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RETRIAL Two bankers face a retrial over Libor manipulation. Four have just been jailed for it. Aziz Rahman looks at how to defend conspiracy to defraud allegations and the main issues in investment fraud.

4 August 2016

The Serious Fraud Office’s (SFO) decision to seek a retrial of two bankers for Libor manipulation will not be the news the duo wanted to hear.

The Serious Fraud Office’s (SFO) decision to seek a retrial of two bankers for Libor manipulation will not be the news the duo wanted to hear.

The announcement came as four other bankers were jailed for between two years nine months and six and a half years for their part in Libor manipulation. Having had one jury fail to reach a verdict on their guilt, Stylianos Contogoulas and Ryan Reich will now have to endure another trial to see if they suffer the same fate as the four jailed men.

All six men faced allegations that they were part of a fraudulent conspiracy based on the manipulation of LIBOR, the interest rate benchmark. Three were found guilty of conspiracy to defraud, one had already admitted his guilt and the guilt or otherwise of Messrs Contogoulas and Reich is now to be determined by another jury. The case shows the risks that people with financial responsibility face in their working lives: failure to comply with the law can bring heavy penalties whether you are a banker, accountant, independent financial advisor or any other finance professional.

Agreement

For an offence of conspiracy to be proved, there has to be an agreement between people to commit an unlawful act. Section 1 of the Criminal Law Act 1977 states that conspiracy has been committed if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, leads to an offence being committed.

The common law offence of conspiracy to defraud forms Section 5 (2) of the Act. The standard definition of conspiracy to defraud was provided by Lord Dilhorne in Scott V Metropolitan Police Commissioner (1975) as an “agreement by two or more by dishonesty to deprive a person of something which is his or to which he is or would be or might be entitled and an agreement by two or more by dishonesty to injure some proprietary right of his, suffices to constitute the offence of conspiracy to defraud’’. The agreement is at the core of the offence and there does not have to be deception or economic loss for there to have been a conspiracy to defraud.

The Fraud Act 2006 simplified the law by creating a single offence of fraud that can be committed by false representation, failure to disclose or by abuse of position. Fraud by false representation is the most obvious alternative to a charge of common law conspiracy to defraud.

Approach

Whether a prosecution takes the common law or statutory route regarding conspiracy to defraud, the approach taken by the defence is vitally important. Examining which route the prosecution has taken and working out why can help inform defence tactics.

A central issue in conspiracy to defraud cases is dishonesty. In Ghosh (1982), the Court of Appeal laid down a two-stage test for dishonesty. First, the jury has to decide whether “according to the ordinary standards of reasonable and honest people what was done was dishonest’’. If so, the jury must then consider whether the defendant “himself must have realised that what he was doing was by those standards dishonest’’.

This test offers a shrewd defence team the opportunity to explain the defendant’s motivation and outline his abilities, strengths and weaknesses in order to convince the jury that what he did may not have been perfect – but it was certainly not done out of dishonesty.

This can involve the securing and shrewd use of evidence, employing expert witnesses to give a view on the defendant’s conduct and a thorough analysis of the prosecution case in order to attack it at its weakest points. But often this can be about more than presentation of facts and an interpretation of them. It can be about seeking to earn the empathy of a jury so that they can feel for the plight of the defendant and have some compassion for the situation he found himself in.

Material

Cases of investment fraud often involve, due to the nature of the offence, lengthy investigations. There is a lot of material taken away by the prosecution, much of which they may never use in the case. Much of this can prove valuable for a defence team that is looking to paint a broader picture than that which the prosecution wants to concentrate on.

A carefully-drafted defence case statement can help a defendant’s legal representatives secure information and materials that the prosecution considers of little value to the case but which could actually be of great worth to those seeking an acquittal. In recent years, a series of guidelines from the Attorney-General regarding digitally-stored material have given defence teams extra scope when it comes to obtaining and using computer-based information.

When it comes to investment fraud and cases of conspiracy to defraud, the large amounts that are often involved may make the headlines. But if a defence team makes the best possible use of all the relevant facts, it is possible to carefully build up a strong case that can prove far more credible to a jury than the big claims made by the prosecution.


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