Tuesday, 3 July 2012

you will have noticed...

... that within a couple of hours of yesterday's posting, there were announcements re possible fraud investigations. You presume that the government read what I said and was spooked into action; me, I'm not so sure. Be that as it may, here is my follow-up:

My main worry yesterday was that the bankers are too rich and will try to make the case too complicated for them to be properly prosecuted. Alexander Fox, head of litigation at the law firm Manches, said on the BBC that, "There's a quite constrained public purse in the UK. Jury trials for criminal prosecutions are costly and lengthy. And often jurors are completely lost as to what are the nuances of the crime."

Well, it would make me feel a bit sick if the only reason we can't prosecute the bankers for a crime, if that is what has happened, however complicatedly (and I bet it is nothing like as complicated as they pretend - most of them are pretty bright but not very bright), is that we can't afford to pay the lawyers.

My solutions to this problem are:

1. As per yesterday - go after two of them you can get evidence on, get them in a room, offer them a deal to shop their friends. I bet they will.

2. Involve the Americans. I don't like it, but if they will pay lawyers enough to prosecute, then there it is. I am happy to see the bankers extradited. If the cases are very, very long and complicated, and they will have to do them in the USA, that would be funny.

3. I am less than satisfied with the thought of civil suits, if this is a crime.


Ellis Sareen said...

A lawyer writes...

The are many reasons why large-scale prosecutions for fraud are rare and, when they do occur, rarely fully successful. But one important reason - possibly the most important reason - is rarely mentioned by the media.

It is the issue of disclosure. In English law, investigators (the police, SOCA, etc) have a duty to investigates all reasonable lines of enquiry, whether they point towards or away from the suspect. And all prosecutors (the CPS, the SFO, etc) have a duty to disclose to the defence all material in their possession which may assist the defence, or undermine the case for the proscution.

These are in themselves important principles. The police have significant powers to arrest, to detain, to search and to interview. But they must be even-handed in the exercise of these powers, and not jump to conclusions. Prosecutors have unfettered discretion in their choice of charge, and (in the early stages of the case at least) may invite the court to summons witnesses, issue warrants, and remand defendants purely on the prosecution version of the facts. But they must not abuse their power by hiding material which might help a defendant.

Though an important bulwark against the power of the state, these principles are difficult to apply to major fraud prosecutions. These cases generate huge quantities of paper: transaction logs, phone records, emails. It can be difficult enough sifting this information to produce a case against a suspected banker. But it is doubly difficult to scrutinise this material to ensure that this duty of disclosure has been complied with. Increase the number of defendants, some of whom may be blaming each other, and the scale of the task increases rapidly. And a failure to complete this task - a failure to fulfil the duty of disclosure - will give any competent defence laywer the opportunity to argue that any trial would be unfair, because there could be in existence but undisclosed material that would exonerate his client.

The irony is that the issue at the heart of most fraud trials is usually a simple one. It is rare that a defendant will deny participating in the allegedly criminal acts - often, the email trail or other hard evidence makes such a denial an impossibility. The true issue is usually whether the defendant did what he or she did dishonestly - or in some way innocently.

But to get to the point where this simple issue is before a jury will, in this information-heavy age, inevitably require substantial work, and therefore substantial expense. If it is to be done fairly, the prosecution of banking fraud will almost always entail a significant outlay. It is up to the government to decide whether it wants to spend this money or not. What it should not do is to decry the lack of criminal prosecutions, whilst at the same time withholding the cash that is needed to fund them.

Robert Hudson said...

This is exactly my point; and I totally get that I have no idea how to deal with it. Basically, this seems like an eminently prosecutable situation except for the inevitable giant expense, and I am not pretending that giant expense is not a giant problem.

Basically, it's a real issue that people who appear to a layman to have committed serious frauds will most likely get away with it because they are literally richer than the government. I think what bugs me so much is the very real miscarriages of justice at the other end because the state also can't pay for poor kids to be defended.

This is a hasty and schematic response on my part - and my posts were hasty and schematic too, but it is very troubling that most of the problems with prosecuting seem to revolve around expense and I am in favour of anything that tilts things towards giving the people their day in court.