Archive for April 2012

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.