FEBRUARY 2024 Welcome to this month's edition of Lawyer Monthly Magazine, your exclusive gateway into the multifaceted world of legal expertise and innovation. As the landscape of law evolves at an unprecedented pace, we are dedicated to bringing you cutting-edge legal discourse, from the intricate strategies of criminal defence to the nuanced realms of wealth planning in the UAE and beyond. In this issue, we explore the critical role of criminal defence in upholding justice and protecting individual rights amidst a backdrop of recent false allegations in the press. We also turn our attention to the dynamic and rapidly growing wealth planning sector in the UAE. With its unique legal framework and economic opportunities, the UAE presents a fascinating case study in effective wealth management and planning. Our experts provide guidance on navigating these waters, ensuring that you are wellinformed of the latest trends and regulations. Mediation, a cornerstone of dispute resolution, receives special focus as well. In a world where litigation costs continue to soar, mediation represents a cost-effective and efficient alternative. Through expert commentary, we examine how mediation is being transformed and what this means for the future of dispute resolution. Read on for all this and much more, including articles on IP, Asset Tracing, Insurance Law, Family Law and stress-busting gadgets. We hope that this issue not only informs but also inspires you to engage with the legal challenges and opportunities of our time. Your feedback and perspectives are invaluable to us, and we look forward to continuing our journey together through the ever-changing landscape of law. Warm regards, Mark Palmer Editor, Lawyer Monthly EDITOR'S PICKS: Marcus Johnstone Inside the World of Criminal Defence Richard Buxton Pioneering Mediator Shares Insights 16 30 LAWYER MONTHLY©2024 Universal Media Limited Lawyer Monthly is published by Universal Media Limited and is available on general subscription. Readership and circulation information can be found at: www.lawyer-monthly.com. The views expressed in the articles within Lawyer Monthly are the contributors’ own. All rights reserved. Material contained within this publication is not to be reproduced in whole or in part without prior permission. Permission may only be given in written form by the management board of Universal Media Limited. Approx. 302,000 net digital distribution.
Production Team: Emma Tansey, Luke Ostle production@lawyer-monthly.com Sales Enquires: Jacob Mallinder Jacob.mallinder@universalmedia365.com @lawyermonthly @LawyerMonthly @lawyermonthly company/lawyer-monthly Universal Media Limited, PO Box 17858, Tamworth, B77 9QG, United Kingdom 0044 (0) 1543 255 537 CONTENTS NEWS 4. Will M&A Make A Recovery in 2024?: A Busy Year for M&A is Expected 6. Manchester City’s Legal Battle Continues: Will They Face the Consequences? 8. Dave Jessop Ltd’s Management Buy-in Insights from Mackrell Solicitors MY LEGAL LIFE 10. Why You Should Be A Freelance Lawyer Work with Freedom! 12. Gadgets That Can Reduce Your Stress Levels Bringing Science and Meditation Together AN INTERVIEW WITH... 16. Marcus Johnstone False Accusations Bring Lasting Devastation: Inside the World of Criminal Defence 24. Tom Stanley Asset Tracing and Recovery by K2 Integrity 30. Richard Buxton Pioneering Mediator Shares Insights 36. Brian Robison Business-Litigation and Mediation in Texas 40. Nicki Mitchell Empowering Couples Through Family Law 44. Darin M. Klemchuk Intellectual Property Infringement Matters and Disputes SPECIAL FEATURES 48. A Matter of Tax: Private Client and International Wealth Planning in the United Arab Emirates Kim Lacombe and Frédéric Cuguen, CW Partners 56. Navigating Copyright in a Digital Age Augusto Perera, ESQ 60. California’s 2024 Employment Law: Key Updates Employers Need to Know Christine H. Long, Berliner Cohen, LLP 64. Navigating the Dynamics of Private Equity in France Ana Brandao, BDO Avocats 68. Insurance & Reinsurance Regulation in Gibraltar Christian Caetano, ISOLAS LLP 72. Exploring Divorce Dynamics: Do I Need a Divorce Attorney? Patricia Fersch, Fersch Law Firm 74. White-collar Crime on The Rise in Switzerland Sébastien Collart, 100 Legal 78. Navigating Commerce and Technology Armand J. Zottola, Venable LLP 82. When Lawyers go Agile Dr. Martin Schellenberg, HEUKING 86. Arbitration Agreements and Legislation in China Simon Bai, Grandall Law Firm 90. BBLM Avocats: Insight into The Restructuring Department Thomas Gagossian, BBLM Avocats Nicki Mitchell Empowering Couples Through Family Law Darin M. Klemchuk Intellectual Property Infringement Matters and Disputes 40 44
The Law Gazette reported that European M&A activity declined more than the global average with a fall of 28% whereas worldwide the decline was 13%. City Firms especially are now counting on a recovery of M&A activity being driven by private equity along with a search for security. In 2023, prices became a primary obstacle as sellers did not want to accept the prices potential buyers were requesting. Even the major strategic buyers were sitting on the sidelines and prioritising profitability rather than growth through acquisitions. Capital IQ data shows that Amazon, Alphabet, Apple, and Salesforce made only 4 acquisitions between them in 2023, comparing this to 2022 where 18 were made. 4 LAWYER MONTHLY FEBRUARY 2024 Will M&A Make A Recovery in 2024? A busy year for M&A is expected In 2023, M&A activity took place on the sidelines as we saw the lowest value and number of transactions since 2013. The value of M&A transactions decreased in value by 17% to 2.9 trillion making it the slowest fullyear period for deal-making for a decade. There were over 55,200 deals made in 2023 which is a decrease of 6% compared to previous years and was a part of a 3-year low. Written By Courtney Evans Financial services are back to prioritising deal-making again in 2024 after the rising inflations and economic uncertainty of the past year.
their competitive advantage and lead the trend. With the priority set to ESG, companies are looking to M&A transactions to improve and this will allow them to quickly make headway as leaders in the industry. The energy sector is attracting investment from a broad base but their challenge will be thriving in a climate driven by technology along with the climate anxiety felt by society, encouraging companies to make active decisions in favour of the environment. Financial services are back to prioritising deal-making again in 2024 after the rising inflations and economic uncertainty of the past year. The aim will be to incorporate technology into their industry and create a modern and smooth way to change strategies. We can expect a much more active year for M&A transactions in 2024.them in their legal battle has caused this case to be prolonged. Whilst the club still has not faced any real consequences, others like Everton have had points taken away for the same accusations. The question of whether Manchester City will ever face any consequences is ongoing. advancement through M&A will likely fuel deal activity across multiple industries and allow for M&A to rise from 2023 figures. Along with Technology, healthcare is also expected to surge in M&A activity as the demand for specialised expertise and innovative solutions is prominent. This will encourage companies to actively seek out acquisitions. Morrison Forester reports that global private equity deals dropped 33% in volume and 41% in value as sponsors were being cautious in their M&A approach. Sponsors had to adjust their methods of dealmaking due to interest rates, and tightening credit markets which has meant that 91% of PE firms surveyed in the 2023 Tech M&A Survey do expect to use minority investments which is up from 55% from 2022. In 2024 there will be a shift in strategy for the activity to rise and AI will aid in due diligence, streamlining business operations, identifying potential M&A targets, and automating various tasks associated with deal making. Energy is also expected to be an area of focus as many turn to M&A to boost Seeing a rise for 2024 In Q4 of 2023, there were signs of recovery as 10 of the largest deals were announced, igniting hope for more in 2024. Those that fell into the highest valuations in 2023 were the cybersecurity and AI categories. This will continue to be the highest-value area for transactions in 2024. Small transactions are expected to make a quicker recovery for 2024 and we will see strategic and financial buyers being more active when it comes to these. The future of M&A Technology will be a top choice for dealmakers as Morrison Forester reports that technology accounts for 27% of deal value. Cybersecurity was chosen as the most promising subsector for deals for the year ahead. With Pfizer’s $43 billion takeover of Seagen in 2023, along with Daiichi Sankyo’s $22 billion deal with Merck, healthcare was the third-highest sector by volume with North America experiencing its highest-level value ever. Ambitions for technological NEWS 5
FFP Policies Financial Fair Play policies were introduced in 2009 when the UEFA was concerned about the number of clubs spending more than they were earning in their pursuit of success. The clubs were creating debts that were not sustainable and would have led to bankruptcy for them. The Premier League adopted their own set of FFP, focusing on profitability and sustainability rules. This means that now the Premier League reviews each club’s spending and sets a limit on the extent to which they can keep running a loss. No club is allowed to lose more than £105 million over 3 years. However, this does not include spending on investments in the stadium and training ground, community programmes, women’s football, and youth development instead these are known as ‘add-backs’ and are excluded from the restrictions. These policies allow for each club to prevent unsustainable debt and so prolong their existence. Additionally, each team is restricted in spending meaning no one club can benefit from financial investments and ideally have equal opportunity in the Premier League based on skill levels. Will they be facing any consequences? The club were suspended in 2020 for 2 seasons and fined EUR30 million however this was lifted after an appeal at the Court of Arbitration for Sport (CAS) and the fine was reduced to EUR10 million. The statement was that the breaches were not established and so the club could not be convicted for them. Manchester City were not the only team who have been accused of breaching the policies. Everton and Nottingham Forest were also charged with breaching the profitability and sustainability rules. Everton were deducted 10 points in the league back in November. 6 LAWYER MONTHLY FEBRUARY 2024 Manchester City’s Legal Battle Continues Will they face the consequences? Manchester City Football Club, a prestigious English club which was founded in 1880 has been caught up in a legal fight with the Premier League for several years without any convictions. The Club, which is currently standing at number 2 in the premier league table has been breaching FFP and Premier League policies. These breaches include failing to disclose accurate financial information and managerial remuneration details. The breaches occurred during periods across 2009-2018 in which time the club won the league 3 times. Written By Courtney Evans
has not faced any real consequences, others like Everton have had points taken away for the same accusations. The question of whether Manchester City will ever face any consequences is ongoing. Manchester News informed us that in the last two years, the club has spent more than £400m on signings and not had a significant amount coming into the club. Manchester City are spending far too much with not enough profit being returned. This is a clear breach of FFP and could result in fines or a deduction of points in the premier league. Manchester City have denied all claims of breaches, making the case complex and explaining why it has taken so long to reach any verdicts. From the latest Premier League meeting which was focused on how to make sure the FFP policies are being followed strictly, no verdict has yet been reached however discussions on making sure football clubs adhere to the policies were a top priority. The club’s financial ability to spend on signings as well as lawyers to support them in their legal battle has caused this case to be prolonged. Whilst the club still Not only have Manchester City breached the rules, but the Premier League also allege that they did not comply with UEFA’s financial policies over the course of 5 years. The Guardian reports that they have also been accused of not fully and appropriately cooperating with the Premier League’s investigation. NEWS 7 The club also suffered a £42m fiscal year loss after reporting a record deficit of £115m in 2022. Sky Sports states that the Premier League have charged the football club with 115 breaches of their policies across 15 different seasons.
Could you describe the role of Mackrell Solicitors in the acquisition of Dave Jessop by David Pierce and the key contributions you and your team made to this transaction? – Guvvy Sandhu is an experienced corporate lawyer and together with the team at Mackrell made sure that a key focus was more than just helping clients with receiving an investment. A corporate transaction (regardless of its nature) always begins with two key questions: 1. What is the reason for the transaction? 2. What are the clients aspirations once the transaction has completed? The nature of these questions means that the negotiations and related paperwork is then crafted around the responses to these questions and ensure that the commercial reasons for the transaction itself are the forefront. If such questions are absent then the risk is that a transaction becomes mechanical and not client focused. What made Mackrell Solicitors the best suited team to work with Dave Jessop on this acquisition? – The responses to this question could be the basis of its own article! With a wealth of experience in deal structuring and advisory, the team at Mackrell solicitors were able to guide our clients as to what is relevant and what is not. This ensured a seamless and efficient negotiation as all parties were concentrated on the transaction specific item and not, “A negotiation for the sake of a negotiation.” Early stage due diligence – the team at Mackrell always review due diligence from both the perspective of an investor and target business so that any potential areas of discussion and opportunity can be considered and managed at an early stage. 8 LAWYER MONTHLY FEBRUARY 2024 Dave Jessop Ltd’s Management Buy-in David Pierce, a private investor has invested in Dave Jessop Ltd, a Yorkshire industrial roofing and sheet metal fabrication business. Dave Jessop is a family-run business specialising in industrial, domestic and agricultural markets. They provide products to their local area as well as to a wider UK market. This acquisition is set to see Dave Jessop Ltd thrive under David Pierce and his team lending their invaluable skills to grow the business. Mackrell Solicitors provided legal advice to the sellers of this acquisition. www.mackrell.com An Interview with Guvvy Sandhu and Chris Lane Mackrell Solicitors
What kind of support post deal do Mackrell Solicitors provide its clients such as, Dave Jessop and how is this critical for the business’ success? – As a full service law firm we ensure every client has the opportunity to benefit from the full extent of our services. What this often means for our corporate clients, post deal is an introduction to our private client team, enabling the client to create or adjust their will and lasting power of an attorney. For client needs beyond legal services we have a tried and trusted network of professional service providers in the world of banking, accounting and wealth planning that we can call upon to build a team of advisors saving time and money from a client perspective. This meticulous approach empowers all parties with the knowledge to make an informed decision from the beginning. This in turn supports the parties in intentions to look beyond completion and into the future as partners. How do you manage the relationship between your client and the investor and how does this impact the success of the project? – It is always key to explain to clients that their commercial relationship with their investor should remain at the forefront of the process. The transaction does not stop at completion. Both parties have made a commitment to the future in terms of either a return on their investment or a prospective return on an investment. NEWS 9 Both parties have made a commitment to the future in terms of either a return on their investment or a prospective return on an investment.
Finances online found that people between the age of 18 – 29 are 53% more likely to find a job using their smartphones. Since the COVID-19 pandemic people are more likely to desire a better work-life balance and demand this in their jobs. For lawyers this is one of the biggest struggles with such a busy work life, but being a freelance lawyer can offer you more job autonomy. Whilst working for yourself has some great perks it can also bring other stressors and unpredictability. You will have to work hard to build your own freelance business and profile whilst dealing with everything yourself. Is being your own boss something you think you could do? The benefits of being a freelance lawyer You can create your own hours and decide when you want to work meaning you will have a more balanced lifestyle and avoid burnout more easily. You can decide your own fees, whether that is an hourly rate or a fixed standard rate. 10 LAWYER MONTHLY FEBRUARY 2024 Special Feature Work with freedom! With a new digital age comes new possibilities and many are taking on the option of being a freelance lawyer. The possibility of remote work has spread worldwide into thousands of different sectors and lawyers are employing this idea too. Why You Should Be A Freelance Lawyer
You will be able to take on a variety of cases which you choose between. You won’t have to take on cases you don’t want to or don’t believe in creating more job satisfaction. You will have great chances to network with each new client and potentially set yourself up with regular clients. Disadvantages of being a freelance lawyer Taking on the risk of working on your own. You will have no administrative help meaning you may have more paperwork to do yourself. Your pay check will be less reliable as you have to find your own cases and until you build up your business they may not be regular. You are in charge of each area of the business including business licenses, malpractice insurance all whilst working as a lawyer too. You will have to market yourself in order to receive clients. Using LinkedIn and starting a website which you will have to regularly update, reach out to people and market yourself as a business so you can grow. How to get started You should first, find your niche area of law that you will practice. Clients are more likely to hire a specialised lawyer in what they need. This will help your reputation to be consistent and allow clients to understand how you will help them. Set up your website and LinkedIn. You need to be seen by potential clients and so the best way to do that is to set up professional profiles. Gather testimonials and write up about the services you provide. LinkedIn can be a great way to network and you could find clients this way. Get malpractice insurance from the beginning. This is essential to becoming a freelance lawyer and will protect you from any legal action that could come up during your work. Always draw up written agreements and contracts with clients and hiring firms to avoid any miscommunication or disagreements. MY LEGAL LIFE 11 Written By Courtney Evans The possibility of remote work has spread worldwide into thousands of different sectors and lawyers are employing this idea too.
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Bringing science and meditation together to provide you with a way to reduce stress levels, increase focus and improve your quality of sleep, these gadgets are popular with many. Working in the legal industry is known to raise stress levels but with these gadgets you could begin your journey to tranquillity even when you’re in the office. Whether you have a day off, only a 10-minute break or a day filled with important meetings these gadgets could work for you as they are designed to make it easy for you and not add to your to-do list. Gadgets levels stress that can reduce your Written By Courtney Evans There is no single way to relieve us of all our stress and worries, however, there are ways to provide some relief. Science has found a way to help us relax and focus through gadgets we can use quickly and even some we can wear throughout the day or night. These gadgets are only effective if you use them consistently and allow yourself to start feeling the effects as your brain learns to calm down. MY LEGAL LIFE 13
Muse 2 This a device you can wear as a headband during the day or night to help you wake up feeling calm and refreshed. Using EEG technology muse will accurately track your brain activity whilst in use including heart rate, breathing and audio feedback can be accessed via the app. This headband is built to be comfortable so it can be worn for long periods so it can train your mind to focus on calming. If it senses your mind is distracted it will play sounds such as rain and wind to recentre you. Once you are calm and relaxed it will play soothing nature sounds which lets you know you are in a calm state. By allowing yourself to focus your brain can stop racing and learn how to de-stress. Wearing this in the office may get a few looks but you won’t even notice when you’re that calm. www.choosemuse.com credit: https://choosemuse.com/ credit: https://www.getsensate.com/products/sensate-2?variant=40503515250777 Sensate 2 This is a stone-shaped device that you can start feeling the effects of quickly. Lay it on your chest where it will emit vibrations to help you relax. Sensate was made and tested in the UK and has quickly become a popular tool to relieve tension. Using Infrasonic resonance and soundscapes, this device activates the Vagus nerve which then calms the brain medulla which is responsible for stress and anxiety. Whilst Sensate cannot be worn for long periods of time it has almost immediate effects and so is suitable if you are on a busy schedule and can only get a 10-minute break to use it. www.getsensate.com 14 LAWYER MONTHLY FEBRUARY 2024
credit: https://apolloneuro.com/products/apollo-wearable credit: https://calmigo.com/ CalmiGO This is a small portable device which is great if you are often on the go. CalmiGO can help you to learn breathing techniques and prolonged exhalation. You breathe into the device and receive feedback on whether you need to take longer breaths or not. Using scents from natural oils as you breathe in a scent of your choice to help with relaxation. The device boasts effective results within 3 minutes of using it with no side effects. In moments of intense anxiety, panic attacks and PTSD this device will help you to relieve your stress and continue with your day without a hitch. CalmiGO helps to activate the parasympathetic system which is the ‘calming’ nervous system and will reduce your stress. www.calmigo.com Apollo Neuro This is a wearable device for a comfortable wear all day, it can either be worn on your wrist, ankle, or clipped onto your clothes. This device was brought to us through neuroscience research at the University of Pittsburgh. Being able to wear this device allows you to always have it on, even in meetings. Research for Apollo Neuro shows that on average this device will help users feel 40% less stress and less feelings of anxiety, an 11% increase in HRV, up to 30 more minutes of sleep at night and 25% more focus and concentration ability. The vibrations from this gadget are soothing to rebalance the nervous system. They recommend using it 3 hours a day for 5 days a week. With this one, the more you use it the better it will work for you as your body learns to regulate and you will regain control of your stress reactions. www.apolloneuro.com MY LEGAL LIFE 15
Marcus Johnstone 16 LAWYER MONTHLY FEBRUARY 2024 What inspired you to specialise in criminal defence? In my opinion, criminal law is the most important area of law. Let’s face it, which other area of law, if something goes wrong, can you face spending the rest of your life in prison? Imagine being accused of a sex offence. Just an allegation often results in the loss of your job, your family unit breaks down, you are stopped from seeing your children and you may be held in prison during the investigation. Now, imagine being the victim of a false sexual allegation. In recent years I have noticed a massive increase in false allegations. However, the starting point for the police is that the person making the complaint is believed, and the person accused is made to feel like they have to prove their innocence. A conviction for a sex offence can not only result in a prison sentence, but you also have to register as a sex offender - sometimes for the remainder of your life. Marcus A Johnstone, Solicitor PCD Solicitors Email: marcus@pcdsolicitors.co.uk Tel: 0151 705 8488 www.pcdsolicitors.co.uk This week, Lawyer Monthly had the opportunity to talk with Marcus Johnstone, a UK criminal defence solicitor with over 20 years of experience. Marcus started off as a senior lecturer in law and politics but in his heart, he is a true defender and has been exclusively practising criminal defence, specialising in sexual offence allegations, in the UK for over 20 years. Marcus is a Senior Solicitor and director at PCD Solicitors and is highly regarded in the UK legal community for his nationwide specialist work as a sexual offence defence solicitor with particular expertise in defending rape, sexual assault, indecent images and historic sex offences. Working closely with some of the country’s leading barristers, Marcus and PCD Solicitors are without a doubt a step ahead of other law firms when it comes to defending sexual allegations. An Interview with... False accusations bring lasting devastation: Inside the world of criminal defence
WWW.LAWYER-MONTHLY.COM 17 In my opinion, criminal law is the most important area of law.
spend all my time dealing with this area of law alone, I would become more knowledgeable than other lawyers and better able to defend my clients. As far as I am aware, we are now the only law firm in the UK that only handles sexual defence work. Concentrating solely on sexual allegations has enabled me to build what I believe is the country’s leading sexual defence firm. What types of sexual offence cases have you worked on over the last 20 years and how have sex crimes and defending sexual offences evolved during this period? Sexual offences can be split into two categories; those committed by personal contact (sexual assault, rape, harassment, coercive behaviour, etc) and those committed over the internet where no personal contact takes place (indecent images, revenge porn, grooming, incitement, etc). 20 years ago, very few offences were There is also a massive imbalance of power between the prosecution and defence. The police, with all their powers to investigate, are part of the State. Cases are prosecuted by the Crown Prosecution Service (CPS), again part of the State. People making complaints are now given considerable support from the state, with specially trained police officers, support staff and counsellors. The defendant, on the other hand, has no support from anyone. I wanted to try and rebalance the power, to try and achieve a fair and just outcome. It is a massive honour to represent any client and thereby be the only person fighting to ensure they are not convicted. PCD Solicitors only handle sexual offence cases. This is quite unique. How did this come about? I recognised many years ago that to become the best at something, you had to specialise. I wanted to concentrate on offences carrying the most severe sentences and those that have the most impact on the lives of those accused. I have always wanted to protect people against false allegations and wrongful convictions. Many years ago, I started to notice a year-on-year increase in sexual allegations, largely as a result of information appearing on the internet. There was also a massive increase in those accused claiming the allegations were false. Social media, dating sites, chat rooms, the ‘#MeToo’ movement, attention-seeking disorders and other mental health issues have all played a part in people willing to claim they are victims of sexual assaults (whether true or false). I set up a law firm to specialise in sexual defence work, with particular emphasis on identifying and defending false allegations. I figured that if I could 18 LAWYER MONTHLY FEBRUARY 2024 Many years ago, I started to notice a yearon-year increase in sexual allegations, largely as a result of information appearing on the internet.
committed online - because most people had no access to the thenemerging internet. In 2024, most crimes are now committed online! Just as there has been a massive expansion of online (lawful) pornography, there has been an equally massive expansion in online illegal pornography. The internet is, in effect, responsible for the explosion of offences relating to indecent images of children. Facing an allegation of a sexual offence has a devastating impact on you, your wider family, your reputation and potentially your livelihood. What happens when someone is accused of a sexual offence and is there a strategy for handling false allegations for sexual assault? An allegation of committing a sexual offence is life-changing. Clients are often suspended from work, rumours circulate, comments may appear on social media (which can remain forever) and it can split families. If you have children, Social Services may become involved and you may be prevented from living at home or seeing your children. And this is even before you are charged or convicted. We have a well-tried and tested strategy for dealing with this problem. As soon as we are contacted by a new client we arrange a detailed conference to obtain all the background information. We go on record with the police and CPS the same day to request an update and disclosure of any evidence. We have a team of three lawyers who work on each case, plus our support staff. We start working on defence arguments from day one. Of course, we are also able to represent our client at any police interview. If a client has not yet been charged with an offence (but is under investigation), our main aim is to stop a prosecution. We try to do this by liaising with the CPS and showing that the evidence, as presented by the police, does not reach the prosecution threshold. There are particular legal arguments that need to be made to the CPS to try and stop a prosecution - and this work should be started as soon as possible. WWW.LAWYER-MONTHLY.COM 19 The CPS may then decide to take no further action or issue charges and refer the case to court. If a client is charged with offences, we can then, of course, defend the case in court. It will take between 12 - 24 months for a case to reach a trial. During this time there are various steps we may take to try and get the case thrown out. Of course, we also have expert barristers to represent clients at any trial. Nigel Lythgoe, Donald Trump, Vin Diesel, Sean ‘Diddy’ Combs, Prince Andrew, Jamie Foxx, rock star Axl Rose, and Oscar winner Cuba Gooding Jr have all recently been accused of sexual assault with lawsuits filed. Making malicious false allegations of sexual abuse, violence, and rape against men is on the increase. Why is this happening and how is it possible to protect your legal rights in a false accusation legal claim? I have certainly noticed over recent If a client has not yet been charged with an offence (but is under investigation), our main aim is to stop a prosecution.
20 LAWYER MONTHLY FEBRUARY 2024 her mental trauma as the equivalent of a physical assault. I have several cases of husbands and wives who split up after the marriage breaks down. The wife then makes a claim of rape going back years. This is often linked to child custody battles, access to matrimonial assets, access to maintenance, mental health, etc. To protect your legal rights you should contact a specialist solicitor as soon as possible. Personally, I have always offered an initial consultation free of charge, and most of our ongoing work can be completed on a fixed fee - which remains the same however long the case goes on. This takes a lot of worry away from a client - because they know from the outset what the legal costs will be. years a huge increase in false rape allegations. There are several reasons for this, including the ‘#MeToo’ movement, the availability of social media for women to gather support, mental health and attention-seeking disorders. There has also been a growing increase in the desire for compensation. A victim of a rape offence may be awarded around £100,000. Some police forces now actively advertise for women to come forward and report abuse - stating that they will be believed. In a recent development to this compensation culture, a man who posted on the internet a couple of nude photographs of his ex-girlfriend stood in the shower had to pay her almost £100,000 in compensation for her mental pain and suffering. For the first time in legal history the Judge regarded Whether arrested for a single accusation of rape or assault, or as part of a wider investigation into pattern of behaviour, the stigma of being accused of these crimes is devastating. What is your advice to anyone accused of false sex crime allegations? How should you respond to sex crime allegations and what should you NOT do? Seek expert advice as early as possible from a specialist law firm. You should avoid a legal aid firm, as these firms are
generally set up to deal with legal aid cases - and legal aid is only available after someone is charged. My main aim, from the outset, is to stop my client being charged. Build your defence early - I work with clients on this point over several weeks or months, starting from day one. Even before a police interview and long before a charging decision is made, I work with clients on all background issues, assess the available evidence, obtain constant updates from the police (regarding their investigation) and learn as much as we can about the complainant. This all helps me to formulate defence arguments. If you need to attend a police interview, do not rely on the duty solicitor but, instead, have your own private solicitor with you at the station. Do not say anything to the police without your solicitor being with you. Unfortunately, as with most things in life, money talks. If you can afford it, pay privately for legal advice. There is a massive difference between what can be achieved on a private basis as opposed to legal aid. Legal aid is a state handout and, as with any state benefit, pays the absolute minimum. WWW.LAWYER-MONTHLY.COM 21 Rape carries a maximum life sentence. It is the most serious sexual offence and yet legal aid only pays around 10% of the amount actually required to defend a case properly (in my opinion). In other words, around 90% of the work that should be completed to defend a case properly does not get done - because the legal aid firms do not get paid to do it. Shocking isn’t it? All law firms and solicitors like to say they are client-centric, but that’s not always the case. Relationships require constant communication. To build trust, firms need to continually validate their relations and find out what their clients want. How has PCD solicitors managed to become one of the UK’s leading sexual offence defence specialists? Whether a case can be defended successfully largely depends on the preparation work. It can take 6-12 months even before a charging decision is made by the CPS. It can take a further 12-24 months for a case to reach a trial. The trial itself may only take 3-5 days. Preparation is the key. We spend a considerable amount of time with any client, gathering background information, relationship history, medical information, version of events, etc, so we can start to formulate the very best defence arguments from an early stage. We also investigate, where possible, the background of the complainant. We have a team of lawyers working on each case we deal with. I also involve senior, specialist, barristers from the very first hearing - who will remain on the case throughout. By doing so we build up a considerable amount of information about our client, the complainant, the evidence and our defence. We are also able to obtain all the evidence at the earliest possible time. By reviewing the evidence with our client in person and taking as much time as we need, we are able to prepare the case properly. It can take several months to build a defence property - just as the police and CPS may take several months to build the prosecution. During this time we can really get to know our clients, and they can get to know us. I also know the importance of being there for every client. A member of my staff is in charge of pastoral support for clients - largely unheard of in a law firm. This isn’t about being a lawyer, it’s about caring for a client’s welfare, offering support, chatting and being available if a client wants to talk. We introduced this support after one of our clients committed suicide whilst waiting to see if he would be charged. (Two days after this client committed suicide a letter was delivered to his address informing him there was to be no further action. It was sent second class and took five days to reach him. Two days too late.) We don’t want to lose any other client this way. To protect your legal rights you should contact a specialist solicitor as soon as possible. Personally, I have always offered an initial consultation free of charge.
Have there been any recent or notable legal developments or landmark cases regarding sexual offence crimes? Case law and legislation is continually developing. So are the types of sex crimes and the reasons for committing them. Rapes are increasing because more people are reporting them. The ‘#MeToo’ movement and social media sites have certainly increased the number of allegations of historic rapes. The media, internet sites and even the police now encourage victims to come forward and complain. Online offences are continually developing. Social media sites will pay money to content creators. More amateurs are posting content. The boundaries are constantly being pushed as to what is legal / illegal. Does the person look aged 17 (a child) or 18 (an adult)? A photograph of people on a train is lawful, but if it is possible to see up a woman’s skirt, is it unlawful? Possibly. Possibly not. Uncertainties in the law also create defence opportunities. 22 LAWYER MONTHLY FEBRUARY 2024 The most rewarding part of my work is defending a client against a false allegation and winning!
Revenge porn is now a crime. In a recent case, which set a precedent, a woman whose nude photograph was uploaded to the internet by her ex-boyfriend was entitled to almost £100,000 in damages (compensation) because of the mental anguish caused. The same amount may be claimed by a victim of rape. The newly created Sexual Risk Order can be applied for by a single police officer, even before you have been charged with any offence. Unless opposed, this will be ‘rubber stamped’ by the Magistrates’ Court and thereafter all your internet usage, search history, sites visited, phone calls made and received, etc, will be monitored by the police, and your devices can be inspected by the police at any time. Failing to keep a phone number or a record of a website visited can result in you going to prison. Finally, what is the most rewarding part of being a criminal lawyer specialising in defending sexual offence allegations and is there a particular case that stands out for you? The most rewarding part of my work is defending a client against a false allegation and winning! A few years ago I represented a young man who had been charged with 7 counts of rape. Everything about the case indicated to me that the complaint was false, and my client was completely innocent. It took 2.5 years from the date she complained to the police until the trial. After a trial lasting 5 days, it took 20 minutes for the jury to find him not guilty of all charges. We later found out that the woman concerned had made previous false complaints, had admitted to her psychiatrist that she made up stories and had previously complained of rape against another man - who had also been prosecuted and found not guilty. Despite being acquitted on all charges, this young man’s life has changed forever. He now suffers PTSD as a result of 2.5 years of investigation, accusations and a five day trial. He now finds it difficult to WWW.LAWYER-MONTHLY.COM 23 trust females and cannot go out - for fear that someone will accuse him again. The law says he is not entitled to any compensation. There are, no doubt, many women who are genuine victims of sexual abuse and who, quite rightly, want to be dealt with fairly by the criminal justice system. Unfortunately, their cause for fair treatment is being diluted by the ever-increasing number of false complaints. www.pcdsolicitors.co.uk
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Tom Stanley WWW.LAWYER-MONTHLY.COM 25 key growth market for us, as we have seen corporations in the Middle East demonstrate a greater willingness to pursue debtors outside the jurisdiction and engage investigators to help recover their funds. At what stage should lawyers first call in the investigators and why? I think there is now a greater understanding of what investigators can offer in terms of asset recovery and a willingness from lawyers to engage with them early in the process. There are broadly three stages of a case where investigators can be introduced: prelitigation, mid-case and post-judgment. Before launching a legal case there is often merit in identifying your potential adversary’s assets, or indications of assets that may be confirmed through further investigative work or legal discovery. An investigator’s report at this stage can help you to assess how complex the other side’s asset holdings are and how well prepared their defences are. For example, it may be found that your opponent holds most of their assets in less enforcement friendly jurisdictions, or that they tend to use offshore entities to mask their interests. This can be crucial What type of firms and cases does K2 Integrity work with? Our core clients have always been law firms, and this has not changed. However, the rise in litigation funding has seen the asset recovery market change to an extent. Without funding a case often does not get off the ground, so relationships with these funders is critical for us. Recent years have also seen a rise in the number of hedge funds moving into the litigation market and commoditising arbitral awards. By viewing these awards as tradeable assets and recognising them as an asset class which can offer very high returns on investment, they have opened up new opportunities for investigators. A big part of this market is the enforcement of awards against sovereign states and these cases have always formed a large part of our practice and continue to do so. Outside the traditional legal centres of London and New York where we continue to do a lot of work, at K2 we have historically had a strong presence in Geneva and have also expanded our presence in the Middle East in the past two years and opened offices in Abu Dhabi and Riyadh. This is a In the complex domain of asset tracing, K2 Integrity distinguishes itself through its dedicated practice led by Tom Stanley. Based in London, this specialised team focuses on uncovering hidden assets, leveraging a wealth of experience to offer clients efficient recovery solutions. Jules Kroll, the company’s founder, has set a high bar with pioneering investigations into corruption and asset searches against globally recognised figures, establishing a robust legacy for the firm’s current operations. An Interview with... Asset Tracing and Recovery by K2 Integrity www.k2integrity.com
intelligence for developing your legal strategy. An investigator’s report at this stage can also help in obtaining funding for the case, and we often work with law firms to provide them with an initial report or asset map that forms part of their submission to funders. When legal cases are underway, investigators can assist in further identification of assets, but also importantly monitoring known assets for evidence of dissipation. Good investigators know what to check for in such instances, looking for the movement of assets into more complex structures, the names of proxies, or other approaches such as “sham” divorces designed to thwart creditors. Investigators can also provide verification of asset disclosures during proceedings – the discovery of false or misleading information can be a powerful weapon for lawyers. In a post judgment scenario, you may find that the other side is reluctant to pay. The debtor may be protected in a jurisdiction which is unwilling to recognise your judgment. In this instance, investigators can help bring about speedy resolutions by identifying assets that will create leverage. For example, a private jet owned by the subject may be found to have landed in an enforcement friendly jurisdiction. Seizure may create embarrassment and an impediment to daily life or business operations that brings the other side to the negotiating table. What are the first stages in an investigator’s response? In most cases, clients approach investigators with a set of predetermined requirements which they believe will assist them in resolving an issue or in advancing their legal claim. This will often include a demand to focus only on certain jurisdictions, which can be challenging for investigators as while the underlying asset, such as property, may be in one jurisdiction, the corporate structure through which this property is owned can often cross multiple jurisdictions. The first job is to receive the full context on the client’s issue, and to fully understand what the client is looking to achieve. We seek to obtain all the information already gathered by the client and prepare a bespoke strategy, weighing up the costs versus the benefits of any proposed approach and consult the client on the most cost-efficient way to achieve desired outcomes. In addition to advising clients on the best course of action, it is critical to be candid with clients in advising against certain actions, which would likely be ineffective or even counterproductive. In most matters, the best outcomes for clients are achieved through investigators and lawyers working closely together to develop, or support, a clear legal strategy. We need to be well versed in working across a range of jurisdictions, understand that investigations can evolve rapidly, and have the experience and know-how to be able to revise strategies and meet changing requirements at any point of an investigation. Which are the most useful tools or technology available to maximise the chances of success? There are a range of proprietary databases and AI technology that are becoming increasingly advanced and intuitive. This technology is an essential tool for investigators to streamline and automate open source and public record research. However, even with access to an array of high-quality databases and records repositories, human input is still paramount to draw out all relevant connections and to maximise the effectiveness of open-source research. For example, investigators can automate searches across online corporate records archives, significantly cutting down time needed to map a subject’s corporate footprint. However, completing and validating this research often requires the subsequent retrieval of the original corporate filings from the official source. In one previous case, we were instructed by a client to identify the global asset footprint of a public official believed to have acquired substantial assets outside of their home country through bribery and corrupt schemes. We were ultimately able to connect the subject to ill-gotten assets – a global portfolio of high value real estate – through in-depth analysis of social media profiles belonging to the subject’s family. Initial analysis and connection mapping was made easier by the technology at our disposal. Then, through further analysis we were able to identify a network of nominees used by the subject to hold the real estate on their behalf, obfuscating the connection between the subject and these high-value assets. The link between the subject and these properties did not exist in official records and it needed an 26 LAWYER MONTHLY FEBRUARY 2024 I think there is now a greater understanding of what investigators can offer in terms of asset recovery and a willingness from lawyers to engage with them early in the process.
investigator to build on the information provided by the technology. Beyond the technology, having experts in-house is critical to our approach. You cannot attend a conference on asset recovery now without the word ‘crypto’ being mentioned. As we have seen with drug taking in sport, criminals are often at the forefront of innovation and a couple of steps ahead of the authorities, leaving investigators, lawyers and law enforcement playing catch up, even when it comes to legislation. At K2, we now have crypto professionals in-house. This capability and true understanding of the technology and ways it can be used are critical to our investigations. What challenges can occur when seeking or obtaining information about assets and enforcing their recovery? One of the biggest hurdles we face as investigators can be proving that the subject of any set of legal proceedings is the true beneficiary of the assets that we have identified. It may be the case that we have multiple pieces of information pointing to ownership by the subject, but legally speaking that person may not be the “paper” owner of the asset. Individuals can go to great lengths to obfuscate their links to assets. Common strategies here include using proxies to hold assets on trust, employing nominee shareholders and directors and also relying on the secrecy that surrounds ownership of entities registered in offshore jurisdictions. Only in recent years, a small number of corporate registries in these jurisdictions have begun releasing the details of company directors. However, this is as far as most offshore jurisdictions will go. Details of corporate ownership typically remains opaque, despite various governmental efforts to improve this. For instance, if an overseas company owns property in the UK, there is now an obligation for those companies to register details of their WWW.LAWYER-MONTHLY.COM 27
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