Using Criminal Law Remedies to Assist Asset Recovery. Keith E. Oliver

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2 C5 Fraud, Asset Tracing and Recovery September 2011, London UK Using Criminal Law Remedies to Assist Asset Recovery We have strict statutes and most biting laws. The needful bits and curbs to headstrong weeds, Which for this nineteen years we have let slip; Even like an o ergrown lion in a cave, That goes not out to prey. (Measure for Measure, ) Duke Vincentio Keith E. Oliver Senior Partner, Peters & Peters, London

3 Private Prosecution Is it the right avenue for securing assets? Private prosecution - prosecution commenced by a private individual as opposed to a public prosecuting authority Right enshrined in s.6(1) Prosecution of Offences Act 1985 Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director s duty to take over the conduct of proceedings does not apply The criminal system may not be the appropriate forum, particularly where complex investigations regarding compensation are required: R v Bewick [2008] 2 Cr. App. R. (S.) 58 The Court of Appeal discouraged criminal courts from undertaking complicated investigations to establish the extent of loss Policy considerations demanded that complex compensation proceedings should not be dealt with by the Crown Court. There should be no cheap and convenient short cut where there were difficult issues of fact and law to be decided. Cartel offences No private prosecutions without consent of the OFT: s.190(2)(b) Enterprise Act /10/2011 2

4 Private Prosecution Is it the right avenue for securing assets? (continued) 06/10/2011 3

5 Private Investigation and Policing of Economic Crime: the way forward for corporate clients? Why forensic accounting and corporate investigation firms may offer the preferred solution: Public bodies: less resources, less commitment to fighting economic crime, less investigative capacity We are a product of police downsizing. Every time the police budgets get hit, we get busier. (Former Police Officer) - Quoted in James Williams (2005), Reflections on the private versus public policing of economic crime, British Journal of Criminology /10/2011 4

6 Private Enforcement: the way forward? (continued) Controlling publicity, avoiding negative news stories [A] major reason I think that large companies will hire private firms instead of going to the police is for the simple reason that if you go to the police there's a chance it will become public. It hurts the victim, it hurts the shareholders, it hurts the value of the shares. They would rather keep it under wraps. (Police Investigator) Quoted in James Williams (2005), Reflections on the private versus public policing of economic crime, British Journal of Criminology 316 A corporate client may have different goals than the public authorities: Bringing the activity to a halt Recovering lost assets Establishing programmes to minimise future risk and loss 06/10/2011 5

7 Issues of Evidence Evidence from a previous or concurrent civil suit as the basis for a criminal prosecution Witness statements may only be used for the purpose of the proceedings in which they were served, unless: (a) the witness gives consent in writing to some other use of it; (b) the court gives permission for some other use; or (c) the witness statement has been put in evidence at a hearing held in public. (CPR Part 32.12) 06/10/2011 6

8 Issues of Evidence (continued) Where evidence is gathered through a civil search and seizure order or a freezing order Does the order constrain disclosure of the contents of the documents or the existence of the documents? Where disclosure of existence of document is permitted, include in List of Documents Request a variation of the order Apply to the court for permission 06/10/2011 7

9 Issues of Evidence (continued) Where independent, pre-existing evidence of criminality is discovered during execution of a search order, privilege against self-incrimination will not necessarily prevent that evidence being turned over to the authorities: C Plc v P [2007] EWCA Civ 493 Obiter of Longmore LJ at [23]: That question arises in the present case in relation to criminal material which can be imaged on a computer. It could equally arise in other contexts. Suppose the search order entitled a claimant and his solicitor to enter and seize fake handbags and it was discovered after they had been seized that one of the bags contained a cache of drugs or an illegal weapon, would the claimant or his solicitor or the Supervising Solicitor be entitled to inform the police? Might he not be bound to do so? Or can the defendant invoke the privilege against self-incrimination to stop such revelation?. A criminally pornographic image might be observable on the defendant's computer or lying around in a printed form. Once again, does the fact that the solicitor has entered pursuant to a court order prevent him from telling the police what he has seen? One would think that all these questions should be answered in the same way and that the answer should be that the solicitor is, at least, entitled (if not actually obliged) to inform the police. If that is so, then the judge's order in this case should be upheld. 06/10/2011 8

10 Citizen s Arrest 06/10/2011 9

11 Citizen s Arrest (continued) s.24a Police and Criminal Evidence Act 1984 (1) A person other than a constable may arrest without a warrant (a) anyone who is in the act of committing an indictable offence; (b) anyone whom he has reasonable grounds for suspecting to be committing an indictable offence. (2) Where an indictable offence has been committed, a person other than a constable may arrest without a warrant (a) anyone who is guilty of the offence; (b) anyone whom he has reasonable grounds for suspecting to be guilty of it. (3) But the power of summary arrest conferred by subsection (1) or (2) is exercisable only if (a) the person making the arrest has reasonable grounds for believing that for any of the reasons mentioned in subsection (4) it is necessary to arrest the person in question; and(b)it appears to the person making the arrest that it is not reasonably practicable for a constable to make it instead. (4) The reasons are to prevent the person in question (a) causing physical injury to himself or any other person; (b) suffering physical injury; (c) causing loss of or damage to property; or (d) making off before a constable can assume responsibility for him. 06/10/

12 Citizen s Arrest (continued) In order to lawfully execute a citizen s arrest, it is necessary that an offence was committed: R v Self [1992] EWCA Crim 2 Therefore, if the defendant is subsequently acquitted, the arrestor may face criminal or tort proceedings 06/10/

13 SFO Statistics 06/10/

14 The first thing we do, let s kill all the lawyers. (Henry VI, ) Butcher to Jack Cade And do as adversaries do in law, Strive mightily, but eat and drink as friends. (The Taming of the Shrew, ) Tranio