Where financial crime is alleged, a fraud defence solicitor and a general criminal solicitor may both claim to have the experience to represent the client. Criminal fraud cases take place in the criminal courts, and many clients, unprepared for the fact that they were going to be arrested or questioned, accept the local duty solicitor made available to them at the outset. However, fraud cases are often quite different to the day to day work carried out in police stations, the magistrates court, and occasionally the crown court by most duty solicitors. The knowledge required is specialist, and the skill set demanded by this work is different to most general crime.
We recommend instructing a specialist fraud defence solicitor if you find yourself targeted in a fraud or regulatory investigation or prosecution. For information about the type of approach which you should be able to expect from your solicitor, see our free basic guide to Strategy in Fraud Cases below.
What characterises a good fraud defence approach?
There is no single answer to the question of good preparation in fraud cases. The set of different resources and skills required is closer to the workings of a combination lock than a single key. Some of the fundamentals that a client might expect of his or her solicitor are listed below:
Knowing and explaining the law and procedure
The law of fraud and financial crime has seen significant developments in recent years. A client should expect that his team is at ease with the detail of the new Fraud Act, the new definitive fraud sentencing guidelines, and of course previous legal decisions affecting both. However, the client in a fraud case must have lawyers who know how to take the legal jargon and explain it in plain English. Most fraud clients are not incapable of understanding the procedural and legal aspects of what they are going through if they have lawyers who can communicate clearly. Lawyers need to keep things simple, and trust in the intelligence of the client.
Understanding the Basics of Business
A frequent criticism of lawyers by business clients is that they can be obsessed with strict legal interpretations, without even considering the business context. Many lawyers, of course, have no real experience of commercial life outside the law.
Some of the business basics that a good fraud defence lawyer will have some understanding of include:
- Company law / structures – including the structures of companies, shareholders, directorships etc.
- Management roles – differentiating management roles, including executive, financial, and operational roles
- Tax – the basic rules on VAT, capital gains, income tax
- Money – the realities of (in no particular order) cash flow, wealth, capital, outgoings and revenue
- Banking – understanding how banks and other lenders behave, both in day to day practice, and in the operation of business financing.
- Financial products and financial instruments and practices – for example, derivatives, debentures, mortgages, bonds, share dealing procedures etc.
- Regulation – the involvement of and responsibilities to agencies such as the FSA in regulation parallel to criminal proceedings
Thinking like the prosecution
In financial crime cases, thinking like the prosecution does not mean accepting what the prosecution say. Far from it. By understanding what approach the prosecution are taking, the defence can better prepare a strategy designed to wrong-foot that approach. If the investigators and prosecution are inappropriately aggressive and negative in the interviews and pre-trial exchanges, that might present an opportunity to present a more attractive and positive case in the trial. The interviews often also point to areas that come up later in cross examination, and provide clues as to what questions the client will face in court. The prosecution may be outflanked if the defence strategy takes advance warning of the prosecution approach and takes a different route.
Document Management and a Thorough Grasp of the Material
Famous defending barrister Edward Marshall Hall once said that there is only one substitute for knowing the case, and that is knowing it in absolute detail. Fraud cases often contain thousands of pages of information and this must be collated, read, analysed, compared with other material, and summarised so that the most important aspects of a case are accessible in seconds if necessary. This could even prove necessary in real time during an opposing barrister’s cross examination or during legal argument in front of a judge.
Knowing the Client
For a jury to find a client not guilty, the barrister must know how to present him, and this is easiest when enough time has been spent with the client. Cases which on the papers look weak can be won because the client was allowed to express him/herself, and the facts of the case, in a way that appealed to the jury. This can be difficult to do unless the client and his legal team have spent enough time together for the lawyers to have an idea of what kind of character they are presenting to the jury. This is important preparation. Where it is left to the last minute, the client may feel that unnecessary risks are being taken.
Knowing the Relationships
Convincing the jury in a complex case is often not just about addressing the prosecution allegations. Knowing the culture, practices, and relationships in any organisation can be of real importance if the story is to hold together in court. A fraud defence lawyer has to spend enough time not just dealing with the law, but also looking at the whole environment in which the fraud is alleged to have taken place, if he or she is to have the advantage over the prosecution.
The Right Story and the Right Barrister to tell it
Criminal defence in fraud and financial crime cases is not just about proving that the prosecution allegations are false. It is often not even just telling what happened. It is about telling the most attractive version of what happened. Some aspects of a case which might turn a juror off should be minimised (even if they are true), if the jury are to believe the client about the main facts. Other aspects, which may not have seemed significant at the time, but in hindsight are, should sometimes be given centre stage. This is where criminal defence can be at its best. In celebrated cases where the prosecution evidence seemed strong, such as famed US trial lawyer Johnnie Cochran’s defence of OJ Simpson, and Thomas Mesereau’s defence of Michael Jackson, it was the team who told the most attractive story which won.
Barrister choice is of particular importance. Some barristers are known as aggressive and powerful, some are sensitive and likeable to a jury, and others may have a tremendous ability to retain data. All are useful qualities in the right case. Once a strategy forms, and the client’s personality and requirements of the case are considered, the solicitor’s task of picking a barrister should be approached with respect. The right barrister is not just experienced in the type of case, but is right for the story to be told and compliments the client’s personality.
For fraud cases in particular, Mary Monson Solicitors maintain a Preferred Fraud Barrister Panel of trusted counsel for use in fraud cases. Where possible, we retain these these barristers who have proved themselves as experts in their field. This list is of course constantly updated to ensure that the information is current.