Charles Kuhn and Oliver Kipper on the CumEx cases and what the English criminal justice system might learn from Germany
Update: 2020-11-16
Description
The apex of this episode is where the theft of over €10 billion in German tax revenue meets a creaky English criminal law system. Oliver Kipper is a partner and criminal law specialist at kipper+durth in Germany and Charles Kuhn is a partner and financial crime specialist at the leading global law firm Clyde & Co in London.
Together they discuss the controversial dividend tax frauds known as the ‘Cum -ex’ cases, why the English criminal system could modernise with some German jury-less efficiency, and how Brexit may mean an infiltration of US law when it comes to tackling corruption in the UK.
The slow vs the swift
“You don’t have juries in Germany. The difficulties with juries are that they are very slow-moving trials, they are very unwieldy logistically”, explains Charles.
For example, as has been true in many high profile and exceedingly complex financial cases, trials have resulted in a hung jury, where the jury is discharged and, ultimately, there is a retrial.
Double theft
If a legal system has to unpick the labyrinth of deliberate financial deceit on an egregious scale for the second time, it is indeed a ‘burdensome’ and time-consuming waste of public money.
And isn’t that ironic? That soulless and greedy financial fraudsters steal billions of tax money and then bleed yet more from the public purse only for ‘justice’ never to be served.
But, does a jury mean justice?
Oliver reads from the ‘Secret Barristers’ Twitter feed: “It is beyond dispute that a trial with one judge and two magistrates is a lesser form of justice.”
A position to which he, of course, provides a frank rebuttal:
“You think twelve people hearing a case is a bigger form of justice, but justice is not dependent on the amount of people who decide upon it, it is dependent upon the quality of the decision.”
He argues that the German one judge and two magistrates for smaller cases at the Amtsgericht and three judges and two magistrates at the Landgericht system is simply a different and mostly speedier form of justice, not a lesser one.
Romanticism
Conversely, the English system runs on the historic and somewhat romantic notion of what we imagine a criminal trial to look like - the wigs, the twelve person jury and the drama.
But, the reality is, many argue that it is no longer fit for purpose. Time has moved on, cases are mounting, and billions of pounds are being stolen in a 21st century global financial system powered by ever-advancing technologies with the English justice system lagging very far behind.
Modernisation
With the proceeds of tax evasion (rumoured to be up to €55 billion) as a result of dividend investment manipulation being allegedly ‘laundered’ through London, Oliver and Charles believe the time for modernisation is now.
How? Well, expert panels could provide ‘very convincing’ support on financial cases, potentially some ‘Zoom’ trials and even an occasional jury trial when it comes to ensuring fair ‘checks and balances’.
Discussed in this podcast episode
Links
Together they discuss the controversial dividend tax frauds known as the ‘Cum -ex’ cases, why the English criminal system could modernise with some German jury-less efficiency, and how Brexit may mean an infiltration of US law when it comes to tackling corruption in the UK.
The slow vs the swift
“You don’t have juries in Germany. The difficulties with juries are that they are very slow-moving trials, they are very unwieldy logistically”, explains Charles.
For example, as has been true in many high profile and exceedingly complex financial cases, trials have resulted in a hung jury, where the jury is discharged and, ultimately, there is a retrial.
Double theft
If a legal system has to unpick the labyrinth of deliberate financial deceit on an egregious scale for the second time, it is indeed a ‘burdensome’ and time-consuming waste of public money.
And isn’t that ironic? That soulless and greedy financial fraudsters steal billions of tax money and then bleed yet more from the public purse only for ‘justice’ never to be served.
But, does a jury mean justice?
Oliver reads from the ‘Secret Barristers’ Twitter feed: “It is beyond dispute that a trial with one judge and two magistrates is a lesser form of justice.”
A position to which he, of course, provides a frank rebuttal:
“You think twelve people hearing a case is a bigger form of justice, but justice is not dependent on the amount of people who decide upon it, it is dependent upon the quality of the decision.”
He argues that the German one judge and two magistrates for smaller cases at the Amtsgericht and three judges and two magistrates at the Landgericht system is simply a different and mostly speedier form of justice, not a lesser one.
Romanticism
Conversely, the English system runs on the historic and somewhat romantic notion of what we imagine a criminal trial to look like - the wigs, the twelve person jury and the drama.
But, the reality is, many argue that it is no longer fit for purpose. Time has moved on, cases are mounting, and billions of pounds are being stolen in a 21st century global financial system powered by ever-advancing technologies with the English justice system lagging very far behind.
Modernisation
With the proceeds of tax evasion (rumoured to be up to €55 billion) as a result of dividend investment manipulation being allegedly ‘laundered’ through London, Oliver and Charles believe the time for modernisation is now.
How? Well, expert panels could provide ‘very convincing’ support on financial cases, potentially some ‘Zoom’ trials and even an occasional jury trial when it comes to ensuring fair ‘checks and balances’.
Discussed in this podcast episode
- Introductions to Charles Kuhn and Oliver Kipper
- The differences in the German and English criminal law systems
- The ‘Cum-ex’ cases
- Why jury trials slow the system down
- English romanticism and resistance to a system change
- Trial by Zoom and what may Brexit mean for cross-border criminal investigations
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