1. How is the current market affecting you?
Fortunately, very little at present. In my practice area of fraud, corruption and regulatory work, I hope there will be little impact. Recessions tend to uncover fraud which would otherwise pass undetected. The Madoff case is a good example of this—financial pressures on investors led them to seek to redeem their funds, which Madoff was unable to do because of his Ponzi fraud.
2. How bad will this downturn be compared to the last major recession?
This downturn happened far faster than anyone predicted. In the legal profession its effect will be felt on mergers and acquisitions work, commercial conveyancing, and structured products advice. It is likely to last for two to three years. However, it is likely insolvency and fraud practitioners will be in demand.
3. Are there any areas you are particularly focussing on?
In my area of practice we have made a conscious effort to attract offshore work. In particular, we have forged an alliance with an offshore law firm in Jersey which has brought benefits to both sides. The work is of high quality and has benefited both silks and juniors; in turn we have enabled the firm to achieve a critical mass in their early years. Obviously expertise in corruption and business crime is a focus of our development.
4. The Obama regime has shown signs of disquiet re: some offshore jurisdictions.
This has been going on for some years. US has its eyes on these jurisdictions and seems keen to halt what it believes tax evasion by US citizens. Senator Carl Levin has the perception that the offshore jurisdictions are hurting the US financially. This could lead to pressure being exerted on the UK government and the Crown dependencies to ensure that they are not viewed as harmful tax havens. The offshore jurisdictions could be in for a rough ride.
5. How have Carter proposals affected the criminal Bar?
Criminal legal aid fees are now paid at such a level, it will be difficult to attract high calibre junior talent. The concern is that this could affect the quality at the criminal Bar.
6. How do you think this will shape the criminal Bar?
These are likely to be increased pressures on junior barristers—competition from in-house defence advocates (as well as Crown Prosecution Service advocates) and uncertainty over the structure of the profession in the future. It will take three or four years to make things clearer, but it is evident that change has already started in the thinking of how chambers can adapt, which they will have to. Since the criminal Bar largely depends on public funding, if public funding is at a level that is unattractive, the criminal Bar in turn will shrink.
7. There’s been some debate recently in the legal press on the status of silks. What are your views?
Whatever system you have, you will always have a category of those at the top end of their profession. The area of controversy was that the old system was regarded as being too narrow in its approach and it excluded female candidates those with an ethnic background. I am not sure that the current system has lived up to expectations—it is very bureaucratic and also expensive in terms of the cost of applying. However, generally speaking, the system still finds able candidates. Being a silk myself, I had better not comment whether I am in favour of it.
8. Are there any changes in legislation that will affect the criminal Bar?
Apart from the increasing complexity of sentencing legislation, corruption now has a high profile. The draft Bill from the Law Commission proposes making it a criminal offence for companies to fail to have in place proper systems to detect and combat corruption. This will inevitably lead to increased work, not only for the criminal Bar, but also solicitors, if it is put into effect. A good example is the AON case where they were fined by the Financial Services Authority for not having a corruption policy in place. Once again this is following the US; the current Serious Fraud Office Director seems to be attracted to the US model.
9. Are there any unusual cases you’ve worked on recently?
For the last six months I’ve been working on a serious criminal white collar fraud case in Hong Kong. The system there is for the outcome of these cases to be determined by a judge and not a jury. The thinking behind this is the time taken for jurors (three to six months) and technically it is difficult to follow for the layman jury. I, however, prefer trial by jury where the issue is one of dishonesty, where both in Hong Kong and the UK, the standard to be adopted is that of normal reasonable people, which I believe is better judged by a jury than a judge alone. It is on the agenda here, but I don’t think it will happen in the short term. Interestingly, the statistics in Hong Kong appear to show conviction rates in the Hong Kong District courts (where trial by judge alone) are just over 90% as compared to 60–70% (in jury trials) in the UK.
Collingwood Thompson QC was interviewed by Guy Hewetson and Anil Shah, LPA Legal