Doreen McBarnet

Adversary accounting: Strategic uses of financial information by capital and labour

Abstract This paper illustrates the concept and implications of “adversary accounting” in the context of both “intra-capital” and “capital-labour” disputes. Informed by a small pilot study on the uses made by unions and their approaches to financial information, we explore whether accounting techniques and financial information are necessarily “capitalist” tools or whether they can be used “strategically” by anyone with the access, skill and will to turn them to their advantage.

Legitimate rackets: Tax evasion, tax avoidance, and the boundaries of legality

Corporate crime is not the only means by which business can escape legal control. Law and legal definitions can also be used and manipulated to legally avoid both control and penalties or stigma associated with outright crime. This articl analyses such ‘legitimate rackets’ via a study of tax avoidance practices among business and ‘high net worth’ individuals. It describes some of the techniques employed, analyses the difference between tax evasion (an offence) and tax avoidance, explores the ‘grey area’ at the boundaries, and draws out the implications for theory and policy.

Transnational Transactions: Legal Work, Cross-Border Commerce and Global Regulation

This chapter demonstrates the problem-solving nature of creative legal work, focussing on an example of how cross-border transactions in emergent economies have been satisfactorily constructed in the absence of established local law and regulation. Lawyers use contract to create private regulatory structures as surrogates for state or international controls. The chapter however, also demonstrates the negative consequences of legal creativity, which is routinely used not to replace regulation but to circumvent it. Though legal creativity can be a force for regulation, the driving force behind it – innovation for competitive advantage – is more likely overall to frustrate regulation than to promote it.

Lawyers in the Market: Delivering Legal Services in Europe

The creation of the Single European Market (SEM) presents lawyers with both an opportunity to provide legal services and a challenge to meet legal needs and to be competitive domestically and internationally. The stimulation of competition and trade in Europe and beyond, encouraged by a burgeoning of national and European regulation, is likely to lead to an increased demand for legal services across a wide field of legal practice. The opportunity to provide legal services and the challenge of meeting the demand for legal services are not new. In the last two decades or so, the way law firms are organized and the nature of services provided have been transformed in the United Kingdom, the United States of America, and western society generally.1 Several contrasting viewpoints on this transformation have emerged. Some have focussed mainly on the profession and its response to an increasingly competitive market;2 others on the conjunction between organizational imperatives within the law firm and changes in the legal and business environment;3 others still have put the main spotlight on the market for legal services itself. This chapter focuses on lawyers and the market, in the context of the Single European Market. The creation of the SEM promises a great expansion in the market for legal services. The declared goals of the SEM, combined with the use of law to achieve them; the emphasis on the need to create competitive advantage; and the likely increase in the size of the SEM all point in this direction. These will be considered in the first part. Law firms have begun restructuring in response. Some examples are presented in the second part. At the same time, barriers still exist in the market for legal services in Europe. These will be considered in the third part. In the final part, some implications of lawyers in the SEM will be reviewed.

Two Tiers of Justice

The lower courts1 are where most of the work of the criminal law is done—they are also where the characteristics of legality and justice are least in evidence.

Convincing the court: The Structure of Legal Proof

The core of the liberal democratic concept of criminal justice is that a person is innocent until proved guilty. Justice does not rule out punishment; on the contrary it deals in ‘just deserts’. What the ideology of justice is opposed to is arbitrary punishment. The important criterion in dealing out ‘just deserts’ is that the recipient should have been proved guilty. The whim of kings, the barbarism of joust, the mysticism of magic should be replaced by a rational method of proof. The trial is where that process of proof is not only carried out but put on public display—where justice has not only to be done, but be seen to be done. The plausibility of the trial as a process of proving the accused guilty is one criterion by which the ideology of justice stands or falls.

Strong and Weak Cases: the Trial in Context

The trial is the focal point of the ideology of democratic justice. Though the trial per se is older than democracy it assumed a form with the emergence of the democratic state which expressed a historically specific ideology of justice. Its emphasis on proof by a reasoned case reflected the victory of eighteenth-century ‘rationality’ over the superstition of trial by ordeal. Established rules of evidence and procedure date largely from the same period, expressing the end of arbitrariness and the establishment of the rule of law. The banner of Magna Carta and trial by jury was raised by Coke in the battle against absolute monarchy under the guise of resurrected tradition but also expressing the modern ideology of control by ‘the people’, as indeed did the demand that the trial must be public. The double-sided idea that the accused is presumed innocent till proved guilty and that the burden of proof lies with the prosecutor indicated a new ideological relationship between the citizen and the state: the citizen’s liberty would be the norm and any interference or punishment by the state a matter for clear and public justification. This last double-sided idea is indeed depicted as the lynchpin of the ideology of justice.

Standing Trial: Prosecutor’s Duties, Defendant’s Rights?

The rhetoric of justice is expressed not just in the general cliches surrounding the trial but in the specific roles of prosecutor and defendant that follow from them. Whatever the situation may be behind the scenes, once in court the prosecutor seems to be given all the duties and the defendant all the privileges. The rhetoric poses the trial essentially as a test for the prosecutor. The accused need do nothing—it is up to the prosecutor to prove guilt or fail. The ‘test’ involves five basic tasks for the prosecutor in proving guilt, with attendant rights for the defendant. First, the prosecutor, not the accused, must make the case; the accused can make a case or simply remain silent and the prosecutor may not prove a point by suggesting that silence means guilt. Second, the prosecutor must prove his case without using useful but inadmissible evidence, not, for example, introducing any reference to the defendant’s previous convictions although the defendant can always attack the credibility of a prosecution witness on this basis. Third, the prosecutor must prove guilt, which normally includes intent. Fourth, he must reach a minimum standard of what legally constitutes sufficient evidence for a conviction, and the accused may always close the case by submitting he has not done so. Fifth, he must pass the crucial subjective test of convincing the jury beyond reasonable doubt that his evidence is true.

Police Powers and the Production of Evidence

Incrimination is the first step in the process of conviction. Essentially it is a question of gathering and presenting information that pins enough evidence on an individual to charge him with an offence. One major complaint by police and prosecution—voiced for example by Sir David McNee, the Metropolitan Police Commissioner, and Sir Thomas Hetherington, Director of Public Prosecution, in their evidence to the Royal Commission on Criminal Procedures1—is that legal procedures surrounding arrest, search, and interrogation of a suspect limit their ability to conduct satisfactory criminal investigations and acquire incriminating information. Certainly a glance at the broad principles governing these areas of investigation would confirm the problems involved.