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15 July 2015

David Corker’s comments re White Collar Crime published in Lawyer 2B

White Collar Crime

9 July 2015 | Becky Waller-Davies

Committed by forceful personalities and often international in nature, white-collar crimes are a challenge. Solving them means following paper trails, sifting through red herrings and observing human behaviour.

The term ‘white-collar crime’ was introduced to the world in 1939 by American sociologist Edwin Sutherland, who referenced the shirts of middle-class office workers and defined the crimes as non-violent.

Over the intervening years, white-collar crime has become increasingly sophisticated and cross-jurisdictional thanks to modern communications. Think Enron, Worldcom and the Ponzi scheme run by former Nasdaq chairman Bernie Madoff.

“My interpretation of white-collar crime is an intellectual crime: no sex, no violence, no force of any kind,” says David Corker, co-founding partner of criminal firm Corker Binning.

Instead, white-collar crime is paper heavy, document-based and revolves around deceiving people on a large or small scale for personal gain. Both ‘general’ and white-collar crime proceed through criminal rather than civil proceedings, but that’s where the similarities end.

What skills are needed? “Perspicacity,” says Corker. “The ability to see the one important thing in 99 other things. The ability to foresee how that one thing will develop and play out in court. If the lawyer doesn’t have that, they will never be able to have the gift of discernment.

“There are so many issues which could be seen as important but are actually red herrings. You can spend thousands of hours in a morass of detail.”

That shrewd narrowing of focus runs right through to trial, where cases are often so complex that for a jury to make head or tail of it, lawyers strip back their cases to the minimal number of points, starting from an argument with tens of subsets.

Honesty tests

At sentencing, two key trends are emerging. The first involves deferred prosecution agreements (DPAs). DPAs came into force in 2014 and enable an organisation and the prosecutor to agree to certain criteria by which a conviction can be stayed. Essentially, the organisation will be required to admit wrongdoing, make restitutions to victims and show that it is changing its culture or practices.

The other is the drift towards honesty tests, an increasingly common method of argument used by prosecutors, made possible by the Fraud Act of 2007.

“Honesty tests simplify the process,” explains Corker. “Rather than let defence lawyers bamboozle juries with legal terms, let’s do a simple test and ask the jury if the person was behaving in an honest way and ask them to judge their mindset at the time the crime is alleged to have been committed.”

The defence lawyer will ask the jury if the accused was dishonest in any way and if their alleged dishonesty could provide a reason for why they might have committed the crime they are accused of.

For defence lawyers, this makes advising clients more difficult as any legal argument hinges on the jury’s perception of the accused and brings their testimony and justification to the fore. It also means that more trials may take place, even if the legal grounds on which they do so are weak.

 

Read the full article here.

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