In the Media

We get a better class of criminal

PUBLISHED May 30, 2007

Monty Raphael and Ian Burton are titans ? as many City businessmen will tell youDominic Carman

?When people come through our door, they?re afraid ? petrified of being prosecuted,? Ian Burton, senior partner of the commercial fraud specialists, Burton Copeland, says. ?Clients are increasingly concerned about the States ? very anxious about potential exposure. If their case has an international dimension involving the US, they imagine themselves being put in chains at Cook County jail with large people who may beat them up.?

Until 20 years ago, Britain had a much lighter touch in prosecuting fraud. ?The City didn?t used to recognise what is now seen as fraudulent activity,? Burton says. ?The Guinness case showed that the authorities would prosecute what previously had been unthinkable.? The conviction and imprisonment of the Guinness Four came after the establishment of the Serious Fraud Office (SFO), in April 1988. Although it has secured many convictions since, media attention has inevitably focused on its prominent failures: the Blue Arrow, Maxwell and Jubilee Line cases.

At the time of Guinness, Burton was a successful Manchester solicitor. Today, his London operation sits alongside Peters & Peters and Kingsley Napley at the top of the criminal tree. In frustrating the will of the SFO, this leading triumvirate is most adept. ?It?s exciting work ? we get a better class of criminal,? quips Burton, a smooth and engaging figure whose rapport with clients is ?tremendous? according to one observer. ?They get a top-notch service.? This applies both to the minor misdemeanours of errant pop stars (Chris Martin, Diana Ross) and to the more serious issues facing directors of BA, BAE, Yukos and Imperial Consolidated. He is also advising key individuals in the cash-for-peerages inquiry.

Prison is a real deterrent for white-collar criminals, argues Burton, but the pain starts with the investigation process: ?Innocence can take several years to establish. For many alleged fraudsters, it?s the end of their lives as they know it.

?Criminal practice,? he adds, ?has historically attracted the lowest common denominator from the legal profession because the rewards weren?t there. The Criminal Bar is not well served ? a lot of people who speak rather well, but don?t have a huge amount of intelligence, even less judgment. The worst thing is they think they are rather good. The clients they prey upon are incapable of forming a proper opinion as to their abilities. The quality of most criminal legal aid solicitors is also appalling. But it?s not an attractive political proposition for the Government to say we?re spending more money on criminals ? part of the population which is particularly unattractive ? when most people want them to be fried in oil.?

Burton?s sympathy for the SFO ? ?they try hard; they?re a decent bunch? ? is tempered by a keen strategic instinct. ?Until you can see the enemy show themselves and set out their forces,? he suggests, ?you don?t know what you?re facing: they often make a terrible mess of it.? At the junior level that matters, he sees ?incompetent and unmotivated? staff in the Crown Prosecution Service. ?Cases are neither adequately prepared nor prosecuted. I don?t think the Government wants them to be because they are not prepared to pay for it.?

So where might he turn if in trouble himself? ?There?s only one person ? I would go to Monty. His experience is invaluable.? At 70, Monty Raphael, at Peters & Peters, has seen it all. Offering the self-deprecating wit that characterises a true doyen, Raphael entertains as he speaks ? his argument illuminated by references from George Eliot, Trollope and Shakespeare.

?The problem with fraud,? he says, ?is that you?re watching the back of the bus as it leaves the station. Fraud piggybacks on commercial activity, affecting us all because it undermines our economy.? For a man who still works weekends and is regularly at his desk by 8am, long hours are a pleasure.

?It?s only in the past five years that City lawyers look at firms like ours as necessary add-ons,? he says. In addition to Peters & Peters, Raphael sits on the Fraud Advisory Panel, is a director of Transparency International UK and is honorary solicitor to the Howard League for Penal Reform.

The latter gives a clue to his views on deterrence: ?White-collar crime is no longer committed only by people with white collars, although fraudsters are generally well educated and sophisticated. The big question is whether prison ever works. Fraud is an opportunistic crime and I don?t think prison deters them more than any other criminals.? Raphael endorses the slippery slope theory ? proposed by Michael Levi, Professor of Criminology at Cardiff University ? which suggests that small-time deception can lead to big-time fraud. ?Sometimes it?s greed or stupidity,? Raphael says, ?but very often fraudsters carry on because they have an addictive personality.?

Raphael broadly supports the Fraud Review, the new Fraud Act and the establishment of the Serious Organised Crime Agency. ?I don?t take the view that the much-maligned SFO has been unsuccessful. They are not Eliot Ness and his team in Elm Street,? he says. Under earlier regimes, Raphael believes that expectations were artificially heightened. He argues that ?the public doesn?t appreciate the huge volume of fraud ? a lot of companies don?t report fraud because of damage to their reputation?. The headline figures from accountants and independent research, he suggests, significantly understate the scale of the problem.

A passionate advocate for more resources being devoted to combating white-collar crime, Raphael believes ?the Government has a desire for rapid results; that?s not possible with law enforcement?.

?We?ve had a huge number of criminal justice measures under Blair, often not well thought-out. Slow and proper consideration needs to be given to fraud detection and prevention. If Gordon Brown wants my advice, I am available,? he says half-joking. ?No one has ever accused me of being humble.? He hopes that Brown won?t pursue the abolition of juries: ?It would take away a plank of community justice for nothing.?

His most enjoyable case? ?The successful defence of Kevin Maxwell,? he responds without hesitation, ?because of its size, the huge media attention and the challenge, which was unusually onerous. Kevin showed remarkable resilience ? he became a pragmatist with the unparalleled capacity to grasp issues and be realistic about what was facing him. He was determined to confront it and come through. Many clients are like ostriches ? they can?t face what?s happening to them. But I admired his ability to survive and prevail during such an ordeal.?