Author: Azizur Rahman
5 December 2017
4 min read
Royal Bank of Scotland has paid $44M to settle a US criminal investigation that accused its traders of lying to clients over investments.
The bank’s payment, under a non-prosecution agreement with the US Department of Justice, means it will not face criminal charges over its alleged cheating of about 30 banks and investment clients over the prices and commissions of mortgage-backed assets.
But it is difficult to argue that it has got off lightly. The settlement is separate from a multi-billion dollar penalty that is likely to be imposed on RBS over claims it mis-sold mortgage bonds prior to the 2008 banking crisis. And RBS has also come in for stinging criticism over its behaviour.
Referring to RBS’ activities from 2008-13, US Attorney Deirdre Daly accused the bank of fostering "a culture of securities fraud."
She added: "Those in a position of authority taught and encouraged fraudulent trading practices. Worse, those supervisors and compliance personnel then took steps to prevent victims and honest RBS employees discovering and exposing the scheme.’’
The US Department of Justice said RBS’s mortgage-backed securities trading desk “misrepresented material facts to deceive and cheat its customers” by lying about asking prices and inventing third party sellers to charge buyers extra commission. RBS also lied to customers who suspected they had been the victim of fraud and did not respond to complaints about this by its own employees.
Honesty is a central theme in investment fraud cases. Having represented all possible parties in such cases – brokers, accountants, hedge fund managers, financial advisors and company directors – I can say that honesty is the key issue, regardless of the precise circumstances or complexity of each individual investigation. If the jury cannot be persuaded that the defendant acted dishonestly, the prosecution will fail; whether it be a Fraud Act prosecution or a conspiracy to cheat or defraud accusation.
Until very recently, the question of dishonesty was decided by a two-limb test. It was in Ghosh  QB 1053, that the Court of Appeal established this two-stage test of dishonesty. The jury had to decide whether “according to the ordinary standards of reasonable and honest people what was done was dishonest”. If so, the jury then had to decide whether the defendant “himself must have realised that what he was doing was by those standards dishonest….”
The case of Ivey V Genting Casinos (2017), however, has taken away the need to prove the second part of the Ghosh test: that the defendant knew that ordinary and honest people would regard his behaviour as dishonest. The issue, therefore, of whether the individual thought he was doing something dishonest is now irrelevant: what matters now is whether he was dishonest, according to fact and law. The test now is whether the conduct would be considered dishonest by reference to the standards of ordinary and honest people.
In this latest case, the court said “there can be no logical or principled basis for the meaning of dishonesty to differ according to whether it arises in a civil action or a criminal prosecution”. And in specific relation to business crime cases, it added “there is no reason why the law should excuse those who make a mistake about what contemporary standards of honesty are, whether in the context of insurance claims, high finance, market manipulation or tax evasion”.
The challenge for anyone accused of investment fraud, therefore, is to demonstrate to the investigating authorities and (if it goes to trial) a jury that there was no dishonest activity. This is the case whether the alleged fraud involves selling fake stocks and shares, Ponzi-style schemes, pension liberation or, as with RBS, the cheating of customers over prices and commissions.
Demonstrating honesty involves outlining a defendant’s motivation, his working practices and his reasons for doing what he did. Only by a defence team explaining these can investigators or jurors understand exactly what the person has done, how they did it and why they did it – and determine whether dishonesty was involved.
From a defence point of view, this can involve testimony from the defendant. But a defence team should also be alert to the possibilities of using expert witnesses. These can outline the intricacies of an industry, explain why it would make sense for a defendant to act the way they did and emphasise how they have complied with regulatory requirements. Such witnesses can not only create empathy with a jury, they can give vital credibility to defence arguments that the accused did nothing dishonest.
Before an investment fraud case reaches court, a defence team can make huge strides towards establishing a client’s honesty by intelligent use of digital unused material. Such cases will involve huge amounts of documentation, which will be on computers and other devices seized by the investigating authorities. Much of it will never be used by the prosecution.
Lord Justice Gross’ Review of Disclosure from September 2011 and the Attorney General’s Guidelines on Disclosure 2013, provide defenders with opportunities to use digital material. Such opportunities include asking prosecutors why they are looking for certain words in digital searches, which can help establish the course they are looking to take.
A defence can also check that the prosecution has properly scheduled all the material. This makes it easy to find documentation that could go a long way to establishing a client’s honesty. But this is also important because if the scheduling process is not followed in accordance with the rules on disclosure, there is the chance to argue that a fair trial is impossible.
If a firm has any suspicions that investment fraud is being carried out, there can be great value in it taking a close look at its working practices before any charges are brought - and even before the authorities have started to investigate. A thorough, carefully-conducted investigation will help a firm determine whether fraud has been committed.
It may be a course of action that some firms are reluctant to take. If they fear they are unable to do it themselves, there are experts available who can carry out an investigation and advise on the best course of action. At Rahman Ravelli, this is a regular part of our workload. An investigation will establish the facts. If the firm then voluntarily reports any wrongdoing to the authorities, it may gain more lenient treatment than if, for example, the Serious Fraud Office discovered the facts for itself.
Further proof, if any was needed, of the importance of honesty.
Aziz Rahman is Senior Partner at Rahman Ravelli and its founder. His ability to coordinate national, international and multi-agency defences has led to success in some of the most significant corporate crime cases of this century and top rankings in international legal guides. He is recognised worldwide as one of the most capable legal experts regarding top-level, high-value commercial and financial disputes.