White Collar Crime

What’s it all about?

People tend to think of white collar crime as being synonymous with fraud. However, as well as what is commonly understood to be fraud, white collar crime encompasses a much broader range of areas including competition, cartels and price-fixing, extradition and mutual legal assistance, corruption and bribery. The post September 11 climate of increased mutual assistance between jurisdictions, in order to obtain evidence and extradite accused individuals, means that much of the work now has an international flavour. Some firms advise on extradition cases which may have a political dimension, dealing with cases involving diplomatic immunity, government corruption and economically or politically motivated prosecutions.

What is the working culture like in a white collar crime firm?

Associates are involved in advising clients on all of the areas in which the firm practices, negotiating with prosecution agencies, drafting letters of representation in order to persuade a prosecution agency to drop proceedings against a client, taking instructions from clients and drafting witness statements, preparing cases going to trial and representing clients at the police station or in court.

Many cases are multi jurisdictional, on a large case associates will work alongside a partner, on smaller cases, associates handle their own caseloads under partner supervision. Regardless of the size of the case, associates play a significant role in managing client relationships.       

Trainees can expect to be involved directly in cases and work under partner and/or associate supervision. They will generally provide research on a wide variety of areas that affect clients, attend court hearings and police station interviews, draft instructions to counsel and correspond with the client.

What is the typical makeup of a white collar crime practitioner’s client base?

White collar crime practitioners can be involved in advising experienced professionals, corporate bodies and governments or government agencies. Many clients seek advice before proceedings are brought against them in order to manage their risk against potential litigation.

What other practice areas do you work most closely with?

The fraud and regulatory department usually works alongside the commercial fraud litigation department who has significant expertise in dealing with corporate fraud. The skills and expertise of both departments work together when acting for corporate clients.

Many white collar crime lawyers also draw on expertise from colleagues experienced in competition and EU, public sector law and privacy and data protection law.

What skills make a good white collar crime practitioner?

Lawyers in this sector will need wide ranging skills as the work is varied and involves advisory work and court litigation. Lawyers will also require good judgment and flexibility in order to secure the best outcome for the client. Often, the principal goal of our clients is to avoid a court hearing, either by persuading the prosecution to drop their charges or by gaining the prosecution’s agreement to treat a client as a witness, rather than a suspect, in exchange for providing evidence in the prosecution of others, or providing other information vital for protecting the public interest.

Lawyers need an ability to quickly grasp an understanding of professional clients’ industry sectors, which can often be specialised and complex. For instance we have represented clients in respect of cartel allegations that  require a detailed understanding of the freight forwarding sector and airline fuel surcharges.

Excellent communication and negotiation skills are vital when taking instructions from clients and witnesses and negotiating with prosecution agencies, as is an ability to work under pressure and to work to tight deadlines when cases proceed to trial or a full hearing (in extradition cases). Lawyers will also need to maintain up to date knowledge of legislation and case law in rapidly expanding and developing areas of law like bribery and mutual legal assistance.

What impact has the recession had on your practice area?

Throughout early 2009 there was media speculation that the recession would lead to increased work amongst white collar crime and fraud firms. From the latter part of 2009 this has been visible. There has been an increased appetite amongst prosecution agencies to investigate and bring proceedings against those who exploit their authority in financial institutions. In particular this can be seen in the FSA’s commitment to increasingly investigate and prosecute insider dealing.

As companies look to reduce operational costs in the current economic climate, accounting related frauds or investment scams are likely to also be an issue and lead to increased prosecutions.

However, large scale frauds, money laundering rings and cartel offences can take several years before they are detected and investigated. It may therefore take some time before the full impact of the recession on white collar crime is really felt. 

What prominent white collar crime cases has your firm been involved in?

We have acted in many of the principal corruption inquiries both in the UK and overseas, our cases include well publicized cases such as the SFO investigations of BAE and the al-Yamamah contract, the ‘Cash For Honours’ enquiry and the United Nations’ ‘Oil For Food Programme’.

We are currently representing two senior executives from British Airways alleged to be involved in price fixing with Virgin Atlantic in respect of the fuel surcharge on transatlantic flights.

The firm has also  acted for Fininvest, an Italian company owned principally by Silvio Berlusconi in opposing a mutual legal assistance request sent by the Italian authorities to the UK in order to obtain documents held by a company in London. It was alleged that over 100bn lire had been removed from Fininvest and used for illegal purposes including corrupt payments (R v Secretary of State for the Home Department, ex parte Fininvest SpA and others [1997] 1 All ER 942).

We also currently act for a client who is a former employee of the British Secret Intelligence Service (also known as MI6). He faces allegations of theft of material whilst employed and attempting to sell this secret material to another Government. 

What do you think is the future shape of white collar crime?

White collar crime has been running at high levels over the last few years as is demonstrated by the breadth of legislation brought into force in this area which has widened and rationalised the scope of conduct which is considered to be a criminal offence, such as the Enterprise Act 2003 (which made cartels and price fixing a criminal offence), the Fraud Act 2006 and the Bribery Act 2010 passed on 8 April 2010 and likely to come into force between June and October 2010.

The Courts have enlarged the statutory drive towards increased prosecution of white collar crime offences by extending the criminal powers of prosecution agencies such as the FSA (R v Rollins; R v McInerney [2009] EWCA Crim 1941 where the Court of Appeal determined that the FSA has the power to prosecute money laundering offences under the Proceeds of Crime Act 2002 together with its powers to prosecute those offences detailed under the Financial Services & Markets Act 2000).

The recession has compounded this drive to prosecute white collar crime offences and has engineered a public appetite to ensure that financial crime is likely to be an area of focus for years to come. In particular, the current economic conditions means that companies will be under pressure to secure new business and bribery and corruption offences by employees may therefore become an issue. This is likely to be an area in the spotlight for the authorities in light of the new Bribery legislation. 

What phrase is a white collar crime practitioner most likely to use and what does it mean? 

In the field of white collar crime some of the well known terms are:

‘Letter of Representation’: this refers to a letter which a white collar crime practitioner might draft to a prosecution agency in order to persuade them to drop their criminal charges against a client.

‘Plea bargain’: this refers to a deal offered by a prosecutor to a defendant in criminal proceedings as an incentive to plead guilty. Plea bargains can take the form of ‘charge bargains’ which occur when a prosecutor agrees that a defendant can plead guilty to a lesser charge or, to only some of the matters with which he is charged.

This form of plea bargaining commonly takes place in the UK and is negotiated outside of Court between Prosecution and Defence lawyers. ‘Sentence bargaining’ occurs when a defendant is told in advance what his sentence will be if he pleads guilty. Although sentence bargaining occurs in jurisdictions such as the United States (US) where the Prosecutor is involved in the sentencing process, it does not operate in the UK where a defendant’s sentence is a matter for the Court.

BAE have been investigated for a number of years by the Department of Justice in the US and the Serious Fraud Office for allegations of large scale bribery and corruption. In the UK the Serious Fraud Office has controversially accepted a plea bargain from BAE to the significantly lesser charge of failing to keep proper accounting records.