic accident and the police wanted to prosecute him for careless driving. I relied to an extent on the embarrassment and the lack of necessity of it all and the fact that when the accident happened he was immediately recognised and as a consequence there was a degree of humiliation. We made those representations because we know they work. The matter did not proceed.

Franklin Sinclair: I don’t think you can pay your way out of anything in the British legal system.

JM: But the art of advocacy is persuasion, and the advocacy that Phil’s talking about is persuading the investigating body not to prosecute, and if you are unlucky enough to be prosecuted, the art of advocacy is to persuade the jury that you’re telling the truth or to persuade the judge that you should be dealt with leniently, and the higher up you are in society, the further you have to fall following a conviction.

One of the reasons why we may be able to persuade a judge to deal more leniently with a high-net-worth client than, let’s say, an unemployed person charged with the same thing and with the same previous convictions is because of the disproportionate impact that the conviction will have on them. It may not be a very palatable argument, but it is the reality.

PS: And there are often small things you can achieve that make a difference. I had high-profile clients where I was able to persuade the police to caution rather than charge them. We arranged for the caution to be given on a Sunday morning at a police station not normally open at that time. We had the clients in and out quickly in the back of a black cab so avoided any possibility of publicity or press coverage.

Do high net worths have an advantage if they are arrested?

FS: We also have to accept that a high-net-worth individual can afford the front-loading of his case, insofar as if we need experts at the earliest stages, if we need to put resources into finding witnesses, we are able to front-load the preparation of the defence, even while the client’s on bail, which may be a style of defence that’s not necessarily available to someone who couldn’t afford that.

PS: It’s proactive rather than reactive.

RE: The advantages that anyone has in society are still at play in criminal law, because as much as everyone would like to say everyone’s equal under the law, they’re not. If you can afford to buy the best representation, that can make a difference in an adversarial system of justice.

Is there a category of high-net-worth crime?

JM: You’ve got three distinct types. ‘White-collar crime’, which is usually allegations of fraud or corruption where an individual in business, or their company, is being investigated for a course of dealing that the police or regulators believe has strayed over the line into dishonesty. Then you’ve got individuals in a profession, or often a sport, where they face investigation from their regulatory body that could result in non-criminal but often career-limiting sanctions.

And then there are high-profile individuals accused of ‘ordinary’ criminal offences: drug possession, assault, sexual offences etc. Any of these can have an impact on the individual if convicted, or even if they are charged but later acquitted, out of all proportion to any criminal or regulatory sanction imposed.

FS: Yes, this last group of cases tends to be crimes of excess. Basically, anything that you can think is remotely excessive, with cars or with women or with drugs or with alcohol — unfortunately bankers are very prone to indulge in them after a successful transaction. Not so very long ago, the recruitment parties for those people — specifically putting traders from one bank to another — those parties were phenomenally out of control.

JM: The crucial moments are the first ones in a police station where you can get someone out of this with most safeguard to their reputation. You can get straight in there, stop them saying anything they shouldn’t and get the police to drop it.

FS: But many high-net-worth individuals do tend to have the arrogance to think they can talk their way out of it. They can’t.

Do you think jurors look differently at the wealthy?

RE: Although very wealthy individuals are likely to be exotic to many average jurors, it comes down to common sense and how they are perceived were they to give evidence. If they come over as being arrogant and out of touch with reality, the jury won’t have much sympathy. However, most jurors will take individuals as they find them over any reputation they may have due to their wealth.

PS: If you get to trial, you are injecting an element of chance, you’re not quite rolling the dice, but there is an element of that. The emphasis in good criminal defence is stopping the process at the earliest stage.

Do any other cases come to mind?

RE: In the ‘excess’ cases you can often be presented with a situation where you’re arrested wholly unexpectedly. However, the more stereotypical offences that very high-net-worth individuals may be involved in — namely investigations of fraud and/or corruption through companies that they may be linked to — can often be slower burners, with investigations dragging on for months or years.

I am currently representing an employee of BAE where the SFO investigation has been running for years. My work for that client is to represent him throughout the investigatory process with the same aim — to persuade the investigators and prosecutors that they have no basis on which to proceed against him.

Is there a rise in these types of cases now?

All: Definitely.

RE: In a property boom there was a lot of money swimming around but now suddenly, after a crash, a lot of people are asking, ‘Well, where has my money gone? Who’s responsible?’ There are a lot of fingers being pointed.

JM: Everything was done on trust and so the corners became rounded and people didn’t do the checks, and people were encouraged to project themselves in one way because the deals could be done when in fact the truth was something different. Now, when banks are foreclosing, they look at the paperwork and it is not as it should be. That is when the professional, the high-net-worth individual or the company are called to account.

RE: There is also a problem where high-net-worth individuals can be caught up in wider-ranging investigations, for example the investigations into corruption in the Turks and Caicos Islands which have led to the constitution being suspended.

As a result, entirely legitimate business people investing money in projects in the islands could be unwittingly tainted by the investigation and so need proper advice from an early stage.

In general terms, however, I’d reiterate what we said earlier, namely that high-net-worth individuals don’t like to consider the possibility that they’ll ever come across the criminal law, certainly not a police station. However, our experience is that they do, and it’s very important to have a phone number that you hope you’ll never ever use, but to have it there is some security, that if you’re ever in that position you’ll get good advice that can change your life.

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