Corker Binning Blog

New review of sanctions for disclosure failures in criminal cases announced

On 26 April 2012, the Lord Chief Justice announced that Lord Justice Gross and Mr Justice Treacy will be heading a review of sanctions for disclosure failures in criminal cases, and considering whether there are options for strengthening them. This follows on the heels of a September 2011 review into criminal disclosure in general and is a welcome next step.

Charles Taylor: guilty, but what does it mean for international law?

Charles Taylor, the deposed president of Liberia, was found guilty of 11 charges including murder, rape, sexual slavery and enforced amputations, unanimously, by a UN-backed tribunal, the Special Court for Sierra Leone, in The Hague on 26 April 2012. The man who “aided and abetted” war crimes in Sierra Leone heard the judgment with hands clasped in front of him, blinking as the list of his criminal responsibility was read out. Mr Taylor is the first ex-head of state to be prosecuted by an international criminal court since Admiral Karl Donitz, the man who assumed control of Nazi Germany following Hitler’s suicide, in 1946.

Removing the dishonesty element from the criminal cartel offence – not such a bad idea after all?

On 15 March 2012 BIS published its plans for an overhaul of the UK’s competition laws and enforcement arrangements. One aspect of these plans concerns the reform of the criminal cartel offence, s188 of the Enterprise Act 2002. The key proposal is to remove the dishonesty criterion so that the offence would be committed by those who agreed to price-fix, bid-rig or limit supply with another participant (purportedly a competitor) without revealing this to the public. This proposal has been widely criticized by competition and criminal lawyers, who have denounced it for its apparent illiberality and injustice. Despite this opposition, I crawl out onto a narrow and perilous ledge of assent to what BIS wants to do.

On camera – televising criminal proceedings

Television cameras were today allowed to record the sentencing of David Gilroy in the High Court in Edinburgh. This is the first time that sentencing in a UK court has been filmed for broadcast the same day – normally proceedings in Scotland are only occasionally filmed for documentaries to be broadcast weeks or months later and are heavily edited by lawyers involved in the case. Filming in most English courts has been banned since 1925.

Insider dealing v insider trading

This month the headline grabbing case for the FSA was that of Ian Hannam, the former banker at JP Morgan, who was fined £450,000 for relaying inside information about his client Heritage Oil to a prospective client in 2008. Hannam’s case is one of several, including David Einhorn and Nicholas Kyprios, which over the course of the last few months alone have been publically paraded by the FSA in order to demonstrate their stringent enforcement policy. Whilst those who work in the finance and banking sector can be left in little doubt that the FSA will vigorously pursue individuals who they believe may have engaged in market abuse or insider dealing, the threat in reality is that of a civil penalty rather than a criminal sanction.

Although the FSA has undoubtedly stepped up several gears in respect of its criminal prosecution of insider dealing, this increased effort has yet to be rewarded with the level of convictions that are being enjoyed by prosecutors in the US. Since 2009 the US Attorney’s Offices in New York alone have prosecuted 66 people for insider trading and have obtained 57 convictions and guilty pleas. In contrast, as of February 2012, the FSA had secured only 11 convictions.

IBA Conference on “Lawyers in the fight against corruption – views from the frontline”

On 12 and 13 March I attended the 10th Annual International Bar Association Conference on “Lawyers in the fight against corruption – views from the frontline” at the OECD Conference Centre in Paris. The conference was well attended by lawyers and professionals from 42 countries, including from as far afield as Costa Rica, Jordan and Nigeria. Speakers included both prosecution and defence lawyers, as well as representatives of companies who spoke about the practical difficulties they face in their attempts to combat corruption in the supply chain.

US-UK extradition treaty – will Home Affairs Committee report silence public disquiet?

Earlier today the House of Commons Home Affairs Committee published a report on the US-UK extradition treaty. A further report on the operation of the European Arrest Warrant (EAW) is expected later this year.

Both reports emerge from curious circumstances, coming so soon after the publication of the independent Sir Scott Baker review in September 2011. That review was the most exhaustive analysis of this country’s extradition laws ever undertaken, devoting no less than 51 pages to the US-UK extradition treaty (the report of the Home Affairs Committee stretches to only 10 pages). Many of those who made representations to Sir Scott’s panel gave similar evidence to the MPs comprising the Home Affairs Committee. So why another report?

Clamping down on scrap metal thieves

Following a dramatic rise in prices and a spate of incidents which have seen rail networks disrupted, church roofs pillaged and towns plunged into darkness, the scrap metal theft “epidemic” has been thrust into the spotlight. The issue has even made it into an episode of Eastenders – a sure sign of topicality! But why scrap metal? Simply put, scrap metal is hard to identify and can be sold for cash (at ever-increasing prices), making it an attractive category of stolen merchandise. It may seem like a niche offence but metal theft is estimated to cost the country £1 billion annually, with more than 1,000 offences taking place every week.

More tough action from the FSA – time to stop playing games

Nicholas Kyprios, European head of credit sales at Credit Suisse, has been fined £210,000 by the Financial Services Authority for misuse of information being treated as insider information.

Credit Suisse was acting on behalf of Liberty, an American telecoms company targeting the acquisition of Unitymedia, a German television company. In preparation for the deal, Mr Kyprios was wall-crossed with regard to a proposed £2.5 billion bond issue by Unitymedia. He was instructed that this was inside information, which he should not share with anyone outside of Credit Suisse except for five pre-approved investors who he was also permitted to wall-cross.

Confiscation – behind the headlines

On Tuesday last week the CPS released details of 143 criminals who have failed to pay monies owed under Confiscation Orders, orders aimed at depriving a convicted person of the spoils of their crime. The headline on the front page of the Evening Standard read: “Exposed: Crooks who owe Britain £600 million” and the article went on to detail the names of the top 10 “Mr Bigs” together with photos of their glamorous homes and luxury cars.